Transcript Slide 1

Catholic Legal Immigration
Network, Inc. (CLINIC)
www.cliniclegal.org
EOIR VIRTUAL LAW LIBRARY
http://www.usdoj.gov/eoir/vll/libindex.html
NATIONAL CLINIC WORK
• Providing a full range of legal and nonlegal support services to 161 member
agencies comprised of Catholic legal
immigration programs. Member agencies
serve poor immigrants seeking family
reunification, citizenship, and protection
from persecution and violence.
LOS ANGELES CLINIC WORK
SERVING IMMIGRANTS
• Children, Youth, and Adults
• Adult Detention Centers:
• Lancaster and San Pedro
• Children’s Detention Centers:
• Los Angeles and Fullerton
• Immigrant women in criminal detention
• Chino
• Newly arriving and long-term residents
LOS ANGELES CLINIC
CHILDREN’S WORK
• Screen all minors in detention in Los Angeles
Metropolitan Area
• Place cases of minors released in LA area with
pro bono counsel
• Place cases of minors released nationally with
pro bono counsel through USCRI’s National
Center for Refugee and Immigrant Children
• Represent all children who remain in
immigration custody
ASYLUM,
WITHHOLDING OF
REMOVAL, AND
CAT
ASYLUM IS THE
BEST OF THE THREE
• Well founded fear standard – lowest
standard
• Can apply for LPR status 1 year after
granted
• Derivatives can get status also
ASYLUM LAW
• INA 101 (A)(42)
• 8 CFR 208.13
• INS V. CARDOZA FONSECA,
480 U.S. 421 (1987).
• MATTER OF MOGHARRABI,
19 I&N 439 (1987).
• UNHCR HANDBOOK ON PROCEDURES
AND CRITERIA FOR DETERMINING
REFUGEE STATUS
U.S. ASYLUM PROCESS
• IF IN U.S., CAN APPLY AFFIRMATIVELY
TO ASYLUM OFFICE, AND MAY BE
GRANTED OR REFERRED TO
IMMIGRATION COURT
• IF IN PROCEEDINGS, CAN APPLY TO
IMMIGRATION JUDGE
ASYLUM ELEMENTS
• WELL FOUNDED FEAR
• OF PERSECUTION
• BASED ON – RACE, RELIGION, NATIONALITY, POLITICAL
OPINION, MEMBERSHIP IN A PARTICULAR
SOCIAL GROUP (or imputed)
– NEXUS
– GOVERNMENT IS PERSECUTOR OR CANNOT
CONTROL PERSECUTOR
WELL-FOUNDED FEAR
• REASONABLE PROBABILITY
• LOWER THAN PREPONDERANCE OF THE
EVIDENCE
• HAS OBJECTIVE AND SUBJECTIVE PARTS –
APPLICANT HAS REAL FEAR (SUBJ) AND IT
IS REASONABLE (OBJ) UNDER THE
CIRCUMSTANCES
• ONE IN TEN PROBABILITY
– INS V. CARDOZA-FONSECA, 480 US 421
PERSECUTION
• POVERTY, CRIME, BAD LUCK NOT ENOUGH
• BEHAVIOR THAT THREATENS DEATH,
IMPRISONMENT, OR SUBSTANTIAL HARM
• HALLMARKS ARE DETENTION, ARREST,
INTERROGATION, PROSECUTION,
IMPRISOMENT
• ILLEGAL SEARCH, SURVEILLANCE,
BEATINGS, TORTURE, CONFISCATION
RACE, RELIGION AND
NATIONALITY
• RACE – BROAD MEANING
• RELIGION
• NATIONALITY MAY ALSO BE ETHNIC
OR LINGUISTIC GROUP
• EX OF OVERLAP – BOSNIAN-MUSLIM,
KACHIN-CHRISTIAN, ETC.
POLITICAL OPINION
• MAY BE ACTUAL (PARTY MEMBER OR
LEADER)
• OR MAY BE IMPUTED (FAMILY WERE
ACTIVISTS, FOR EXAMPLE, OR
TYPICAL OF CERTAIN ETHNIC GROUP
TO HAVE PARTICULAR POLITICAL
OPINION)
