The Board of Immigration Appeals and the Federal Courts have ruled that the United Nations High Commissioner for Refugees handbook to determine eligibility for refugee status and the procedures used for such status. Cordoza-Fonseca v. INS, 480 US 421, 439 (1987). Additionally, the UN Convention Against Torture (CAT) was enacted into law in the United States in 1998 and is part of United States law covering asylees. Under the convention, a state party may not return an applicant if there is substantial likelihood that the person would be subject to torture. See, Article 3(1). Congress has stated the same. Customary international law principles also apply in the determination. Matter of Medina, 19 I&N Dec. 734 (BIA 1988).
Domestic United States Law Relating to Refugees
There are several domestic laws that pertain to refugees promulgated by Congress. The Refugee Act of 1980 I the most prevalent. Both the Immigration and Naturalization Act and the regulation have incorporated the act.
The Board of Immigration Appeals and the Department of Justice may interpret the law pertaining to refugees. The Attorney General may review the Board’s decisions under the Immigration & naturalization Act. Matter of Mogharrabi , 19 I&N Dec. 439, 445 (BIA 1988). The Department of Homeland Security and the Department of State also make administrative determination regarding eligibility.
The federal court may also review constitutional challenges to regulations and some determinations. The administrative agencies may not entertain constitutional challenges to the regulations. Most of these challenges are made under the Administrative Appeal Act or the Immigration & Naturalization Act.
Persons protected Under U.S. Law
These different categories of people are protected under the law:
- Normal flow refugees under §INA 207(a)
- Emergency flow refugees INA §207(b)
- Asylum seekers under INA §208
- Persons seeking withholding of removal under INA §241 (b)(3)
- Persons seeking protection under Convention Against Torture
- Parolees under INA §212(d)(5)
- Persons granted extended voluntary departure or deferred enforced departure
- Persons granted temporary protected status (TPS)
A refugee is defined as a person outside of her country who because of a well-founded fear of persecution on account of a protected ground can not return to her country. INA §101(a)(42)(A). The definition also includes persons who are in their countries that the President designates after consultation with Congress. INA §101(a)(42)(B). Persons who are nationals of more than one country do not qualify as refugees unless they show that they would be persecuted by the second country. Matter of B-R-, 26 I&N Dec. 119 (BIA 2013). The law also disqualifies an applicant if they ever participated in the persecution of others. INA §101(a)(42)(B). In a recent decision, the Board ruled that duress may be an exception to the persecutor bar. Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Normal flow refugees are those refugees who apply for admission as refugees overseas. INA §207(a)(1). The President designates these normal flow refugees, after consultation with Congress based on humanitarian or national interest concerns. Id.
Emergency flow refugees are those refugees who, due to emergency humanitarian concerns, the President designates for admission. INA §207(b). Congress may also designate certain groups whoa have credible basis of concern about the possibility of persecution. Congress has designated the following groups for protection:
- Residents of the former Soviet Union who share certain characteristics
- Residents of Vietnam, Laos and Cambodia who share similar characteristics
- Jews or Evangelical Christians of the former Soviet Union
- Members of the Ukrainian Catholic Church or the Ukrainian Orthodox Church in the former Soviet Union , and
- Residents of the Islamic Republic of Iran who are members of a religious minority.
Congress has also designated Iraqi nationals who worked with the United States government, North Koreans under the North Korean Human Rights Act, and persons from certain countries who help bring Americans held captive in the Vietnam or Korean war into US custody.
In Matter of D-K-, 25 I&N Dec. 761 (BIA 2012), the Board of Immigration Appeals ruled that a refugee is subject to removal under INA§ 237.
Asylees are refugees who are in the United States, at a land border, or point of entry. INA §208(a). Asylees must qualify as refugees, meaning that they have to prove a well founded fear of persecution based on a protected ground. Persons interdicted in the high seas may not qualify for asylum.
Before asylum could be granted, the person’s nationality has to be determined. Urgen v. Holder, 768 F.3d 269, 272-74 (2nd Cir. 2014). Statelessness alone, however, is not enough to qualify for asylum, but if statelessness is the basis for persecution then it qualifies. Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011).
