The Nexus Of Persecution: Challenges in U.S. Asylum Applications

5/31/2024

A common question in immigration law revolves around the balance between national sovereignty and international law. Generally, it is accepted that a country has the right to control its borders and determine who can enter or be removed from its territory. However, since World War II, there has been widespread recognition of a humanitarian obligation for countries to protect individuals who cannot return to their home countries due to persecution.

Defining persecution in the United States has been complex. Since 1980, the U.S. has used the definition of persecution found in the Refugee Relief Act, which aligns with the UN protocol on refugees. However, judicial interpretations by the Board of Immigration Appeals and federal courts have imposed a stricter standard than many other countries under the UN protocol. Asylum or refugee applicants must demonstrate past or future persecution based on five categories: race, ethnicity, political opinion, social group, and sexuality. They must also prove they belong to socially identifiable groups with a history of persecution or face a substantial likelihood of persecution if returned to their home country.

American courts refer to this requirement as “nexus,” meaning the persecution must be tied to an identifiable, socially recognized category. This standard poses challenges in immigration courts, where legal aid is limited, and many applicants represent themselves. Even with legal representation, convincing immigration judges that persecution is due to a permanent characteristic can be difficult. Judges may argue that relocating within the country could mitigate the hardship.

This situation raises questions about due process. The Supreme Court has defined due process as "the process which is due," typically determined by Congress rather than the Constitution. Aliens are entitled to procedural due process, not substantive due process, meaning they are guaranteed a process designated by Congress but not necessarily a favorable outcome.

Procedure can sometimes be seen as material, blurring the lines between substantive and procedural issues. Immigration lawyers must convince judges to consider humanitarian perspectives. In some cases, applicants may be granted humanitarian asylum, even without meeting the five grounds for protection, if the threat of persecution is severe.

The role of the advocate is crucial in these cases, where relief often depends on the discretion of the immigration judge. Discretion has been whimsically described as "bottomed on the chancellor's foot," referring to historical decisions made by the Lord Chancellor of England, sometimes influenced by personal conditions like gout.  Therefore, it is beneficial to hope for a sympathetic judge and a lawyer attuned to the judge's disposition.

This has been Peter Allen.

Law Offices of Peter Allen

From Arrival to Departure: The Journey Through Removal Proceedings

4/12/2024

In the world of immigration, discourse surrounding removal orders is often clouded in confusion and as a result, very frequently overlooked. The most delicate aspect of practice before the immigration court concerning appeals from removal orders is that appeals require a final order to be issued by the immigration judge, either because the respondent failed to appear for their hearing, or failed to file a timely appeal to the Board of Immigration Appeals (BIA). In cases where the respondent is seeking to reopen their removal proceedings based on a reasonable fear of persecution or torture, the petition to review must be filed more that 30 days after the removal decision has become administratively final and the claim of persecution or torture has not been previously considered by the BIA. If the removal order is then reopened, the respondent cannot then litigate any issue other than his or her persecution or torture claim. If the claim is then accepted, the respondent is only entitled to withholding of removal, precluding any ability to obtain lawful permanent resident (LPR) status. It should be noted that while a person granted withholding of removal cannot be granted LPR status, they may also not be deported unless the United States Government finds a country where they will not be persecuted and is willing to admit them. Now, a beneficiary of withholding may still qualify for residence status through marriage status or a petition filed by a United States Citizen (USC) or LPR. 

Recently, on February 27, 2024, the United States Court of Appeals for the 7th Circuit held that a removal order reinstated following an alien respondent’s unlawful entry into the United States, is not administratively final until sometime subsequent to the proceedings that determine whether the respondent would likely be persecuted or tortured if they were to be removed and a petition for reinstatement is filed more than 30 days after the original removal order was issued. In such circumstances, the respondent is not eligible for any relief except where they identify a threat of persecution or torture pursuant to the United Nations Convention Against Torture. In such cases, the alien will then be referred to an asylum officer who will determine whether they have a credible fear of persecution should they be returned to their home country. If the asylum officer then rules in their favor, the case will be brought before an immigration judge, where they may seek withholding of removal.If the asylum officer rules against the respondent, the respondent then may appeal the decision to the immigration judge, and if unsuccessful, may subsequently file a petition for review with the court of appeals. 

