REFUGEE LAW GUPTA FALL 2017
Refugee Act of 1980
Amended § 243(h) of the INA, the provision that since 1952 had given the AG discretion to withhold the deportation (now removal) of noncitizens subject to persecution.
Definition of Refugee:
INA § 101(a)(42); 8 USC § 1101(a)(42)
Any person who is outside any country of such person's personality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the persecution 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.
DOES NOT INCLUDE:
Any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
Forced sterilization:
A person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear or persecution on account of political opinion.
2 rights apply to ALL refugees:
Non-refoulement
Access to courts
Rights to those lawfully in country:
Employment
Access to housing
Public assistance
Social security
Freedom of movement
Travel documents
ASYLUM
INA § 208; 8 USC § 1158; 8 CFR § 208.13
INA § 208(a)(1):
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section.
INA § 208(b)(1)(A) Eligibility:
The Secretary of Homeland Security or the AG may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the AG under this section if the Secretary of Homeland Security or the AG determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.
INA § 208(b)(1)(B)(i) Burden of proof:
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A) of this title. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
EXCEPTIONS:
INA § 208(a)(2)(A) Safe third country:
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the AG finds that it is in the public interest for the alien to receive asylum in the United States.
INA § 208(a)(2)(B) Time limit:
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 YEAR after the date of the alien’s arrival in the US.
INA § 208(a)(2)(C) Previous asylum applications:
Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.
INA § 208(a)(2)(D) Changed circumstances:
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the AG either the existence of changed circumstances which materially affect the application’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
INA § 208(b) Conditions for Granting Asylum _ EXCEPTIONS
In general
Paragraph (1) shall not apply to an alien if the Attorney General determines that—
the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
there are reasonable grounds for regarding the alien as a danger to the security of the United States;
the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or
the alien was firmly resettled in another country prior to arriving in the United States.
Special rules
Conviction of aggravated felony – For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.
Affirmative vs. Defensive Application for Asylum:
Affirmative: asylum officers have discretion, applicants are not in removal proceedings, voluntarily applied.
Defensive: already in removal proceedings, heard exclusively by the IJ
Motion to Reopen (2 requirements):
Must reasonably explain the failure to request asylum prior to the completion of the proceedings
Must show prima facie eligibility for relief sought (discretionary)
State Action
Must be by the government
Or by forces the government is unwilling or unable to control
*Applicant has the burden to show government is unwilling or unable to control
WITHHOLDING OF REMOVAL
INA § 241(b)(3); 8 USC § 1231(b)(3); 8 CFR § 208.16
[Formerly INA § 243(h); 8 USC § 1253(h)]
INA § 241(b)(3)(A):
AG may not remove an alien to a country if the AG decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
INA § 241(b)(3)(C) Burden of Proof:
In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.
EXCEPTIONS:
INA § 241(b)(3)(B)(i) Participation in Persecution:
The alien ordered, incited, assisted, or otherwise participated i
en a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality, or if stateless, in the applicant’s country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 CFR § 208.13(b)(1)(i)(B) Relocation:
[The AO or IJ shall deny the asylum application of an alien found to be refugee on the basis of past persecution if] the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality or, if stateless, another part of the applicant’s country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so.
8 CFR § 208.13(b)(3) Reasonableness of Internal Relocation:
Adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographic limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
8 CFR § 208.13(b)(3)(i) Burden of Proof:
IN cases in which the applicant has NOT established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or government-sponsored.
8 CFR § 208.13(b)(3)(ii) Persecutor is Government/Government-Sponsored:
In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.
WITHHOLDING OF REMOVAL
Is it enough with only past, but no future persecution? NO.
What’s the effect of showing past persecution? Presumed that person’s life/freedom would be threatened in the future (BURDEN à Applicant).
How is that rebutted? (Same as Asylum; BURDEN à DHS)
Internal relocation
Changed Circumstances
Can still get withholding if rebutted and no past persecution? NO. There’s no humanitarian withholding of removal.
Can get withholding with no past persecution but there’s future threat? Yes, more likely than not would be persecuted (BURDEN à Applicant).
8 CFR § 208.16(b)(1)(i) Past Persecution:
If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim. Presumption may be rebutted if an AO or IJ finds by a preponderance of the evidence:
