Asylum Fraud and the Necessity for Reform

Immigration ReformThis week, the House Judiciary Subcommittee on Immigration and Border Security held a hearing entitled, “Asylum Fraud:  Abusing America’s Compassion?”. Witnesses testified to members of the committee over the concern that there is an increase in people submitting fraudulent asylum applications attempting to take advantage of a generous system in a country known as a “beacon of hope and freedom” in the world.  While existing asylum fraud must be combatted, one must also remember not to minimize the urgent need for reforming a system created to protect some of the world’s most vulnerable suffering from a wide range of human rights abuses.

A critical observation must be made in regards to the source of this hearing’s data and basis for the argument of asylum fraud.  This hearing concentrated on a report conducted in 2005, which sampled only 239 asylum cases.  Of this sample, 12% of the cases- 29 of 239 were found to have proven fraud and 58% to show indicators of possible fraud, with a total rate of 70% proven or possible fraud.  Although this is a striking percentage, one must keep in mind the incredibly small sample size and the overall methodology of these reports.

Former District Director Hipolito Acosta addressed the problem of smuggling organizations and groups of organized crime that understand our immigration policies so well that they are able to exploit our weaknesses and in turn perpetuate asylum fraud.  While evidence of these fraudulent claims does exist, the objective should be to confront the source of our weaknesses, instead of simply targeting those that have exposed it. Mr. Crocetti from the Immigration Integrity Group admitted that USCIS is reactive, rather than proactive as far as preventing asylum fraud.  One may argue how the United States immigration system as a whole may be suffering for this exact reason.

The United States immigration system and particularly asylum aspect is indeed in need of reform.  Yet, this reform must be carefully orchestrated, especially taking into account the lives of people fleeing terrible situations with valid and credible asylum claims in the hopes of the United States offering them protection.  Key changes the system requires include:  ensuring proper staffing and resource availability through increased funding for immigration courts in order to eliminate the backlog, increasing anti-fraud tools, and reconsidering the one-year filing deadline. Furthermore, there is a substantial need for better access to legal counsel considering that 50% of applicants are unrepresented, rising to 80% for those that are detained.  The earlier problem of backlog of course negatively affects these numbers as well considering that oftentimes applicants are waiting two to three years for their individual hearings.  This makes it hard to recruit often-necessary pro-bono lawyers to dedicate that much time to a complicated case.

Some consensus may be reached in that fraud does indeed harm everyone.  Endangered asylum applicants with honest claims, our government and immigration system are all stakeholders who urgently need a fundamental strengthening of the immigration and asylum system in order to provide safety and due process to those in need.

Perceived Trust and Political Tactics

By: Samantha Howland

Immigration ReformComprehensive immigration reform continues to plague the U.S. House of Representatives, and U.S. society at large. 2013 saw tremendous momentum generated in support of immigration reform. Activists throughout the United States rallied together to pressure Congress to act. In June of 2013 the Senate passed S. 744, the Border Security, Economic Opportunity and Immigration Modernization Act which outlined a path towards legal status for the estimated 11 million undocumented individuals in the U.S., while simultaneously making changes to border security and the E-verify program, amongst others components. Despite the incredible efforts of activists, 2013 closed without a decision from the House.

Recently the House Republicans have stated “mistrust” in the Obama administration as a principle reason they cannot vote for immigration reform. Speaker Boehner has stated “We are going to continue to discuss this issue with our members, but I think the president’s gonna have to demonstrate to the American people and to my colleagues that he can be trusted to enforce the law as it is written.” This mistrust argument has received substantial criticism and backlash from Democrats and immigration activists.

President Obama has been viewed as both a supporter of immigration reform and an enforcer of current immigration laws, with over 369,000 deportations in fiscal year 2013. The president has publically stated his willingness to work with House Republicans on the issue of immigration reform and the need to simultaneously protect the border and address the needs of the 11 million undocumented individuals already in the U.S. Despite his best efforts, the House Republicans remain skeptical that he would enforce new laws if they were implemented under his administration.

In response, House Minority Whip Steny Hoyer (D-Md) characterized the Republicans’ distrust argument as “phony” and Representative Luis Gutiérrez (D-Ill.) warned that Republicans should prepare to face an aggressive new lobbying push from immigration reform advocates and even alluded to the fact that the Republicans will face a ‘blowout’ in 2016. Representative Xavier Becerra (D-Ca) issued similar sentiments and commented that, “there are folks who are very passionate about this, principally the folks who are going to be personally impacted by … watching Congress, specifically House Republicans, do nothing on immigration reform.”

