Refugee and Asylum Law

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Refugee and Asylum Law

Introduction to Political Asylum

Two paths to getting into US as a refugee:  through selection while overseas, usually from a refugee camp, or through filing a claim for asylum at the border or while inside the U.S. under the refugee statute or the torture statute.

International obligations under the UN Refugee Convention: The granting of asylum is discretionary on the parts of countries but no country may return a person to a place where she may be persecuted (non-refoulement).  Non-refoulement is embodied in the withholding of removal provisions of the INA [§ 241(b)(3)].

Under INS § 208, “asylum status” is granted at the AG’s discretion to applicants who show that they meet the statutory definition of refugee.  Asylum status is different from “refugee status,” which denotes those who came to the US via an overseas refugee program.  Asylum may be terminated if threat of persecution subsides, but refugee status cannot.  Asylee adjustments to LPR status is capped at 10,000, but there is no ceiling on adjustments from refugee status.  There is no limit on the number of grants of asylum.

Establishing Persecution

Eligibility for asylum, withholding, deferral

Eligibility for Refugee Status : INA 101(a)(42)(A): unwilling or unable to return “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.”

“Persecution” is not defined, but Courts of Appeal have defined it as infliction of suffering or harm or punishment for a prohibited reason.

WFF as defined by Congress: genuine subjective fear plus reasonable probability that this person would suffer persecution, rebuttable by the govt’s showing of changed country conditions.

On account of 5 grounds.

Discretionary finding based on all circumstances, including credibility.

Withholding of removal 241(b)(3) where the “alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Deferral of removal: Convention Against Torture and torture statute prohibit non-refoulement if substantial grounds for believing person would be subject to torture.

Imputed Political Opinion

Matter of Acosta (BIA 1985): Persecution on acct of PO requires that individual held belief that causes him to be persecuted, not merely that persecutors had a political goal.  No evidence here that guerrillas targeted taxi driver b/c of driver’s PO, or even that they were aware he had any opinion at all.

Bolanos-Hernandez (9th Cir. 1984):  Imputed political opinion doctrine: Choosing to remain neutral is a political decision.  Deciding not to identify with any of warring factions is a PO.  No affirmative political belief required.  Motive underlying political choice is irrelevant.

Divided Opinions:  M.A. v. INS (4th Cir. 1990) and Perlera-Escobar v. EOIR (11th Cir. 1990) cast doubt on the imputed political opinion doctrine.  The BIA has declined to apply it because it “would create a sinkhole that would swallow the rule.”  Some judges believed the core idea of political refugee is political activism and that in many imputed PO cases the government/guerrillas were merely trying to harass or intimidate the population.

INS v. Elias-Zacarias (US 1992) cast doubt on imputed PO. Guerillas in Guatemala try to conscript petitioner, who fled fearing retaliation.  Scalia’s majority opinion says it’s not necessary to decide whether P held PO, b/c P failed to establish that record compels conclusion that he has WFF (P was appealing denial of motion to reopen to present new evidence).  In dicta, Scalia says neutrality does not amount to expression of PO; it appears P’s motive was just to have a better life, not to flee political persecution.

Stevens’ dissent:  Majority’s definition of PO is too narrow: PO can be expressed negatively.  In the end, neither P’s motive nor persecutors’ motives is crux of it:  persecutors only see the overt manifestation of a PO, in this case a refusal to join them.

After Elias-Zacarias, INS, BIA, lower courts took advantage of Scalia’s claim that he wasn’t deciding whether P held PO to keep the imputed PO doctrine alive. In an official agency position in 1993, INS said the doctrine serves the objectives o the statute.  The 9th Circuit in 1997 affirmed that imputed PO requires looking at the political views the persecutor rightly or wrongly attributes to his victim.

Standard of judicial review: Denials of withholding are reviewed under substantial evidence test.  Discretionary denials of asylum under deferential abuse of discretion standard.  Overturning a factual determinations requires evidence that compels the contrary conclusion.

Mixed motive cases (not discussed in class):  Judges are divided as to what P has to show about persecutors’ motives when they have both permissible and impermissible motives.  Some only circumstantial evidence that a prohibited ground was a reason for the persecution is enough, whereas others think prohibited reason had to be a but-for cause. Gafoor.

Particular Social Group

Acosta standard:  innate characteristic so fundamental to identities/consciences that members cannot or should not be required to change it.

Matter of H (BIA 1996):  Somalian subclan is a PSG based on Acosta  P testifies to this kinship-based subclan, corroborated by State Dept and human rights reports.  Persecutor targeted P b/c he is in this subclan/PSG.

Dissent:  In clan warfare, you could have everyone persecuting everyone else.  This use of PSG ground to protect faction in civil war turns civil war into persecution.  Asylum is meant to protect narrow categories of people.

