Published with permission from the author, in connection with NYSBA's May 2017 CLE program: "U.S. Immigration Law - Where Are We Now?

Transcription

1 Published with permission from the author, in connection with NYSBA's May 2017 CLE program: "U.S. Immigration Law - Where Are We Now?" OUTLINE OF UNITED STATES ASYLUM LAW: SUBSTANTIVE CRITERIA AND PROCEDURAL CONCERNS Dated: September 15, Prepared by: Mark R. von Sternberg Senior Attorney Catholic Charities Community Services A. Introduction The purpose of this memorandum is to offer a short outline of some significant issues in asylum law for the benefit of volunteer lawyers seeking to represent asylum seekers in quasi-judicial proceedings before the Executive Office for Immigration Review. Its objective is not to provide a complete discussion of these questions, but merely to indicate that such issues do arise and to cite relevant authority wherein the question is discussed. In what follows, therefore, reference should always be made to the treatise, statute or case, which is referred to in the text. 2 B. Statutory Standard; Burden of Proof; Supporting Evidence; and Procedure I. Statutory Standard and Burden of Proof 1 This is an update of an original Memorandum dated June 8, In part, this Memorandum incorporates passages prepared by the undersigned in connection Catholic Legal Immigration Network, Inc./National Immigration Law Center, Immigrants Rights Manual (1997). This Memorandum has been used in a number of prior trainings, -- including those sponsored by the Bar Association of the City of New York and the United Nations High Commissioner for Refugees. 2 The law has been substantially affected by the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, particularly with respect to cessation and exclusion grounds. Moreover, a major amendment affects the substantive refugee standard by making those persecuted [or facing persecution] for violation of coercive family planning policies eligible to apply for asylum. Mark R. von Sternberg Page 1

2 The statute distinguishes between two kinds of relief: (A) Straight asylum [INA 208(a) and 101(a)(42)]; (B) Withholding of removal [ INA 241(b)(3)]. 3 Both forms of relief are premised on a fear of persecution on account of: Race Religion Nationality Membership in a particular social group; or Political opinion Comparison of straight asylum and withholding of removal is important to understanding the scope of relief which is sought. Withholding is country specific and the applicant can be deported to a country other than the one in which "persecution" is claimed; asylum is universal and the client cannot be deported at all while in valid asylee status. Withholding of removal cannot be converted into any kind of permanent residence; asylum, on the other hand, converts to LPR status after the alien has been here for one year. Withholding is a stricter statutory standard the alien must show clear probability of persecution; asylum seekers, on the other hand need show only persecution or a "well-founded fear" of future persecution. Asylum, however, is discretionary; withholding is mandatory if the statutory standard is met. 4 Under an old case, Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the BIA found that the two statutory standards (i.e., for asylum and withholding) were one and the same ("tended to converge in practice"). This interpretation was rejected by the Supreme Court which found that the BIA had violated the plain meaning rule. Clear probability is an objective test; the alien has to show a greater than 50% likelihood of persecution. On the other hand, well-founded fear has a subjective feature; the objective factor is satisfied if there is as little as a 10% chance of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Karaj v. Gonzales, 462 F.3d 113, (2d Cir. 2006). This is the statutory standard. Do not confuse this with the burden of proof, which is always that an applicant must establish his eligibility for relief by a preponderance of the evidence. Nonetheless, it is clear that the persecution feared must be "on account of" one of the five statutory grounds. If the application does not meet this test, it will not succeed. This is where all the problems are. 3 Under prior law, withholding of deportation was covered under INA 243(h). Because some individual aliens remain in exclusion and deportation proceedings in which the old terminology remains, the term withholding of deportation will be used interchangeably with withholding of removal. 4 Austin Fragomen and Steven Bell, Immigration Fundamentals and (2010). Mark R. von Sternberg Page 2

3 Under the Acosta case, as modified by Mogharrabi, 19 I&N Dec. 437 (BIA 1987), the applicant must show the following: He possesses a "characteristic or belief" which the persecutor seeks to overcome in others. Persecutor knows that the applicant possesses the "characteristic or belief" or could become aware of it. Persecutor has power to punish the applicant. Persecutor has the inclination to punish the applicant. 5 It goes without saying that the "characteristic or belief" must relate to one of the statutory grounds identified in the statute. Regulations adopted in December 2000 provide further specifics on how the well-founded fear of persecution is established. An applicant, who can reasonably be expected to relocate to another part of his or her country, may not be eligible for asylum. 6 Adjudicators are to consider in connection with the issue of internal relocation such questions as whether the asylum seeker would be exposed to the effects of civil strife in the area of proposed relocation, or to cultural and social constraints flowing from age, health, gender or family ties. In cases where the government is the persecutor, it is presumed that internal relocation is not reasonable. 7 There is a relationship between general country conditions and the individualized facts which an asylum claimant must establish to qualify under the refugee definition. In this respect, it was always accepted doctrine that an alien could base his claim on what had transpired to others. In this sense, the applicant does not have to prove that he or she has been specifically threatened or subjected to persecution. Where someone else in comparable circumstances has been threatened or persecuted, an asylum claim will lie. Nonetheless, the language in the cases asserted that the applicant must show that the claimant would be "singled out" for persecution. This standard has now been enlarged in governing asylum regulations. Those regulations now provide: [T]he Asylum Officer or Immigration Judge shall not require the applicant to provide 5 Intent to punish [or persecutory intent ] has been sharply restricted as an element of asylum eligibility in a 1996 case, -- Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). 6 8 CFR (b)(2)(ii). 7 8 CFR (b)(3). Please also note that under modern practice, an asylum application may now also include an application for relief under article 3 of the Convention Against Torture. Please see Part F for a discussion of this relief. Mark R. von Sternberg Page 3

