Category Archives: Asylum and Refugee Status

What’s the Fuss Over Asylum Applicants at the U.S. Border?

nasa borderHave the Department of Homeland Security (DHS) and the Associated Press successfully debunked Fox News’s recent claims that a “loophole” is allowing hundreds of undeserving immigrants to cross the Mexico/U.S. border by asserting a “credible fear” of persecution by drug cartels?

I hope so. Still, the media coverage could use a little more depth regarding the legal aspects of this (non) issue.

First, the background: Starting in August 2012, various Fox News programs began asserting the existence of a supposedly “new” loophole, by which Mexican would-be immigrants could state certain “magic words” and be admitted to the U.S., after which they might never show up for their court dates. For a rundown on the Fox coverage, see the Media Matters page.

After some media hoopla, the DHS came out with figures showing that the number of credible fear applicants had reached 14,610 by the end of June 2013, more than double what it was last year. Putting that in context, however, DHS officials noted that it represents only a small fraction of the millions of legal entrants from Mexico each year, and that U.S. officials deny the vast majority of such credible fear claims. The DHS also noted that there’s nothing new about this law — it’s been on the books for years.

Indeed, the law simply represents a balancing out of U.S. asylum law, which allows people within the U.S. who are fleeing persecution to apply for asylum — whether they are here legally or not — but needed some mechanism for people who arrive at a U.S. border, airport, or other point of entry to request the same protection. Do the immigration critics really want to reward people who have already crossed the border illegally or overstayed a visa, by allowing them to apply for asylum, but not grant this possibility to people who’ve just arrived? Apparently so, unless — as seems likely — they haven’t thought this issue through.

It’s not as though requesting asylum at a U.S. border or entry point is easy. Scholars and immigration advocates have long criticized this part of the law, because the process includes huge hurdles that are not encountered by people who have already entered the the U.S., and apparently results in many people being unfairly returned to home countries where they will face persecution.

It’s easy to believe the DHS’s assertions that it denies most of these entry requests. As described in Nolo’s article, “What Happens at a Credible Fear Interview,” the applicant is likely to be held in detention after asserting a credible fear of return; is given no access to documents or resources with which to prepare a convincing application; and has little chance of finding an attorney.

The applicant must nevertheless convince a U.S. government interviewer that he or she has a a “significant possibility” of being able to later prove to the satisfaction of an immigration judge – during the next procedural stage of the process, if it ever gets that far — that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country. Applicants who fail in this task will be returned home right away; no appeal, no meeting with an immigration judge.

And what about the possibility — which no one seems to be discussing — that more Mexican citizens really do fear persecution due to activities of the drug cartels? The number of Mexicans granted asylum in the U.S. has risen, according to U.S. government statistics. And attorney Kristina Gasson states, based on recent experience, that “The most commonly granted asylum petitions from Mexico are based on fear of persecution and violence from drug cartels and drug traffickers based on social group or political opinion.” (See “Can I Apply for U.S. Asylum If I’m From Mexico?“) Without knowing the details of individual cases, the Fox News approach seems to be to presume first and ask questions later.

Gay Man From Cameroon Successfully Appeals Claim for Withholding of Removal

map-cameroonGood news on LGBT immigration cases just keeps rolling in. A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.

The applicant had applied for asylum and withholding of deportation based on his sexual orientation, past victimization in the form of sexual assaults, and Cameroon’s criminalization of homosexuality.

The man submitted his asylum claim far too late — many years after the one-year deadline on applying for this remedy, unfortunately. That left the B.I.A. with no apparent choice but to uphold the IJ’s denial of the asylum part of the application. But that still left the man’s claim for withholding of removal, a last-ditch remedy protecting would-be asylees from deportation. (Withholding does not, however, lead to a green card like asylum does.)

To be eligible for withholding of removal, an applicant must prove that it’s more likely than not that he would be persecuted or tortured upon return to his home country. The IJ denied this applicant based on a finding that his testimony was implausible and inconsistent, and therefore not credible (believable). Here’s where things get interesting.

A classic inconsistency in an asylum case would be, for instance, where an applicant states in his Form I-589 application for asylum that his sister was threatened and his brother was killed, but testifies in court that his sister was killed and his brother threatened. No matter how horrific the facts, a judge could hardly grant asylum to someone who couldn’t get key aspects of his story straight. Mixing up dates of critical events is also a reason for some applicants to be denied on credibility grounds.

But the inconsistencies noted by the IJ in this man’s case (according to the B.I.A.’s characterization of them) were far more subtle, and included certain judgments about human behavior that the B.I.A. called “erroneous” and I might call “out on a limb.”

For instance, the IJ couldn’t believe that the applicant “could not pinpoint the time that he realized that he was homosexual.” Before I start spluttering about how many people can remember the moment when they determined their own sexuality one way or another, I’ll simply repeat the B.I.A’s statement that this finding was “speculative, at best, and is an inappropriate consideration in a credibility analysis.” The applicant did, after all (quoting the B.I.A. again) “repeatedly state[] that he did not know and that he was still a child when many of these events occurred.”

The IJ also said that “it was illogical for his parents to acknowledge that he told them he was homosexual, but continue to pressure him to pursue heterosexual relationships.” Well, surely they wouldn’t be the first parents to hold onto every last hope that their child would do what society expects! Actually, the B.I.A. said it just as well: “The Immigration Judge provided no support for his belief that parents could not be supportive, yet  pressure their child to pursue a more traditional and acceptable way of life.”

