Attorney General Restricts Asylum for Victims of Domestic Violence

June 11th, 2018

On June 11, 2018, Attorney General Sessions issued a precedent decision, vacating a decision by the Board of Immigration Appeals (BIA) and finding that generally, victims of domestic violence and other victims of crime committed by non-governmental actors do not qualify for asylum. His decision usurps the independence of the Immigration Courts and the BIA and flouts due process by disavowing the principle that each asylum case stands on its own merits.

In Matter of A-B- (12/18,2016), the BIA upheld asylum for the respondent and held that membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common,” was one of the main reasons for the spousal abuse in that case. According to US immigration law, a person qualifies for asylum who can show past persecution or a reasonable fear of future persecution on account of race, religion, national origin, political opinion or membership in a particular social group.” A particular social group is defined as persons who hold a “common, immutable characteristic” which may be “an innate one such as sex, color, kinship ties, or in some circumstances…a shared past experience such as former military leadership or land ownership.” Matter of Acosta, 19 I&N Dec. 211, 233–34 (BIA 1985). The characteristic must be one “that the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Also, membership in the particular social group must be socially distinct, “a group need not be seen by society; rather, it must be perceived as a group by society.” Matter of M-E-V-G-, 26 I&N Dec. at 240. Particular social group membership has been one of the most contentious protected groups in asylum law and has greatly evolved over the years to include victims of domestic violence.

Furthermore, there must be a nexus between the harm and the group membership. In Matter of A-B-, the BIA found that the ex-husband abused her based on his position of authority as her ex-husband and father of their children.

Finally, the asylum applicant must demonstrate that his or her government is unable or unwilling to protect him or her from harm based on one of the qualifying groups. In Matter of A-B-, the BIA held that there was evidence that the police did not intervene after being called on multiple occasions. It also noted that a governmental human rights report for El Salvador indicated that domestic violence was a widespread and serious problem and that government’s efforts were minimally effective.

According to Annaluisa Padilla, AILA President, “The Attorney General is turning back the clock on nearly twenty years of asylum law and undermining access to protections for bona fide asylum seekers who have suffered domestic violence, gang violence, or other forms of persecution by private actors. He blatantly ignores the conditions in countries that our own asylum law demands be taken into account when deciding these cases. This decision must also be examined in light of the Central American women and families who are now coming to our borders seeking protection from the uncontrolled, extreme levels violence in their home countries. These women are not safe in their own countries because the government cannot or will not protect them. Furthermore, today’s decision has made the arduous path to asylum even more difficult for those who are pursuing protection on their own without legal representation.”

In response to an invitation for amicus briefs, 16 retired immigration judges and former BIA members have submitted an amicus brief in support of the respondent in Matter of A-B-. It asserts that this case is “rife with procedural violations and is consequently unripe for agency-head review.”

Trump Issues Executive Order on Immigration & National Security

January 28th, 2017

President Trump’s most recent executive order, ‘Protecting the Nation from Terrorist Attacks by Foreign Nationals,’ impacts immigration in its quest to abate terrorist attacks. In particular it does the following:

• Imposes a 90-day entry ban into the US on foreign nationals from seven countries with high Muslim populations linked to concerns over terrorism, which are Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen (excluding those foreign nationals traveling on diploma visas, NATO visas and C-2 visas for travel to the UN and allowing an exception to the bar on a case-by-case basis);

• Bars Syrian refugees indefinitely;

• Places a 120-day moratorium on refugees from around the world and directs officials to determine additional screening procedures to ensure that they don’t pose a threat to security and the welfare of the US:

• Slashes the total number of refugees from 110,000 to 50,000; and

• Suspends the visa interview waiver program so that all individuals seeking a nonimmigrant visa must undergo an in-person interview (with limited statutory exceptions).

Trump’s order also establishes a “religious” test for refugees by granting Christians and minority religions priority over Muslims. This is based on Trump’s assumption that Muslims come to the US relatively easily compared to Christians, for whom he claims it is nearly impossible. However, according to the Pew Research Center, almost as many Christians (37,521) were admitted as Muslims (38,901) in the 2016 fiscal year.

It should be noted that most of the 19 hijackers on the planes that crashed into the World Trade Center on September 11th were from Saudi Arabia. The rest were from the United Arab Emirates, Egypt, and Lebanon, none of which were included in the 90-day ban. Critics have noted the political reasons and Trumps’ personal reasons for not covering such countries, which do not relate to our national security.