Immigration advocates are responding in a similar fashion to the Democrats. They have promised to be present and vocal at Republican publicity events and meetings, in an attempt to demonstrate the support of immigration reform. Advocates continue to humanize the issue through the demands to “keep families together” and “building strong communities.” Social media, in particular Twitter has been a sounding board for various organizations to come together. To keep abreast of current news and actions follow #timeisnow #CIR #ready4reform #fast4families.

A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System

Migration Policy InstituteOn February 27, 2014, the Migration Policy Institute hosted a panel discussion entitled, “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System.” The panel was moderated by Kathleen Newland, the co-founder of the Migration Policy Institute and the Director of MPI’s program on Migrants, Migration and Development. The panelists were Elizabeth Dallam, the National Legal Services Director of Kids in Need of Defense (KIND), Lisa Frydman, the Associate Director and Managing Attorney at the Center for Gender and Refugee Studies at the University of California Hastings College of Law, Karen Musalo, the Director of the Center for Gender and Refugee Studies, and Wendy Young, the President of KIND.  The panel launched the report, “A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System” published by KIND and the Center for Gender and Refugee Studies.” The full report can be viewed here and the panel discussion can be viewed  here.

The discussion focused on the specific findings of the report which addressed the current crisis of children who cross the U.S./Mexican border and their ability, or mostly inability, to successfully navigate the U.S. immigration system. Child migrants continue to arrive at the U.S. border, oftentimes unaccompanied and without any family members, with increasing numbers each year. It is estimated that 74,000 children will arrive at the border in FY 2014.The majority of these children are from El Salvador, Guatemala and Honduras. Oftentimes the children are fleeing poverty, gang violence, drug violence, state violence, and abusive family situations or are trying to reunite with their families already in the U.S.

According to the panelists, the main areas of concern for the child migrants were related to the gaps in protection afforded to these children. For example, children, like adults, caught on the border are not appointed counsel and must rely on pro bono counsel or representing themselves pro se, the children are not appointed child advocates, there is a lack of focus on the ‘best interest of the child principle’ and the current practices do not address the root cause of migration for the children.

Specifically the report found that there is a lack of child sensitivity in adjudication procedures. For example, border patrol agents lack appropriate measures to screen children at the border to identify the need for relief due to the fact that children may process or express their needs and experiences differently than adults; they also might react to border patrol agents differently. There is a lack of binding guidance on child sensitive approaches on adjudicating asylum, withholding and Convention Against Torture (CAT) cases. Some Immigration Judges have considered the age, physical and emotional development and maturity of the child into consideration when adjudicating these types of cases, while other IJs do not take it into account. This has resulted in inconsistent decision making. The question of “Should persecution of a child be a lower standard than for an adult?” also came up throughout the discussion. While some courts have juvenile dockets, most children are in formal court proceedings and oftentimes have to withstand intensive and insensitive questioning by ICE and the IJ. The panel suggested having a more informal setting for the juvenile docket and a restrained and appropriate line of questioning, established before the hearing. The report encouraged for there to be more training for IJs, ICE and the Board of Immigration Appeals.

The panelists additionally discussed other available forms of relief for undocumented children such as U-visas, T-visas, Special Immigrant Juvenile Status (SIJS), and Prosecutorial Discretion. The panel and the report both suggested that it is inappropriate for USCIS to ask for state court records when adjudicating SIJS cases and that USCIS should employ more relaxed methods when establishing the age of a child, especially if their birth certificate has been destroyed in transit or is otherwise unavailable. The report further suggested the need for a new form of relief for children whose best interest is not in returning to their home country and they are not eligible for other forms of relief.

The panel concluded with a brief discussion about the need to address the root causes that cause children to leave in the first place. Violence, abuse, poverty and lack of opportunities in the home countries contribute to out-migration trends and it is necessary for a regional response to a regional problem. If the root cause of out-migration can be addressed there may be a reduction in the numbers of children arriving at the U.S. border.