4 evidence that he would be singled out individually for persecution if: (A) He establishes that there is a pattern or practice in his country of nationality or last habitual residence of persecution of groups of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (B) He establishes his own inclusion in and identification with such group of persons such that his fear of persecution upon his return is reasonable. [8 CFR (b)(2)(i)]. The Basic Law Manual (prepared by Legacy Immigration and Naturalization Service) has adopted this standard. The Basic Law Manual has also indicated that an asylum applicant may fall within the purview of the regulation by demonstrating that a friend or relative or member of a similarly situated racial, ethnic, religious or political group has been the target of a pattern or practice of persecution. He must also show that there is a reasonable likelihood that the persecutor will identify applicant, or impute to him, the characteristic which led to the persecution of the group. See generally D. Anker, The Law of Asylum in the United States: A Guide to Administrative Practice and Case Law (2d ed.1991). The standard for finding that the asylum seeker is within a targeted group has tended to remain strict. See, e.g., Santoso v. Holder, 580 F.3d 110 (2d Cir. 2009); Makonnen v. INS, 44 F.3d 1378 (8 th Cir. 1995). Nonetheless, the Ninth Circuit has developed an interesting test [ disfavored group ] which, although it is related to the targeted group standard of 8 CFR (b)(2)(iii), is essentially different from it. The Ninth Circuit s disfavored group approach appears closer to the flexible, comprehensive analysis recommended by the Basic Law Manual with respect to targeted groups than does the more rigorous analysis adopted by other circuits. In Mgoian v. INS, 184 F.3d 1029, 1035 (9 th Cir. 1999), the Ninth Circuit restated its test to mean in essence that if the applicant is a member of a disfavored group, but the group is not subject to systematic persecution, this court will look to (1) the risk level of membership in the group (i.e., the extent and severity of persecution suffered by the group) and (2) the alien s individual risk level (i.e., whether the alien has a special role in the group or is more likely to come to the attention of the persecutors making him a more likely target of persecution). Mgoian, supra, at 1035, n. 4, citing Kotasz v. INS, 31 F.3d 847, 853 (9 th Cir. 1994). Apart from a "well-founded fear" of future persecution, an asylum applicant can also establish eligibility for asylum by showing past persecution. Matter of Chen, 20 I&N Dec. 16 (BIA 1989). The government may defeat the case by establishing that the applicant no longer has a wellfounded fear of future persecution, and therefore does not warrant a favorable exercise of discretion. Even if it is demonstrated that future persecution is unlikely, an applicant can still qualify for a favorable exercise of discretion if the punishment he suffered was of such an unconscionable nature that applicant should not be repatriated in any case, or the asylum seeker can make out the Mark R. von Sternberg Page 4

5 possibility of other serious harm. 8 Regulations adopted in December of 2000 set forth rules governing evidentiary and discretionary aspects of past persecution which largely follow the Chen decision. Accordingly, where past persecution has been made out, the asylum claim shall be denied in the exercise of discretion if the alien no longer has a well-founded fear of future persecution by virtue of a fundamental change in circumstances 9 the applicant could avoid future persecution by relocating to another part of the home country, if it is reasonable to expect the applicant to do so. 10 It is clear that the fundamental change in circumstances referred to in the regulation was intended to embrace not only changes in country conditions but also changes in the applicant s personal situation. In Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003) the claimant showed that his spouse had been sterilized in the People s Republic of China and thus was a victim of the PRC s coercive planning family program. The Board ruled that the fact that that the claimant and his spouse faced no further threat of sterilization or abortion did not constitute a fundamental change in circumstances which could be used to overcome the presumption of future persecution flowing from such past serious harm under 8 CFR (b)(1)(i)(A). The case thus appeared to put to rest arguments heretofore advanced by the government that acts of serious bodily mutilation which cannot be repeated do not give rise to a presumption of future persecution. The Board in a sweeping decision determined: (a) that depriving the asylum seeker (or his/her spouse) of the ability to procreate is a human rights violation which is permanent and does not come to an end when the act of sterilization is completed; and (b) that an alternative reading of the refugee definition in INA 101(a)(42) would tend to make the act of persecution itself a change in circumstances, -- an anomalous result which is unacceptable from a public policy perspective. 8 8 CFR (b)(1)(iii). On the issue of persecution of immediate family members as constituting persecution to the applicant, see Matter of Chen, 20 I&N Dec. 16 (BIA 1989) quoting with approval United Nations High Commissioner for Refugees, The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status for Refugees 136 (Geneva 1979) [hereinafter Handbook]: It is frequently recognized that a person who -- or whose family -- has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugees. [Emphasis supplied]. 9 This new provisions parallel the language of the previous regulations with one important exception. The old requirement that the change be one in country conditions has been dropped. The explanatory note appearing in 65 Fed. Reg indicates that it was the intention of the drafters to permit a change in the personal circumstances of the claimant to defeat the presumption of well-founded fear. 65 Fed. Reg , (December 6, 2000). As concerns country conditions, it is now received doctrine that the change in circumstances must be such as to eliminate altogether the possibility that a well-founded fear can be maintained.; indeed, conditions must have changed to the degree that the danger no longer exists. Secaida-Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir. 2003) CFR (b)(1)(i)(A) and (B). Mark R. von Sternberg Page 5

