Skip to content

Posts tagged ‘Asylum’

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.”

 

After Four Months in ICE Custody, Victim of Severe Domestic Violence Set to Be Released

Update: November 20, 2013: my client was released on her own recognizance by ICE and is on her way home.

My partner, Bryan Johnson, recently blogged about our client, a 21-year old victim of severe domestic violence who fled her native country of El Salvador to seek asylum in the United States.

This young woman was subjected to emotional and physical abuse by her ex-boyfriend, which finally culminated in his attempt to kill her unborn child by punching her repeatedly in the stomach while pregnant.  Her ex-boyfriend’s attacks are documented, as she went to the police the following day, but the authorities of El Salvador were not willing to protect her.

She has been detained since July 23, 2013, almost four months, contrary to ICE’s own policy relating to victims of domestic violence and other crimes, and treated like a criminal for attempting to save her own life. As a result, this traumatized young woman’s terror was ongoing, as she wondered whether, at any given moment, she would be returned to the country where the abuser is waiting to carry out his threats to kill her.

Initially, ICE set a “no bond” determination in her case, then lowered the bond to $7,500 after documentation of her traumatic experiences was provided.  Due to the family’s inability to afford the costs of a bond, or a private attorney in Texas, I appeared pro bono in an attempt to get the bond lowered.

Judge Powell of the Port Isabel Immigration Court actually increased the bond to $8,000, stating that my client’s economic situation is not a consideration and expressing doubts that a domestic violence can qualify for asylum, despite precedential cases (Matter of R-A, Matter of L-R-). Additionally, Judge Powell–without any basis–indirectly threatened me with a bar complaint simply for not being able to travel from New York to Texas on a pro bono case.

On November 4, 2013, I made a formal request with the Field Office of San Antonio to release my client pursuant to its own prosecutorial guidelines.  Meanwhile, the final court date of November 18, 2013, was looming; a court hearing I could not adequately prepare from New York, especially since the detention center had stopped allowing conference calls between clients and attorneys.

That same day, just minutes before the case was called, an ICE official indicated that he is disposed toward releasing my client on her own recognizance.  The case proceeded and my client said she is afraid for my life and pleaded for a bond; the Judge denied it, but agreed to continue the case given ICE’s indications that they would release my client.

Today, November 19, 2013, ICE officially gave word that my client will be imminently released.  While we cannot take away the fear and pain that our client experienced while detained by ICE, awaiting her fate day by day, and which other victims of domestic violence no doubt similarly face, we just may have saved a life.  Welcome home!

Text of Senate Immigration Reform Bill Released Today

Early this morning, the text of the Senate’s Proposed Reform Bill–The Border Security, Economic Opportunity, and Immigration Modernization Act–was released.

We rifled through some of its 844 pages and have found some goodies, including the destruction of the nefarious one-year  filing deadline for asylum applications.

In terms of concrete benefits to undocumented immigrants currently in the United States, the proposed bill looks to be a large-scale legalization that is serious about immigrant family unity.

In the outline of the bill, which was released yesterday, it was said that those with 3 or misdemeanor convictions or those who committed certain other crimes would not be eligible to obtain “registered provisional immigration status.” (RPI)

However, the actual text of the proposed bill provides for a waiver of these ineligibility ground:

IN GENERAL.—The Secretary may waive the application of subparagraph (A)(i)(III) or any provision of section 212(a) that is not listed in clause (ii) on behalf of an alien for humanitarian purposes, to ensure family unity, or if such a waiver is otherwise in the public interest.

In other words, many undocumented immigrants who would be ineligible for legalization under the program can still obtain RPI if they have family members here or there are other factors in their favor.

The proposed Senate bill will not be the final law, if reform does in fact become law. This is an important step, however, because it lays out for the first time a detailed and concrete labyrinth of laws that could potentially legalize millions of undocumented immigrants as well as reunite or preserve immigrant families.

There will never be a perfect immigration reform bill given the deeply flawed politics of Washington. Yet this bill is, at least partially, a point in the right direction.