USCIS Introduces Form I-910 and Centralizes the Civil Surgeon Application Process

Immigration ReformUSCIS has implemented a new process to receive and adjudicate applications for civil surgeon designation centrally at the National Benefits Center. This process change requires physicians seeking civil surgeon designation to file a formal application at a USCIS Lockbox. Centralizing the civil surgeon application process will:

  • Improve the application intake process;
  • Enhance USCIS’s ability to manage and track civil surgeon applications;
  • Promote consistency and uniformity in USCIS decisions on civil surgeon-related matters; and
  • Improve overall efficiency and integrity of the program.

Physicians seeking civil surgeon designation need to complete Form I-910, Application for Civil Surgeon Designation, and pay a $615 application fee. This new application form and process implements provisions of the agency’s 2010 Fee Rule. It does not affect current civil surgeons.

Previously, civil surgeon designation has been a local process at the district or field office with jurisdiction over the prospective civil surgeon’s office location.  The new process is detailed in Volume 8, Part C of the USCIS Policy Manual, which replaces the civil surgeon designation guidance found in Chapter 83.4 of the Adjudicator’s Field Manual (AFM).  The new policy on civil surgeons:

  • Reaffirms and clarifies the purpose, role, and responsibilities of civil surgeons;
  • Outlines the professional qualifications needed for civil surgeon designation;
  • Explains the application requirements for civil surgeon designation;
  • Clarifies the process for adjudicating civil surgeon applications;
  • Provides consolidated guidance on blanket civil surgeon designation;
  • Reaffirms USCIS’s ability to revoke civil surgeon designation and clarifies revocation grounds; and
  • Provides guidance on maintenance of the civil surgeon list.

For more information on civil surgeons, visit the Civil Surgeons Web page. For more information on Form I-910, visit www.uscis.gov/i-910.

Fast For Families: A Call for Immigration Reform and Citizenship

By: Samantha Howland

Fast for FamiliesA few feet away from the steps of the U.S. Capital, on the National Mall, immigration activists launched” Fast for Families: A Call for Immigration Reform and Citizenship.” A variety of leaders and activists, originating from faith groups, workers unions, immigration activists, civic organizations, community groups and others began this effort on November 2012. Fast for Families is an indefinite hunger strike or fast to move the hearts and compassion of members of Congress to pass immigration reform with a path to citizenship.
The movement is comprised of core fasters, those who continuously obtain from all food and liquid, except water, until they are medically advised to break the fast and solidarity fasters, those who choose to fast for a specific period of time. In addition, Fast for Families has a community tent set up at the National Mall at the intersection of 3rd St. NW and Jefferson St. NW, hosting events each day to disseminate information about the injustices of the current immigration system, the need for comprehensive immigration reform, ways to remedy this situation and the work of Fast for Families. In addition, individuals and groups are encouraged to share personal stories of those who have been affected by deportation or the perilous journey to the United States. They have also placed wooden crosses outside the tent to represent the officially reported deaths on the U.S./Mexican border of those that have been killed or died while trying to cross into the U.S. Visitors are encouraged to meet with Fast for Families staff and supports and write messages of solidarity and inspiration for those that are fasting.

On December 3, four immigration reform advocates, who have been fasting on the National Mall since November 12 – Eliseo Medina (SEIU), Dae Joong Yoon (NAKASEC), Cristian Avila (Mi Familia Vota) and Lisa Sharon Harper (Sojourners) passed their fast onto a new group of advocates, after having fasted for 22 days. During their fast, important members of the U.S. government and Congress visited the Fast for Families tent and expressed their support of the movement and need for comprehensive immigration reform. Notable guests have included: President Obama, First Lady Obama, Vice-President Biden, representatives from the Congressional Black Caucus, and representatives from the Congressional Hispanic Caucus, amongst others.

To connect with Fast for Families visit their website at http://fast4families.org/ or follow them on Twitter at @fast4families. They are constantly organizing new events and demonstrations and encourage the public to participate and become involved.

 

Not Just A Number: Repealing the Detention Quota Regime

By: James Sellars

Immigration and Customs EnforcementIn 2007, Congress passed a bipartisan appropriations bill that discretely embedded several riders and conditions on federal funding allocations that have had a tremendous effect on immigration proceedings in the United States ever since.  One such provision in the statute firmly requires Immigration and Customs Enforcement (ICE) to maintain a minimum quota of 34,000 immigrants in detention on a daily basis during the resolution of their individual cases.  This provision has proved to be not only a logistical nightmare for the U.S. legal system and ICE, but it also presents ICE officers with a particularly tantalizing moral dilemma as well.  Moreover, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.