This case isn’t completely sewn up yet (as far as I know). The B.I.A. remanded it back to the Immigration Judge for a final decision, giving the Department of Homeland Security a chance to run some security checks. But based on the B.I.A.’s finding, there should at last be some good news coming to this applicant.

Will Immigration Reform Expand Rights to Government-Paid Attorneys?

briefcaseIf you were interested in the issues discussed in my recent post called “A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers,” be sure to check out Mark Noferi’s article in Slate, “Deportation Without Representation.”

Noferi, a J.D. from Stanford who teaches immigrants’ rights at Brooklyn Law School, points to a little-noticed piece of the proposed Senate bill: one that would provide government-paid legal representation to some noncitizens in removal proceedings, namely unaccompanied children, people with a serious mentally disability, or those who are “particularly vulnerable” compared to others in the same situation. (See pp. 567-568 of the bill for the actual language.)

For my money, nearly every noncitizen who can’t afford a lawyer is “particularly vulnerable.” They often don’t speak much English, they’re unfamiliar with the U.S. legal system, and they’re up against a body of law that’s confusing, counterintuitive, and often bizarrely punitive.

Noferi, however, focuses on detained immigrants as especially high on the vulnerability list. His description of the detention centers in which tens of thousands of immigrants spend months and years of their lives waiting to see a judge is apt, noting that they are: “routinely denounced for substandard conditions, such as moldy food, poor medical care, overcrowding, excessive force, shackles, and solitary confinement.” Like all generalizations, this doesn’t even begin to convey the awfulness of putting human beings who have committed no crime into a prison being run by people who treat them as if they had. (I’ve visited these places. They suck.)

Let’s hope this portion of the Senate bill survives intact — and is eventually expanded.

Yes, Tamerlan, You Narrowly Missed Being Deported for Domestic Violence

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?

Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted

flagThe New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:
https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Should the Media Use the Term “Illegal Alien?”

No less a news source than The New York Times has entered into the public debate about how best to describe foreign-born people living in the U.S. without permission. (See “Is ‘Illegal Immigrant’ the Right Description?,” by Margaret Sullivan.)

At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”

I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.

1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).

2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.

As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.

Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.

Fifth Circuit Decision Illustrates Limits of Asylum: No Protection When Fleeing Gang Recruiter

Jose and Andres Orellana-Monson, ages 11 and 8 at the time they fled El Salvador, were running from a local, violent gang known as Mara 18. The gang had tried to recruit Jose. When he refused, they threatened to kill him, then forced him, at gunpoint, to help rob a store. Andres feared he would be next.

It’s a sad situation, especially given the boys’ young age at the time — but does it qualify the two for asylum in the United States? Unfortunately not, under current U.S. law — at least, in the Fifth Circuit (which covers Louisiana, Mississippi, and Texas).

The two brothers did indeed try to gain asylum, saying that they feared persecution from the Mara 18 gang. U.S. immigration authorities apparently found them believable. But there was one major problem in the case. (No, it’s not that the persecution didn’t come from an official Salvadoran source, but from common criminals — that issue is taken care of by the fact that the group fits into the category of one that is beyond the government’s capacity to control.)

The problem is establishing the critical “nexus” between the persecution and its basis in either the boys’ race, religion, nationality, political option, or particular social group. Lack of such a nexus is the downfall of many an asylum case, and ultimately led the Fifth Circuit Court of Appeals to deny the Orellana-Monson’s claim (in an opinion issued June 25, 2012).

The lawyers for the brothers did their best to fit the two within a particular social group. Such groups don’t necessarily have to match up to any predefined list — the lawyers described them as Salvadoran males between the ages of 8 and 15 who have been recruited by Mara 18 but have refused to join the gang because of their principal opposition to the gang and what they want; and their family members.

The Fifth Circuit found, however, that this supposed group lacked “particularity.” It explained that such a group “is exceedingly broad and encompasses a diverse cross section of society.” The judge’s quoted another court’s opinion in a similar case stating, “Only shared experience — that of gang recruitment — unites them. The gangs target a wide swath of society, and we have no evidence before us that they target young men with any particular political orientation, interests, lifestyle, or any other identifying factors.” In other words, one might say, the definition of this group struck the court as too random to qualify under this legal standard.

The Fifth Circuit further concluded that the Orellana-Monsons’ group lacks the required “social visibility” to qualify for asylum. It stated, “There is little evidence that people who were recruited to join gangs but refused to do so would be ‘perceived as a group’ by society. There is no indication that the gang themselves would even see such ‘non-recruits’ as a group within Salvadoran society.” This argument seems to suggest — without actually coming out and saying so — that the group needs to have formed before the persecutor’s contact with it. And in fact the court does mention a Seventh Circuit court opinion finding “that a member of a family seeking police protection from Mara 18 was not a member of a particular social group, as a social group cannot be defined by its relationship to its persecutor alone or by the fact that its members face dangers in retaliation for the actions against the persecutor.”

To see the entire court opinion, go to the Fifth Circuit’s website at http://www.ca5.uscourts.gov/opinions/pub/11/11-60147-CV0.wpd.pdf.