Tag Archive for: Bar to Asylum

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

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.

Cyrus Mehta

How Interpol Red Notices Allow Abusive Foreign Governments to Manipulate and Undermine the Integrity of Immigration Proceedings in the United States

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The Board of Immigration Appeals in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020) recently ruled that an Interpol Red Notice may constitute reliable evidence of criminality that serves as a  bar for asylum and withholding of removal. Giving credence to a Red Notice without more undermines the integrity of our asylum system as it allows a foreign government to sway the outcome of an asylum case against an opponent who is in the US.

As a background, a Red Notice is a request to locate and provisionally arrest an individual pending extradition, which Interpol issues at the request of a member country or an international tribunal based on a valid national arrest warrant.  A Red Notice does not establish that the person has been convicted of a crime. It is based on the word of the government that issued the arrest warrant, and does not add any further force or legitimacy to it. Unfortunately, the issuance of a Red Notice by a country whose government is corrupt or abusive can result in adverse  consequences for persons applying for immigration benefits under US law. Many immigration benefits may not be granted based on the commission of a crime or if there is reason to believe that the person will commit a certain crime.  For an excellent overview, please read Challenging a Red Notice – What Immigration Attorneys Need to Know About INTERPOL by Ted R. Bromund and Sandra A. Grossman, AILA Law Journal, April 2019.

In W-E-R-B– , the respondent, an El Salvadorian, was the subject of an Interpol Red Notice, reflecting an arrest warrant by the Magistrate Court of San Salvador, for his arrest regarding a violation of article 345 of the Salvadoran Penal Code, which prohibits participation in an “illicit organization.” The Red Notice indicated that the respondent was a “hit man” with the MS-13 gang. Under INA 208(b)(2)(A)(iii), a respondent is barred from obtaining asylum when “there are serious reasons for believing that the alien committed a serious nonpolitical crime.” The companion bar to withholding of removal is at INA 241(b)(3)(B)(iii).

The BIA agreed with the Immigration Judge’s finding that there were serious reasons to believe that the respondent had committed a serious nonpolitical crime prior to his entry in the US, and was thus barred from obtaining political asylum or withholding of removal. Although a Red Notice is not even a formal arrest warrant, the BIA still found that it constituted reliable evidence of a serious nonpolitical crime for triggering the bar to asylum. While the respondent can rebut the finding through a preponderance of evidence, his rebuttal was found to be unavailing in W-E-R-B. The respondent submitted a letter from an attorney in El Salvador indicating that the charges stemming from the incident were dismissed, but the BIA held that an attorney’s letter standing alone was insufficient in the absence of official court documents.

The respondent could have also shown that his crime was political in nature, but he conceded that it was not. He was arrested in El Salvador following a melee in 2010 that resulted in injury to a police officer. The respondent was also shot and had a gun on this person. Although not applied in this case, the BIA has established a framework in Matter of E-A-, 26 I&N Dec. 1 (BIA 2012) to determine whether the bar applies or not. First, in Matter of E-A-, the BIA interpreted the “serious reasons for believing” standard as being equivalent to probable cause. Next, in determining the political nature of the crime, the BIA explained that the political nature of the crime must outweigh its common law character. If the criminal conduct was of “an atrocious nature” or grossly out of proportion to the political objective, then there is no question of the crime being political in nature. If the crime is not of “an atrocious nature” then the BIA balances the seriousness of the criminal acts against the political aspects of the conduct to determine whether the criminal nature of the applicant’s acts outweighs their political character. Interestingly, in footnote 5 of the W-W-R-B decision, the BIA noted that where a respondent has put forth evidence of the political nature of the crime, the Immigration Judge should consider evidence in the record that the foreign country issuing Red Notices abuses them for political reasons, and cites Tatintsyan, 2020 WL 709663, which held that a Red Notice from Russia may provide grounds for overcoming the bar if there is credible testimony that the Russian government persecuted the respondent.

As the only remaining issue was to determine whether the crime indicated in the Red Notice was serious or not, the BIA agreed that the Respondent’s crime was serious in nature within the meanings of the bars in INA 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) as it involved a substantial risk of violence and harm to persons.