The detention quota provision stipulated in the appropriations bill is completely arbitrary and unprecedented in U.S. legislative history.  When analyzing the particular diction of the statute, it is important to notice that the 34,000 detention threshold is not intended to be the number of immigrants that Congress seeks to deport.  Instead, that arbitrary threshold is the number of immigrants that Congress insists on incarcerating while they await their immigration fate.  In 2005, the number of incarcerated immigrants awaiting the adjudication and resolution of their case, was less than 20,000.  This curious statistic begs the obvious question; why did Congress, in 2007, create a minimum threshold for immigrant incarceration that was almost double the incarceration rate of the previous two years?  Does this number have an inherent correlation with the rise in the number of dangerous, unauthorized, or out-of-status immigrants in the United States during this time period?  The answer to this question is unequivocally no.  According to the Syracuse University-based TRAC immigration project, the number of deportable immigrants has remained approximately the same since 2005.  Therefore, since the numbers fail to provide an adequate explanation, we are forced to turn to Congress for answers.

The problem with turning to Congress for answers is that many Congressmen and women are themselves perplexed by the rationale behind the imposition of the detention quota regime.  In an astute observation, Florida Congressman Ted Deutch recently noted that “[n]o other law enforcement agency has a quota for the number of people that they must keep in jail.”  Indeed, the detention quota provision in the appropriations bill is exclusively applicable in the immigration context.  Nevertheless, hardliners in Congress have persisted in their annual campaigns to preserve the detention quota provision in various iterations of appropriation bills.  In 2013, when the number of detained immigrants fell to 30,773, U.S. House Homeland Security Committee Chairman, Michael McCaul, wrote a searing public letter to ICE Director John Morton, informing him that he was in clear violation of the statute and its 34,000 prisoner quota.  Thus, since the threshold has no readily identifiable quantitative or logical justifications for its enactment, it is perfectly reasonable to conclude that the rule is arbitrary.  However, this isn’t the sole reason for advocating its rescission.
Other rationales behind the rescission of the detention quota include the enormous costs associated with incarceration.  Indeed, according to the United States Government Accountability Office, the continued incarceration of criminal aliens as a result of the mandatory quota regime was estimated to be $1.6 billion dollars in 2009.  Moreover, the detention quota system is a significant hindrance on ICE’s ability to focus on priority targets and violent criminals.  In 2013, former Homeland Security Secretary, Janet Napolitano, vehemently objected to the detention quota stipulation and colorfully stated before Congress that, “we ought to be detaining according to our priorities, according to public-safety threats, level of offense, and the like, not an arbitrary bed number.”  Unfortunately, her plea fell on deaf ears and the rider provisions were extended for an additional two years in the most recent appropriations bill.

Finally, with such a stringent numerical threshold in place, the question becomes whether the lack of elasticity in the rule can be continued without fostering a corruptive influence on the entire process?  For example, picture the imposition of a mandatory detention regime in another context like criminal law.  Imagine if a state legislature mandated that judges had to fill a certain number of prison cells each day, regardless of how insignificant the offense. This would open a “Pandora’s Box” of possibilities, including possible imprisonment for petty traffic violations.  Additionally, how can ICE’s Office of General Counsel do their job efficiently and effectively if they know their funding is dependent upon meeting a certain numerical threshold?  As Janet Napolitano’s aforementioned statement suggests, they can’t.

In conclusion, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.  Detention quotas present a serious problem, and a shameful injustice, but one with straightforward solution. Congress should repeal the quota and until then, ICE attorneys and immigration judges should ignore it. Justice demands no less.

Humanitarian Necessity: Obama Administration Designates Exceptions to the Terror Bar

By: James Sellars

Dept of Homeland SecurityComing on the heels of President Obama’s recent State of the Union promise to govern more forcefully through executive directives, the administration has quietly began making it easier for people with tangential connections to terror groups to begin receiving asylum in the United States.  On February 5, 2014, the Departments of Homeland Security and State, as a matter of discretion in accordance with the authority granted to it by INA section 212(d)(3)(B)(i), created two new exceptions to the Immigration and Nationality Act that were subsequently published in the Federal Register.  These new exceptions stipulate that individuals who have previously provided “insignificant” or “limited” material support for terror groups, will no longer be automatically denied eligibility from asylum or refugee status as stipulated under INA 212(a)(3)(B).  While the primary target of the recent exceptions is undoubtedly the proliferating number of Syrian refugees and the humanitarian concerns arising there from, the exemptions will also have a positive and profound impact on all individuals from conflict zones who are seeking asylum in the United States.  Moreover, this new rule provides exactly what our U.S. law is supposed to provide; a proper balance between providing protection to refugee populations in accordance with the 1951 Refugee Convention, and ensuring that potential national security threats do not take advantage of our immigration laws.

