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Refugee and Asylum Law
Rutgers University, Newark School of Law
Gupta, Anjum

REFUGEE LAW GUPTA FALL 2016

Differences Between Asylum and W.O.R.

WITHOLDING OF REMOVAL

ASYLUM

Mandatory if refugee

Discretionary (of AG)

Technically, ordered removed but removal withheld

Not ordered removed; lawfully in the US

No path to citizenship

Apply for green card (1yr) & citizenship (5yrs)

Can’t be removed to bad country; can be sent to 3rd country

Allowed to stay; can’t be forcibly removed

Can’t bring over family

Can petition à spouse & kids (kids can’t bring parents)

Fear standard = More likely than not (>50%)

Fear standard = Well founded fear (10%)

MUST show future fear or you fail

Even no future fear, still humanitarian asylum

NO 1yr deadline to file

Must apply w/in 1 yr of arrival to US

WOR = mandatory form of relief

once they are a refugee, they must be given WOR
if they make all the elements they must be granted WOR
higher burden b/c it’s mandatory

Asylum = discretionary

in the AG’s discretion to grant asylum (or IJ on his behalf)
even if someone meets all requirements can still be denied based on discretion
lower burden b/c discretion

is discretionary: even if V meets definition, they can be denied as a matter of discretion
is mandatory: can’t be denied if V meets burden, minimum obligation of the US

1951 UN Refugee Convention

2 General Rights

Nonrefoulement
Access to courts

6 Rights (if lawfully in country)

Employment
Access to housing market
Public assistance
Social security
Freedom of movement
Travel docs to leave the country

1980 Refugee Act

added 2 forms of relief

WOR (access to courts and nonrefoul)
Asylum

AO è Grant Asylum

ê Referral

IJ è Grant Asylum

ê Deny & Order removed

BIA è Grant asylum/remand to IJ

ê Deny & order of removal final

Fed Ct. of App è Remand

ê Deny

SCOTUS è Remand

ê Deny/deny cert

AO

Enters US/affirm application
Interview (non-adversarial)
Only asylum (not WOR)

Grant or refer to IJ

IJ

Apprehended
Opposing counsel = OCC [office of chief counsel] CAT claims, WOR, other cases
Regional courts [ie: Newark, Elizabeth]

BIA

Briefs, on the papers
National court (VA)
Apply law of IJ’s court

Newark is 3rd circuit

Who is a Refugee?

– Elena Alfaro Case Study (sheet)

– What is forced Migration? (pp. 6-15)

Types of Displacement:

1. Conflict-Induced: armed conflict including civil war; generalized violence; and persecution on the grounds

2. Development-Induced: projects that are supposed to enhance development (roads, urban clearance initiatives)

3. Disaster-Induced: natural disasters (floods, volcanoes, earthquakes, etc).

Types of Forced Migrants:

1. Refugee: INA § 101(a)(42); 8 U.S.C. § 1101(a)(42)

Refugees have 2 rights under International Principles:

(1) non-refoulement: they will not be made to return

(2) access to the court system

U.S. signed protocol which adopted the U.N. Convention (1980 Refugee Act)

– implemented treaty & gave the definition of “refugee”

2 Forms of relief under the Act:

(1) asylum: a richer form of relief, more benefits

(2) withholding of removal: the minimum the U.S. must do (restriction of deportation)

2. Asylum Seekers:

people who have moved in search of protection under the 1951 Refugee Convention (p.54) but whose claim for refugee status has not yet been determined

3. Internally Displaced Persons:

forced to flee their homes suddenly or unexpectedly in large numbers
don’t have same legal and institutional support as those who have managed to cross an international border (p. 10)

4. Environmental and disaster displacees

5. Smuggled people

moved [across border?] illegally for profit

6. Trafficked people

moved [across border?] by deception or coercion for the purposes of exploitation; from sale of sexual services or labor in the country of destination.

Trafficking of girls: p. 12

Natural disasters: p.13

Displaced Americans after Katrina: p. 14

What is Persecution?

Degrees of Harm, Level of Risk, and the Burden-Shifting Framework

FACTORS WEIGHING IN FAVOR OF CALLING IT PERSECUTION

Sanctions apply w/o underlying law
No judicial/equivalent process – no hearing
Invidious discrimination against minorities
Disproportionate punishment compared to offense
Torture (& some others) are per se persecution, regardless of offense
Disproportionate for some based on protected class
Applied against actions that can’t be legitimately criminalized (political opinions, homosexuality)

If prosecution is for crime political in nature, may be persecution

You’d look at other factors listed above
Ex: throwing brick at rally to break window then imprisoned for 20 yrs

STATE ACTION REQUIREMENT

persecution must be at hands of gov’t or forces gov’t is unwilling to control

TEST

1) Did harm sink to persecution?

Compare to factors listed above

2) Who was perpetrator?

Government
Force government is unable to control

Persecutor’s Intent is to “Cure” is Still Persecution

Pitcherskaia v. INS [1997]: (pp.151-155):

– detained for being gay in Russia and forced to undergo ele

ing” on those views where his action was an attempt to overthrow the gov’t by violent means
A was “subject to mistreatment because he refused to provide information, not because of his political view.”
Gov’ts have the right to enforce laws against treason

SDNY = grant/reverse and remand

U.S. has procedures for peaceful change, Ghana doesn’t & a coup may be the only way to effect change

U.S. law provides due process protections and applicant didn’t have those protections

Degree of Harm

Stanojkova v. Holder [2011] (sheet):

Parents unconscious, husband hit on head with gun, wife sexually assaulted

IJ à “unfortunate incident” but not enough; only 10 minutes isn’t enough harm

10th Cir à this WAS persecution – persec is more than mere harassment but parameters are yet to be defined

FACTS = Three men broke into their home, held gun to his head because he and his wife were “against the Macedonians” “betrayers” and “did not participate in the war;” they grabbed his wife while she was pregnant, police did not arrive until six hours later and said that they couldn’t protect them because the men who came were “Lions” and more powerful than the regular police.

IJ = deny

minimum amount of harm required for finding persecution was not met

attack lasted 10 minutes
husband did not require hospitalization
not compelling as someone trapped in a jail cell

no presumption b/c they hadn’t been persecuted

BIA = deny, affirmed IJ à harm suffered does not rise to level of persecution.

10th Cir = Court held that IJ and BIA did not make any effort to specify the amount of harm required, and no useful definition could be found.

Court looked at 3 forms of oppressive behavior

Discrimination: unequal treatment (like India’s caste system and Jim Crow laws); does not normally involve physical force except as punishment for violation of the discriminatory laws
Harassment: targeting members of specified group for adverse treatment, but without significant physical force, sexual harassment
Persecution: significant physical force or nonphysical harm of equal gravity (refusing to allow a person to practice his religion); credible threat to inflict grave physical harm

Court held that the line between harassment and persecution was crossed here. Case remanded to BIA.