Tag Archive for: Asylum

David Isaacson

Lock Up Falsely Arrested Adjustment Applicants and Teenage Shoplifters, or Be Sued: the House’s “Laken Riley Act”

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On March 7, 2024, the Republican-led U.S. House of Representatives passed the “Laken Riley Act”, H.R. 7511. The bill was named after a murder victim from Georgia, whose “alleged murderer”, as the bill describes him, had been paroled into the United States from Venezuela and had previously been arrested for driving a scooter without a license (with a child who was not wearing a helmet) and for shoplifting. The bill describes its primary purpose as “To require the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft”.

Perhaps because the Laken Riley Act has little chance of passing the Senate or becoming law, there has been little public analysis of its details, although its initial passage by the House was covered by major media such as the New York Times and CNN. At least one press release has correctly observed that “Under the Laken Riley Act, a Dreamer who lives in a hostile state could be subject to indefinite detention simply because someone says they suspect them of a petty crime.” As it turns out, however, some of the details are even worse than that press release suggests.

The text of the Laken Riley Act would add a new paragraph (1)(E) to the list of those subject to mandatory detention during removal proceedings in INA § 236(c), 8 U.S.C. § 1226(c), covering “any alien who . . .

(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 212(a), and
(ii) is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense,”

H.R. 7511, § 3(1). It would require that “The Secretary of Homeland Security shall issue a detainer for an alien described in paragraph (1)(E) and, if the alien is not otherwise detained by Federal, State, or local officials, shall effectively and expeditiously take custody of the alien.” Id. § 3(3). In addition, it would allow lawsuits by “The attorney general of a State, or other authorized State officer” to file lawsuits challenging the release of aliens in alleged violation of INA § 236 and various other sections of law relating to immigration. Id. at § 4(a.)-(f.).

The most obvious problem with this new language would be that, as the above-quoted press release flagged, it does not require a conviction, only that one be “charged with” or “arrested for” the crimes in question. Mandatory detention following an arrest or charge that need not even lead to a conviction would be bad enough if it only applied to people who one would otherwise reasonably expect to be placed in removal proceedings, since even they are entitled under the Constitution to due process of law—and there has been at least one recent and notorious incident of an asylum-seeker being accused of a more serious crime than shoplifting before being exonerated. But for reasons that may be less obvious, the Laken Riley Act would go significantly farther even that that.

One problem is the breadth of the inadmissibility grounds which, together with any charge or arrest for burglary, theft, larceny or shoplifting, would trigger the mandatory detention. The reference to one “inadmissible under paragraph (6)(A). . . of section 212(a)” would cover anyone who entered without inspection, even if they have since been, for example, granted asylum, at least as the law has been interpreted by the Board of Immigration Appeals. INA § 212(a)(6)(A)(i) states that “An alien present in the United States without being admitted or paroled . . . is inadmissible”, and the BIA held in Matter of V-X-, 26 I&N Dec. 147 (BIA 2013), that a grant of asylum is not an “admission” for these purposes, leaving asylees subject to the grounds of inadmissibility (although with the proviso that they cannot be removed unless their asylum status is terminated). That scenario would at least bear some distant, tenuous resemblance to the cases that the authors of H.R. 7511 presumably thought they were trying to address, although the thought of an asylee, granted permission to stay in the United States for safety from persecution, being subject to mandatory detention due to potentially false charges of theft or shoplifting, is nonetheless horrifying. But the reach of H.R. 7511’s cited grounds of inadmissibility is even broader, and stranger, than this.

The ground of inadmissibility under INA § 212(a)(7), which applies to documentation requirements such as having a proper immigrant or nonimmigrant visa or passport, was presumably included in the Laken Riley Act order to capture parolees, as Laken Riley’s alleged murderer had been paroled into the United States. While the bill’s authors may have had in mind those who first arrive in the United States on parole, however, the language of the bill is broad enough to cover those who use advance parole to leave and re-enter the United States while they have a pending application for an immigration benefit, most commonly an application for adjustment of status to that of a Lawful Permanent Resident (green card holder). They, too, will upon their return be technically inadmissible for lack of an immigrant visa, until their applications for adjustment of status are granted, and so INA § 212(a)(7) is the ground of inadmissibility under which they would be charged if placed in removal proceedings. Under the Laken Riley Act, therefore, an applicant for adjustment of status who travels on advance parole, and is later incorrectly charged with or arrested for theft or shoplifting, would need to be detained by immigration authorities until the completion of those removal proceedings. If visa numbers had become unavailable since the filing of that adjustment application (what is commonly known as “retrogression”), the proceedings could potentially drag on for years until a visa number became available again, and during all of that time, the Laken Riley Act would mandate detention of the adjustment applicant.

Another problem with the structure of the Laken Riley Act is that while a “conviction” under immigration law has been defined to exclude many juvenile delinquency proceedings, as explained by the BIA in Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), there is no such case law regarding an arrest or charge, nor does the text of the Laken Riley Act include any such carve-out. Thus, the Laken Riley Act would apparently subject even a teenager charged with shoplifting under juvenile delinquency procedures to mandatory immigration detention, if that teenager had previously entered without inspection or traveled on advance parole, and had not yet become a Lawful Permanent Resident.

It gets worse. If state authorities had not considered it worthwhile to detain the falsely accused adjustment applicant or teenage shoplifter while sorting out a minor criminal charge, section 3(3) of the Laken Riley Act would mandate that DHS “effectively and expeditiously take custody of the alien.” And if DHS did not do this, according to section 4(b) of the Laken Riley Act, the attorney general of any state that could claim at least $100 in damage could sue them “to obtain appropriate injunctive relief.” So an attempt by DHS to be somewhat reasonable in enforcing these overly broad criteria under unjust circumstances would simply lead to litigation, and possibly a court order to more rigorously enforce the Laken Riley Act’s peculiar requirements.

The author’s own Representative in Congress, Jerrold Nadler, was quoted by CNN as having described the actions of Republicans in putting forward the Laken Riley Act as “exploiting [Laken Riley’s] death for a partisan stunt” and “throwing together legislation to target immigrants in an election year.” That description appears accurate. The legislation having been thrown together hastily, to exploit Laken Riley’s tragic death for partisan purposes, may help explain why the House would have passed legislation mandating the indefinite detention of falsely accused adjustment applicants and teenage shoplifters. But it does not excuse it.

Cyrus Mehta

How the Humanitarian Parole Program at the Border Can Serve as a Template for Further Relief Under the Broken Immigration System

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By Cyrus D. Mehta & Manjeeta Chowdhary*

Restive people at the U.S.- Mexico border for entry into the United States is not the new norm for the United States government. The usual procedure is to seek humanitarian relief through asylum under Title 8 of the United States Code citing a credible fear of persecution or other threats in their home country regardless of the wait period. However, in fiscal year 2020 with the outbreak of the coronavirus, the number of encounters at the border declined. As Covid became less acute, encounters at the border rebounded sharply in fiscal year 2021 and increased in fiscal year 2022 according to recently published data from U.S. Customs and Border Protection (CBP), the federal agency that encompasses the Border Patrol.

In March 2020, the Department of Health and Human Services (HHS) implemented Title 42 through the Centers for Disease Control and Prevention (CDC) under the Trump administration after the coronavirus outbreak. Title 42 of the United States Code is the code that addresses public health, social welfare, and civil rights. It grants the government the ability to take emergency action to stop the “introduction of communicable diseases.” But the purpose to invoke Title 42 under the Trump administration was not to control the virus but to use the health ground as a pretext for depriving people of their right to apply for asylum when they came to the United States.

Title 42 has been implemented poorly and widely criticized by immigration and humanitarian groups. It is being continued pursuant to a court order even though President Biden tried to end it.  People expelled are usually driven by bus to the nearest port of entry without their luggage or their belongings. Lateral flights are limited for families with young children. Opportunity to seek asylum has been denied not only to individuals crossing the border between ports of entry, but also applies equally to individuals seeking asylum at ports of entry. Cases of kidnapping, torture, rape or other violent attacks on people have increased. Nevertheless, the Biden administration has continued to expel migrants under Title 42, though to a lesser extent than the Trump administration. Although the Supreme Court has currently stayed the district court’s decision setting aside Title 42, the following extract from Justice Gorsuch’s dissent is worth noting:

But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Depriving asylum seekers of their right to apply for asylum by blocking them under Title 42 has been roundly criticized by asylum rights advocates, although one positive initiative of  President Joe Biden has been to expand the parole program initially launched for  Ukraine and Venezuela   last year. The expansion of the parole program will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela per month to be admitted to the United States for up to two years and will be eligible for work authorization. They must have a U.S. based supporter who agrees to provide them with financial support for the duration of their parole in the United States. Individuals and representatives of organizations seeking to apply as supporters must declare their financial support, and they must pass security background checks to protect against exploitation and abuse. For additional information on the process and eligibility requirements, please see the Processes for Cubans, Haitians, Nicaraguans, and Venezuelans page. Also, the applicants must apply through an online CBP One app. Applicants will be considered on a case-by-case basis at the discretion of immigration officers and must pass rigorous biometric and biographic national security and public safety screening and vetting; and complete vaccination and other public requirements. Individuals who enter the United States, Mexico, or Panama without authorization will generally be ineligible for these processes. It further confirms that nationals from Venezuela, Cuba, Haiti, and Nicaragua who do not avail themselves of this process, attempt to enter the United States without authorization, and cannot establish a legal basis to remain will be removed or returned to Mexico, which will accept returns of 30,000 individuals per month who fail to use these new pathways.