Persecution is defined as a threat to the life or freedom of or an infliction of harm on those who differ in a way regarded as offensive. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Harm need not to be physical to rise to the level of persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th Cir. 1996). Permanent or serious physical injury is not required to establish persecution. Matter of O-Z & I-Z, 22 I&N Dec. 23, 25-26 (BIA 1998). Custodial interrogation, rape or sexual assault, and forced medical examinations may arise to the level of persecution.
The government in the country of nationality must also be unable or unwilling to protect the applicant. Kamar v. Sessions, 875 F.3d 811, 819-20 (6th Cir. 2017).
The persecution must be based on a protected ground. The protected grounds are:
- National origin
- Political opinion
- Membership in a particular social group
The applicant must prove that the persecution was based on one or more of the abovementioned grounds. INS v. Elias-Zacarias, 502 US 478 (1992). These characteristics may be imputed to an applicant. There must be a nexus between the persecution and the protected ground. The applicant does not have to show that the persecutor acted with bad intent. Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996).
Political opinion requires an active and specific opinion or belief. Political opinion also does not require an active participation in rallies or organized functions. It requires the immigration judge to consider the evidence relating to the country of citizenship. Mandebvu v. Holder, 755 F.3d 417, 428-32 (6th Cir. 2014). Neutrality, however, may not be enough to show persecution. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Political opinion, however, may be imputed, meaning that the persecutor assumes the political opinion because of a close relationship. INS v. Elias-Zacarias, 502 US 478 (1992). An applicant, however, does not have to show that she holds the actual opinion.
Membership in a Particular Social Group
A particular social group includes members of a group that hold a common immutable characteristic that could not be changed. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). The group must be defined with particularity. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014). The group members have a characteristic that sets it apart. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Family could also qualify as a particular social group. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). To prove eligibility based on a family unit, there must be a nexus between the family unit and the harm. Id. The Board has denied social group protections based on past criminal activities because they are not immutable. Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008). The Attorney General has referred to himself a case to determine whether harm by private entities to social groups qualifies an applicant for asylum. Matter of A-B-, 27 I&N Dec. 227 (AG 2018).
The social group must be cognizable and articulated to the immigration judge and the Board would not remand a casa e for determination of a new social group. Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018). Federal courts have recognized the following groups:
- Members of a clan
- Domestic violence victims
- HIV/AIDS victims
- Mental illness or disability
- Gang membership
- Witnesses and family members
- Land owners
In mixed motive cases, the applicant must show that a protected ground was one central reason for the claimed persecution. INA §208(b)(1)(b)(i).
If an applicant establishes past persecution, there will be a presumption of future persecution. The government many rebut such finding if 1) there was a fundamental change in circumstances or 2) the applicant may relocate within the country to avoid persecution. 8 CFR §§ 208.13(b)(1)(i)(A) and (B). Once a showing of past persecution is shown, the immigration judge must make such finding. Antipova v. US Att’y Gen., 392 F.3d 1259 (11th Cir. 2004). An applicant does not have to show subjective fear. Nor does he have to show that there was a pattern of persecution. 8 CFR § 208.13(b)(ii)(3). Once past persecution is shown, then there will be a presumption pf future persecution. 8 CFR § 208.13(b)(1)(ii). Such a finding would also show that a person’s life would be threatened for purposes of withholding of removal. INA §241()(3).
When the government rebuts future persecution, an applicant may still qualify for asylum based on past persecution under humanitarian asylum. 8 CFR §208.13(b)(1)(iii)(A). Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1989). Humanitarian asylum is not an independent claim for preservation purposes. An applicant may also qualify for asylum if he or she would face other serious harm upon removal. 8 CFR § 208.13(b)(1)(iii)(B); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). Past persecution does not require persecution if the applicant’s testimony is credible.
