Building a Case to Protect Clients who Fear Persecution or Torture September 7, 2011

1. Building a Case to Protect Clients who Fear Persecution or Torture September 7, 2011 Franklin and Marshall College

2. 3 Types of Fear-based Relief • Asylum • INA Withholding of Removal • Convention Against Torture (CAT) Protection • Withholding of Removal under the CAT • Deferral of Removal under the CAT

3. Affirmative v. Defensive Applications • Affirmative application: Not in removal proceedings already • Interview with asylum officer • Asylum Only • Defensive application: In removal proceedings • Before an immigration judge • Asylum, Withholding of Removal, CAT • Immigration detainees always in a defensive posture • Note: Non-citizens who file an “affirmative” asylum application and lose their case will be referred to an immigration judge and placed in removal proceedings.

4. Asylum

5. Asylum: Basics 1951 – U.N. Convention on the Status of Refugees 1980 – U.S. legislation implementing the Convention on the Status of Refugees States parties to the 1951 Convention must comply with the concept of “non-refoulement” – i.e., the obligation not to return an individual to a country where she faces persecution

6. Asylum: Refugee Defined “Any person who is outside any country of such person’s nationality…and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A); 8 USC 1101(a)(42)(A). This draws directly on the definition of a “refugee” set forth in the 1951 Convention.

7. Asylum: Elements 1. “Well-Founded Fear” 2. Of “Persecution” 3. Perpetrated by the government or an entity the government cannot control 4. On account of the following factor(s) • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group

8. Asylum: “Well-Founded Fear” • Standard = “reasonable probability” • Lower than preponderance of the evidence • “One in ten” probability • INS v. Cardoza-Fonseca, 480 U.S. 421 at 431. • Has objective and subjective components • Applicant must have fear (subjective) • Fear must be reasonable, i.e., “well-founded” (objective)

9. Asylum: “Well-Founded Fear” • Matter of Mogharrabi, 19 I&N. Dec. 439 (BIA 1987) • Possesses belief or characteristic persecutor seeks to overcome • Persecutor knows or is likely to become aware of the characteristic • Persecutor has the capability to punish • Persecutor has the inclination to punish

10. Asylum: “Well-Founded Fear” • May be established two ways: • Past persecution • Future persecution • Advantageous to argue both when possible

11. Asylum: “Persecution” • Harm must be serious in nature • A basic/core human right should be at risk • Courts consider several factors: • Severity of harm • Frequency of events • Cumulative effect of mistreatment

12. Asylum: “Persecution” Examples • Torture • Prolonged detention without a hearing • Forced violations/renunciations of fundamental beliefs. See Fatin v. INS, 12 F.3d 1233 (3d. Cir. 1993)(finding that “wearing a chador...[is] so deeply abhorrent to [a woman] it would be tantamount to persecution.”) • Non-physical harms – mental suffering • Multiple beatings, seven of which were severe, and at least one which resulted in a broken knee. Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005). • “[E]conomic restrictions so severe that they constitute a real threat to life and freedom.” Li v. Attorney General, 400 F.3d 157 (3d. Cir. 2005) • But see, Shardar v. Ashcroft, 382 F.3d 318 (3d Cir. 2004) (Brutal beating by police, though finding such treatment “extremely troubling,” did not constitute past persecution).

13. Asylum: Past Persecution Cases • Legal presumption of future persecution • 8 C.F.R. § 208.13 • DHS can rebut with proof by a preponderance of the evidence of changed circumstances or reasonableness of internal relocation

14. Asylum: Future Persecution Cases • Look to past incidents and country conditions to show Mogharrabi standards • Experts are important in these cases • Remember your burden: “reasonable possibility”; can be as low as 10% risk of harm

15. Asylum: Who is the Persecutor? • Government actor • Agent acting under color of law • Such as police, military, presidential guards • Non-governmental actor • Guerrilla groups (e.g. FARC in Colombia) • De facto regime • Private actors (family member, spouse)

16. Asylum: If Persecutor is NOT a Government Actor… • Government condones a pattern or practice of abuse through pervasive non-action. • A single violation or failure by state to investigate is insufficient. • Courts look at whether laws on the books are enforced to protect victims, whether victim sought government protection, and pervasiveness of persecutory customs.

17. Asylum: Failure of State Protection • Purpose of refugee law to provide protection when state government failed in duty to safeguard core/basic rights • Persecution implies failure by state to protect citizens

18. Asylum: Countrywide Persecution • Victim unable to find protection anywhere in the country. • If government is persecutor, country-wide persecution is presumed and internal relocation is not an option. • If the persecutor is not a government actor, then localized rather than country-wide threat is usually not sufficient.

19. Asylum: “On Account Of” • Must establish “nexus” between well-founded fear of persecution and at least one of the enumerated grounds: • Political opinion • Social group • Race • Nationality • Religion • INS v. Elias-Zacarias, 112 S.Ct. 812 (1992) made the connection between feared persecution and one of the enumerated grounds the central question. • The persecution claim must be connected to one of the enumerated grounds.