This expansion has not ruled out the existence of Title 42 public health order. It will be used alongside the provisions of the Immigration and Nationality Act (INA) under Title 8 of the United States Code for those migrants who cannot be expelled pursuant to Title 42.  INA § 235 allows for the prompt removal of those who do not claim a fear of persecution or torture or are determined not to have a credible fear after an interview with an Asylum Officer, in accordance with established procedures. Also, the CBP One app can be accessed on or after January 12,  2023 to all asylum seekers claiming Title 42 exemption. Each day at a set time, new appointment slots will be released, and one can schedule appointments fourteen (14) days in advance. Access to making an appointment will be “geofenced” to individuals who are physically located at the U.S.-Mexico border and in some major population centers in Central and Northern Mexico. Although the process is free, that’s too short a period for booking the slots, maybe it will end up in jamming the network. Further, some Title 8 relief such as asylum may not be available for those who have significant criminal history, prior removals under Title 8, or could pose a risk to national security. The objective is to have an improved removal process in existence when the Title 42 public health order is lifted.

Further, this expansion proposes a transit ban to those asylum seekers who had not previously applied for asylum in a third country before reaching the United States, as well as those who sought asylum without going through a new process at a port of entry. Individuals who cannot establish a valid claim to protection under the standards set out in the new rule will be subject to prompt removal under Title 8 authorities, which carries a five-year ban on reentry pursuant to INA § 212(a)(9)(A)(i). This rule will take some time to come in action as DHS and DOJ will invite public comment on the proposed rule.

Though the expansion through humanitarian parole has indubitably created some legal pathways for migrants from four countries, it has failed to address many questions such as:

  • Will the migrants from these four countries be subject to Title 8 or Title 42, if there is no financial supporter for them in the United States or a financial supporter is reluctant in supporting them or if they fail to pass the test of other requirements?
  • The parole program confirms that one should apply for parole through the CBP One app, but it fails to contemplate what should be done in cases where someone does not have technological access to download CBP one app, or where access to the app will be tough for those who does not know English or speak indigenous dialects beyond Spanish as well as for those who cannot obtain legal representation to help them navigate the process.
  • On being asked if the requirement to buy an airline ticket could prejudice or lean it toward wealthier migrants and make it harder for poorer migrants, President Biden replied yes and also said that “but there’s also ways to get to ports of entry along the border as well”. This is unclear. Did Biden mean that travelling by air is not essential and can be waived?
  • Will this really protect asylum seekers? How does this program help those individuals who left their countries in rush, rescuing their lives, and without any resources? How will they apply for parole through the app?
  • The proposed rule has been subject to criticism as this is the new version of the Trump version of the transit-ban on asylum seekers if they failed to seek protection in a third country before reaching the United States and if they “circumvent available, established pathways to lawful migration.” A similar transit ban was introduced by the Trump administration which was blocked by the Ninth Circuit Court of Appeals and was ruled as unlawful, holding that failure to apply for asylum in a transit country “has no bearing on the validity of a person’s claim for asylum in the United States;”
  • No legal pathways for migrants from other countries have been explained, they will either face removal proceedings under Title 8 or be expelled under Title 42.
  • Will this not suggest discrimination as humanitarian parole only applies to a narrow group of countries?

 

Despite all the flaws in the new process and Title 42 still being used, the humanitarian parole program under INA 212(d)(5) provides a template for President Biden to continue to expand his executive authority to provide relief when the immigration system has broken and the current Congress is too polarized to fix it. Within days of the announcement, the first group of migrants have already come into the US. More than 600 additional migrants from these four crisis-stricken countries had been vetted and approved to come to the U.S. One noted commentator Ilya Somin who sponsored refugees from the Ukraine has reported that the results were astonishing. “Nine days after my wife and I submitted the sponsorship forms, the U.S. government authorized admission to three Ukrainian refugees — Ruslan Hasanov, his wife, Maya, and their 2‑year‐​old daughter, Melissa. Less than five weeks after that they were here. This is little short of a miracle to those of us who have long lamented the sclerotic state of the U.S. refugee system.” Although those who have entered the US under humanitarian parole can only remain for two years, they can apply for asylum once they have been paroled in the US. The humanitarian parole program allows private sponsors backed by business organizations to also support nationals from the designated countries to legally work in the US. The program thus creates a pathway for noncitizens from the designated countries to  enter the US and work legally thus alleviating labor shortages in the US economy.

The possibilities of expanding parole to other immigrants also exist. For instance, beneficiaries of approved I-130, I-140 and I-526 petitions who are outside the US can be paroled into the US while waiting for their priority date under State Department Visa Bulletin to become current.  However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled into the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status.  Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their final action dates become current.

The parole of beneficiaries of approved petitions can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions. Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130, I-140 and I-526 petitions, and parole eligibility can trigger when either the petition is approved or at least when the Date for Filing (DFF) under the State Department Visa Bulletin is current for each petition. As proposed in a previous blog, the administration has the ability to move the DOF to close to current so long as it preserves one visa in each category.  Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 and I-526 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

Similarly, a program similar to humanitarian parole can be devised for those who have not been selected under the H-1B lottery under INA 212(d)(5). An employer could be able to sponsor a beneficiary who was not selected under the H-1B lottery and whose OPT may have expired by submitting I-134. There is no reason why the  programs similar to humanitarian parole cannot be deployed for those who were not able to successfully come to the US under the H-1B visa but who still have the same job offer for a temporary period of time. INA 212(d)(5) provides authority to parole a noncitizen on a “case-by-case basis  for urgent humanitarian reasons or significant public benefit.” Allowing a potential noncitizen who would have otherwise qualified for an H-1B visa parole into the US would potentially qualify as a significant public benefit.

The Biden administration’s authority to provide relief to backlogged beneficiaries of I-140 petitions in the US through parole or other administrative actions can also be explored. The concept of parole in place has been applied to those who have entered without inspection and have been able to adjust status as immediate relatives. Most beneficiaries of I-140 petitions have been admitted in the US and are in valid status. However, deferred action may be considered for certain vulnerable beneficiaries. In May 2022, USCIS considered deferred action and related employment authorization for noncitizens classified as SIJs who are ineligible to apply for adjustment of status to LPR status solely because a visa is not immediately available. Deferred action and employment authorization will provide invaluable assistance to these vulnerable noncitizens who have limited financial and other support systems in the United States while they await an available visa number. The DHS has also recently made available deferred action and  work authorization  to  noncitizen workers who are victims of, or witnesses to, the violation of labor rights, Similarly, there is no reason why backlogged beneficiaries of I-140 petitions cannot avail of deferred action and work authorization on a case by case basis. How about allowing aging our and aged out children of beneficiaries of I-140 petitions who cannot seek the protection of the Child Status Protection Act to seek deferred action? This group of vulnerable noncitizens are deserving of relief through executive action.

Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances. Noncitizens who can demonstrate compelling circumstances under 8 CFR § 204.5(p) should also be able obtain deferred action so that they can apply for advance parole to travel overseas.

There is much that the Biden administration can do in the next two years through humanitarian parole, deferred action and other administrative actions to provide relief to noncitizens while Congress remains paralyzed.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice)

*Manjeeta Chowdhary is a Junior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Using U.S. Immigration Law to Undermine Putin

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By Cyrus D. Mehta and Kaitlyn Box*

Since Russia’s invasion of Ukraine in late February 2022, there has rightly been much discussion of how to assist the Ukraine and its citizens. The United States’ immigration laws can plainly be employed to assist Ukrainian nationals who wish to seek refuge in the United States, including extending Temporary Protected Status for them. However, immigration can serve another important function, as well. One can harness immigration avenues that are already open to Russian citizens to welcome Russia’s “best and brightest” to the United States, thereby undermining Putin’s tyrannical regime. While immigration attorneys and advocates may not be able help courageous Ukrainians in the battlefield, we can help their cause by using our immigration law expertise in creatively finding pathways for Russians opposing Putin to come to the US.

In recent weeks, Putin has cracked down on those within the country who object to the war, targeting journalists who even refer to the operations in Ukraine as a “war” or “conflict”.  Many educated Russians who impose the war have been forced to leave the country out of fear of arrest or worse. With more and more companies and institutions withdrawing from Russia, many also find themselves concerned about the future of their career and ability to earn a living. Along with journalists, bloggers, and activists, I.T. professionals and other creatives have been leaving Russia in droves since the onset of the war.

Offering Russian nationals who oppose the war a safe harbor is a worthy objective in and of itself, but attracting Russian talent to the United States can serve another goal as well – undermining the Kremlin’s power and influence. The United States would undoubtedly benefit from an influx of Russian scientists, researchers, I.T. professionals and other skilled workers, and the Russian military and economy would suffer from the loss of this talent. Offering Russian nationals a streamlined process for immigration to the United States, as well as connecting them to employers and universities in the country, would assist in attracting top talent.

In the current absence of targeted programs for fleeing Russians, however, existing immigration options can help fleeing Russian national who wish to relocate to the United States. Russian nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa. In order to obtain an EB-1 visa, one must provide evidence of a one-time achievement of major, internationally-recognized award on the level of an Oscar or Pulitzer Prize, or meet 3 of the following 10 criteria:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

A noncitizen of extraordinary ability must also be able to demonstrate that she intends to continue working in her area of expertise. Importantly, no offer of employment or labor certification is required for an EB-1 visa.