W-E-R-B unfortunately gives leeway for a foreign government persecuting the asylum claimant to issue an arrest warrant based on a false charge, and then inform Interpol to issue a Red Notice. If the charges remain outstanding, an IJ can potentially take for true the accusations in the charge even though there has not been a conviction. The burden of establishing the nonpolitical nature of the accusation is high under Matter of E-A as well as the nonseriousness of the crime. It has long been established that fear of prosecution under laws that are fairly administered does not qualify an individual as a refugee, although prosecution can amount to persecution where the prosecution is arbitrary or excessive, indicating that the motive, in part, may be on account of one of the five enumerated grounds. See, e.g., Singh v. Holder, 764 F.3d 1153, 1162 (9th Cir. 2014) (“If a petitioner has presented evidence that [a]… political opinion was a central reason for the persecution…then the fact that the persecution occurred during the course of a legitimate criminal investigation would not preclude eligibility for asylum” (emphasis added)); Osorio v. INS, 18 F.3d 1017, 1032 (2d Cir. 1994) (finding that prosecution became persecution when the Respondent established a pattern of the Guatemalan government targeting similarly situated union leaders); Tagaga v. INS, 228 F.3d 1030, 1034-35 (9th Cir. 2000) (finding that prosecution for treason for refusal to participate in persecution of Indo-Fijians constitutes persecution); Bandari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000) (finding that while the police’s initial stop may have been for law enforcement, subsequent beatings were on account religion); Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (“[i]f there is no evidence of a legitimate prosecutorial purpose for a government’s harassment of a person… there arises a presumption that the motive for harassment is political”); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996); El Balguiti v. INS, 5 F.3d 1135, 1136 (8th Cir. 1993) (finding prosecution becomes persecution where prosecutorial conduct seeks to disguise a government’s intent to persecute with the veneer of legitimacy – where an alien fears punishment “that is not legitimate, but instead masks an invidious motive” to prosecute the alien on account of an enumerated ground). W-E-R-B could undermine these decisions by nixing asylum claims via a Red Notice when the asylum claimant is escaping a politically motivated criminal prosecution and the foreign government maliciously causes the issuance of a Red Notice through Interpol.

The issuance of a Red Notice can also potentially roil other applications for immigration benefits such as when one files an I-485 application for adjustment of status. Although W-E-R-B applies to the bars set forth in INA 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii), which require at a minimum only the commission of a crime and not a conviction, the criminal grounds of inadmissibility also similarly only require at a minimum a commission of a crime. Thus, under INA 212(a)(2)(A)(i)(1), a person who has admitted to the essential elements to the commission of  a crime involving moral turpitude, and who does not fall under the petty offense exemption, is inadmissible.  INA 212(a)(2)(A)(i)(1) does have an exception for a “purely political offense,” but unlike the bar to asylum, there is no balancing test. The offense must be purely political, and thus this stricter standard has been set forth in Matter of O’Cealleagh, 23 I&N Dec. 976 (BIA 2006).  In practice, though, it would be difficult for the government to find  a person inadmissible under INA 212(a)(2)(A)(i)(1) based on an admission as it is generally difficult to extract an admission that meets the standard under Matter of K, and a conviction is thus  generally required.  There are other grounds of inadmissibility that do not require either a conviction or admission, such as under INA 212(a)(2)(C)(i), where a noncitizen can be found inadmissible if the government has reason to believe that the applicant is or has been an illicit trafficker in a controlled substance.

While the W-E-R-B standard is not applicable in a non-asylum context,  the applicant subject to bogus charges must be prepared to strenuously contest that the underlying charges of a Red Notice are without merit, the applicant never committed the crime and provide evidence that the country abused the process in having Interpol issue the Red Notice to target him or her. Bromund and Grossman’s article  in the AILA Law Journal provide invaluable advice on how to challenge a Red Notice if it violates Interpol rules or indicates a bias on the part of the requesting authorities. More often than not, the charges against a non-citizen who is already in the US applying for a benefit will likely remain outstanding indefinitely in the foreign country. The Department of Justice infrequently extradites people subject to a Red Notice. If the DOJ has not taken any action, this too could be pointed out that the US has not taken the Red Notice seriously.  One should try to convince the adjudicating official that the accusation, apart from not constituting a conviction, does not necessarily prove that the applicant even committed the crimes and do not render him or her inadmissible. Even if the applicant is granted permanent residence, it can further be asserted that the government can always hypothetically commence removal proceedings if there is a conviction that would render the applicant deportable.  Interpol Red Notices are being erroneously viewed by the US immigration authorities as conclusive proof of criminality against non-citizens living in the US. Every effort must therefore be made to push back against this assumption. Otherwise, the US becomes complicit in the abuse by foreign governments to manipulate and undermine the integrity of immigration proceedings, including asylum claims, that otherwise ought to assure fairness and due process to non-citizens under the law.