MEMBERSHIP IN PARTICULAR
SOCIAL GROUP
• COMMON, IMMUTABLE CHARACTERISTIC
– MATTER OF ACOSTA,
19 I. & N. Dec. 211 (BIA 1985).
– MEMBERS OF THE GROUP CANNOT CHANGE, OR SHOULD
NOT BE REQUIRED TO B/C IT IS FUNDAMENTAL TO THEIR
IDENTITY OR CONSCIENCE
• VOLUNTARY ASSOCIATION
– HERNANDEZ MONTIEL V. INS,
225 F.3d 1084 (9th Cir. 2000).
• FAMILY CAN BE SOC. GROUP
• INCLUDES SEXUAL ORIENTATION CLAIMS
IMPORTANCE OF PAST
PERSECUTION
• PAST PERSECUTION ESTABLISHES
LEGAL PRESUMPTION OF FUTURE
PERSECUTION 8 CFR 208.13
• DHS CAN REBUT WITH PROOF BY
PREPONDERANCE OF EVIDENCE
THAT CIRCUMSTANCES HAVE
CHANGED
SUMMARY BASICS
• GOAL: MEET WELL FOUNDED FEAR
DEFINITION BASED ON FIVE FACTORS
• PAST PERSECUTION IMPORTANT BUT NOT
REQUIRED
• MAJOR SOURCES OF EVIDENCE:
APPLICANT’S STATEMENT, WITNESS
STATEMENTS, EXPERTS ON PHYSICAL/
TRAUMA INJURY, COUNTRY CONDITIONS
PREPARING AN
ASYLUM CLAIM
• BUILDING THE APPLICANT’S AFFIDAVIT
UNTIL ALL RELEVANT FACTS ARE
ACCURATE AND DETAILED
• WRITE (AND UPDATE AS NEEDED) THE I-589
• SUBMIT AT THE MASTER CALENDAR
HEARING, SUPPLEMENT PRIOR TO MERITS
HEARING
EXAMPLES OF GENERAL
SUPPORTING EVIDENCE
• U.S. Dept of State County Condition
Reports- may be very persuasive
evidence. But if contradicts client’s claim,
be prepared to specifically rebut
w/alternate evidence, expert affidavits
• Human Rights Agency Reports – Amnesty
Int’l, Human Rts. Watch
EXAMPLES OF SUPPORTING
EVIDENCE CONT.
• Newspaper, magazine, internet articles – foreign
and domestic
• Laws of client’s home country (can contact
Library of Congress for this type research and
send it out if given specific area of law to look
for)
• Unpublished positive BIA decisions in similar
cases (get from other advocates)
• See materials for additional resources
• May also seek support, ideas, through listserves
ASYLUM BASICS:
REVIEW FOR BARS
• ONE YEAR DEADLINE MET OR EXCEPTION?
– 8 CFR 208.4(a)(2)
• FIRM RESETTLEMENT?
– 8 CFR 208.15
• ANY AGGRAVATED FELONY CONVICTION?
– SEE DEF. AT 101 (a) 43 and CASE LAW
– Investigate if any crimes of drugs, theft or violence
• PERSECUTOR OF OTHERS OR TERRORIST?
WITHOLDING/CAT CLAIMS
• IMMIGRATION COURT HAS SOLE
JURISDICTION
• IF BARRED FROM ASYLUM, WILL CONSIDER
THESE
• DIFFERENT BURDENS OF PROOF, LESSER
RELIEF
• CAN BE REMOVED TO THIRD COUNTRY
W/H, OR TERMINATED IF DEFERRAL UNDER
CAT
WITHHOLDING OF REMOVAL
• HIGHER STANDARD OF MORE LIKELY THAN
NOT WOULD BE PERSECUTED = 50% +
CHANCE OF PERSECUTION
• NOT DISCRETIONARY
• CAN BE REMOVED TO 3D COUNTRY
• ELIGIBLE WITH CRIMINAL CONVICTION EVEN
AGGRAVATED FELONY IF SENTENCED TO
LESS THAN 5 YRS IMPRISONMENT
• BUT CONFIRM THAT CLIENT DOES NOT HAVE
‘PARTICULARLY SERIOUS CRIME’
• WORK PERMIT (EAD) ELIGIBLE
CONVENTION AGAINST
TORTURE (CAT)
• 2 TYPES: CAT DEFERRAL AND CAT
WITHHOLDING
• FOR DEFERRAL, NO BARS FOR CRIMINAL
GROUNDS. FOR CAT W/H, SAME BARS AS
INA W/H.
• MUST SHOW INTENTIONAL ACT OF SEVERE
SUFFERING, PHYS/MENTAL TORTURE
• BY GOVT ACTOR OR WITH ACQUIESCENCE
• NO NEXUS REQUIREMENT
• MORE LIKELY THAN NOT = 50%+ CHANCE
OF BEING TORTURED UPON RETURN
DEFERRAL OR
WITHHOLDING UNDER CAT
• IF ANY BARS TO CAT W/H, IJ MUST
CONSIDER DEFERRAL UNDER CAT
• DEFERRAL CAN BE TERMINATED BY
ICE UPON MOTION TO COURT
WITHHOLDING AND
DEFERRAL UNDER CAT
• BARS TO W/H SAME AS IN INA –
PARTICULARLY SERIOUS CRIME,
• PERSECUTOR OF OTHERS, DANGER TO US
SECURITY
• IF BARS APPLY, WILL LOOK AT DEFERRAL
• (GRANT OF DEFERRAL MAY STILL BE
DETAINED, AND RELIEF MAY BE
TERMINATED MORE EASILY THAN
WITHHOLDING)
ASYLUM / WH / CAT
DEFENSES UNIQUE
TO CHILDREN
ALWAYS CHECK FOR ALL FIVE
PROTECTED GROUNDS
1. Race
2. Nationality
3. Religion
4. Political Opinion
5. Particular Social Group
Includes:
--Gender
--Sexual Orientation
MOST COMMON
CHILDREN’S CLAIMS
1. Domestic Violence
Persecution
2. Gang Violence Persecution
3. Street Child Persecution
DOMESTIC VIOLENCE CLAIMS
• Protected ground = particular social group
which you need to craft to facts spec to your
case
– Example: “victims of domestic abuse in Honduras
where social services for abused children are not
reliable or effective”
– Example: “young women in rural Guatemala where
young women are routinely subjected to familial
violence without government protection”
• Usually in combination with application for
Special Immigrant Juvenile Status (SIJS)
DOMESTIC VIOLENCE CLAIMS:
Legal Authority
• MATTER OF R-A– In indeterminate appellate position
– Certified by AG but never ruled upon
• The court takes the position the “married women
in Guatemala who are unable to leave the
relationship” are a particular social group under
the law.