The terror bar has a long history of producing incredibly harsh results for individuals seeking asylum in the United States.  In Matter of S-K-, a 2006 BIA decision, the Board stated “that Congress intentionally drafted the terrorist bars…very broadly to include even those people described as freedom fighters, and it did not intend to give us discretion to create exceptions for members of organizations to which our government might be sympathetic.”  However, it has become increasingly clear that this interpretation of the statute is fundamentally unworkable.  This is because the previous rule has resulted in many deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational observer would conclude that the actions of the petitioner constituted material support for a terrorist organization.  The new recently enacted exemptions apply to “limited material support,” which is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”  Thus, as a practical matter, this new interpretation means that asylum speakers who previously may have been excluded for minor dealings with rebel groups, may now be eligible for asylum after they (1) pass a background check; (2) fully disclose the nature and extent of their support to designated terrorist organizations; and (3) can establish that the support provided by them was nothing more than “insignificant”.  Additionally, “implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE), or by U.S. consular officers….”

While the full ramifications of these new exceptions is yet to be seen, DHS has provided several examples of individuals who would have been ineligible for asylum or refugee status under the old rule, but will now be eligible to qualify under the new exception.   First, it is evident that these new changes will help displaced people who have no alternative than to deal with members of banned groups during the course of their daily lives, as is the case for Syrians currently living in areas of the country that are controlled by Jahbat Al-Nusra or the Islamic State of Iraq and the Levant.  According to the DHS spokeswomen, this group would include business owners who unwittingly rendered services to members of a terrorist organization.  DHS has also stated that the exemption would include “an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group.”  Moreover, the exemption would also include “a mother or father who…fed and clothed their young adult child, even when they knew their child is part of a resistance movement.”   Under the old rule, all of individuals in the aforementioned examples would be denied asylum based on the terror bar despite the fact that their “support,” if you can call it that, was minimal.  Another example of individuals who are now eligible under the exemption are aid workers who have previously assisted members of terrorist organizations during the aftermath of a natural disaster or civil conflict.  Lastly, people who had to pay a toll or tax to a terrorist organization in order to pass through opposition-controlled territory will also be allowed to qualify for asylum under the new exceptions.

According to immigration experts like Anwen Hughes of Human Rights First, the new rule will have an immediate impact on approximately 3,000 asylum seekers who currently have cases pending before USCIS and the immigration courts.  However, according to Democratic Senator Patrick Leahy of Vermont, a long-time champion of changing the material support definition in INA 213(a)(3)(B), the immediate impact could reach as high as 10,000. Additionally, these numbers fail to take into account the foreign nationals who are currently in the process of being deported.  Under the new exceptions, some of these individuals would now qualify for relief as well.  Regardless of the numbers, this exception to the terror bar is a welcome reprieve from harsh realities that often resulted under the former rule.  This new rule provides exactly what our immigration law is supposed to provide, which is proper balance between providing protection to refugee populations in accordance with the 1951 Refugee Convention, and ensuring that potential national security threats do not take advantage of our immigration laws.

Recent Developments in Particular Social Group Analysis

Board of Immigration Appeals (BIA)By: Holly Klein

For an individual to gain asylum, he or she must prove that they have been previously persecuted or have a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion.  Determinations on four of the protected grounds, race, religion, nationality, and political opinion, are fairly straightforward and well defined.  However, the determination of membership in a particular social group is more problematic.

The phrase ‘particular social group’ was first codified in the Refugee Act of 1980. This Act brought U.S. immigration law into conformity with the 1967 United Nations Protocol Relating to the Status of Refugees.  However, Congress did not reveal what specific meaning it intended to attach to the phrase ‘particular social group.’  With the lack of legislative intent, the definition of particular social group has primarily evolved through BIA interpretations in various cases.  The BIA provided the seminal interpretation of particular social group in Matter of Acosta by using the doctrine of ejusdem generis.  The doctrine of Ejusdem generis explains that when general and specific words are used in the same context, general words should be interpreted consistently with specific words.  Therefore, since membership in a particular social group sits alongside race, religion, nationality and political opinion in the fact that they are all immutable characteristics beyond the power of an individual to change, the BIA ruled that a particular social group should also be understood as such.  Thus, the BIA concluded that members of a particular social group must share a common, immutable characteristic that is so fundamental to an individual’s identity or conscience that it cannot, or should not be required to change.