6 In Matter of A-T-, 24 I&N Dec. 276 (BIA 2007), the Board rejected a claim of past FGM by a native and citizen of Mali. The Board relied critically on new regulations promulgated in December 2000 (8 CFR (b)(1)(i)(A)) which permitted rebuttal of the presumption of a well-founded fear of future persecution flowing from past persecution whenever the government could show a change in personal circumstances of the applicant. The Board ruled that the imposition of FGM itself was such a change in personal circumstances since FGM constitutes the type of physical harm which is generally non-repeatable. The Attorney General has now rejected this reasoning with respect to FGM cases and has generally adopted the rationale of the Second Circuit Court of Appeals in Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008), to the effect that women who had suffered past FGM could still be persecuted in other ways. Matter of A-T-, 24 I&N Dec. 617 (AG 2008). Under the current regulatory regime, the government bears the burden, in past persecution cases, of showing an absence of well-founded fear or the reasonableness of internal relocation by a preponderance of the evidence. Even where these disqualifying conditions have been made out, the asylum application may still be granted if (a) there are compelling reasons arising out of the severity of past persecution to grant the claim, or (b) if the asylum seeker would be exposed to other serious harm upon removal. 11 Other serious harm has now been interpreted by the Board of Immigration Appeals to include current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the potential for new physical or psychological harm that the applicant might suffer. Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). The Supplementary Information to the regulations indicates that they are not intended to overturn the holding in Matter of N-M-A- 12 Accordingly, where the asylum seeker establishes past persecution, but it is clear from the facts that the source of that prior harm no longer poses an 11 8 CFR (b)(1)(iii)(A) and (B). It is very difficult to know the degree to which prior law will have a bearing on issues arising out of the new regulations. Under the old regulations, for instance, even if it were shown that a wellfounded fear could not be maintained by the alien, asylum could be granted in the exercise of discretion where special humanitarian factors were present. In Matter of H-, Interim Decision 3276 (BIA 1996), the Board opined that, in exercising discretion, the adjudicator should weigh the totality of the circumstances. Favorable factors include such humanitarian considerations as the applicant s age, health and family ties in the U.S.; negative factors may be found in the alien s actions in fleeing to the United States. However,, the danger of persecution should generally outweigh all but the most egregious adverse factors. In undertaking the required balancing, moreover, the degree of severity of the past persecution must enjoy considerable weight. In one case arising subsequently to the new regulations, for instance, the claimant was granted asylum based on a finding of past persecution alone where the claimant had been severely tortured and made the subject of psychological abuse. Matter of B-, 21 I&N Dec. 66 (BIA 1995) Fed. Reg , (December 6, 2000). In Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998), the Board set forth an analysis of the evidentiary presumption of future persecution which is established by a showing that the claimant has experienced previous harm or suffering. The Board reasoned that a showing of past persecution shifts the burden of proof to the INS to demonstrate that circumstances have changed to such a degree that a well-founded fear can no longer be made out. That burden is met, however, where the government shows that the source of previous harm no longer poses an ongoing threat. Despite this observation, however, it remains at least arguable that, where the agent of past serious harm has disappeared, but the applicant still faces a threat by virtue of (for instance) conditions of generalized violence spawned by civil war, 8 CFR (b)(1)(iii)(B) [relating to humanitarian asylum based on past persecution coupled with findings of other serious harm ] is still applicable. Mark R. von Sternberg Page 6