The world’s critics have noted that the door is being slammed on innocent people and harming the world’s most vulnerable people. We should be making policy decisions based on reason and compassion and not fear. Also, it is noted that Trump’s misguided, harmful and rash decision will backfire and only make us less safe. Such draconian policies bolster the US’ enemies by offering a propaganda boost to terrorists and the policies have major diplomatic repercussions and exacerbate the already-low perceptions of Americans globally. Overall, Trump’s policies will alienate Muslims worldwide even more.

Others note that Muslims’ perceptions of the US are already cynical and that they regard Americans as hypocritical since Americans claim that the US is the land of freedom, democracy and diversity but subject Muslims to extreme forms of vetting and overall discrimination in the immigration process. Under this line of reasoning, Trump’s stringent executive order will not provoke more people into becoming terrorists but just set the record straight on America’s actual stance.

Finally, it should be emphasized that Trump’s ban on Muslim immigration places in jeopardy the resettlement of interpreters from Iraq and Afghanistan who have helped US forces since 2001. They have been promised resettlement in the US and the Obama Administration continued the program granting special visas to them. The ban on their entry into the US may discourage potential future interpreters who risk their lives for us.

Trump’s Anti-Immigration Executive Orders

January 25th, 2017

It is getting increasingly difficult to tolerate the constant deluge of news about Trump’s anti-immigration policies, actions and attitudes. Just today, he issued two executive orders affecting immigration. The one on border security and immigrant enforcement includes building a wall along our border with Mexico. The second focuses on public safety in the interior of the US. Enforcement of US laws and removal of criminal aliens sounds reasonable, but that is only so if they are executed with fairness and justice and not based on fear-mongering and xenophobia.

Also, it is important to evaluate our immigration laws to determine if they are even wise, logical and fair. For example, the lack of sufficient numbers and types of nonimmigrant visas that allow foreigners to work in the US is woeful and only harms the US economy and creates a shadow one, impedes the prosecution of crimes (since undocumented workers are afraid to report them) and exploits workers. If we simply allowed for more foreigners to work in the US based on sponsorship by employers then we would drastically reduce the problem of undocumented workers in the US and generate enormous gains for our economy and public safety.

Finally, egregious stereotyping of Muslims or those from “hostile” countries is inimical to our strong values of an open, tolerant, compassionate and diverse society. It makes me heartsick to think of all of those Syrian refugees who have lost everything and suffered extreme trauma who will be turned away just because of their nationality. We already employ extensive vetting processes. It is true that no system may be completely foolproof but that is no excuse for eradicating the system altogether. Life is a careful balancing act and always involves risks and in this case the need of these refugees and the reputation of our country as the standard-bearer of democracy and the land of immigrants far outweighs the disadvantages of an outright ban on welcoming refugees.

Obama Administration Ending “Wet Foot, Dry Foot” Cuban Policy

January 16th, 2017

The Obama administration is ending the “wet foot, dry foot” policy in place that automatically grants legal permanent residency to Cubans who arrive in the United States by land without visas and returns those intercepted at sea. The Obama administration is also ending a policy to immediately deport Cubans apprehended at ports of entry or at a U.S. land border, mainly the one with Mexico. Furthermore, the administration is eliminating the favorable policy towards Cuban medical professionals, known as the Cuban Medical Professional Parole Program, pursuant to which Cuban medical professionals stationed in international missions could defect and get expedited visas to the US.

President Clinton’s administration instituted the wet-foot/dry-foot policy in the mid-1990s to deal with the Cuban rafter crisis. Before the agreement, amid widespread economic and political unrest in Cuba, approximately 35,000 Cubans fled the communist regime to the US in makeshift boats and rafts

The major change in policy is a result of the President Obama’s attempt to normalize diplomatic relations between the US and Cuba and terminate the decades-old trade embargo that the US has in place against Cuba.

The 1966 Cuban Adjustment Act, from which the “wet foot, dry foot” policy originally derives, remains in place, although Obama administration officials are calling for its repeal by Congress. Cubans who reach US soil will still be allowed to apply for asylum or other humanitarian relief, but they will not be given preferential treatment.

To carry out the new policy, the Cuban government agreed to take back 2,746 Cubans who were excludable rom the US after the 1980 Mariel boatlift as well as some others who came to the US at the same time and committed crimes. That leaves the vast majority of the longstanding deportation Cuban cases pending, although the Cuban government agreed to review the decisions on a case-by-case basis.