As asylum claims based on membership in a particular social group became more and more frequent, the BIA felt it was necessary to further clarify what a particular social group entailed, and acknowledged in Matter of C-A- that an applicant could prove the existence of a particular social group if its members had both social visibility and particularity.  The social visibility and particularity requirements were solidified by the BIA’s decisions in Matter of S-E-G- and Matter of E-A-G-, in which the Board held that in addition to the common immutable characteristic requirements established in Matter of Acosta, the previously introduced concepts of social visibility and particularity were distinct requirements for the determination of what constituted a particular social group.  The BIA included these two requirements to provide greater specificity to the social group definition.  Given Congress’ aforementioned silence regarding the meaning of a particular social group, the BIA, as an administrative body, is entitled to defer to its own interpretation of the term through case law so long as it is based on a permissible construction of the statute and is neither arbitrary nor capricious.  The BIA also has the authority to change a previously defined term as long as it provides a reasonable explanation for doing so, and the new definition does not create irreconcilable conflicts with precedent.  In the aforementioned cases, the BIA stated that it was justified in its decision to declare social visibility and particularity as strict requirements in the determination of a particular social group because it was consistent with its prior decisions and provided much needed clarification to the term’s meaning.  While there has been some contention amongst the Federal courts of appeals as to whether or not these new requirements are a permissible construction of the statute, absent the Seventh and Third Circuits, the requirements have generally been met with approval.

The primary issues surrounding the two requirements mainly stem from the social visibility requirement in that some courts have interpreted it in terms of literal on-sight visibility, and argue that if group members are persecuted on account of their membership in a particular social group, they will attempt to hide characteristics associating them with the group in order to avoid persecution.  Arguments have also been made that if the requirement calls for on-sight visibility, otherwise deserving applicants such as those based on sexual orientation and gender issues would be denied asylum.  However, the BIA argues that this interpretation of the term is contrary to precedent in which it has held groups that are blatantly unrecognizable by on-sight visibility as adequately meeting the social visibility standard.  For instance, in In re Kasinga, the BIA held that women of a tribe in Togo who were opposed to female genital mutilation and who had not yet been victims of the practice constituted a particular social group.  It is obvious that a community cannot tell by looking at a female whether or not she has undergone female genital mutilation.  Thus, the BIA emphasized that the social visibility requirement does not call for on-sight visibility but calls for recognition by society that these females constitute a group.  As well in Matter of Toboso-Alfonoso the BIA held that homosexuals in Cuba constituted a particular social group.  Again like Matter of Kasinga one cannot identify simply by looking at a person what their sexual orientation is, thus social visibility refers to whether the relevant society perceives these persons as a group.

Recently, in Matter of W-G-R- and Matter of M-E-V-G-, the BIA changed the social visibility requirement to social distinction in an attempt to alleviate the confusion surrounding the term ‘visibility.’  The BIA emphasized that it never intended the requirement to call for on-sight visibility but that based on precedent (i.e. Matter of Kasinga, Matter of Toboso-Alfonso, Matter of Fuentes), it is clear that its analysis has focused on the extent to which the group is understood to exist as a recognized component of the society in question.  Social distinction calls for a showing that the relevant society in general considers or recognizes persons sharing the particular immutable characteristic to in fact be a group, and that the characteristic is one that defines that group.  In each of these cases, the BIA explained that so long as the relevant society recognizes the group as a distinct social group, it does not matter whether or not the characteristics that define the group have on-sight visibility.

In Matter of W-G-R-, the BIA used the newly adapted requirement of social distinction to hold that the proposed group of former members of the Mara 18 gang in El Salvador, who had renounced their gang membership, did not constitute a particular social group because it lacked particularity by being too broad, too subjective, and lacking in social distinction.  The BIA stated that it lacked social distinction because no documentation was submitted to establish that former gang members were viewed as a distinct group in Salvadoran society. In Matter of M-E-V-G, the BIA also held that Honduran youth who have been actively recruited by gangs, but who have refused to join because they oppose gangs, did not constitute a particular social group.  The BIA stated that the proposed group was not sufficiently particular or socially distinct, rather widespread gang violence affects vast segments of the country’s population, and there is no documentation that the respondent had been targeted on account of a protected basis or that society perceived the proposed group as a distinct segment of the population.