7 ongoing threat, the applicant may be required to establish independently that he/she has a wellfounded fear of future persecution. Humanitarian asylum, however, (i.e., asylum based on compelling reasons or conditions of other serious harm ) still remains available. 13 It bears mentioning in this section that the definition of persecution is a liberal one. The Immigration and Naturalization Service s Basic Law Manual indicates the following: The Board of Immigration Appeals, however, has characterized 'persecution' as harm or suffering inflicted upon an individual in order to punish the individual for possessing a belief or characteristic the entity inflicting the harm or suffering seeks to overcome. 14 Importantly, the Basic Law Manual also indicates that "Serious violations of basic human rights can constitute acts of persecution." 15 Also to be considered as persecution in the statutory sense are violations of fundamental human rights protected during armed conflict under the Geneva Conventions of August 12, In this respect, common article 3, which establishes a minimum standard of humanity in both internal and in international conflicts, prescribes: (A) The obligation to treat humanely those persons taking no active part in the hostilities including combatants who had been rendered hors de combat. (B) The prohibition of certain acts with respect to the foregoing protected persons including violence to life and person; murder; mutilation; cruel treatment and torture; the taking of hostages; humiliating and degrading treatment; and the passing of sentences and carrying out of executions without previous judgement pronounced by a regularly constituted court. (C) The responsibility to care for the sick and wounded. 16 Similarly, deliberately inflicted harm, whether physical or mental, which violates the Torture 13 Similar rules also govern withholding of removal. Accordingly, an alien who has demonstrated that he/she has endured past persecution is presumed to be exposed to a future threat to life or freedom. 8 CFR (b)(1). The presumption is rebutted, however, if it is shown by a preponderance of the evidence that (i) there has been a fundamental change in circumstances; or (ii) internal relocation is reasonable. 8 CFR (b)(1)(i)(A) and (B). 14 See generally U.S. Immigration and Naturalization Service, The Basic Law Manual: U.S. Law and INS Refugee/Asylum Adjudications 22 (1995)[hereinafter Basic Law Manual]. 15 Torture and other inhuman treatment (including extrajudicial murder, slavery and acts of genocide) certainly constitute "persecution" in the statutory sense as does prolonged detention without an opportunity to contest the government's charges of wrongdoing. However, lesser harm may constitute persecution in appropriate circumstances, including: arbitrary interference with the alien's privacy; forcing the alien to live in substandard habitation; exclusion from educational opportunities; denial of passport and other travel rights; unremitting governmental surveillance; and pressure to become an informer. Basic Law Manual at See, e.g., Geneva Convention IV, 6 U.S.T. 3516, T.I.A.S. 3365, common art. 3. Mark R. von Sternberg Page 7

8 Convention, will be considered as persecution. The Torture Convention proscribes in material part: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person committed or is suspected of having committed, or intimidating coercing him or a third person, or for any other reason based on discrimination of any kind, when such pain and suffering are inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 17 II. Persecution by Groups Which the Government Cannot Control Persecution can be imposed in the statutory sense either by the government or by a group which the government is unwilling or unable to control. See, e.g., McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981). The principle stated above antedates the passage of the Refugee Act. See, e.g., In re Tan, 12 I&N Dec. 564, 568 (1967). See also Rosa v. INS, 440 F.2d 100 (1st Cir. 1971): Nothing in the ordinary definition of persecution suggests that the term applies only to acts of formally established governments... we see no basis for thinking that Congress intended that the availability of relief... turns on legal niceties concerning who has de jure power if a strong minority has sufficient de facto power to carry out its purposes without effective hindrance. [Id. at 102]. See also D. Anker, The Law of Asylum in the United States: A Manual for Practitioners and Adjudicators (American Immigration Lawyers Association 1989). Cases decided under the Refugee Act have been consistent in applying the principle. Accordingly, it is now recognized that the activities of guerrillas acting in an uncontrolled environment can support an application for political asylum. See Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988). III. Internal Flight Alternative [IFA] Historically, under U.S. law, the applicant has had the burden of showing country-wide persecution. This internal relocation principle has played an enhanced role in cases where the 17 Basic Law Manual, supra, at 26, quoting Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted 10 December 1984, opened for signature February 4, 1985, G.A. Res. A/Res/39/46, reprinted at S. Treaty Doc. 20, 100th Cong., 2d Sess. (1989), art. 1. Mark R. von Sternberg Page 8