Similarly, highly talented Russian nationals could consider applying for an O-1 visa, the nonimmigrant parallel to an EB-1 visa, as the O-1 visa can be effectuated more rapidly. Individuals with an extraordinary ability in the sciences, education, business, or athletics may be eligible for an O-1A visa, while those with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry may be eligible for an O-1B visa. A U.S. employer must file an O-1 petition on behalf of a foreign national of extraordinary ability, and must demonstrate that the beneficiary meets the relevant criteria. There are other visa options under immigration law, such as the H-1B visas and permanent residency in the employment and family based categories, although we have highlighted two that would be applicable to the “best and brightest.”

 Finally, Russian nationals who have publicly expressed opposition to the war, or even reported on it,  may also be eligible for asylum in the United States. Russia has already opened cases, both administrative and criminal, against people who have protested or written about the war.   As noted, on March 4, 2022 Russia enacted two laws, adopted and brought into force on March 4, that criminalize independent war reporting and protesting the war, with penalties of up to 15 years in prison. The laws make it illegal to spread “fake news” about the Russian armed forces, to call for an end to their deployment and to support sanctions against Russian targets. On March 23, 2022, Russia’s Parliament adopted amendments effectively expanding the ban on criticizing the armed forces to banning criticism of all Russian government actions abroad. Individuals who have a well-founded fear of persecution based on past persecution or a risk of future persecution due to their race, religion, nationality, membership in a particular social group, or political opinion may be eligible for asylum. They must be in the US or must be apply at a land border post or port of entry. If they come in through Mexico and apply at the Southern Border, they will be subject to Title 42 that has been used by both the Trump and Biden administrations to block asylum seekers out of fear that they will bring Covid-19 into the US. The Biden administration has exempted Ukrainians from Title 42 on a case by case basis, but Russians will be subject to Title 42.   Given the Putin regime’s recent increased sanctions on those who even discuss the war against Ukraine, Russian nationals who have openly opposed the invasion could potentially have a viable political opinion-based asylum claim.

The Biden administration has recently announced that the United States will accept up to 100,000 Ukrainian refugees, but U.S. immigration policy assist the victims of Russia’s invasion of the Ukraine in another way, also. By attracting highly skilled Russian nationals who oppose the war, the United States can both drain the Kremlin of key talent and shelter civilians who face danger in Russia through the effective deployment of US immigration policy. As the atrocities committed by Putin increase by the day, Russian nationals themselves, and the United States’ reception of these individuals, may be a key to achieving peace.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

David Isaacson

Elephants, Mouseholes, and Sickness: My Comment on the Latest Anti-Asylum Proposed Rule. Do You Have One Too?

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On the heels of the prior proposed rule restricting asylum and withholding of removal that I commented on and blogged about, the Department of Homeland Security and Executive Office for Immigration Review have put out yet another proposed rule to drastically restrict asylum and withholding of removal. This one would allow the expedited removal of asylum claimants who have come from countries where a “contagious or infectious disease” is “prevalent or epidemic” (which is to say, virtually everywhere), on the basis that they are a “danger to the security of the United States” and thus barred from asylum and withholding of removal. Those claimants who can establish that they would be tortured in their home countries may instead be removed to a different country.

Comments for this rule must be submitted by the end of the day (11:59 pm) on Monday, August 10. The preferred way to submit comments is through the “Federal eRulemaking Portal: http://www.regulations.gov.”, and “identified by Docket Number USCIS 2020-0013.” In particular, you can comment at https://www.regulations.gov/comment?D=USCIS-2020-0013-0001 .

As with the previous rule, whether or not you have more than 5,000 characters (the limit for the fillable form box, though you can exceed it by attaching a document) to say about this outrageous attack on asylum, I would strongly recommend that you say something. The more substantively different comments that are received (duplicates will be given little weight), the more objections DHS and EOIR will need to consider and address before promulgating a final rule.

Below is the current draft of my comment, a final version of which I will be submitting on Monday. This version does not comply with the fillable-field 5,000-character limit, so I intend to submit my comment as an attachment, which I ended up doing with a longer version of my comment last time, although while perhaps including a shorter summary in the character-restricted box.
__________________________

As a lawyer whose practice has included asylum work for more than 14 years, I write to comment on Docket Number USCIS 2020-0013, a proposed rule of both USCIS/DHS and EOIR/DOJ.

This proposed rule follows on DHS/EOIR RIN 1125-AA94 (which I will refer to as the “previous proposed rule”) as yet another effort to dramatically limit asylum in the United States, inconsistently with the structure and spirit of the Immigration and Nationality Act. It simply takes a different approach. If the previous proposed rule to limit asylum was baroque in its complexity, a sort of “kitchen-sink” approach, this proposed rule is a more precisely targeted dagger to the heart of the asylum system. The rule essentially proposes to equip the asylum system with an on/off switch—and there is little mystery about how this Administration believes the switch should be flipped. But such a major alteration of the statutory scheme requires Congressional authorization, and Congress has not authorized the installation of this particular switch.

The effect of proposed 8 CFR 208.13(c)(10)(ii) and proposed 8 CFR 208.16(d)(2)(ii) is to give the Secretary of Homeland Security, Attorney General, and Secretary of Health and Human Services the power to effectively end asylum from any country or region they wish, simply by designating one or more countries or regions as countries or regions where a dangerous disease is “prevalent or epidemic”, and asserting that the entry of asylum claimants from those countries or regions would pose a “danger to the security of the United States”. Most applicants from that country or region can then be summarily denied any protection at all. The few applicants who satisfy the impossibly high burden of affirmatively claiming a fear of torture, and then meeting the entire standard for deferral of removal during the course of an abbreviated credible fear interview, can simply be faced with removal to a third country (or, if they establish a likelihood of torture in that third country, presumably a fourth country). Some may then withdraw their claims, rather than be sent to a country about which they may know nothing and where they might die of starvation even if they were not tortured. Others, who do not withdraw their claims, can then be sent to the third country.

The bottom line will be that, as long as the relevant cabinet officials concur, no one fleeing persecution, no matter how badly persecuted they may have been and how strong their claim for asylum may be under the law enacted by Congress, need ever be allowed into the United States. Until dangerous diseases disappear from the countries of the world – which will probably never happen – asylum and withholding of removal will be a thing of the past.

This sort of leveraging of one ancillary, vaguely-worded provision within the law to defeat the operation of the entire asylum process is not consistent with the statute as properly interpreted. As the Supreme Court has told us: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). The “danger to the security of the United States” bars are ancillary in the sense that they were clearly never intended to screen out vast quantities of people.

In essence, the position of DHS and EOIR as reflected by the proposed rule is that, at least in a world where dangerous diseases are “prevalent” in many countries, the asylum process itself is a “danger to the security of the United States”. This is the proverbial tail wagging the dog, but worse—one might better describe it as the tail strangling the dog. DHS and EOIR may not in this way abolish the asylum process created by Congress.

The proposed rule cites the Attorney General’s opinion in Matter of A-H-, 23 I&N Dec. 774, 788 (AG 2005), for the broad proposition that “phrase “danger to the security of the United States” is best understood to mean a risk to the Nation’s defense, foreign relations, or economic interests.” Proposed Rule at 41209. But Matter of A-H- concerned a very different kind of danger than the danger purportedly at issue here. The applicant there was “a leader-in-exile of the Islamic Salvation Front of Algeria who was associated with armed groups that committed widespread acts of persecution and terrorism in Algeria,” Matter of A-H-, 23 I&N Dec. at 774 hn.1. It is quite a leap from a leader associated with terroristic armed groups, to ordinary citizens of countries where a dangerous disease is “prevalent”. That the proposed rule is forced to make such a leap, in order to find support for its position, is evidence of the weakness of the position.

The proposed rule also contains another major logical flaw. The premise of the proposed rule is that COVID-19 and other dangerous diseases would pose a threat to the United States if asylum applicants from countries suffering from those diseases were not expeditiously removed. However, the proposed rule takes no account of whether a disease is more prevalent in the United States or in the country from which the asylum seeker is coming. Given current statistics regarding COVID-19, in particular, many countries of the world would have a more logical basis to exclude travelers from the United States as a danger to public health than the other way around. Statistics from the World Health Organization (see (see https://covid19.who.int/table) indicate that the United States has more COVID-19 cases than any other country in the world, and more than double as many as any country other than Brazil. Another analysis of the data (at https://www.statista.com/chart/21170/coronavirus-death-rate-worldwide/) found that of the 10 worst-affected countries in the world, the United States has suffered more deaths per 100,000 inhabitants than any nation other than the United Kingdom and Chile. It is fundamentally arbitrary and capricious to exclude from the protection of asylum in the United States an applicant who comes from a country where a dangerous disease is prevalent, but less prevalent than in the United States, on the basis that this asylum-seeker is a danger to the United States. The logic seems to be that the asylum-seeker can be presumed to carry the dangerous disease, but how can that be so if they are less likely to have the disease than people already in the United States? Indeed, the arbitrariness is so great as to indicate that the (lesser) prevalence of infectious disease in other countries is simply being used as a pretext to shut down the asylum process

Admittedly, at least at the nation’s land borders, the impact of the proposed rule would be limited in the short run by the fact that CBP is already summarily expelling most asylum applicants under a legally dubious use of what it describes as “Title 42” authority, that is, pursuant to 42 U.S.C. § 265 (as enforced by “customs officers” under 42 U.S.C. § 268(b)). Presumably, however, one reason why DHS is attempting to create similar summary-expulsion authority by way of enhanced expedited removal under Title 8 of the U.S. Code is that it is aware the Title 42 expulsions are legally dubious, and may ultimately be halted by the federal courts—as one particular Title 42 expulsion indeed was halted following a lawsuit, spearheaded by the ACLU, in the case of J-B-B-C- v. Wolf. That the immediate impact of the proposed rule may be lessened by an existing legally dubious measure does not make the proposed rule itself any less legally problematic.

