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Guest Post: “The Revised Credible Fear Lesson Plan: Enough is Enough!”

Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair and Partner at the Immigration Law Firm Benach Ragland LLP , wrote an excellent article today in response to DHS’s recent change in policy to make it harder for individuals fleeing persecution or torture to obtain protection in the United States.

Spread it far and wide:

“This is not just a blog post, but a call to action.  Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.  The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees.  While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process.  It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system.  Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution.  In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted.  Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview.  If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution.  Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar.  With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system.  Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum.  We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement.  We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law.  And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers.  Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers.  In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes (see AILA InfoNet Doc. No. 14041845).  In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before.  Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.”  Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions.  The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net.  The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor.  The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications.  These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards.  Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States.  Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources.  Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations.  I don’t know about you all, but for me, “Enough is enough!”  As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.”

 

Telemundo Captures Teen’s Joyful Family Reunion After 7 Months in ICE Prison

Despite Maria Pena Rodas’s eligiblity for a green card as a special immigrant juvenile (“SIJS”), ICE considered her a priority for deportation, locking her up for 7 months.

Yesterday, Maria was reunited with her family in New York after ICE released her detention. She is now  just months away from receiving her green card based on SIJS.

Diego Arias of Telemundo’s “Al Rojo Vivo” was there to capture the happy moment:

Stay of Removal Granted For Special Immigrant Juvenile Detained More than 6 months!

The approval notice of Maria's stay of removal.

The approval notice of Maria’s stay of removal.

ICE tried very hard to deport Maria Pena Rodas, a 19 year old who has always been eligible to obtain her green card as a special immigrant juvenile (“SIJS”). Even after the New York Daily News and Telemundo exposed ICE’s harsh policy towards Maria and others in her situation, ICE steamed forward in its core “business of removal.”

Thankfully, ICE forced us to think hard and creatively on how we could keep Maria here and obtain her permanent residency through SIJS despite her being detained by ICE across the country in California.

Racing against the clock–Maria was scheduled to be deported on March 25–we convinced a Family Court judge in Suffolk County that she had jurisdiction to appoint Maria’s uncle as her guardian and to issue a special findings order.  These Family Court orders made Maria immediately eligible to qualify for her green card as a special immigrant juvenile.

After obtaining the orders, we immediately filed a stay of removal with ICE the following day, which was enough to cancel her deportation while a decision was pending.

Today, we received the great news that the stay of removal was approved and she will be on a flight to NY to be reunited with her uncle tomorrow. 

She will likely be a permanent resident of the United States within 6 months.

In case you were wondering about how a NY court had jurisdiction to appoint a guardian over a child detained in California, here is how:

“Pursuant to SCPA § 1702(2), where an infant is a ‘non-domiciliary of the state but has property situate in that country’ the court ‘may appoint a guardian of his person or property, or both.’”

Maria’s family created a trust account for her in Suffolk County, New York, thereby giving the Family Court jurisdiction to appoint a guardian over her person and property.

 

Our detained client at GEO center in Texas: “Maggots in the food caused us to start on a hunger strike.”

Our detained client, Angel Guillen, who is only 18 years old and eligible for a green card as a special immigrant juvenile, was a participant in the ongoing hunger strike at the Joe Corley Detention Facility, owned and operated by the GEO Group. (P.S. Please sign his petition for release from detention)

In a phone call today, Angel informed us that he and others decided to start a hunger strike because there were maggots in the food served at the facility.

When the detainees complained to someone at the facility about the maggots, they were told that nothing would be done because no one cares about them.

Today I spoke to the warden at Joe Corley, who told me that there were never any maggots in the food. The warden further stated that the hunger strike was only in response to detainees’ immigration concerns.

We believe our client, who gave up on the hunger strike when he saw many others who were unable to continue. According to the Warden, 12 detainees remain on hunger strike as of today.

 

A Glimpse of ICE’s True Priorities: Parents of U.S. citizen children with no criminal record.