9 persecutor is a group or groups which the government cannot control. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). In Matter of R-, 20 I&N Dec. 621 (BIA 1992), remanded sub. nom., Rana v. Moshorak, No. CV (C.D. Cal. July 15, 1993), the Board implied that this burden would rest on an alien who had demonstrated past persecution. In Matter of H-, 21 I&N Dec. 337 (BIA 1996), however, the rationale of Matter of R- was given significantly delimiting effect. There, the Board indicated that it would be the Service s burden to establish the existence of an internal flight alternative, -- once past persecution had been made out. The Board held: Where, as here, the well-founded fear is of a non-governmental authority, the question arises as to whether that authority has the ability to persecute the applicant throughout the home country, and whether the applicant would have to pass through any unsafe part of Somalia. In particular, should the Service contend that the applicant would not face persecution throughout Somalia, the Service should clarify how it accomplishes the deportation of such individuals to a protected area. 18 As noted earlier, the current regulatory scheme adopts the holding of Matter of H- insofar as it relates to the burden of proof. However, whereas the Board in Matter of H- was prepared to make the existence of an internal flight alternative a factor to consider in the exercise of discretion, the current rules set forth that past persecution claims shall be denied in the exercise of discretion if it is determined that internal relocation is reasonable. 19 The current regulatory scheme also provides that the asylum seeker shall have a presumption that internal relocation is not reasonable where the government is the persecutor. Moreover, under new 8 CFR (b)(3), the reasonableness of internal relocation must now be measured in the light of such factors as non-persecutory serious harm to which the claimant might be exposed; the existence of ongoing civil strife; the administrative, economic and judicial infrastructure of the country from which asylum is claimed; geographic restraints; and social and cultural concerns such as age, gender health, and social and familial ties. This list of criteria certainly constitutes an improvement over prior case law which focused exclusively on the existence of persecution in the area of proposed internal flight. Under the modern test, the analysis of whether internal relocation is reasonable comes into play only if there is some part of the country of origin where the alien does not have a well-founded fear of being persecuted Id. Where future persecution is at issue, it is clear that the burden remains on the applicant to establish that the IFA is not available. Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997). Hence, where the claimant s fear was of the insurgents who were looking for him, a finding that applicant was able to live and work in another area of the country was sufficient to conclude that internal resettlement was reasonable CFR (b)(1)(i)(A) and (B). 20 The test for whether the reasonableness of internal relocation will operate as a bar in individual cases has been set out in a recent precedent decision by the Board of Immigration Appeals. See Matter of M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012). According to the new decision, the first step in the analysis is for the adjudicator to identify a part of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution in the original claim. The next step is to undertake the balancing test set out in 8 CFR (b)(3) and which is paraphrased in the text. Mark R. von Sternberg Page 9

10 IV. Type of supporting evidence Case law and the existing asylum regulations specify that the alien can establish an asylum claim by his testimony alone. Testimony will be viewed as especially credible where it is in agreement with country circumstances and where the applicant's allegations are supported by what is known and documented regarding the country of putative persecution. Matter of Mogharrabi, supra. However, where the alien can supply a document which will be probative concerning the question of persecution, and he fails to do so, he may find himself in the position of having an adverse inference drawn against him by the asylum adjudicator. Matter of Dass, 20 I&N Dec. 120 (BIA 1989). Corroboration is thus not entirely optional with respect to an asylum applicant s burden of proof. Where background material is available regarding the alien s claim, it must be introduced or the application may be denied for want of an evidentiary foundation. In January 1997, the Board set forth in a precedent decision general guidelines with respect to the circumstances under which corroboration may be required and the manner in which it can be effected. Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997). Accordingly, where the record contains general country conditions, and the applicant s claim is based on his other personal experiences which cannot readily be verified, corroboration of the applicant s personal experiences should not be required. Where, however, a demand for corroboration of certain alleged facts in the claim is reasonable, such evidence must be provided or an explanation of why the evidence cannot be obtained. 21 Importantly, although the burden of proof remains on the applicant in asylum cases, both the Department of Homeland Security (DHS) and the immigration judge hearing the claim play an evidentiary role. The DHS should play an active role in providing background information regarding the country from which asylum is sought. 22 Furthermore, if the immigration judge relies on country conditions in adjudicating an asylum application, the source of the adjudicator s knowledge of the particular country must be made a part of the record. 23 The Board s recent pronouncements on evidentiary standards in asylum proceedings is of moment for a number of reasons, most notably because of the Board s position that international law 21 Matter of S-M-J-, 21 I&N Dec. 722, If, for instance, the applicant identifies herself as the member of a particular tribe, there must be background evidence at the very least that the tribe exists. The corroboration requirements of the case law have now been codified in the REAL ID Act, Pub. L. No , 119 Stat. 231 (May 11, 2005). 22 Id. at Id. at Mark R. von Sternberg Page 10