There is yet another major problem with the proposed rule, and that is who has proposed it. The proposed rule states at page 41214:

“The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register.”

The power to sign the document, that is, ultimately comes from Chad F. Wolf, even if it may not be his electronic signature on the document itself.

Others have pointed out why Chad F. Wolf was never properly delegated the powers of the Secretary of Homeland Security in the first place, and I will not rehash those arguments in their entirety, but will instead incorporate by reference, in my comment, paragraphs 157-210 of the complaint in Casa de Maryland v. Wolf, 8:20-cv-02118-PX (D.Md. filed 7/21/20), available at https://asylumadvocacy.org/wp-content/uploads/2020/07/Casa-de-Maryland-v.-Wolf-Complaint.pdf and provided as an attachment hereto for ease of reference. I also provide, as an attachment to this comment, an informative blog post from Lawfare along similar lines, see https://www.lawfareblog.com/senate-should-ask-chad-wolf-about-his-illegal-appointment. My point is a simpler one. Even assuming for the sake of argument that he had come to his position entirely appropriately (a point I do not concede), Chad F. Wolf has been purporting to occupy his position on an acting basis for longer than permitted by statute.

The Federal Vacancies Reform Act (FVRA), codified in relevant part at 5 § U.S.C. 3346, provides:

(a)Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—
(1)
for no longer than 210 days beginning on the date the vacancy occurs; or
(2)
subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.
(b)
(1)
If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—
(A)
until the second nomination is confirmed; or
(B)
for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
(c)
If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Chad F. Wolf has purportedly been serving as Acting Secretary of Homeland Security since November 13, 2019 (which was not during an adjournment of the Congress sine die). See Chad F. Wolf, https://www.dhs.gov/person/chad-f-wolf. The proposed rule was filed on July 8, 2020, 239 days later. The better view is that the 210-day FVRA clock began to run substantially before Mr. Wolf’s appointment, upon the resignation of Kirstjen Nielsen as the last Senate-confirmed Secretary of Homeland Security; the purpose of the FVRA would not be served by allowing the President to install an endless line of different acting Secretaries for as long as desired so long as a new one came in every 209 days. But even on the most generous conceivable calculation, beginning only with the acting service of Mr. Wolf himself, the 210 days for Mr. Wolf would have run before the proposed rule was filed. No nomination has been filed with the Senate for the position of Secretary of Homeland Security, so there is no second 210-day clock.

Chad F. Wolf was, purportedly, appointed as Acting Secretary of Homeland Security after the resignations of Kristjen Nielsen and then Kevin McAleenan. This is not, in the sense of the statute, a “vacancy caused by sickness”, 5 U.S.C. 3346(a). Thus, he was no longer capable of serving in an acting capacity, in accordance with the law, as of the time this proposed rule was promulgated, more than 210 days after not only the vacancy but also the beginning of his purported appointment.

Presumably, DHS does not intend to defend the prolonged service of Mr. Wolf on the basis that the failure to submit a nomination for his position was “caused by sickness,” 5 U.S.C. 3346(a), in the form of a sickness on the part of the current President. Nor is a more general form of metaphorical sickness on the part of the Executive Branch likely to be the sort of thing contemplated by § 3346(a), even if reasonable people might believe it to exist. In some colloquial sense, one could perhaps describe this proposed rule itself as “caused by sickness”, but the FVRA addresses whether sickness was a cause of a vacancy in an office, not whether it was the cause of a vacancy in a putative acting official’s conscience. There is no circumstance here that would excuse a violation of the 210-day limit.

Because Mr. Wolf was purporting to serve as Acting Secretary of Homeland Security in violation of the FVRA at the time he authorized Chad Mizelle to sign the proposed rule in the Federal Register, his action in doing so “shall have no force or effect.” 5 U.S.C. § 3348(d)(1). The proposed rule was never validly promulgated, and for that reason alone no final rule should be issued, even leaving aside the substantive defects discussed above.

This is not a mere technicality. The FVRA is intended to protect the Constitutional principle that appointed officers must be confirmed by the Senate, by preventing the President from ignoring the Senate indefinitely and leaving “acting” officers in place indefinitely. That is precisely what has happened with Mr. Wolf, and it is precisely what the statute forbids. The Constitution demands that this rule not move forward from such a fundamentally illegitimate beginning.

But for the reasons discussed above, it is not merely the identity of the putative acting official promulgating this rule that is illegitimate. It is the entire cynical attempt to destroy the asylum system in the United States using purported infectious disease concerns as a pretext. This is simply not something that the Executive Branch has the legal authority to do.

David Isaacson

Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?

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In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 (July 22, 2020), the Federal Court of Canada recently ruled that the statute and regulations implementing the Safe Third Country Agreement (STCA) between Canada and the United States regarding the processing of asylum and refugee claims were of no force or effect because they violated section 7 of the Canadian Charter of Rights and Freedoms.  This is good news for those in the United States who may want to claim refugee status at a Canadian land port of entry in the future, which the STCA ordinarily prohibits, but it is not as good as it may seem at first glance.  The ruling was suspended for six months, so the STCA rules remain in effect at least until January 22 (possibly longer if the suspension is extended pending appeal).  The ruling also does not affect a different restriction on making refugee claims in Canada if one has previously applied for asylum in the U.S. or certain other countries, section 101(1)(c.1) of the Immigration and Refugee Protection Act (IRPA), which was recently upheld against a Charter challenge.  As I will explain, however, the reasoning in Canadian Council for Refugees severely undermines the policy basis for section 101(1)(c.1), suggesting that it should be repealed even if it is not void as violative of the Charter.

The STCA, which I have discussed in prior posts, ordinarily precludes asylum-seekers who are present in one of the United States or Canada from making a claim for asylum or refugee status at a land border port of entry of the other country.  Some claimants with qualifying family members may still make refugee claims at a Canadian port of entry, as may unaccompanied minors and a few other categories of people.  (The STCA does not apply to those who enter between ports of entry, although such entries in order to apply for refugee status are currently forbidden during the COVID-19 pandemic by an Order in Council under the Quarantine Act.)  In general, however, one who comes to a Canadian land port of entry to make a refugee claim, and is not exempt from the STCA, will be sent back to the United States.

Upon being sent back to the United States, however, such claimants are often detained under unacceptably harsh conditions, just like other asylum claimants at a U.S. port of entry.  As the Court in Canadian Council for Refugees explained of one such claimant returned to the United States, who was an applicant in the case and had provided an affidavit:

Ms. Mustefa, upon being found ineligible . . . was returned to the US by CBSA officers and immediately taken into custody by US authorities.  She was detained at the Clinton Correctional Facility for one month and held in solitary confinement for one week.  She was released on bond on May 9, 2017.

[96]  Ms. Mustfa’s imprisonment evidence is compelling.  In her Affidavit she explains not knowing how long she would be detained or how long she would be kept in solitary confinement.  She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”  Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons.  Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds.  Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions.  She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day.  Ms. Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 95-96.  There were also similar, although anonymized, affidavits provided by other rejected asylum claimants, further confirmed by “affidavit evidence of lawyers who provide assistance to those detained.”  Id. at ¶ 98.

Because this deprivation of liberty and the hardship resulting from detention result when refugee applicants covered by the STCA are returned to the United States under the implementing statute and regulations and are handed over to U.S. officials by Canadian officials, they were held to engage Section 7 of the Charter, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  They were also found not to be justified under Section 1 of the Charter, which provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Court therefore held that the STCA implementing provisions, “s. 101(1)(e) of the IRPA and s. 159.3 of the Regulations are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate s. 7 of the Charter.”  Canadian Council for Refugees, 2020 FC 770 at ¶ 162.  This holding was not made immediately effective, however.  Rather, the Court stated in the conclusion of its opinion that “To allow time for Parliament to respond, I am suspending this declaration of invalidity for a period of 6 months from the date of this decision.”  Id. at ¶ 163.

Even if the declaration of invalidity takes effect, however, this unfortunately will not mean that all those coming to Canada from the United States to seek protection will be entitled to the full refugee status determination process.  Under section 101(1)(c.1) of IRPA, enacted just last year,

A claim is ineligible to be referred to the Refugee Protection Division if

. . . .

the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

IRPA s. 101(1)(c.1).  There are several countries with which Canada has such information-sharing agreements, including the United Kingdom, Australia, and New Zealand as well as the United States, but the creation of IRPA section 101(1)(c.1) appears to have been primarily targeted at people who had previously made asylum claims in the United States.

As I discussed in a previous blog post, the measure that became IRPA section 101(1)(c.1) was based on the incorrect premise (publicly stated by a spokesman for the then-Immigration Minister) that the U.S. and Canadian asylum systems were “similar enough” that an application rejected by the U.S. would likely be rejected by Canada as well.  Claimants covered by section 101(1)(c.1) will, under IRPA section 113.01, have access to a somewhat enhanced version of a Pre-Removal Risk Assessment (PRRA) that comes with a right to an oral hearing, but the PRRA process is a poor substitute for a full Refugee Protection Division hearing and traditionally has a lower approval rate.