In addition to Acosta standard, 9th Circuit also uses Sanchez-Trujillo:  voluntary associational relationship imparting a fundamental, common characteristic.

Homosexual orientation may define a PSG, depending on the case.

Fatin v. INS (3d Cir. 1993):  Iranian gender-specific laws, such as requiring women to wear chadors, does not rise to level of persecution.  Allows possibility that Iranian women who refuse to conform could be PSG.

Matter of Kasinga (BIA en banc 1996) – Women in P’s tribe who had not undergone FGM yet and opposed the practice are a PSG.  Gender-based PSG claims ignite debate about whether gender norms constitute persecution, what cultural assumptions are embedded in asylum determinations, whether such asylum claims can be defined in terms of individual rights.

The Refugee Definition

The broad definition: a person fleeing one or more dangers, like war, natural disaster, famine, or targeted persecution

The U.S. law definition, drawn from international treaties: A person with a “well-founded fear of persecution based on race, nationality, social/political belief, religion, or membership in a particular social group.” § 101(a)(42)

There are special other categories that cover some aspects of the broader definition, like Temporary Protected Status for those fleeing civil wars and natural disasters.

Old Acosta standards for well-founded fear of persecution: (still useful)

Alien has characteristic persecutor seeks to punish

Persecutor is aware or could easily become aware of characteristic (see Cardoza)

Persecutor has capacity to punish

Persecutor has inclination to punish (same as 1?)

Non-Refoulement (Push-Back)

The Convention on Refugees Article 33 prohibits “refoulement,” or pushing out of present refugees in the country. We include this at INA § 241(b)(3)

This is one rationale behind withholding of removal – even if we ultimately kick them out, they won’t be removed to their original country

The Convention Against Torture (CAT) includes a prohibition on refoulement (incl. extradition) of those who will be tortured at home regardless of motive (so even if they’re criminals).

Standard is that there are substantial grounds for believing the alien would be subjected to torture. (interpreted as more likely than not)

Can apply for relief under the CAT along with asylum and withholding as a 2nd backup. Grant rates are extremely low.

We can’t apply all the normal preclusions in § 241(b)(3)(B) and send people back under the CAT (see F below) However, if you’re subject to mandatory preclusions but entitled to CAT protection, you only get “deferral of removal”, which is more easily terminated if country conditions change.

Overseas Refugee Programs – § 207 and 209

Every year the president consults with Congress and issues numerical ceilings for the next year, allocating among different refugee groups and saying who is of special humanitarian concern

Noncitizen starts the process herself at overseas refugee processing centers (usually camps), and is then admitted under 207.

Individual qualifications – not enough to be within a refugee priority designation and admissions numbers are available:

Must not be firmly resettled in a third country

Must be a refugee within the statutory definition

Some inadmissibility grounds (like public charge) are waived for refugees, and the DHS Secretary has discretion to waive others.

Admitted for 1 year probationary period where status can be terminated if the individual was not really a refugee at time of admission. Rare. Changes in home country after admission that lower persecution are irrelevant.

All refugees can adjust to permanent residency after a year. § 209(a), and the adjustment is retroactive, so the citizenship clock runs from the date of arrival.

Refugees are eligible for various federal assistance and training programs under § 411-14, and are exempt for 5 years from restrictions on access to welfare.

Political Asylum – § 208 and § 209 (b)

Three paths for applications: affirmative applications, defensive applications, and those at ports of entry (or some EWIs) who must pass a credible fear hearing, which then become defensive asylum claims in front of IJs.

For affirmative cases, they’re handled by asylum officers, who grant or refer the case to an IJ. The referral goes with a notice to appear, which means it’s really a removal proceeding. The case then proceeds like a defensive asylum claim.

1 year rule – must apply for asylum within 1 year of arrival unless there are changed circumstances (in your country) or extraordinary circumstances why you didn’t.

Unlike refugee status, asylum can be terminated if circumstances change abroad so the threat of persecution is ended.

Asylees can also adjust to permanent residence after one year, but the Refugee Act limits the number of asylee adjustments to 10K a year, so there are long delays.

Threshold eligibility for asylum is reviewed on a “substantial evidence” test, but discretionary denials of asylum generally reviewed on “abuse of discretion” standard

Withholding of Removal – § 241(b)(3)

Withholding of removal is mandatory upon a finding your life or freedom will be threatened if you are removed to that country on account of race, religion, nationality, membership in a particular social group, or political opinion (tracking the nonrefoulement language in Article 33.) In comparison, asylum is discretionary.

