INTRODUCTION TO ASYLUM LAW

Transcription

1 WHEN IS A FRIGHTENED C HI LD OR MOTHER CONSIDERED A "REFUGEE"? INTRODUCTION TO ASYLUM LAW Presentation By: Michelle Saenz Rodriguez-Attorney at Saenz-Rodriguez & Associates, P.C. Paul Zoltan - Attorney at Law Office of Paul S. Zoltan Esther Kolni - Staff Attorney at Refugee and Immigrant Center for Education and Legal Services Farheen Siddiqi - Equal justice Works AmeriCorps Legal Fellow at Catholic Charities of Dallas TODAY'S AGENDA I. Overview of Asylum Law II. Strategies & Best Practices: Immigration Court v. USC IS Ill. Child Specific Guidelines IV. Common Claims V. Strategies & Best Practices: Interviewing and Representing Children in their Asylum C laims 1

2 I. OVERVIEW OF ASYLUM LAW "REFUGEE" UNDER IMMIGRATION AND NATIONALITY ACT INA I 0 I (A)(42)(A) "[A]ny person who is outside any country of such person's nationality and who is unable or unwilling to return to... that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Persecution either Committed by a) pastor b) reasonably feared (well-founded fear of future persecution) a) the government or b) an entity the government cannot control On account of a "protected ground": a) Race,or b) Religion, or c) Nationality, or d) Political opinion, or e) Membership in a particular social group 2

3 PAST PERSECUTION ALONE CAN MAKE SOMEONE A REFUGEE. Code of Federal Regulations (CFR) allow an alien to qualify as a "refugee" if she's already suffered "qualifying" persecution: Past persecution qualifies the alien for a presumption that she reasonably fears persecution (the presumption may be rebutted). 8 CFR (b)(l). Past persecution thafs especially severe may establish asylum eligibility without a well-founded fear of recurrence. 8 CFR (b)(iii). "PERSECUTION": UNDEFINED & VARIABLE Harm must "rise to the level" of persecution: Substantial harm or suffering o "Hallmarks" of persecution: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture o Poverty, victim of crime, bad luck not enough Tesfamichae/ v. Gonzales, 469 F.3d I 09 (5th Cir. 2006). 3

4 WHEN IS FEAR "WELL FOUNDED"? In INS v. Cardoza-fonseca, 480 U.S. 421 { 1987), the Supreme Court defined "well-founded fear": Standard ="reasonable probability" f'one in ten" probability} Has objective and subjective components: Alien's afraid Fear is objectively reasonable "[Tlhe United Nations' definition (forbids) concluding that. because an applicant only has a I 0% chance of being shot. tortured, or otherwise persecuted, he or she has no 'well founded fear' of the event's happening: ld. at 440. (NB: Per The Economist, current statistics predict that II% of Honduran males alive today will be murdered.) Motter of Mogharrobi, 19 I& N. Dec. 439 (BIA 1987): Alien possesses belief or characteristic persecutor seeks to overcome Persecutor knows or likely to become aware of that characteristic Persecutor's capable of punishing Persecutor's inclined to punish "A well-founded fear... can be based on what has happened to others who are similarly situated:' ld. at 446. THE ALIEN MUST ESTABLISH A "CAUSAL NEXUS" BETWEEN THE HARM AND THE PROTECTED GROUND. INA 208(b )(I )(B)(i) requires that one of the following be a "central reason" for the persecution, be it feared or suffered: I) Race 2} Religion 3) Nationality 4} Political Opinion 5) Membership in a Particular Social Group 4

5 PROTECTED GROUNDS Of the five "protected grounds:' three are simple: I) Race: broadly defined 2) Religion: what you'd think, though it can be "imputed" 3) Nationality: citizenship plus ethnicity or linguistic identity (e.g. Muslims in Bosnia, Dinka in Sudan) PROTECTED GROUNDS 4) Political Opinion: may be actual or imputed (as when the persecutor imputes to the son of a politician the views of his mother). 5) Particular Social Group: Composed of members who share a common immutable characteristic. Motter of Acosta, 19 I.&N. Dec. 211 (BIA 1985). Defined with particularity Socially distinct (e.g. visible) - as perceived by society. Matter ofw-g-r-, 26 I&N Dec. 208 (BIA 20 14). Whether a social group exists depends upon the perception of the sodety in question, rather than the persecutor. Matter of M-E-V-~. 26 I&N Dec. 227 (BIA 20 14). 5