The altering of the social visibility requirement to social distinctions will hopefully bring some clarification to the particular social group determination.  As previously mentioned, one of the major reasons that several of the federal appellate courts have refused to accept the social visibility requirement was the perception that it was contrary to previous BIA precedent that called for on-sight visibility, and would fail to protect otherwise deserving applicants simply because their shared characteristics were not ocular.  By changing the requirement to social distinction, the BIA reemphasized the notion that society can categorize individuals as occupying a group without necessarily being able to identify the members of the group on sight.

Time to fix our immigration courts

By John Gossart Jr.

gavel-courtroomIt remains to be seen whether the United States Congress can muster the responsibility and will to do what is right and achieve comprehensive immigration reform this year. Republican leadership in the House of Representatives continues to hold immigration reform hostage, most recently justifying inaction by blaming President Obama’s alleged track record on failing to enforce our immigration laws. Perhaps those in Congress should come and sit inside the many immigration courtrooms throughout the country for a fact check on this unfounded assertion.

In my thirty-one years as a United States immigration judge, I have never had as many people come through my courtroom as I have over the last six years. During this time, there has been a dramatic increase in the number of non-citizens that the United States detains and deports, and the detained number of individuals appearing in immigration courts today is unprecedented. The administration has indisputably increased immigration enforcement in communities across the country, partnering with local law enforcement to pursue an aggressive deportation program that has resulted in nearly 2 million deportations in the last six years.

As these men and women came through my courtroom, I was extremely limited in my ability to consider each case and make a determination as to whether they should remain in the United States or should be deported. Coming to the best decision for each individual in a very limited amount of time can hardly be seen as justice. And for non-citizens who have been living in this country for years or even a lifetime, the system can even be crueler.

Consider the case of Lundy Khoy, who came to the United States at the age of one with her parents, fleeing genocide in Cambodia. Upon arrival to the United States, they were granted refugee status and then legal permanent residence.  Lundy grew up as many American children do, going to school, playing sports and preparing for college. While a college student, Lundy was arrested for possession of several pills of ecstasy and, at her lawyer’s advice, pled guilty and spent three months in jail, released early for good behavior.  She moved back in with her parents, resumed her studies and worked hard to make up for the time lost.  At the end of her probation period she met with her probation officers to proudly show off her grades only to be met by immigration officials who, to her surprise, sent her to a county jail where she was held for nine months.

Her single 12-year-old drug conviction constituted an aggravated felony offense under today’s immigration laws and put her in line for mandatory detention and deportation. In such cases, judges are not allowed to consider a person’s individual circumstances. Our hands are tied and we are forced to order automatic deportation. We aren’t allowed to consider the fact that Lundy has no family in Cambodia, is a successful college student, works at a university as a guidance counselor and volunteers in her community. As judges, we are not allowed to consider her rehabilitation or grant her a second chance.

Congress stripped immigration judges of much of their discretionary authority under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Under this law, we are no longer allowed to grant most forms of relief for those with an aggravated felony conviction on their record, no matter how minor or old the offense. The term aggravated felony may sound like a big deal, but in fact the category is a term of art that includes a long list of minor and non-violent offenses that are not felonies under the law.

Today’s immigration laws are enforced so consistently that our immigration courts face crushing caseloads and chronically insufficient resources. The current backlog of 360,000+ cases means an average wait of 573 days before a case is resolved, and the majority of people coming into immigration courts do so without lawyers, despite the high stakes and incomprehensible nature of our immigration law.

There’s no question about it—the United States needs immigration reform and needs it now. Reform must enhance the courts’ resources and allow immigration judges to consider the individual circumstances unique to each case, and it must include fairness and opportunity for those who seek to become a part of the American dream. Our leaders, to be true leaders, cannot continue to delay, putting partisan politics above the needs of our country. The rigorous enforcement of current immigration law has resulted in thousands of families being separated and has perpetuated a system that keeps millions of people living in the shadows with no legal recourse to remain in the United States with their families. Now is the time to strike a legislative balance so that those deserving can become part of our heritage to make our country stronger.