20. Asylum: Race, Religion, Nationality • Race: Broad meaning • Religion • Nationality • Not just citizenship • May be ethnic or linguistic group • May overlap with race • There is often overlap between these categories: • Ex: Bosnian-Muslim (religion, nationality) • Ex: Dinka people of Sudan (race, nationality, religion)

21. Asylum: Political Opinion • Actual • Imputed • E.g., the daughter of a political activist is persecuted for the activities of her father

22. Asylum: Membership in a Particular Social Group • “[C]ommon, immutable characteristic” that persons “cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” • Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985) • A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007) set forth a two-prong test • A) whether the group is socially visible such that members are ‘readily identifiable’ in society; and • B) whether the group can be defined with sufficient particularity to delimit its members

23. Asylum: Bars to Eligibility • One-year filing deadline (INA § 208(a)(2)(A); 8 USC § 1158(a)(2)(A)) • Safe Third Country (INA § 208(a)(2)(A); 8 USC § 1158(a)(2)(A)) • Firm resettlement (INA § 208(b)(2); 8 USC § 1158(b)(2)) • Discretionary • Persecutor (INA § 208(b)(2); 8 USC § 1158(b)(2)) • Commission of a serious nonpolitical crime outside the U.S. (INA § 208(b)(2); 8 USC § 1158(b)(2)) • Danger to national security (INA § 208(b)(2); 8 USC § 1158(b)(2)) • Conviction of an aggravated felony -- See INA 101(a)(43)

24. Alternative Remedies to Asylum Those who have fear cases but are barred from asylum may still avoid removal if they win a case for • INA Withholding of Removal or • Convention Against Torture Protection.

25. INA Withholding of Removal

26. INA Withholding of Removal: Basics • Alternative remedy. INA § 241(b)(3)(A); 8 USC § 1231(b)(3). • Same statutory definition as asylum (“refugee”) • Heightened burden of proof • “more likely than not” = >50% • Available if missed 1 year filing deadline • Non-discretionary, but no pathway to residency • Available in some cases even if non-citizen has been convicted of an aggravated felony!

27. INA Withholding of Removal: Bars • Conviction of a “particularly serious crime.” (INA § 241(b)(3)(B); 8 USC § 1231(b)(3)(B)) • Persecutor (INA § 241(b)(3)(B); 8 USC § 1231(b)(3)(B)) • Commission of a serious nonpolitical crime outside the U.S. (INA § 241(b)(3)(B); 8 USC § 1231(b)(3)(B)) • Danger to national security (INA § 241(b)(3)(B); 8 USC § 1231(b)(3)(B))

28. INA Withholding of Removal: Particularly Serious Crime Bar • “[A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” INA § 241(b)(3)(B); 8 USC § 1231(b)(3)(B). • Most drug trafficking aggravated felonies constitute particularly serious crimes, regardless of sentence. See In re Y-L-, A-G-, R-S-R-, 23 I&N Dec. 270 (A.G. 2002).

29. INA Withholding of Removal: Particularly Serious Crime Bar • Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982): Criteria to determine “particularly serious” crime: • The nature of the conviction • The circumstances and underlying facts of the conviction • They type of sentence imposed • Whether the type and circumstances of the crime indicate that the person is a danger to the community. Id. • Example: Illegal re-entry with 18 month sentence.

30. Asylum v. Withholding of Removal • Standard of proof is lower for asylum • Asylum offers greater benefits • Withholding of removal has a higher standard and lower benefits, therefore asylum is the most favorable. (See Handout Chart Comparing Asylum, INA Withholding of Removal , and CAT)

31. UN Convention Against Torture (CAT)

32. CAT Relief: Basics • UN Convention Against Torture and Other Forms of Cruel Inhuman Or Degrading Treatment or Punishment (CAT) (1984) • Article 3: Obligation not to deport people who would likely be subjected to torture in their home counties (again, “non-refoulement”). • 1989: The US enacted legislation implementing CAT Article 3 - 8 CFR §208.16(c) • CAT relief is only available in removal proceedings • 2 Types of Relief: • Withholding of Removal • Deferral of Removal

33. CAT Relief: Elements • 5 Part Test laid out by Court in In re J-E-, 23 I&N Dec. 291 (BIA 2002). • The act must cause severe pain or suffering • The actor must specifically intend to cause severe pain or suffering • The act must be for an illicit (unlawful or prohibited) purpose • The person inflicting the harm must be a state actor OR if not a state actor, must prove the government acquiesces to the harm • The act cannot result from lawful sanctions

34. CAT Relief: Meeting the Burden of Proof Standard of Proof = MORE LIKELY THAN NOT Evidence of past torture. Relocation to safety in country is impossible. Evidence of “gross, flagrant or mass violations of human rights within the country of removal” See 8 CFR § 208.16(c)(3)

35. CAT Relief: Withholding of Removal • Same bars to INA Withholding of Removal apply to CAT Withholding of Removal (particularly serious crime, danger to national security, etc.) • Same relief as INA Withholding of Removal • The burden of proof is to demonstrate a likelihood of torture, in accordance with the CAT. • Client is released from detention if he or she is granted Withholding of Removal under CAT.

36. CAT Relief: Deferral of Removal • Everyone is eligible for deferral of removal (even those considered to be a danger to national security) • Least secure form of relief • Client can still be detained even if he wins case (8 CFR § 208.17(c)). • Easier for the government to terminate protection if it shows that the likelihood of torture no longer exists. (8 CFR 208.17(d)).