6 GANG-RELATED ASYLUM CLAIMS: AN UPHILL CLIMB BIA leaves the door open, but just a craclc [O]ur holdings.. should not be read as a blanket rejection of all Q scenarios involving gangs... [P]ersecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground. Matter of M-E-\l.G-, 26 I&N Dec. 227, 254 {BIA 20 14) and through that crack, a beam of light: [l]f an applicant for asylum... Has demonstrated that his or her membership in... an immediate family is at least one central reason for the persecution. [t]he applicant need not additionally demostrate that the defining family member' was targeted on account of a protected ground. DHS brief to BIA in Matter of L-A-, pending decision DOMESTIC VIOLENCE: POSSIBLE BASIS FOR A WINNING CLAIM Board of Immigration Appeals endorses social group claims by battered spouses: Depending on the facts and evidence in an individual case,.,married women in Guatemala who are unable to leave their relationship" can constitute a cognizable particular sodal group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241 (b)(3) of the Immigration and Nationality Act Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 20 14) 6

7 BARS TO ELIGIBILITY: I-YEAR DEADLINE & FIRM RESETTLEMENT Filing deadline (doesn't apply to UACs): An alien must file her application within one year of most recent arrival to the United States. INA 208(a)(2)(B). The regulations provide for limited exceptions: (a) "changed" or (b).. extraordinary" conditions. 8 C.F.R. 208(a)(4), (5). Firm resettlement If, en route to the U.S., she received an offer of permanent resident status, citizenship or the like, she can only qualify for asylum if she shows her rights in that third country were restricted. 8 C.F.R Persecution of others (INA IOI(a)(42){B)) Serious crimes (INA 208(b)(2)(B)(i)) DON'T LIE. EVER. "[A]n asylum application is frivolous if any of its material elements is deliberately fabricated:' 8 C.F.R "If the Attorney General determines that an alien has knowingly made a frivolous application for asylum.. the alien shall be permanently ineligible for any [immigration] benefits:' INA 208(d)(6). 7

8 WITHHOLDING OF REMOVAL Under the INA: applicant is "more likely than not" to suffer persecution on account of one of the five grounds. Under the Convention Apinst Torture: applicant is "more likely than not" to suffer torture (a) by the government or (b) by others, if the government colludes or is "willfully blind" to the abuse. (Torture need not be on account of one of the five grounds.) II. STRATEGIES & BEST PRACTICES: IMMIGRATION COURT V. USCIS 8

9 ASYLUM: WHO DECIDES? Procedural difference between Unaccompanied Alien Child (UAC) and everyone else: a) If the child is not a UAC and she or her parent seeks asylum, the application must be filed at a specially-scheduled master calendar hearing. The judge will later. at an individual (or"merits") hearing, listen to asylum applicant and any witnesses and decide whether to grant asylum. b) If the alien is a UAC, the IJ max terminate removal proceedings once the child has filed an asylum application with CIS' Houston Asylum Office. (If denied, "the case is sent back [from Houston] with the final decision [to] the immigration court for review and consideration:') OFFICE OF REFUGEE RESETTLEMENT: ACHIEVING THE "LEAST RESTRICTIVE SETTING POSSIBLE" Under the Trafficking Victims Protection Act (TVPA), unaccompanied alien children (UACs) are treated differendy: to apply for asylum, they need not clear the "credible fear" threshold first. There are two kinds of UAC: I) DHS must screen each Mexican UAC within 48 hours of apprehension to determine if the child is a victim of trafficking or has a claim to asylum based on fear of persecution. 2) Each UAC from a non-contiguous coyntry must be transferred to the Office of Refugee Resetdement (ORR) within 72 hours of apprehension and are guaranteed a non-adversarial interview before an asylum officer. 9

10 DEFINING UNACCOMPANIED ALIEN CHILD In june 20 13, CIS determined that an "unaccompanied alien child" (UAq eligible for special treatment under the Trafficking Victims Protection Act (TVPA) included any child initially designated a UAC by Customs and Border Protection (CBP). (J! ---- If the child has been through ORR custody, she or he is a UAC--and will remain so, notwithstanding subsequent changes. DHS' revised definition of UAC lrul)! allow certain children to file affirmatively, even if subject to an absentia removal order. PracticeAdvisory,AILA lnfonet Doc. No (Feb.l9, 2009). i ====- CITIZENSHIP AND IMMIGRATION SERVICES: CREDIBLE FEAR INTERVIEW (NON-UACS) Adults. and also children who enter the U.S. illegally in the company of a parent. are subject initially to "expedited removal.. : If the parent expresses a fear of returning to her or his country, CBP arranges for a CIS asylum officer to conduct a "credible fear interview.. ; If the asylum officer finds there's a.. significant possibility... that the alien could establish eligibility for asylum under [INA] Section the alien gets to file an asylum application with an immigration judge and becomes eligible for release. 10