Unfortunately, in a decision the day after the Canadian Council for Refugees ruling that received less publicity, a judge of the Federal Court upheld IRPA section 101(1)(c.1) against a Charter challenge.  In Seklani v. Canada (Public Safety and Emergency Preparedness), 2020 FC 778 (July 23, 2020), the Court held that section 101(1)(c.1) did not violate Section 7 of the Charter, because Section 7 was only engaged at the point of actual removal and a possible application to defer this removal, not an earlier stage when access to Refugee Protection Division proceedings was being determined.   Those subject to section 101(1)(c.1) would not be immediately removed to the United States, or anywhere else, when their claims were found ineligible to be referred to the Refugee Protection Division.  Rather, they would still have access to the PRRA process before removal (although the applicant in Seklani did not immediately have such access because his home country of Libya was subject to an Administrative Deferral of Removals and so he was not subject to imminent removal in any event), would still be able to seek a deferral of removal from the Canada Border Services Agency (CBSA), and would be able to seek judicial review and a stay of removal in connection with a denial of the PRRA or the deferral of removal.  Their Section 7 rights were thus found not to be engaged by the ineligibility determination.

Whether or not the holding in Seklani that section 101(1)(c.1) does not violate the Charter is correct, the judgment regarding the STCA in Canadian Council for Refugees further supports the argument that section 101(1)(c.1) is bad policy and should be repealed.  The U.S. policy regarding detention of asylum-seekers at the border that underlay the judgment in Canadian Council for Refugees is itself a substantial distinction between the U.S. asylum system and the Canadian refugee system—one that further undercuts the suggestion in support of section 101(1)(c.1) that the two systems are the same and failure in the U.S. asylum system would likely portend failure in the Canadian refugee system.

If an asylum applicant is detained upon reaching the United States in the way that Ms. Mustefa was, and in the way that many other asylum applicants are when they seek to enter the United States, this can significantly impact their chances of success on their asylum claim.  It is more difficult to find counsel, gather evidence, or contact potential witnesses when one is in detention. It is not even merely an issue of a one-month detention such as Ms. Mustefa experienced, although that is bad enough; being released from detention has become sufficiently difficult that it has inspired a number of class-action lawsuits, such as Damus v. McAleenan, which addressed the extremely low rates of parole from custody by several ICE field offices around the United States, and Velesaca v. Wolf, which addressed the near-universal denial of release on bond by the ICE New York City Field Office.

The Canadian Council for Refugees judgment itself recognized the difficulties in pursuing an asylum claim that are caused by detention, in the course of finding an increased risk of return to harm for one of the applicants that implicated the Section 7 interest in security of the person.  As the Court explained:

In the case of ABC, I am satisfied that the evidence supports a finding that the risk of refoulement for her is real and not speculative had she been detained in the US.  I find this based upon the evidence documenting the challenges in advancing an asylum claims for those detained.  There is evidence of the barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the US.

[107]  Professor Hughes describes the difficulties faced by those who are detained including: detainees not being able to afford phone calls, people from outside the detention facility not being able to contact detainees because they cannot call them, evidence being lost due to transfers between detention centres, and detainees not having access to translators they may need to fill in the necessary forms.

[108]  Mr. Witmer, a lawyer working with detainees, describes issues with “basic communication” as an impediment to the making of an asylum case.  He notes that detainees are unable to leave messages with a call back number.  He also notes that while many detainees are accustomed to communicating with family using email, social media and internet-based communication apps, they do not have access to these services in detention.

[109]  Further, lawyer Timothy Warden-Hertz estimates that, at the detention centres his organization services, the Northwest Detention Center (NWDC), 80-85% of those detained do not have a lawyer and must represent themselves.  He estimates that 75% of asylum claims from the NWDC are denied as compared to the national average of 52% of claims being denied.

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 106-109.

Those who make refugee claims under Canadian law at a port of entry (if exempt from the STCA) or otherwise, in contrast, are not generally automatically detained as in the United States.  They may obtain counsel, communicate with friends and relatives to gather evidence, and prepare for their hearings without being hindered in these efforts by incarceration.

In this regard, as in the other respects discussed in my previous post, U.S. asylum proceedings are simply not “similar enough” to Canadian refugee proceedings.  Accordingly, it is inappropriate to presume, as IRPA section 101(1)(c.1) does, that those whose U.S. asylum claims are denied, would have little chance of succeeding in Canadian refugee claims.  Section 101(1)(c.1) should be repealed, and those whose claims were denied under the inappropriately detention-intensive U.S. asylum system should be given a full opportunity to pursue their refugee claims in Canada.

David Isaacson

My Comment on Proposed Draconian Changes to Asylum Regulations – Do You Have One Too?

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The Department of Homeland Security and the Executive Office of Immigration Review (the agency within the Department of Justice that runs the immigration courts) have jointly proposed a new rule entitled “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” that would drastically change the law in the United States governing applications for asylum and other protection from persecution and torture. The proposed rule is very lengthy, but its common theme is the creation of many different reasons to deny protection to asylum-seekers, sometimes even without a hearing.

If the new rule were finalized as proposed and were to take effect, applications for asylum could be denied for reasons such as being based on gender or domestic violence, being based on a political opinion that doesn’t match the new narrow definition of what a political opinion should be, or because the applicant had traveled through too many countries on the way to the United States, or had not been able, as an undocumented immigrant, to pay all of their taxes exactly correctly. People could be deported without a full hearing because the court of appeals for the area where they happened to be detained had issued a decision disfavoring their kind of claim, even if other courts of appeals had ruled differently and the Supreme Court might resolve the conflict in their favor. People could also be deported without a hearing because the immigration judge reading their paper application thought they had no claim for asylum without hearing from them directly at all.

These changes have been strongly criticized by the American Immigration Lawyers Association and the National Immigrant Justice Center, among other groups. They can be criticized in a meaningful way by anyone with an interest in this area, as well, because the government has, as required under the Administrative Procedure Act (APA), invited public comment regarding the proposed rule.

Public comments on the proposed rulemaking “must be submitted on or before July 15, 2020”, and can be submitted online “prior to midnight eastern time at the end of that day.” The link to submit a comment online is https://www.regulations.gov/comment?D=EOIR-2020-0003-0001 . Comments can also be submitted by mail, if postmarked by July 15, for those who may prefer that method of communication, in which case they should be directed to Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. Comments must be “identified by the agency name and reference RIN 1125-AA94 or EOIR Docket No. 18-0002”.

The main online comment field is restricted to 5,000 characters. I have drafted a comment that currently uses 4,996 of those characters. There is much to criticize about the rule beyond what I could fit under that limit, and I am considering whether to attach a longer criticism to my final online comment as a PDF document. There may be no guarantee that DHS and EOIR would read my attachment, but then again there is no guarantee, other than the prospect of litigation under the APA, that they will truly consider any of the comments, and I do not think there would be any legal merit to a refusal to consider a comment just because part of it was submitted as an attached PDF. Anyone else who has more to say than the 5,000 character limit may want to consider providing an attachment as well.

But whether or not you have more than 5,000 characters to say about this outrageous attack on asylum, I would strongly recommend that you say something. The more substantively different comments that are received (duplicates will be given little weight), the more objections DHS and EOIR will need to consider and address before promulgating a final rule.

The current version of my comment, which I may revise before the Wednesday deadline but am posting now in the hope that it may inspire other comments, is as follows:

As a lawyer whose practice has included asylum work for nearly 15 years, I write to comment on DHS/EOIR RIN 1125-AA94. The common thread of this proposal is disregard for the law in an effort to limit access to asylum and related relief however possible.

It is inappropriate for credible fear reviews, per proposed 8 CFR 1003.42(f), to consider only “decisions of the federal courts of appeals binding in the jurisdiction where the immigration judge conducting the review sits” and not those of other courts of appeals. The credible fear process is meant to ascertain if “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”. INA §235(b)(1)(B)(v). There may be a “significant possibility” that venue will be changed to the jurisdiction of a different court of appeals before a decision on the asylum application: credible fear reviews will often be conducted near the border or an international airport, while aliens released on bond or parole may not remain nearby. Or, if there is a conflict between courts of appeals, there may be a “significant possibility” that the Supreme Court could resolve the conflict, see Supreme Court R. 10(a), in favor of a different circuit. As formerly set out in guidance for asylum officers, aliens should be given the benefit of favorable case law from a different circuit than the one where a determination is made. When a claim has a significant chance of success under the law of any circuit, there is a significant possibility that the alien could ultimately establish eligibility for asylum.

Requiring applicants in credible fear proceedings to establish “a reasonable possibility” of persecution or torture is inappropriate. Credible fear review is meant as a brief screening process. High standards increase the risk that people may be sent to their deaths or torture. It is bad enough to run this risk in INA §238 proceedings for people with aggravated felony convictions, who might themselves pose risk, or in reinstatement of removal, for people who have theoretically had a prior opportunity to seek protection. It is worse to do so for non-criminals who face a policy-based bar to asylum during their first opportunity to request U.S. protection.

The regulation should not exclude, from the definition of particular social group, claims involving “interpersonal disputes” or “private criminal acts” “of which governmental authorities were unaware or uninvolved.” Private harm based on membership in an otherwise qualified particular social group, which the government is unable or unwilling to prevent, is persecution, see, e.g., Rosales-Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018); Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015), even if governmental authorities were unaware or uninvolved.