Well Founded Fear of Future Persecution
An applicant who does not show past persecution may qualify for asylum if she can show that there is a possibility of future persecution. INA §101(a)(42). The applicant must show that a reasonable person similarly situated would fear persecution. Matter of Barrera, 19 I&N Dec. 837, 845 (BIA 1989). The quantum of proof may be less that 10% possibility. 8 CFR §208.13(b)(2)((i)(B). The fear has both a subjective and objective components. The persecutor does not need to presently be aware of the offending characteristic but that he will become aware. Eduard v. Ashcroft, 379 F.3d 182, 192-93 (5th Cir. 2004). Additionally, the applicant does not have show that he fled the country because of persecution, but that he has a claim now. Wiransane v. Ashcroft, 366 F.3d 889, 899 (10th Cir. 2004). Disclosure of asylum status to the applicant’s country may raise an independent claim of asylum. 8 CFR§ 1208.6(a).
A person does not have to show that he will be singled out if there is a pattern of persecution against similarly situated individuals. To establish a pattern, a person must show that the persecutor targets the group specifically for one of the five grounds. Even if there was no showing of a pattern, a person may still qualify if he or she is a member of a disfavored group. Sael v. Ashcroft, 386 F.3d 922, 925-30 (9th Cir. 2004). A person would not qualify if relocation is reasonable. Shah v. Holder, 758 F.3d 32 (1st Cir. 2014). Criteria to determine whether relocation is reasoto nable include 1) whether the person would be harmed in the place of relocation 2) ongoing civil strife in the country 3) administrative , economic, or judicial infrastructure 4) geographical limitations and 5) social and cultural restraints. 8 CFR §208.13(b)(3).
Mandatory Denial of Asylum
Congress has established bars to asylum, where USCIS may not grant asylum but an immigration judge must hold an evidentiary hearing regarding the bar. INA §§208(a)(2) and (b)(2). The bars include:
- Persecution of others under INA §208(b)(2)(A)(i)
- Particularly serious crime INA §208(b)(2)(A)(ii)
- Serious nonpolitical crimes INA §208(b)(2)(A)(iii)
- Danger to the security of the United States INA §208(b)(2)(A)(iv)
- Terrorism related inadmissibility grounds INA §208(b)(2)(A)(v)
- Firm resettlement INA §208(b)(2)(A)(vi)
- Safe third country under the US-Canada Agreement
- Previous asylum applicants under INA §§208(a)(2)(C)-(D) unless there are changed circumstances
- One-year time limit INA §§208(a)(2)(B), (D) unless there are changed or extraordinary circumstances
Withholding of Removal
While the Refugee Act adopts the well-founded fear standard, the standard under withholding of removal adopts the probability of harm standard. INA §241(b)(3). This section of the law is based on Article 33 of the Protocol and allows relief if the applicant’s life would be threatened if returned to his or her country. Withholding provides mandatory prohibition against removal if the person’s life would be threatened for a protected ground. Popova v. INS, 273 F.3d 1251 (9th Cir. 2001).
A finding of past persecution establishes a well-founded fear of future persecution for withholding of removal purposes. If the person does not show past persecution, then he must demonstrate that it is more than likely that he will be persecuted on a protected ground. 8 CFR §208.16(b)(2). If the person fails to show that relocation is unreasonable, then he would not meet the criteria for withholding. 8 CFR §1208.16(b)(2). If relocation is found to be reasonable, then the applicant must show that it Is not. 8 CFR §1208.16(b)(3)(i). If the showing of relocation is rebutted, then the immigration judge must consider the same criteria for relocation under asylum. 8 CFR §1208.16(b)(3).
USCIS may not consider withholding since it is only a defense to removal. 8 CFR §208.16(a). Withholding of removal does not allow for derivative status, and the judge must find removability to grant withholding. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008).
Bars to Withholding
Under INA §241 (b)3)(B), there are bars to Withholding of Removal. These bars include:
- Nazism or Genocide
- Persecution of others under INA §241 (b)3)(B)(i) a person who has ordered the persecution of others on a protracted ground may not qualify for withholding of removal. Matter of A-H-, 23 I&N Dec. 774, 783-85 (AG 2005).
- Particularly serious crime and danger to the community:
- Aggravated felonies where more than 5 years sentence was imposed
- All other crimes where the person is a danger to the community. The Board has relied on the criteria in Matter of Frentescu, 18 I&N Dec. 224, 247 (BIA 1982). In more recent decisions however, the Board has moved away from these factors. In the Ninth Circuit, a person must be convicted of an aggravated felony for the crime to be particularly serious.
We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us to day for help applying for such relief.