11 plays a paramount role in United States adjudications of asylum claims. In assessing the responsibilities of the immigration judge, for instance, the Board found that the procedural rules of the United Nations High Commissioner for Refugees, Handbook on the Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva 1972) [hereinafter Handbook or UN Handbook] were relevant in shaping United States evidentiary requirements in the asylum context. 24 Most critically, the Board gave its approval to the benefit of the doubt provisions, which set forth: 203. After applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to prove every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt The benefit of the doubt should, however, only be given when all of the available evidence has been obtained and checked and when the examiner is satisfied as to the applicant s general credibility. The applicant s statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis supplied] Id. at A series of cases decided by the Board in 1998 (involving Mauritanian asylum seekers) cast serious limits on the continuing vitality of the non-corroboration rule. See generally Matter of Y-B-, 21 I&N Dec (BIA 1998) (relief denied in light of the claimant s failure to provide proof of residency in a refugee camp in Senegal); Matter of O-D-, Interim Decision 3334 (BIA 1998) (concluding that applicant s submission into evidence of a false identity document discredited his testimony generally and compromised the integrity of his entire asylum application); and (most critically) Matter of M-D-, 21 I&N Dec (BIA 1998) (claimant found not credible based on lack of the following documentation: identity documents; documents from UNHCR showing that claimant had resided in a refugee camp in Senegal; and affidavits or other statements from family members still residing in the refugee camp corroborating applicant s identity, arrest and detention, as well as the family s forcible expulsion from Mauritania). In another case involving an asylum seeker from Bangladesh, the Board strengthened considerably the degree of consistency which would be expected between the asylum application proper on Form I-589 and the claimant s oral testimony while emphasizing the importance of corroborative evidence. See Matter of A-S-, 21 I&N Dec (BIA 1998). On the other hand, the Second Circuit has ruled that the Board s demands for corroboration may be excessive, -- especially where the asylum seeker is herself credible regarding country conditions. See Abankwa v. INS, 185 F.3d 18 (2d Cir. 1999). There, the court overturned a Board decision denying asylum to a Ghanaian women who feared Female Genital Mutilation in Ghana. The Second Circuit reasoned that the Board had not acted consistently with the governing evidentiary standard by insisting that the asylum seeker document, among other things, the practices of her tribe [the Nkumssa] with respect to FGM. This approach to corroboration has been followed in a number of important circuit court opinions including Diallo v. INS, 232 F.3d 279 (2d Cir. 2000); Qiu v. Ashcrof, 329 F.3d 140 (2d Cir. 2003); Abdulai v. Ashcroft, 239 F. 3d 542 (3d Cir. 2001); and Mulanga v. Ashcroft 349 F. 3d 123 (3d Cir. 2003). The REAL ID Act, Pub. L. No , 119 Stat. 231 (May 11, 2005), arguably modifying these results, provides that the immigration judge may require corroboration of otherwise credible testimony. The REAL ID Act also, however, allows immigration judges to deny asylum claims based on a number of factors including the applicant s demeanor and inconsistencies in the record irrespective of whether those inconsistencies go to the heart of the applicant s claim. See also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007). Mark R. von Sternberg Page 11

12 On the issue of consistencies, the general rule is that these can be used to impeach the applicant. Hence great care should be taken to make the asylum application internally consistent and to be satisfied that the applicant will back up the allegations in the Form I-589 when he appears for his interview. Under prior law, incidental or minor inconsistencies would not be deemed to impeach an otherwise probative account. Damaize-Job v. INS, 787 F.2d 1332 (9th Cir. 1986). These results appear to have been modified by the REAL ID Act, under which inconsistencies in the record may support a finding that the asylum seeker is not credible, irrespective of whether such inconsistencies go to the heart of the claim.26 V. Limits on Applying; Expedited Removal Asylum applications can be filed one of two ways. Affirmative applications are made before the Asylum Office of the Immigration and Naturalization Service. The Illegal Immigration Reform and Immigrant Responsibility Act 27 has imposed substantial new procedural barriers to filing asylum claims. The asylum application itself must be filed within one year of the alien s arrival in the United States. 28 Moreover, no application will be entertained by an alien who has previously applied for asylum and been denied. 29 The regulations make it clear that these prohibitions apply to asylum only, and do not preclude an application for withholding of removal under INA 241(b)(3). 30 A common exception to these limitations on the asylum remedy pertains to aliens who are refugees sur place, -- (i.e., are deemed to meet the well-founded fear standard by virtue of changed circumstances either affecting their personal situation or taking place in their country of nationality or last residence after their arrival in the U.S.). An exception also is available for those who can show that extraordinary circumstances occasioned the delay in filing. 31 Those cases which the Asylum Office is unable to approve are referred to the Office of the 26 See INA 208(b)(1)(B)(iii), 8 USC 1158(b)(1)(B)(iii). Minor inconsistencies which do not go the heart of the claim may still support negative credibility findings for all post May 11, 2005 cases; any inconsistency or omission may be relied on by the IJ, so long as a lack of credibility is made out by a totality of the circumstances. See, e.g., Lin v. Mukasey, 534 F.3d 162, (2d Cir. 2008). See also Ira Kurzban, Immigration Law Sourcebook (12 th ed. 2010). 27 Pub. L. No , 110 Stat (Oct. 1, 1996). 28 INA 208(a)(2)(B), 8 USC 1158(a)(2)(B). Provided this deadline is met, however, the manner of the asylum seeker s arrival (whether or not at a designated port of entry; pursuant to parole after interdiction on the high seas, etc.) is irrelevant. INA 208(a)(1). 29 INA 208(a)(2)(C) CFR 208.4(a). 31 INA 208(a)(2)(D). Mark R. von Sternberg Page 12