Withholding is country-specific: it’s the right not to be sent back to certain country. People often apply for both together, in case they get asylum denied. Matter of Salim (1982) (withholding w/r/t Afghanistan granted, but no asylum because of fraudulent document problems)

No 1-year bar on withholding – that would screw up our nonrefoulement duties

Withholding standard interpreted as more likely than not (50%). Asylum is less – a well-founded fear doesn’t need to be 50%. WoR is more objective and asylum is more subjective. Stevic (1984) and Cardoza-Fonseca (1987)

BIA tried to conform to Cardoza, and said IJs should decide on asylum first, because if they get that that’s all that matters. Matter of Mogharrabi (1987)

It’s now well established that withholding is a higher standard, and if an alien doesn’t satisfy the requirements for asylum, he necessarily fails to meet the probability standard for withholding.

So how can you get denied asylum but be granted withholding, like Salim? Because you satisfy the reqs for both, but don’t merit asylum as a discretionary matter for some reason. Then we can just grant withholding, which is not discretionary, and not send you back to your country.

Withholding reviewed under a “substantial evidence” test.

Exceptions and Preclusions to Asylum and Withholding

Persecutors – those who participated or assisted in persecution, maybe even involuntarily or under duress (possibly active personal involvement is needed)

Serious non-political crimes.

Those who have been convicted of “particularly serious crimes” posing a danger to the U.S. community or security can’t get either. Aggravated felonies preclude asylum, and when sentences to an aggregate 5-year term, preclude withholding.

A.H. case – Ashcroft interpreted ‘danger to U.S. security’ as any non-trivial danger dealing with 212(c)(2) – any foreign relations, national defense, or even economic interest. Neuman mad how broad this is.

For crimes outside the U.S., the exception applies if there are serious reasons for believing the alien has committed a serious non-political crime.

Firm Resettlement

No asylum if you were already resettled in third country. U.S. law isn’t supposed to help you move wherever you want. Doesn’t apply to withholding.

This can be overcome if applicant shows that entry into that nation was a necessary consequence of his or her flight from persecution, that he remained only long enough to arrange onward travel and that he did not establish significant ties to that nation.

These exceptions are expanding, and some that used to be negative considerations in the exercise of discretion are now statutory bars – if an exception applies the IJ won’t even schedule a merits hearing (“pretermitting” the issue of persecution). This is shady because the UNHCR consistently says the criminal exceptions must be applied with a balancing test, weighing the crime against the gravity of the future persecution.

The Definition of Persecution

Is persecution any serious violation of human rights or a real threat to life or freedom?

Can be persecution even if the government doesn’t characterize it as such. The definition is what a reasonable person would deem offensive. Forced therapy, arrests, interrogation of Soviet lesbian to “cure” her was persecution. Pitcherskaia, 1997

Can be persecution by non-state actors when the government is unwilling or unable to control the persecution – or if there is no state (Somalia).

You must be subject to country-wide persecution – there is no need to invoke the Refugee Convention if you can flee internally

The nexus requirement: Persecution must be “on account of” a convention ground – the motive of the persecutor matters, along with the identity/opinion of the victim, not the identity of the persecutor.

Some examples:

Previously disagreeing with China’s one-child policy and being threatened with sterilization wasn’t enough for persecution (court said ‘people who disagree with policy’ isn’t a social group) Chang, 1989. Law rewritten to now include population control under “political opinion”

Being prosecuted for an attempt to overthrow a lawful government is usually not persecution, but it might be in a country where a coup is the only option for political change, there’s no due process, etc. Dwomoh v. Sava, 1988

Being punished for being a conscientious objector, even to a bad military, isn’t usually punishment, although refusing specific orders to commit persecution is a stronger case (Tagaga, 2000)

Imputed political opinion is OK, but if you have enough evidence you weren’t just indifferent or risk-averse. Elias-Zacarias (1992) (being coerced into military by Salvadoran guerillas and fearing government retaliation wasn’t persecution for imputed political opinion)

Past Persecution – If you demonstrate it, it creates a rebuttable presumption of future persecution. True for both asylum and withholding of removal.

Even if government rebuts and shows there will be no or less future persecution, if the persecution was very severe, we can grant asylum anyway so as not to return alien to the site of the suffering.

Same  if you won’t be persecuted in the future but will suffer “serious harm”

Y.T.L. case – for a husband whose wife was sterilized involuntarily in China, government argued changed circumstances – there would be no more persecution because now they can’t have more kids. The court ruled the state of being sterilized is ongoing persecution.

Membership in a Particular Social Group

Should be an immutable characteristic – you can’t change it or it’s so fundamental to your identity that you shouldn’t be made to. Members or society should see them(selves) as a group – it can’t just be any random demographic slice.

Although case for being a social group seems to get better as persecution gets more severe.

Can be a past event, like being a member of a former regime. Matter of H-, 1996 (Marehan subclan in Somalia a social group)

Sexual orientation can meet Acosta standards for a social group, but that doesn’t mean it’s a blanket determination.