– Gao v. Gonzalez, 440 F.3d 62, 68 n3 (2d. Cir. 2006).
GANG VIOLENCE CLAIMS
• 2 TYPICAL GROUPS
1.
Victim of gang
2.
Ex-gang member
VICTIM OF GANG CLAIM
• Challenge is to define group so that it fits
in protected grounds
• Particular social group hard to prove
– Immutable characteristic?
– Voluntary association?
• Usually use combination of groups
– Particular social group + political opinion
– Particular social group + religion
VICTIM OF GANG:
Legal Authority
• Almost NO precedent decisions
establishing gang victims particular social
group
• Some precedent decisions on
combinations of particular social group
with political opinion / religion
Decisions Which Analyze
“Particular Social Group:”
• Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).
• Hernandez Montiel v. INS, 225 F.3d 1084
(9th Cir. 2000).
• Karouni v. Gonzalez, 399 F.3d 1163 (9th Cir. 2005).
• Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992).
• Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)
• Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988).
• Cruz Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000).
• Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998).
• Castellano Chacon v. INS, 341 F.3d 533 (6th Cir. 2003).
• Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir. 1990).
• Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. 1988).
“Political Opinion” in Gang-Based Asylum Cases:
•
•
•
•
•
•
INS v. Elias-Zacarias, 502 U.S. 478 (1992).
Molina v. INS, 170 F.3d 1247 (9th Cir. 1999).
Nnachi-Anydiegwu v. Gonzalez, 134 Fed. Appx 171 (9th Cir. 2005).
Matter of DV, EOIR San Antonio, TX, 9/9/2004
Matter of Orozco Polanco, EOIR El Paso, TX, 12/18/1997
Matter of Calderon Medina, EOIR Los Angeles, CA, 5/1/2002
“Particular Social Group” in Gang-Based Asylum
Cases:
• Matter of DV, EOIR San Antonio, TX, 9/9/2004
• Matter of Orozco Polanco, EOIR El Paso, TX, 12/18/1997
• Matter of Guzman Castellanos, EOIR Hawaii, 2005 (UPHELD BY
BIA)
EX-GANG MEMBER CLAIM
• Particular Social Group easier to define
– Immutable characteristic?
– Voluntary association?
– Can include imputed membership
• PROBLEMS:
– As soon as client’s gang is defined as a
particular social group, then opposing gangs
are also PSG’s & may have persecutor bar
– Possible that govt may make terrorist claim
EX-GANG MEMBER
LEGAL AUTHORITY
• Please see USCRI website for cases
STREET CHILD CLAIM
• Protected ground = particular social
group
• 3 part claim:
1. Children with no caretakers left in their home
country will be forced to live in the streets
2. Street children are violently treated by
government agencies (particularly police)
and the public
3. There are almost no shelter systems or legal
protections for homeless children
PROVING
STREET CHILD CLAIM
• There are large quantities of country conditions
documents & potential expert witnesses who can
prove last 2 points of claim
• Challenge is to establish in the factual record
that there is no one in the child’s extended family
who has the capacity to care for the child (i.e.
that your client will actually be a member of the
PSG of homeless children in his / her country of
origin)
VOCABULARY
• EOIR
•
•
•
•
•
•
Executive Office of Immigration Review
(Immigration Court)
BIA
Board of Immigration Appeals (1st Appellate
review of Immigration Judge decision)
NTA
Notice to Appear (Imm. Charging Document)
RESPONDENT Immigrant fighting deportation in court
DHS
Department of Homeland Security
US ICE
Immigration & Customs Enforcement (Branch
of DHS charged w/ removing unlawful
immigrants)
US CIS
Citizenship and Immigration Services (Branch
of DHS charged w/ providing services to
immigrants, including asylum applications
OUTSIDE of court proceedings)
VOCABULARY, cont…
• IJ
• TA
• E-28
• G-28
• ORR /
DUCS
Immigration Judge
Trial Attorney (opposing counsel in
deportation proceedings)
Notice of Entry of Appearance that must be
filed in Immigration Court
Notice of Entry of Appearance filed with
an administrative agency or officer
Office of Refugee Resettlement
Dept. of Unaccompanied Children Services
(responsible for custody and care of children
held while in removal hearings)