To clarify, for an alien respondent to qualify for asylum related relief, they must establish a reasonable fear of persecution or torture, based on past persecution or torture, or a reasonable fear of future persecution. However, this must be unique to the respondent based on race, religion, political position, membership in a particular social group, or desire to solicit certain information from the alien applicant. So, for example, if an alien is subject to torture but it is not due to a unique identifier and is an otherwise relatively common occurrence in their country, they will not be eligible for asylum based relief. In other words, the position of the United States is that if everybody in a particular region is being tortured regardless of any unique identifier, they do not qualify for asylum based relief because that could then qualify large percentages of entire countries or regions for asylum. 

Asylum may be claimed upon arrival at the United States border, or in a removal hearing, as well as subsequent to the conclusion of a removal hearing. In some cases, an applicant may qualify for humanitarian asylum where it is not necessary to show a nexus, or a connection, between harm that has been or will be suffered, and one of the humanitarian grounds for asylum listed in the United Nations Convention Against Torture. Additionally, a deportable alien who arrives at the border of the United States may be deported without referral to an immigration judge, or released pending a removal hearing. If the alien is able to establish a credible claim to asylum, their claim will be referred with a positive recommendation to the immigration judge. If the asylum officer's decision is unfavorable, the decision is subject to review by the immigration judge, but in most cases, there is no judicial review available. 

Litigation surrounding removal of respondents is historically one of the most crucial areas where respondents’ rights are tantamount. When a decision seems final, there are often multiple avenues that can be explored in order to receive a more favorable outcome. Such is to say that in immigration proceedings, nothing is ever really final and there is always hope to continue fighting your fight. 

I Wish You the Very Best,

Peter Allen

Law Offices of Peter Allen

Navigating the Legal Landscape: Understanding the Implications of Texas SB4

4/05/2024

In the United States, when a legislature enacts a law, the enforcement of statute can be stopped by obtaining an injunction against the enforcement of that statute. An appeal can be taken from the decision granting that injunction. During the pendency of this appeal to a higher court, the lower court is able to grant an administrative stay of a stay that is pending appeal. The purpose of the administrative stay in such circumstances is to permit the reviewing court more time to determine whether to issue a stay pending appeal. This requires showing that the plaintiff is likely to prevail on merits of his appeal and would suffer significant harm if his request for stay pending appeal is not granted. In the history of the United States, the decision made last week is the first instance of the Supreme Court granting an administrative stay to an inferior court in order to allow that court to have additional time to decide whether or not a stay pending appeal should be granted.   

Last week’s case involved Texas’ recently enacted S.B.4 anti-immigration law. In this statute, the Texas legislature intended to rid non-citizens from the state and prevent others from attempting to enter, despite the pendency of action by the federal immigration agencies. 

Following its enactment, an injunction staying the operation of that statute from taking place was issued by the federal district court and an appeal was subsequently taken by the State of Texas to the fifth circuit court of appeals. Prior to any decision on the stay pending the appeal, the Supreme Court dissolved the district court’s injunction and issued an administrative stay, permitting the enforcement of the Texas statute pending the 5th Circuit’s decision on a stay pending the appeal. 

Given the intensity of the debate surrounding this decision, it may come as a surprise that neither the Constitution nor the Bill of Rights discusses immigration except in reference to stopping the importation of slaves and securing a uniform law of naturalization. However, no uniform federal immigration law concerning the admission and expulsion of non-citizens existed in the period prior to the American Civil War. This may have been due to the view that immigration was an expression of the traditional police powers exercised by the several states and reserved to them by the 10th amendment to the U.S. Constitution. As a matter of record, the states had enacted their own immigration laws in the period following their independence from the English Crown. In some cases, this legislation dated back to the British Colonial period. In this era, immigration, was left to colonial administration but administration over citizenship was split between colonial administration and parliamentary regulation.

In the 1840’s, the supreme court ruled that state immigration laws financed by a poll tax on arriving aliens was in violation of the interstate commerce clause. In the 1880’s the Supreme Court upheld federal restrictions on the immigration of Chinese workers on the basis that the federal executive agencies have broad authority over the admission of non-citizens and their expulsion, and that this power is nearly exclusive. 

As Justice Sotomayor pointed out in her dissent, the Supreme Court, in recognizing an administrative stay favoring the enforcement of the Texas statute, upended the federal-state balance of power that has existed for more than 100 years and invites further chaos and crisis. There is no sharing of intelligence between the State of Texas and the United States. There is no provision in the Texas statute that preserves the rights of non-citizens to asylum and other federal rights under federal law and thereby violates the right of every person in the United States to equal protection and due process.