11 -- --~_... 8/2/2016 FORM I-867B Caution: CBP claims that over 95% of the Salvadorans, Guatemalans and Hondurans it arrests expressly and repeatedly disavow any fear of harm in their homeland , llo_ lr o..... _ _.,,,_ ~ ~-:~.::-::-.:-=~.:;::-:.!-~.:::=:..... _,....~-~- ~ "'.. "" ,.,._.....,_.,_ _ _ \.. _..._..._ HOUSTON ASYLUM OFFICE: NON-ADVERSARIAL HEARING The asylum officer's questions during the interview should be tailored to the child's age, stage of language development, background. and level of sophistication... The asylum officer should take care to evaluate the child's words from the child's point of view. Most children cannot give adult-like accounts of their experiences and memories, and asylum officers should be conscientious of age-related or culturally-related reasons for a child's choice of words. Asylum Officer Basic Training Course (AOBTC), Guidelines for Children 's Asylum Claims Available online: mw//cjnyurl,com/o32ez!ul 11

12 IMMIGRATION COURT: EVIDENCE & WITNESSES All evidence is admissible, as long as it is "probative" and its use "fundamentally fair.'' Matter o(toro, 17 I&N Dec. 340, 343 (BIA 1980). All documents, along with a separate list of all witnesses, must: Be filed at least IS days before the merits hearing (or whatever date the judge picks); Include a certified English translation; Be sent also to the ICE Office of Chief Counsel; and Include a signed statement indicating a copy has been provided to the Office Chief Counsel. Ruleboolc Immigration Court Practice Manual (available online: l.htm) Ill. CHILD SPECIFIC GUIDELINES 12

13 CHILD SPECIFIC GUIDELINES U.S. Citizenship and Immigration Servs., Asylum Officer Basic Training Course, Guidelines for Children's Asylum Claims (Sept. I, 2009) U.S. Dep't of Justice, Guidelines for Children's Asylum Claims, 1998 WL ( 1998) U.N. High Comm'r for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims under Articles I (A)2 and I (F) ofthe 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCRIGIP/09/08 (Dec. 22, 2009) Federal Court jurisprudence CHILD SPECIFIC GUIDELINES Additional Resources: Center for Gender & Refugee Studies,Children'sAsylum Claims- CGRS Practice Advisory (March 20 I 5)!ltrp:ltqn.uc~ stl! :tl!dubtttsld~fjuh!likllt;.giis_chi!ul~l''l-~.ry.j-3l,2qj s_an~p4t.(access version on CGRS' website) CGRS. Universidad Nacional De Lanus, et al., Childhood and Migration in Central and North America: Causes, Policies, Practices and Challenges (20 I 5) ~vmlnll!v.dllil.owj..llm!d!llilttl!;h!lll~t&.n...l::ill~ilb..lll!lf CGRS, KIND A Treacherous journey: Child Migrants Navigating the U.S. Immigration System (2014)tuWL~~.t.~~rn~~llu~.v.mtt-~»~n.PJif National Immigrant Justice Center (NIJC), Particular Social Group Practice Advisory (20 14) l!iwll~~!«.-~.tlw~mmi~ll!ltlll!~mr.l!'iikilillc!ilo~.g~2qfrntird)~aclmorx FmU-4!1J!!1! Immigrant Legal Resource Center (ILRC). Essentials of Asylum Law AI LA's Asylum Primer 13

14 CHILD SPECIFIC GUIDELINES Although the UNHCR, USCIS and DOJ guidelines are not binding authority on immigration judges. BIA and federal judges. they serve as an important guiding authority for courts to interpret the definition of"refugee: There is no separate definition of "refugee.. for children's cases. Burden of proof still rests with the child (as an applicant) BUT- the UNHCR guidelines emphasizes for children's cases the definition of "refugee.. should be "interpreted in an age and gender sensitive manner. taking into account the particular motives for. and forms and manifestations of. persecution experienced by children: CHILD SPECIFIC GUIDELINES Child-Sensitive Analysis: (I) takes into account a child's age, maturity. and development; (2) recognizes that children are active subjects of rights and that they are particularly vulnerable to certain types of harm; (3) applies relaxed requirements with regard to the elements of the refugee definition; and (4) grants children the liberal benefit of the doubt when assessing whether the evidence establishes the elements of the refugee definition *applicable to all elements 14