13 Immigration Judge where the individual alien is removable. 32 Such referral may take place after an interview or in the event it is concluded that the applicant has waived her right to an interview. 33 If the applicant is maintaining valid non-immigrant status at the time the application is heard, the asylum officer may grant or deny the application, unless the applicant is one of those classes who must be placed in special asylum proceedings (e.g., stowaways). 34 Also under IIRAIRA, arriving aliens [for the most part, although not exclusively, individuals who present themselves for admission at a port of entry] who have false documents or no documents will be expeditiously removed unless they either indicate a desire to apply for asylum or express a fear of returning. Those who make such an indication, will be placed in a credible fear interview. An alien deemed to have a credible fear of persecution shall be detained for further consideration of his/her claim in a removal proceeding under new section A credible fear of persecution is defined narrowly. Basically, the alien must prove that there is a significant possibility that he/she could meet the refugee standard, in light of the applicant s credibility and other facts as are known to the officer. 36 A determination that the alien does not meet the credible fear standard may be promptly reviewed by an immigration judge (either personally or telephonically). That review shall be held expeditiously and in no case later than 7 days after the initial negative determination on the credible fear standard. 37 During the pendency of this process, the alien shall be detained. 38 Aliens who are deemed not to have a credible fear will be summarily removed Under IIRAIRA, the old distinction between exclusion proceedings [for aliens who were seeking admission to the United States] and deportation proceedings [for individuals who had effected an entry into the U.S.] was abandoned and, effective April 1, 1997, the only form of quasi-judicial proceedings in which an alien will be removed from the U.S. will be called a removal proceeding CFR (b)(2) CFR (b)(3). 35 INA 235(b)(1)(B)((ii), 8 USC 1225 (b)(1)(b)((ii). 36 INA 235(b)(1)(B)(v), 8 USC 1225 (b)(1)(b)(v). See also 8 CFR (e)(2) and (3): The alien can also establish that there is a significant possibility that he or she would be subject to persecution or torture so as to be eligible for withholding of removal under INA 241(b)(3) or for relief under article 3 of the Convention Against Torture pursuant to 8 CFR or INA 235(b)(1)(B)(iii)(III), 8 USC 1225 (b)(1)(b)(iii)(iii)). 38 INA 235(b)(1)(B)(iii)(IV), 8 USC 1225 (b)(1)(b)(iii)(iv). 39 INA 235(b)(1)(B)(iii)(I), 8 USC 1225(b)(1)(B)(iii)(I). Also relevant are the provisions of INA 208(a)(2)(A) which exempt from asylum eligibility those who are subject to a safe third country agreement with the United States pursuant to which they may be returned to a third State pursuant to a bilateral or multilateral treaty with the U.S. whereby they could access a full and fair procedure for determining a claim to asylum or equivalent temporary protection. So far the U.S.is party to only one such agreement and that is with Canada. Individuals coming from one signatory State and presenting themselves for admission into the territory of the other are subject to a threshold screening interview to determine whether they are subject to INA.208(a)(2)(A). If they are determined to be subject, and an exemption is not Mark R. von Sternberg Page 13

14 C. Elements of Persecution: Nexus to a Ground of Refugee Protection This section begins discussion of when persecution is related to a ground of refugee protection. For the most part, the issue of nexus involves a context dependent analysis, which is best made in discrete thematic settings. That is the approach taken below. Broad guidelines have been suggested with respect to two of the grounds, however: political opinion and membership in a social group. Guy Goodwin-Gill maintains that political opinion consists of an opinion on any matter in which the machinery of the state, government and policy may be engaged. Guy S. Goodwin-Gill, The Refugee in International Law 31 (1 st ed. 1983). A social group, on the other hand, has been defined disjunctively as (1) groups defined by an innate, unalterable characteristic; (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change, and (3) existing groups defined by volition so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. James C. Hathaway, The Law of Refugee Status 161 (1991), citing with approval Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). Two important requirements have been added on to the classical Acosta test, although their status as requirements (as opposed to their utility in individual cases) continues to be hotly contested. These are a social distinctions test (requiring that the group be perceived as distinct by the society in question), and a particularity requirement (mandating that the group have discernable boundaries). See, e.g., Matter of M-E-V-G-, 26 I&N Dec. 237 (BIA 2014), and Matter of W-G-R-, 20 I&N Dec. 208 (BIA 2014). There are generally three basic limitations on refugee protection, and their application is often contested in practice. The first of these is that refugee protection cannot be invoked where all that is feared is the lawful exercise of the sovereign s criminal jurisdiction (illustrated by the prosecution versus persecution cases discussed in Parts III, V, and VI). The second is that protection is not appropriate where the alien is fleeing nothing more than conditions of generalized violence or of natural calamity (e.g., the civil war claims discussed in Part IV). And finally, asylum will not be afforded to those who fear return because of a personal or private form of harm (generally the gender-based cases, but especially situations involving domestic violence analyzed in Part VII). In all of the above, a distinction must be maintained between internal characteristics and beliefs and external perceptions. An asylum seeker may be punished not only because of what he or she is, but also because of what he or she is perceived to be. In U.S. law, external perceptions are sometimes referred to as attributed characteristics and beliefs. Importantly, with regard to the social group ground, the role of external perceptions is coming to be characterized to as the social perceptions test. See generally T. Alexander Aleinikoff, Protected characteristics and social available, they are to be summarily returned to the country of first presence to pursue their refugee status claims. See generally Mark R. von Sternberg, The U.S.-Canada Safe Third Country Agreement, 24 Immigration Law Today 12 (American Lawyers Immigration Association eds. 2005). Mark R. von Sternberg Page 14