Nor is it appropriate to preclude claims based on domestic violence or gender. This is inconsistent with, for example, Canadian refugee law. See, e.g., Kauhonina v. Canada (Minister of Citizenship and Immigration), 2018 FC 1300; Jeanty v. Canada (Minister of Citizenship and Immigration), 2019 FC 453.

Proposing to “define political opinion as one . . . in which the applicant possesses an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state or a unit thereof” is also indefensible. An opinion about what policy should be, as opposed to who should control the state, is still political. As a matter of English usage, we would not say that everyone who supports the same candidates for President, governor, Congress, state legislature, etc., must have all the same political opinions. People may differ on such matters as whether abortion should be legal, but vote for the same party—there are pro-choice Republicans like Senator Lisa Murkowski, or pro-life Democrats like Senator Bob Casey. If Senator Murkowski would vote for the same Republican candidates as someone who believes abortion should be illegal, this does not mean the two have no differing political opinions. Persecution of Senator Murkowski for her view on abortion would be based on political opinion even if the persecutor agreed with her votes for Republican candidates.

The list of 9 adverse factors supporting denial of asylum as a matter of discretion is inappropriate. The better, well-established rule is that “the danger of future persecution can overcome all but the strongest adverse factors.” Huang v. INS, 436 F.3d 89, 100 (2d Cir. 2006). Basing denial on how many countries an alien traveled through (perhaps to change planes) is absurdly arbitrary; the other 8 are little better.

The reduction in confidentiality, besides being inappropriate, should not apply retroactively. Those subject to the prior regulatory promise of secrecy should retain its benefits.

5,000 characters is not enough to rebut this 43-page monstrosity.

David Isaacson

“Safe” Third Country Agreements and Judicial Review in the United States and Canada

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The subject of safe third country agreements, or as the U.S. government has begun calling them “Asylum Cooperation Agreements”, has been in the news lately in both the United States and Canada.  The U.S. and Canada have had such an agreement with one another since 2002, implemented pursuant to section 208(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. 1158(a)(2)(A), and section 208.30(e)(6) of Title 8 of the Code of Federal Regulations (CFR) in the U.S., and pursuant to section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and sections 159.1-159.7 of the Immigration and Refugee Protection Regulations (IRPR) in Canada.

The idea of a safe third country agreement (STCA) as it has traditionally existed, as between the U.S. and Canada, is that the two countries agree that many applicants for asylum or refugee status, who have first come to one of the two countries should apply in that country where they first arrived, rather than going to the other country to apply.  If both countries have “generous systems of refugee protection,” as the preamble to the U.S.-Canada STCA puts it, then there may arguably be efficiency in relegating people to apply for asylum in the first of the two countries that they reach.

The U.S.-Canada STCA covers only people who make a claim at a land border port of entry or are being removed from one of the two countries through the territory of the other.  It does not apply to citizens of either country or stateless persons last habitually residing in either country.  It also has other exceptions for applicants who have certain family members with lawful status in the country where they wish to make a claim, or whose family members already have ongoing asylum/refugee claims in that country, or who are unaccompanied minors, or who either have a valid visa for the country where they wish to apply or did not need a visa for that country but did for the other.  In addition, each country may exempt additional applicants whom it determines to process itself on the basis that it is in its public interest to do so. These exceptions are laid out at Articles 2, 4, and 6 of the agreement itself, and are also detailed at 8 C.F.R.§ 208.30(e)(6) and at IRPR sections 159.2 and 159.4-159.6.

As many refugee claimants have come to have less faith in the U.S. asylum system than the Canadian refugee system, and due to the restriction of the U.S.-Canada STCA to entrants at land ports of entry (or instances of removal through one country by the other), an increased number of refugee claimants have entered Canada at unauthorized crossing points outside a port of entry in order to make a claim, most notoriously at Roxham Road along the New York-Quebec border.  (The idea is not to evade immigration officers, but simply to avoid the application of the STCA; news articles describe an oft-repeated formal warning to the applicants that entry at that specific place will result in arrest, which does not generally dissuade people since being arrested after entry into Canada, and making a refugee claim, is precisely their goal.)  There has been discussion of modifying, suspending, or terminating the agreement, and one Conservative Member of Parliament suggested that the entire U.S.-Canada border be designated as a port of entry, although in practice that would have very peculiar consequences for the immigration system as a whole (since it would mean applicants for admission in general could show up at any point along the border to be processed).  There has also been a legal challenge, discussed further below, to the notion that the U.S. can currently qualify as a safe third country consistent with Canadian constitutional law and international obligations.  The Canadian government also recently, as part of a budget bill, added to IRPA a provision separate from the STCA but also evidently designed to discourage claimants from the United States, section 101(1)(c.1), which bars refugee claims by those who have previously claimed in the United States or another country with which Canada has an information-sharing agreement—a provision I have criticized in a prior blog post.

The U.S., meanwhile, has been entering and seeking to enter into “Asylum Cooperation Agreements” with various Central American countries, Guatemala being the first followed by Honduras and El Salvador.  An interim final rule was published last week to implement such agreements, and removal from the United States under the Guatemala agreement is said to have begun just a few days ago.

The signing and implementation of these “Asylum Cooperation Agreements” has attracted a great deal of criticism, because describing Guatemala, Honduras and El Salvador as safe third countries, or safe countries in any sense, would be highly dubious, to put it mildly.  A piece in Foreign Policy described the Agreement with Guatemala as “a lie”, given Guatemala’s high level of crime – the U.S. State Department’s Overseas Security Advisory Council (OSAC) having written of the country as “among the most dangerous countries in the world” with “an alarming high murder rate” – and lack of resources to process asylum cases – the country having apparently received only 257 asylum claims in 2018 and adjudicated only 17.  Indeed, even the U.S. asylum officers implementing the plan to remove asylum-seekers to Guatemala under the agreement have reportedly been given “materials . . . detailing the dangers faced by those in the country, including gangs, violence, and killings with “high levels of impunity.””  Honduras, where the U.S. Government is said to intend to implement a similar agreement by January, is also problematic to describe as a “safe” country, with OSAC relaying a Department of State Travel Advisory “indicating travelers should reconsider travel to the country due to crime.”  Similarly El Salvador, with which the U.S. has also signed an agreement despite its having one of the highest homicide rates in the world.  And given the radically underdeveloped asylum systems in Guatemala and likely the other countries as well, the requirement under INA 208(a)(2)(A) that “the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection” if removed seems unlike to be met.  The point of threatening removal to these countries seems to be more to discourage asylum claims entirely.

Moreover, the screening process to determine whether asylum-seekers can be exempted from removal to Guatemala, based on a fear of persecution there, is already being implemented in a way that has been described as “a sham process, designed to generate removals at any cost.”  Under the interim final rule, those subject to potential removal under an “Asylum Cooperation Agreement” will not be allowed to consult with attorneys or others during the screening process, or present evidence.  As the interim final rule puts it at new 8 C.F.R. § 208.30(e)(7), “In conducting this threshold screening interview, the asylum officer shall apply all relevant interview procedures outlined in paragraph (d) of this section, except that paragraphs (d)(2) and (4) of this section shall not apply to aliens described in this paragraph (e)(7)”—8 C.F.R. § 208.30(d)(4) being the provision that gives the right in ordinary credible-fear proceedings to “consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, and . . . present other evidence, if available.” This is different than the U.S.-Canada STCA, which specifically provides in its Statement of Principles that “Provided no undue delay results and it does not unduly interfere with the process, each Party will provide an opportunity for the applicant to have a person of his or her own choosing present at appropriate points during proceedings related to the Agreement.”  Unless vulnerable people with no legal representation, no opportunity to consult with an attorney or anyone else, and no opportunity to present evidence can prove to an asylum officer that they are more likely than not to be persecuted on a protected ground or tortured in Guatemala, they will be given the option of being returned to their home country of feared persecution or being removed to Guatemala.  One might reasonably describe this as outrageous, and a question that naturally comes to mind is whether it would survive review by a court.

The question of judicial review of the propriety and application of safe third country agreements and “Asylum Cooperation Agreements” has indeed arisen in both the United States and Canada, with different initial indications regarding the result.  In the U.S., the suggestion has been made by at least one commentator that the recent U.S. decision to send certain asylum applicants to Guatemala pursuant to an agreement may not be judicially reviewable (or at least “any lawsuits challenging the new rule will face significant obstacles”.)  In Canada, on the other hand, a challenge to the Canada-United States STCA, asserting that given current conditions in the U.S. the STCA violates the Canadian Charter of Rights and Freedoms, was argued before the Federal Court of Canada earlier in November and is awaiting decision.  A previous challenge to the Safe Third Country Agreement and the regulations implementing it had some success before being rejected by the Federal Court of Appeal of Canada in part on the basis that the organizations which had brought the challenge did not have standing to do so in the abstract; the current challenge includes a family of rejected refugee applicants seeking judicial review.

The basis for the potential lack of judicial review in the United States regarding safe third country agreements and their implementation is section 208(a)(3) of the INA, 8 U.S.C. § 1182(a)(3), which provides that “No court shall have jurisdiction to review a determination of the Attorney General under paragraph (2).”  (Recall that safe third country agreements, as a bar to asylum, are authorized by section 208(a)(2)(A) of the INA, which is part of the referenced paragraph 2.)  There are potential exceptions to this rule, such as the exception at 8 U.S.C. § 1252(a)(2)(D) for review of constitutional claims or questions of law on petition for review of a removal order, and the provision at 8 U.S.C. § 1252(e)(3) for review of written policies regarding expedited removal procedures within 60 days of their implementation, as in Grace v. Barr (formerly known as Grace v. Sessions and Grace v. Whitaker).  It may well be that the deeply problematic agreements with Guatemala, Honduras, and El Salvador, and the details of their implementation, will be subject to judicial review under one of these exceptions or otherwise.  There is certainly at least some basis, however, for the existing conventional wisdom that judicial review will be quite difficult.