15 Persecution CHILD SPECIFIC GUIDELINES ELEMENTS OF ASYLUM Whether harm "rises to" persecution must be gauged from child's perspective. Harm which is considered relatively "less significant" as for an adult, may still constitute persecution (cumulative harm) Asylum Guidelines for Children's Asylum Claims (AOBTC): [C]hildren, dependent on others for their care, are prone to be more severely and potentially permanendy affected by trauma than adults, particularly when their caretaker is harmed. Well-founded Fear: Children may lack maturity to form a well-founded fear of future persecution (or may be unable to articulate their fear). Consider: Child's reasonable fear. (subjective). Objective evidence: evidence of harm to family; or expert statements or reports regarding child's development of reasonableness or unreasonableness of a fear; CHILD SPECIFIC GUIDELINES ELEMENTS OF ASYLUM Government Actor (or entity government cannot/will not control): Consider whether child has access to governmental protection as well as child's dependency on adults Knowledge of process to seek governmental protection Government's efforts to address persecution of children Casual Nexus (on account of one of the five protected grounds): Guidelines for Children'sAsylum Claims (AOBTC):Analyzing whether the [minor] applicant has established a nexus to a protected characteristic may be particularly difficult because a child may fear or have experienced harm without understanding the persecutor's intent. A child's incomplete understanding does not mean that a nexus between the harm and a protected ground does not exist. Child may ne unable to express casual nexus to one of the five protected grounds (reasons why the harm occurred). Child may not understand the persecutor's intent Instead. consider using: country condition experts who can provide objective evidence on experiences and status of children affidavits of adults with knowledge of events. 15

16 CHILD SPECIFIC GUIDELINES ELEMENTS OF ASYLUM Relocation: Even if all elements of asylum have been established, government may rebut by showing internal relocation would make applicant safe and is reasonable, OR circumstances have changed such that fear no longer exists. Asylum Guidelines for Children's Asylum Claims (AOBTC): Presumption that relocation is not reasonable for a child. Not reasonable to expect a child to move "Humanitarian Asylum" Past persecution has been established. Demonstrate: Compelling reasons for being unwilling/unable to return to home country due to severity of past persecution Reasonable possibility of other serious harm *Consider child-specific perspective CHILD SPECIFIC GUIDELINES CREDIBILITY AND CORROBORATION Credibility: Consider child's development and cultural background Child's age and development at the time of the events and experiences Child age and development at the time of the interview {retelling the facts) Child's ability to recall facts and communicate them AOBTC regarding child's limitations: limited knowledge, demeanor. chronology, consistency, trauma, trust, comprehension/understanding, omissions. Corroboration: Consider objective evidence: expert reports/affidavits or affidavits from family members 16

17 IV. COMMON CLAIMS COMMON CLAIMS Gang-based Claims: - Children targeted for resistance to gang recruitment or extortion. (Consider: lack of familial protection/vulnerability to gang recruitment) -Young women labeled as gang property and targeted for resistance - Family's religious or indigenous roots and resistance/opposition to gangs Family Based Claims: - Harm suffered on account of family - Family member's membership in a gang -Child belonging to a family which has been subjected to gang violence or extortion (threats/stalking) Child Abuse Claims: - Child abuse or neglect (including sexual abuse) by caregiver - Consider: lack of familial protection/ inability to leave family. Gende~based Claims: - Domestic violence or family violence caused by partner or caregiver - Child forced into prostitution or marriage (gender violence caused by gang groups) - Child targeted based on sexual orientation 17

18 V. STRATEGIES & BEST PRACTICES: INTERVIEWING AND REPRESENTING CHILDREN INTERVIEWING AND REPRESENTING CHILDREN IN ASYLUM Be patient Create child-friendly office atmosphere Consider development and age of child Child is the story telling and your role is to document the story Keep in mind the trauma and harm the child has suffered Use child-friendly terms and explain concepts Ask questions in different ways For consistency. review facts multiple times (affidavit and asylum application) Compare facts gathered from other relatives Take breaks 18

19 STRATEGIES -ASYLUM OFFICE The Asylum Officer Basic Training Course- Guidelines for Children's Asylum Claims recommends that Asylum Officers should take into consideration the following during interviews: Maturity and Age of Child Child's ability to recall events/dates Child's knowledge of the specific events that support his/her asylum claim Child comprehension of the asylum process Child's psychological or emotional state *Request child-specific accommodations for USCIS interview STRATEGIES- ASYLUM OFFICE Initial Filing (USCIS): I. UAC Instruction Sheet: 2.A copy of the 2013 USCIS Memorandum regarding initial jurisdiction over asylum application filed by unaccompanied alien children; 3. Form G-28, Notice of Entry of Appearance as Attorney; 4.Applicant's originall-589 with photos attached; S.Applicant's ORR Verification of Release; 6.Applicant's birth certificate with translation; 7. Copy of Applicant's Notice to Appear (your discretion). ** Mail copy of first three pages for biometrics separately Supplemental filing (USCIS): letter Brief Supporting Evidence: Declaration of applicant and relatives with knowledge of events and facts Supporting Evidence: Declaration of country experts Supporting Evidence: County condition evidence 19

20 QUESTIONS? 20