15 perceptions: an analysis of the meaning of membership of a particular social group, in Erika Feller, Volker Turk and Francis Nicholson, Refugee Protection in International Law 263, (2003). These themes will be apparent in the discussion below. First, however, it is important to look at a threshold question, i.e., whether the asylum seeker is a refugee or an economic migrant. I. Economic Refugee It is generally settled that a mere economic refugee is not entitled to asylum relief. However, it is otherwise where the evidence establishes the "deliberate imposition of substantial economic disadvantage." Kovac v. INS, 407 F.2d 102 (9th Cir. 1969). In Kovac, supra, the Ninth Circuit sustained an asylum claim where the Yugoslav government had barred applicant from working as a highly skilled chef and forced him to be employed as an unskilled cook. Hence, where the exclusive motive for coming to the United States is to improve one's economic lot or to obtain better employment, no claim for asylum can be made. However, where the applicant has suffered the imposition of severe economic disadvantage as the result of governmental policy, and can demonstrate that this disadvantage was imposed on him because of one of the five statutory bases, an asylum application is appropriate. II. Persecution as Opposed to Prosecution It is generally stated that no claim for asylum will succeed where the foreign sovereign is making a neutral application of its criminal statutes and this is all that the alien complains of. A classical instance of the prosecution as opposed to persecution doctrine is where an alien is punished for refusing to go into a national army. (For a discussion of the recruitment issue, please see below). Nonetheless, it is clear that the punishments which are inflicted for expressions of political opinion (or as the result of another of the statutory "characteristics") are persecution and not prosecution. See, e.g., Handbook at 59: Prosecution for an offense against 'public order', e.g., for distribution of pamphlets, could be a vehicle for the persecution of the individual on the grounds of the political content of the publication. Importantly here it is generally considered to be prosecution and not persecution if the applicant has taken part in an act of armed rebellion and faces punishment therefor. It is otherwise, however, if the country in which the rebellion took place does not provide for orderly democratic change. Matter of Izatula, Interim Decision 3127 (BIA 1990). Please see below, however, with respect to the TRIG [terrorism related inadmissibility grounds] implications of this genre of case. Generally, the existing bars for those who fall within the material support provisions of TRIG will Mark R. von Sternberg Page 15

16 preclude those from asylum who take up arms against a State wherein it is unlawful to engage in such acts. III. Coercive Family-Planning Programs In 1989, the Board, in Matter of Chang, 20 I&N Dec. 38 (BIA 1989), determined that violations of China s coercive family planning policy would not give rise to a claim of asylum. Fundamental to this ruling was the Board s finding that the one-child/one family program was not specifically designed to punish individuals because of a ground which is recognized in the refugee definition, but was rather aimed at regulating China s burgeoning population crisis. As such, the law complained of was not discriminatory but was based on putatively legitimate public policy. 40 The case has been followed both administratively 41 and, with few exceptions, 42 by federal district and circuit courts. 43 This long-standing result has been overturned in the Illegal Immigration Reform and Immigrant Responsibility Act. Accordingly, the definition of refugee in INA 101(a)(42) now contains language to the effect that a person who was forced to terminate a pregnancy or undergo involuntary sterilization, or who was persecuted for having failed to comply with a coercive population control program, shall be deemed to have been persecuted on account of political opinion. Similarly, an individual shall be deemed to have a well-founded fear of persecution on account of political opinion upon showing that he or she would be made the subject of involuntary sterilization or forced abortion, or otherwise punished for failing to comply with a coercive population control program. 44 In a once significant decision, the Board ruled that, if a spouse had been sterilized or otherwise made the subject of serious harm, the remaining spouse present in the United States could virtually substitute himself or herself for the persecuted spouse and advance an asylum claim on his or her behalf.45 This decision was widely criticized by the Immigration and Naturalization Service 40 Id. at Matter of G-, 20 I&N Dec. 764 (BIA 1993). 42 Guo Chun Di v. Carroll, 842 F. Supp. 858 (E.D. Va. 1994) rev d and remanded without opinion sub nom. Guo Chun Di v. Moscato, 66 F.3d 315 (4th Cir. 1995). 43 See, e.g., Zheng v. INS, 44 F.3d 379 (5th Cir, 1995) and cases cited therein. 44 INA 101(a)(42), 8 USC 1101(a)(42). In Matter of X-P-T-, Interim Decision 3299 (BIA 1996), the Board confirmed that the statutory amendment to the refugee definition overturned its prior result in Matter of Chang. Moreover, in Matter of C-Y-Z-, Interim Decision 3319 (BIA 1997), the Board also concluded that an asylum seeker whose spouse had been forced to undergo an abortion or sterilization could establish past persecution on account of the political opinion ground so as to qualify as a refugee within the meaning of the definition and so be entitled to a presumption that the claimant has a well-founded fear of future persecution. For further developments in Matter of C-Y-Z-, please see below. 45 Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), overruled, Matter of J-S-, 24 I&N Dec. 520 (AG 2008).. Mark R. von Sternberg Page 16