The Obama administration always speaks of how ICE prioritizes dangerous criminals for deportations. This is not true. Look at the following footage of our client, Wilfredis Ayala Castillo, who is the sole financial support for his 4 year-old U.S. citizen son, Justin. Wilfredis has no criminal history.

On March 22, 2014, ICE headquarters  informed us that they concurred with the Newark Field Office’s decision to deny Wilfredis’ request for prosecutorial discretion. Securing deportations should not be more important than the lives of U.S. citizen children like Justin.

Please take a moment to sign a petition on Wilfredis’ behalf to stop his deportation. http://action.dreamactivist.org/newjersey/wilfredo/

HELP STOP DEPORTATION OF FATHER OF 4 YEAR OLD U.S. CITIZEN BOY WITH A SEVERE MEDICAL CONDITION

Wilfredis, currently detained by ICE , with his U.S. citizen son Justin, who is only 4 years old. ICE denied Wilfredis's request for discretion and plans to deport him.

Wilfredis, currently detained by ICE , with his U.S. citizen son Justin, who is only 4 years old. ICE denied Wilfredis’s request for discretion and plans to deport him.

Wilfredis Castillo (A #098-651-976) is the most important person in the life of his 4 year old son, Justin, a U.S. citizen who suffers from severe food allergies which  require him to be hospitalized frequently.

Wilfredis is the sole financial provider for Justin. His dad is his best friend.

But ICE is more interested in deporting Wilfredis than ensuring that a U.S. citizen boy who needs his dad in his life is separated from him forever.

Wilfredis has been detained by ICE in New Jersey for one month despite never having been convicted of a crime.

On March 3, ICE denied his request for prosecutorial discretion, even though he clearly falls under the guidelines as set forth in the Morton Memorandum and in the Sandweg Directive because he has a U.S. citizen child who suffers from a severe medical ailment, has resided in the U.S. since 2005, has no criminal history, and who has minimal ties to his native country of Honduras.

The Field Office Director of ICE’s New Jersey Office justified its decision by stating that:

Granting a stay of deportation or removal is reserved for a select group of cases whose circumstances reflect compelling humanitarian factors and, when considered with the mission of the agency, warrant such extraordinary action. The immigration history of this case, when balanced against the positive factors you raise and the agency’s goals, do not warrant a positive exercise of discretion.

This is unacceptable. Wilfredis does have a removal order from 2005. But his son’s entire life should not be sacrificed for the agency’s goal of removing as many individuals as possible irrespective of how it will devastate vulnerable members of our community.

 Please call ICE’s Deputy Assistant Director Andrew Lorenzen Strait at 202-732-4262 and Assistant Field Office Director Mark Vogler at 973-776-3328 to request Wilfredis be granted a stay of removal so that his son does not lose his dad forever. 

Alternatively, please write to Newark.Outeach@ICE.DHS.GOV and Ero.Outreach@ICE.DHS.GOV. Here is a sample script: 

Wilfredis Castillo (A # 098-651-976) is the sole financial provider of 4 year old U.S. citizen son who has severe food allergies and who will be devastated if his father is removed from the United States. He has no criminal convictions.

 Under the Morton Memorandum, Wilfredis is a perfect candidate for the exercise of prosecutorial discretion given how important he is to the welfare of his 4 year old U.S. citizen son, his length of residence in the United States, and the absence of any criminal history. 

 Given that Wilfredis is not a priority for removal under the Morton Memorandum and the Sandweg Directive, I respectfully request that the denial of his stay of removal be reconsidered. 

4 Sisters Granted Special Findings Orders From Family Court Will Now Get Green Cards.

Today the lives of 4 sisters from Central America–aged 16, 12, 10, and 5–have taken a turn for the better: A family court judge granted custody of the children to their mother and also issued a special findings order for each child. What this means is that all 4 sisters, who are currently in deportation proceedings, will now be able to apply for their green cards as special immigrant juveniles.

To top things off, the judge gave them lollipops as a bonus! All credit goes to Ala Amoachi, who managed to weave 4 convoluted stories into one clear legal brief.

Here is a picture of the children with their mother and stepfather:

IMG_8517

 

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