Recent Thomas case (9th Cir.) – being in a particular family can count as a social group.


What amounts to persecution of women on account of being women? Court afraid to consider new definitions or groups that would make “too many” people eligible for asylum, even if the harm is severe, because they think Congress didn’t mean to invite in giant groups (like all women in a certain country.)

Having to be subject to anti-woman religious regime not necessarily something fundamental to your identity. Fatin, 1993. (Alito) Might be arrested or beaten, but not clear she would resist wearing the veil and invoke those consequences.

Forced female genital mutilation can be a basis for asylum. Matter of Kasinga, 1996. Social group drawn as “young women of the X tribe who have not had FGM as practiced by that tribe and who oppose the practice.” See p. 943 for more examples of acceptable groups.

Courts not willing to protect against domestic abuse, even when severe and the government will not control. Matter of R-A-, 1999. Still waiting for new AG regulations on gender and violence.


Statutory Power

Arriving aliens not in expedited removal are detained (a couple exceptions). § 235(b)(2). For other than arriving aliens, they can be detained or released on bond or on their own recognizance (conditional parole) § 236 (a)

§ 236A – Mandatory detention of terrorists for up to renewable six month period. This is only reviewable by habeas review in the fed courts (what about post-REAL ID?)

Detention following finding of removability – § 241

Those inadmissible and removable on criminal grounds are detained

Those serving jail sentences are removed after the sentence is served

Criminal aliens, threats to the community, or those unlikely to comply with a removal order can be detained beyond the removal period and supervised afterward.

Constitutional Limits

Indefinite Detention – is not so good. Gov gets a 90-180 day detention period, but after that, if the alien shows there’s no significant likelihood of removal, the gov must rebut or parole you. Zadvydas v. Davis, 2001.

Court says this might not be true in cases of heightened security or terrorism, but that should be the exception, not the norm.

Detention pre-removal order, with no  (individualized) bond hearing, is ok in some instances, like if it’s short. We didn’t read Demore v. Kim.

Detention and Racial Profiling

In 2002 INS/DHS set-up a “call-in” registration program required of nationals of 25 countries, all Arab or Muslim except North Korea, for males 16 or older who were admitted as nonimmigrants before special registration went into affect. Had to report and give lots of personal information, then report annually and before leaving. Failure to comply is a failure to maintain nonimmigrant status under § 237(a)(1)(C)

Many who registered were arrested and detained, some without access to attorneys and family. As of 2003, 82K had complied, with more than 13K in the country unlawfully. Over 2K were detained temporarily and a couple hundred still in custody.

It wasn’t an EPC violation in the 70’s to require registration of Iranian students (Narenji, 1979), but what if racial profiling leads to mass detentions?

Judicial Review


SC originally construed habeas corpus to require review of immigration decisions when noncitizens were in physical custody

1946 Admin Procedures Act: presumption that admin action is reviewable if not precluded by statute. Relief available to review deportation and exclusion w/o physical custody requirement

1996: consolidated exclusion and deportation into “removal” proceedings. Can be appealed to fed court of appeals.

INA § 242 eliminated review for most crime-related deportation grounds and many discretionary decisions like waivers, relief from removal, etc.

Interpreting Immigration Laws

Federal statutes making distinctions between citizens and noncitizens are almost never subject to strict scrutiny (intermediate or rational basis better), because we need the power to regulate immigration and foreign policy

Court generally uses Chevron deference with immigration regulations – authority for statutory interpretation has been delegated to agency and the court is bound to defer to it if it is reasonable.

Bars on Review

No review of expedited removal. § 242 (a)(2)(a) is a super-limited habeas right that precludes court from reaching merits of immigration claim (Knauff doctrine) Looks like the doctrine of no PDP for arriving aliens is being extended to habeas..This is disturbing now that expedited removal is expanding into the interior.

§ 242 (g): There will be no review of government exercise of discretion re: commencement or adjudication of execution of removal.

AEDPA tried to bar all review for AF and drug crimes, but couldn’t bar all habeas relief required by the Constitution. Kolster, 1996 These provisions are now superseded.

Courts tried to narrowly construe review-stripping provisions, and say review and habeas are different, so just because you’re barred from review under § 242(a)(2)(C) doesn’t mean you can’t petition the dist. court for habeas under the general habeas statute (§ 2241).  INS v. St. Cyr, 2001. This is now also superseded.

REAL ID and Review

The new § 242(a)(2). Changes jurisdiction for a BIA appeal from district to appeals court. Have 30 days to appeal. (Can be sent to dist. court for fact finding.)

REAL ID limits habeas corpus to only detention issues unrelated to the validity of the appeal (Zadvydas) (Like what?)

Only jurisdiction to review constitutional claims and questions of law (which should included mixed issues of law and fact, but doesn’t always)