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Posts tagged ‘Removal’

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.”

 

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

 

NY Daily News Covers ICE’s Aggressive Attempts to Deport Our Client, an Abandoned Child Eligible For a Green Card

Erica Pearson of the New York Daily News wrote an article in today’s paper on ICE’s aggressive attempts to deport our client, a minor abandoned by both her parents who is eligible for a green card.

Here is the article below:

Long Islander Antonio Rodas is fighting to get his 19-year-old niece, Salvadoran Maria Isabel Peña Rodas, out of immigration detention and seeks to become her legal guardian

Federal authorities say Peña Rodas is an adult and deportation priority, but uncle’s lawyers say she is eligible for a special green card for abused or abandoned youth

BY / NEW YORK DAILY NEWS

MONDAY, JANUARY 13, 2014, 10:20 PM

CHRISTIE M FARRIELLA FOR NEW YORK DAILY NEWS

A Long Island man fighting to get his niece out of immigration detention wants to become her legal guardian — and his lawyers say she is eligible for a special green card for abused or abandoned youth.

But federal authorities say 19-year-old Maria Isabel Peña Rodas, who left El Salvador last fall, is an adult. And because she’s a recent border crosser, she is a deportation priority.

Border officials caught Peña Rodas in Texas, and she has been in a California detention center for more than four months.

“I am just asking God and immigration to give her a chance to be with us,” said Peña Rodas’ uncle and godfather, Antonio Rodas, 43, of St. James, who has permission to live and work in the U.S. and does prep work at an Italian restaurant.

Rodas’ lawyer Ala Amoachi said Peña Rodas, who was abandoned by her parents and living with her grandmother in El Salvador, should qualify for Special Immigrant Juvenile Status, available to abandoned or abused people younger than 21.

“She would be clearly eligible,” Amoachi said. “We said, ‘Why don’t you release her on an order of supervision? Give us some time to get the process started.’ ”

But Immigration and Customs Enforcement officials say that isn’t a reason to let Peña Rodas into the U.S. — because she would first need a family court judge to either declare her a court dependent or legally commit her to the care of a guardian.

She would also need a court order saying she can’t be reunited with one or more parents, and for the court to find that it’s in her best interest to stay in the U.S.

“An undocumented individual is only eligible for Special Immigrant Juvenile Status if they are already a ward or dependent of the state court in the state where they reside,” ICE spokeswoman Gillian Christensen said.

Amoachi expects a New York family court would grant Peña Rodas what she needs, but that can’t happen unless she’s in the state. If Peña Rodas were 17, officials would have already released her.

It is ICE’s policy not to detain unaccompanied kids younger than age 18 for more than 48 hours.

She would have instead been turned over to the Office of Refugee Resettlement, within the U.S. Health and Human Services Department, and then either housed in a federal care center or placed with family.

As a growing number of young Central Americans travel alone to the Mexican border — many fleeing abusive homes or gang recruitment — Amoachi said those ages 18 to 20 face a paradox. They are too old to fit ICE’s requirements for release, but still young enough to qualify for a Juvenile Status green card.

Antonio Rodas said his niece told him she feared for her safety in her hometown — that two men had tried to assault her as she walked home from a store. “It would be a better life for her here,” he said.

Read more: http://www.nydailynews.com/latino/uncle-battles-deportation-niece-article-1.1578604#ixzz2qOLQxRCm