Under Canadian law, on the other hand, judicial review of administrative action cannot be precluded in this way.  As I explained in my above-mentioned prior blog post, even aspects of the refugee determination as to which administrative decision-makers are given deference by the courts will be reviewed for reasonableness, because as explained by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, “The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies.  This power is constitutionally protected.”

Admittedly, even under Canadian law judicial review can be procedurally limited by legislation, although not eliminated.  Under section 72(1) of IRPA, for example, seeking review in the Federal Court of Canada of any decision under IRPA generally requires “making an application for leave to the Court.”  Moreover, under section 72(2)(d) of IRPA, the leave application is adjudicated by a single judge of the Federal Court “without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance”, and under section 72(2)(e), there is no appeal with regard to an application for leave.  Even if leave is granted, the single level of judicial review at the Federal Court may be all there is: under section 74(d) of IRPA, an appeal to the Federal Court of Appeal of Canada in an immigration matter is generally possible “only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.”  (Under certain very limited circumstances, an appeal can be taken to the Federal Court of Appeal even absent a certified question, but the threshold for that is quite high, as clarified recently in the citizenship context by Canada (Citizenship and Immigration) v. Fisher-Tennant, where the Court of Appeal quashed a government appeal against what was at most an ordinary error by the Federal Court in finding Andrew James Fisher-Tennant to be a citizen of Canada.)  So there is not an unlimited amount of judicial review, but there is necessarily some.

To the extent that the existing exceptions under the INA do not prove adequate to allow for full judicial review of decisions under safe third country agreements or “Asylum Cooperation Agreements”, Congress should give serious consideration to revising INA § 208(a)(3) to provide for judicial review of such decisions to exist in the United States, as it exists in Canada.  It was one thing, although still deeply problematic from a rule-of-law perspective, when the statute in practice only attempted to guard from judicial review decisions to return asylum-seekers to a plausibly safe country such as Canada.  If agreements are to be made with other, much more dangerous countries such as Honduras, Guatemala, and El Salvador, however, then judicial review of these agreements and how they are applied in practice becomes significantly more urgent.  Given the conditions in these countries, the question of whether people can be sent to such countries under safe-third-country agreements without any judicial review could literally be a life-or-death issue.

 

Sophia Genovese

The Trump Administration’s Lawlessness at the Border: Stories from Tijuana

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Following the law should not be a radical idea. Yet the governments of the United States and Mexico somehow find advocacy for the codified rights of asylum seekers reprehensible.

I travelled to Tijuana in mid-January to provide pro bono assistance to asylum seekers trying to present themselves at the San Ysidro Port of Entry and lawfully claim asylum. I was hosted by the Border Rights Project of Al Otro Lado, an amazing non-profit organization that provides critical legal orientations and know-your-rights trainings to asylum seekers in Tijuana, as well as documents human rights abuses against asylum-seekers by the Mexican and US authorities. Given their zealous advocacy and pursuit of justice, Al Otro Lado has become public enemy #1 in the eyes of US Customs and Border Protection (CBP) and the Mexican Instituto Nacional de Migración (INM). But what Al Otro Lado and volunteers are fighting for, in part, is for the US and Mexican governments to follow the law – in particular, the right to seek asylum. They are met with shockingly hostile resistance.

Section 208 of the Immigration and Nationality Act (INA) provides,

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).

INA § 208 does not limit the number of asylum seekers allowed to present at a port of entry and claim asylum on any given day. It does not allow for a waitlist for entry, which forces asylum seekers to wait in Mexico until their numbers are called. Critically, INA § 208 does not limit asylum protections to only those who present at ports of entry. Somehow, the plain meaning of INA § 208 is lost on this administration; or, it simply does not care. Regardless of intent, this administration is flagrantly violating the law by preventing asylum seekers from lawfully claiming asylum and sentencing them to death in the process.

I have previously blogged about the various ways in which the Trump administration has eroded the rights of asylum seekers and has made it increasingly difficult for these folks to access justice once already in the US. The Trump administration has now taken aim at asylum seekers even before they reach the US in an attempt to prevent them from asserting their rights through its illegal metering tactics and the recent rollout of the Migrant Protection Protocol.

Illegal Turn Back Policy and the Metering of Asylum Seekers

Since at least the summer of 2016, CBP has consistently violated INA § 208 by turning back asylum seekers who lawfully present themselves at ports of entry and claim asylum. CBP officers regularly tell asylum seekers that “Donald Trump just signed new laws saying there is no asylum for anyone” or that they will be separated from their children if they claim asylum, and even coerce asylum-seekers into signing documents stating that they do not have a fear of returning to their home country. CBP has attempted to justify such unlawful conduct by claiming that there is not enough room to process all of the asylum seekers who present at a port of entry on any given day.

As a result of the illegal turn back policy, asylum-seekers are forced to remain in Mexico while they await the opportunity to access basic asylum procedures. In Tijuana and several other ports of entry, this has resulted in an unlawful metering list (referred to as la lista), where asylum seekers and their families take a number and wait to be called before they may access the port of entry. Although asylum-seekers themselves are the ones responsible for giving out numbers to newly arrived asylum-seekers, la lista is actually managed by Grupos Beta (the so-called ‘humanitarian division’ of the Mexican INM) at the direction of US CBP. Each morning, CBP officials convey to Mexican INM how many asylum seekers they will accept that day. Mexican INM then relays this information to the asylum seeker tasked with running la lista, who then relays the numbers to asylum seekers anxiously awaiting their opportunity to claim asylum. Asylum seekers whose numbers are called line up at El Chaparral border crossing, but are then transported via van to a different port of entry several miles away.

It is important to note that unaccompanied minors are not allowed on la lista, thus leaving them to languish in Tijuana where they are at severe risk of exploitation and violence. Although not officially confirmed, one can infer that CBP does not wish to accept UACs because they are entitled to additional protections under the law. One can also infer that CBP conveys this desire to the Mexican INM who then conveys this to the list-keepers to not allow UACs on la lista. As a result, UACs are systemically blocked from accessing US asylum procedures, and are forced to age out while in Mexico before they are allowed to present at the port of entry. Once in the US, they will be treated as adults and entitled to fewer protections, despite their heightened vulnerability.

Illegal Metering in Practice: A Typical Morning at El Chaparral

Each morning at 7:00am, Al Otro Lado staff and volunteers arrive at El Chaparral to welcome newly arrived asylum seekers and to let them know that we are here to help them navigate the confusing US asylum process. We let them know about the organization’s daily Know Your Rights trainings and legal clinics, medical assistance, and free food and water.

The second half of the morning, Al Otro Lado volunteers turn their attention to asylum seekers whose numbers are called off of la lista and who will be allowed to present at the port of entry and claim asylum. During my stay in Tijuana, CBP allowed in anywhere from 15 to 60 people on any given morning – a shockingly low number given that San Ysidro port of entry is one of the largest and busiest land border crossings in the world which processes over 70,000 vehicles and 20,000 pedestrians per day. For about an hour before the asylum seekers are transported to the port of entry, volunteers scramble to provide last minute Credible Fear Interview (CFI) preparation for those asylum seekers whose numbers are called. We also told folks to dress in their warmest layer on the bottom because they are only permitted one layer of clothing once they are processed by CBP. All other clothing will be confiscated. This is despite the fact that asylum seekers are held for weeks on end in freezing hieleras. We also told the asylum seekers to write the phone numbers of friends or family in the US on their bodies because all of their documents will be taken from them. We told mothers with their children that we could not guarantee that they wouldn’t be separated. One mother had a teenage daughter with autism. She wanted to know what would happen to her if they were separated. We couldn’t provide her with any guarantee that the US government would comply with the law and provide her daughter with the heightened care she was entitled to. Around 9:30am, the first vans took off to the port of entry. Volunteers were hopeful that each asylum seeker would be okay, but we will never know for sure what happens to them once they are processed by CBP.

The US government’s metering practices and endorsement of la lista are unlawful. Under both US and international law, when someone expresses a fear of returning to their country of origin, the US is obligated to provide that person with an opportunity to seek protection. The US is in flagrant violation of their international and domestic obligations by refusing admission to asylum seekers who lawfully present at ports of entry, whether they turn back those asylum seekers who make it to the port of entry, through their endorsement of la lista, or the wholesale ban on admission of UACs.

Given their on-the-ground knowledge of what the US and Mexican governments are perpetrating, Al Otro Lado, the Center for Constitutional Rights, and the American Immigration Council filed suit to challenge the US government’s unlawful metering practice in Al Otro Lado, Inc., et al. v. Kirstjen Nielsen, et al. The complaint explains that CBP has utilized various tactics to deny asylum seekers access to protection through “misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion.” Id. at 1. It argues that such tactics have deprived asylum seekers of their “statutory and regulatory rights to apply for asylum, violated their due process rights under the Fifth Amendment […], and violated the United States’ obligations under international law to uphold the principle of non-refoulement.” Id. at 2. In particular, CBP has violated its statutory duty to inspect all noncitizens who arrive at ports of entry under INA § 235(a)(3), which provides “all aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.” INA § 235(a)(3) is not discretionary; thus, when CBP refuses to refer an asylum seeker to a CFI or to place them in proceedings, they are in violation of INA § 235(a)(3), as well as in violation of the Due Process Clause of the Fifth Amendment for failure to comply with mandatory asylum procedures. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of Al Otro Lado’s claims to go forward.