Gossart is a retired judge from the U.S. Immigration Court in Baltimore and an adjunct professor at the University of Baltimore School of Law.

Not Just A Number: Repealing the Detention Quota Regime

jailIn 2007, Congress passed a bipartisan appropriations bill that discretely embedded several riders and conditions on federal funding allocations that have had a tremendous effect on immigration proceedings in the United States ever since. One such provision in the statute firmly requires Immigration and Customs Enforcement (ICE) to maintain a minimum quota of 34,000 immigrants in detention on a daily basis during the resolution of their individual cases. This provision has proved to be not only a logistical nightmare for the U.S. legal system and ICE, but it also presents ICE officers with a particularly tantalizing moral dilemma as well. Moreover, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.

The detention quota provision stipulated in the appropriations bill is completely arbitrary and unprecedented in U.S. legislative history. When analyzing the particular diction of the statute, it is important to notice that the 34,000 detention threshold is not intended to be the number of immigrants that Congress seeks to deport. Instead, that arbitrary threshold is the number of immigrants that Congress insists on incarcerating while they await their immigration fate.  In 2005, the number of incarcerated immigrants awaiting the adjudication and resolution of their case, was less than 20,000. This curious statistic begs the obvious question; why did Congress, in 2007, create a minimum threshold for immigrant incarceration that was almost double the incarceration rate of the previous two years?  Does this number have an inherent correlation with the rise in the number of dangerous, unauthorized, or out-of-status immigrants in the United States during this time period?  The answer to this question is unequivocally no. According to the Syracuse University-based TRAC immigration project, the number of deportable immigrants has remained approximately the same since 2005. Therefore, since the numbers fail to provide an adequate explanation, we are forced to turn to Congress for answers.

The problem with turning to Congress for answers is that many Congressmen and women are themselves perplexed by the rationale behind the imposition of the detention quota regime.  In an astute observation, Florida Congressman Ted Deutch recently noted that “[n]o other law enforcement agency has a quota for the number of people that they must keep in jail.”  Indeed, the detention quota provision in the appropriations bill is exclusively applicable in the immigration context.  Nevertheless, hardliners in Congress have persisted in their annual campaigns to preserve the detention quota provision in various iterations of appropriation bills.  In 2013, when the number of detained immigrants fell to 30,773, U.S. House Homeland Security Committee Chairman, Michael McCaul, wrote a searing public letter to ICE Director John Morton, informing him that he was in clear violation of the statute and its 34,000 prisoner quota.  Thus, since the threshold has no readily identifiable quantitative or logical justifications for its enactment, it is perfectly reasonable to conclude that the rule is arbitrary.  However, this isn’t the sole reason for advocating its rescission.

Other rationales behind the rescission of the detention quota include the enormous costs associated with incarceration.  Indeed, according to the United States Government Accountability Office, the continued incarceration of criminal aliens as a result of the mandatory quota regime was estimated to be $1.6 billion dollars in 2009.  Moreover, the detention quota system is a significant hindrance on ICE’s ability to focus on priority targets and violent criminals.  In 2013, former Homeland Security Secretary, Janet Napolitano, vehemently objected to the detention quota stipulation and colorfully stated before Congress that, “we ought to be detaining according to our priorities, according to public-safety threats, level of offense, and the like, not an arbitrary bed number.”  Unfortunately, her plea fell on deaf ears and the rider provisions were extended for an additional two years in the most recent appropriations bill.

Finally, with such a stringent numerical threshold in place, the question becomes whether the lack of elasticity in the rule can be continued without fostering a corruptive influence on the entire process?  For example, picture the imposition of a mandatory detention regime in another context like criminal law.  Imagine if a state legislature mandated that judges had to fill a certain number of prison cells each day, regardless of how insignificant the offense. This would open a “Pandora’s Box” of possibilities, including possible imprisonment for petty traffic violations.  Additionally, how can ICE’s Office of General Counsel do their job efficiently and effectively if they know their funding is dependent upon meeting a certain numerical threshold?  As Janet Napolitano’s aforementioned statement suggests, they can’t.

In conclusion, the immigrant detention quota should ultimately be rescinded because it is arbitrary, it is conducive to neither security nor justice, and it is completely void of any deference to judicial economy or agency efficiency.  Detention quotas present a serious problem, and a shameful injustice, but one with straightforward solution. Congress should repeal the quota and until then, ICE attorneys and immigration judges should ignore it. Justice demands no less.