What Happens Next?

Against this backdrop, the Trump Administration has also recently carried out its inaccurately named Migrant Protection Protocols (MPP), which will force asylum seekers to remain in Mexico while they adjudicate their claims in immigration court. Under the plan, asylum seekers will be given a Notice to Appear (NTA) for an immigration hearing and returned to Mexico while awaiting their hearing. However, the NTA may or may not actually list an actual court date, forcing asylum seekers to constantly check the EOIR hotline to know when their hearing will actually be. When the court date arrives, the onus is on asylum seekers to arrive at the port of entry in order to be escorted to their immigration hearing. UACs (if they can actually access the port of entry), Mexican nationals, and other undefined vulnerable individuals will not be subject to the MPP.

Under the Policy Memorandum, in order to not be returned to Mexico, one must show that he or she “would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion […] or would more likely than not be tortured.” As a reminder, in order to demonstrate a credible fear of persecution, one must only show a significant possibility of eligibility for asylum. 8 CFR § 208.30(e)(2). To be eligible for asylum, one must only show that there is a one-in-ten probability of being persecuted in order to demonstrate that such fear is “well-founded.” INS v. Cardoza-Fonseca, 480 US 421, 431 (1987) (“That the fear must be ‘well-founded’ does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place”). When individuals are ineligible for asylum, they can alternatively show eligibility for withholding of removal or protection under the Convention Against Torture (CAT), by initially demonstrating a reasonable fear of being tortured. 8 CFR § 208.31(c).  Withholding of removal and protection under CAT require the applicant demonstrate that “it is more likely than not” that he or she will suffer harm upon return. 8 CFR § 208.17 (Deferral of removal under the Convention Against Torture); see also 8 CFR § 208.16(b)(2) (Withholding of removal). Thus, under the MPP, an applicant is subject to a higher standard of proof than they would be subject to in regular credible or reasonable fear interviews, a higher standard of proof than they would be subject to in asylum proceedings, and the same standard of proof if they were in withholding proceedings. Critically, in its Policy Memorandum, USCIS explicitly states that it is “unable to provide access to counsel during the assessments” because of supposed capacity issues and the need for “efficient processing.” Such a high burden and denial of access to counsel makes it entirely certain that asylum-seekers will be forced to remain in Mexico pending their hearings.

When the US was previously considering a safe third country agreement with Mexico (where an asylum seeker would be denied the ability to seek refuge in the US if they first travelled through Mexico), I explained the numerous reasons why Mexico is not a safe third country and how such an agreement would violate the United States’ obligations of non-refoulement. These same arguments are applicable to the MPP because the plan will continue to put asylum seekers in grave danger while awaiting refuge in the US. In particular, as reported by Human Rights First and Amnesty International, asylum seekers are in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. If they are women, children, indigenous, LGBT, or a member of any other minority group, they are especially vulnerable. Forcing asylum seekers to remain in Mexico while they await their court date is also arguably a violation of non-refoulement, which requires that no State, including the US, “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened.” Given the numerous reports of violence against asylum seekers in Mexico, it is clear that their life and freedom would be threatened.

The numerous assaults on asylum seekers by the Trump administration must be met with sharp rebuke by immigration advocates. Driven by xenophobia, Trump’s anti-asylum policies are not only morally objectionable, but expressly unlawful under US and international law. Although it will continue to be an uphill battle over the next few years, advocates must continue to support the incredible work of organizations like Al Otro Lado, who continue to be on the frontlines of the battle at the border. If we have learned anything over the past several years, it is that immigration advocates, backed by the power of the courts, will continue to uphold the law by ensuring that we provide safety and refuge to those fleeing persecution.

 

Sophia Genovese

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution

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Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.

Cyrus Mehta & Sophia Genovese

Trump Is Not King. He Cannot Change the US Asylum System Through Executive Orders.

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Donald Trump probably thinks that section 212(f) of the Immigration and Nationality Act (INA) makes him king as far as immigration matters are concerned. As a president with autocratic impulses, INA § 212(f) gives him leeway to act out these impulses on immigrants, which he may not be able to do so readily on US citizens.

INA § 212(f) states,

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Trump invoked INA § 212(f) through presidential proclamations to impose his travel ban against nationals of mainly Muslim countries. This was done to fulfill a campaign promise to impose a ban on Muslims.  He decided without foundation that the entry of Iranian nationals (one of the countries subject to the ban) would be detrimental to the interests of the United States even though they came to pursue studies, marry a US citizen or visit relatives.   The Supreme Court, unfortunately,  upheld the third version of the ban in  Trump v. Hawaii  stating that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.”

Trump got more emboldened. On November 9, 2018, he issued another proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation.

The key issue is whether INA § 212(f) allows a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system?  Can Trump use INA § 212(f) to reorder the asylum system because he believes that the people in a caravan heading to the United States to apply for asylum are detrimental to the interests of the United States? INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump has attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration has virtually closed the designated ports of entry for asylum seekers, which forces them to cross the border through irregular methods.

In East Bay Sanctuary Covenant v. Trump, Judge Tigar on November 19, 2018 forcefully ruled that the president could not use INA § 212(f) to override Congress’s clearly expressed legislative intent. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus,  INA § 212(f) could not be used as a justification to override INA § 208.

Trump was obviously displeased with the ruling and branded Judge Tigar, who was appointed by President Obama, as an “Obama judge.” This resulted in an unusually strong rebuke from Chief Justice Robert who stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Trump then attacked Justice Robert in a tweet on Thanksgiving day:

“Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…

……and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written”

Trump is wrong. The judge was not legislating, but rather, was correctly interpreting INA § 208(a)(1), which allows any person physically present in the United States to apply for asylum regardless of whether they arrived through a port of entry or not. It is likely that even a judge appointed by President Bush or even Trump could have ruled the same way. Even the Supreme Court may find it easier to smack this proclamation down than the travel ban, which it found facially neutral on its face.

But Trump is still determined to stop the caravan. The media has reported that the US   has won the support of the incoming Mexican government under Andrés Manuel López Obrador to let asylum claimants wait in Mexico while their claims are heard in the US. There are also reports now claiming that Mexican officials have denied that there is such a plan, but this is not inconsistent with the fact that negotiations are still underway even though a deal is not yet finalized. If the deal is put into place, which is being called “Remain in Mexico”, Mexico will become a waiting room for America’s asylum system.

It is not clear how this will work. If asylum claimants need to pass the credible fear interview, they will then have to wait for their cases for several years on end in Mexico and may be subject to the continued abuse of smugglers who brought them to the US border as well as drug cartels who are predominant in the Mexican border towns. While the scheme will also allow the applicant to show that they have a reasonable fear of staying in Mexico, demonstrating that will require a higher standard than the credible fear standard. Many will not meet this standard and will unfortunately be subjected to persecution and abuse in Mexico while they wait out the outcome of their asylum claims in the US. Most claimants who base their asylum claims on gang based persecution or domestic violence will also likely lose, and they will be then directly deported to their country of origin. They will have difficulty in accessing US trained lawyers to assist them in the preparation of their asylum claims. There is also a good chance that Mexico may deport an asylum claimant under its own laws on grounds that may not even constitute deportable offenses under US law.

What would the legal authority be for such a scheme? It is unclear, but INA § 235(b)(2)(C) provides that an alien who is arriving by land, whether or not from a designated port of entry, from a foreign territory contiguous to the US may be returned to that territory pending a proceeding under INA § 240.

A section 240 hearing offers the full panoply of rights of a removal hearing, including the right to appeal, as opposed to a limited asylum hearing before an Immigration Judge after an applicant passes the credible fear interview. INA § 235(b)(2)(C) does not contemplate a credible fear interview set forth in INA § 235(b)(1). Even a reasonable fear of remaining in Mexico is not contemplated and may be ultra vires the INA.   The administration could try to bypass the credible fear interview process and issues a  Notice to Appear that would initiate a removal proceeding under INA § 240. But this will create far more work for the administration.    INA § 235(b)(2)(C) arguably applies to inspection of “other aliens” as opposed to those found inadmissible under sections 212(a)(6)(C) or 212(a)(7) under § 235(b)(1). Thus, INA § 235(b)(2)(C) provides dubious legal authority for a “Remain in Mexico” scheme.

Any new proclamation and rule to set into effect this new policy will most likely be successfully challenged in federal court. Instead of creating an orderly procedure to process a few thousand asylum claims under the INA, Trump seems hell bent on creating chaos and disorder. If he loses in court, Trump attacks the judge and also blames the media by calling in “fake news.”  On November 25, 2018, the administration closed the San Ysidro port of entry near San Diego and fired tear gas shells at people seeking asylum, including children in diapers. Cruelty is part of Trump’s nature. He also systematically separated migrant children from their parents as a stated deterrent policy. The morning after the tear gassing episode, Trump tweeted that he wants to close the border to asylum seekers, and without foundation, stated that “many of them are stone cold criminals.” The law does not allow him to even do that. To imagine an American president acting so cruelly before November 2016 was inconceivable. We only write in the faint hope that in addition to our courts, America will come to its senses and not tolerate this man any longer. We can only hope!