 Moreover, since at least 1880, the Supreme Court has never upheld state authority with regard to the admission and exclusion of non-citizens. In this regard, it is difficult to imagine why the 5th circuit rewarded a lengthy period for deciding whether the state of Texas was likely to convince the Supreme Court that it has the constitutional authority to admit and expel non-citizens from its borders. Public safety and national security threats presented by a border overwhelmed by non-citizens require a federal policy that imposes solutions on a uniform basis rather than a state by state approach that fails to balance human rights and national interests in an even handed manner. 

As of 4/05/2024, Texas has taken the position that they will turn over any noncitizens to the Immigration Service, which is effectively what they are currently doing and have been doing. With this position taken by the State of Texas, it is unlikely that they will be able to enforce their desired SB4 laws. 

Happy Spring!

Peter Allen 

Law Offices of Peter Allen

Navigating the Northern Gateway: Exploring the Dynamics of Immigration from Canada

12/08/2023

America’s oldest border is its border with Canada. In fact, the Canadian border was the subject of the first treaty adopted by the United States, and in that treaty the rights of migration of indigenous people across the border between British dominions and American dominions was established. But, the border was not fixed in all of its parts, and is still not today. After all, it was only a few years ago that there was a dispute between the US and Canada that went to the International Court of Justice on the question of the US-Canadian border. Now, what has created all of this furor between the US and Canada? Well, when we look at the historical context, we can see that this border question has been generated by a resource question. That is: which side is going to get the benefit of natural resources that lie across the border? At the same time however, there has been a migration flow between the two countries in the sense that their policies, that is, the policies between the British authorities in Canada, and later the Canadian authorities themselves, and the United States have been close, but not identical. It is also true that Canada has conducted its international relations in a slightly different fashion than the United States. This has generated an immigration policy in Canada that is slightly different than the United States, and therefore has allowed a broader number of people into Canada whose ultimate objective is the United States. 

Significant weight should also be placed on Canada's unique history in which part of the dominion was loyal to the British throne and part of it to the French Republic. In fact, there is actually a separate provision for immigration regulation in the province of Quebec. In Quebec, generally, French speaking immigrants are given a significant advantage immigration-wise, than they would be when applying for immigration in Canada in general. This has meant that a number of third country aliens have used Canada as a jumping off point. Also, historically there has been a somewhat different policy with respect to drug enforcement and with respect to criminal matters. The Canadians generally do not favor the death penalty whereas the US, of course, abolished the death penalty and then re-established it with the Gregg v. Georgia decision in 1976. It is also interesting to note that the economies of Canada and the United States, while dependent on each other, are not exactly identical. 

An additional  interesting development has been the establishment of the North American Free Trade Agreement, which has eased immigration between both Mexico and the United States, and the United States and Canada. This has also meant that there are a certain number of aliens flowing on a non-immigrant basis between the three countries. I note that it’s non-immigrant and not permanent immigration, largely because the three countries have refused to amend their immigration laws to bring them into compliance with each other. This means in order to have an immigration policy, it would have to be a policy based on temporary entry, rather than permanent entry. This has now led to a situation in which across the northern border as well as across the southern border, there is an increasing number of unauthorized aliens. That is to say third country individuals who have tried to cross the borders of the three countries without appropriate documentation. Of course, there is also the direct non-immigration from Canada and Mexico, but most of the problem has been third country aliens, rather than Canadians or Americans and increasingly fewer and fewer Mexicans. Because even along the southern border, an increasing percentage of unauthorized entrants have been from countries other than Mexico. 

It would seem that this problem could be approached for a solution by looking at the European model. That is, looking at the European economic communities regulations with respect  to man power between its constituent contributions. That would require a more precise mechanism for controlling and determining who could cross the border, when they could cross the border and for instilling the policy. The reason is that at the present time, the flow depends largely on border enforcement in the three countries. Generally there is no appellate review of the decisions made at the borders.   This has meant the border decisions could be somewhat disparate and inconsistent, and thereby cause a certain amount of frustration among people who claim their due process rights have been denied. For such people who make these claims, it should be noted that the due process, which is afforded to people under the American Fourteenth Amendment, is not applied until those people make it into the United States. So, if they're at the border, they cannot insist on due process rights because the sovereignty of the United States, the sovereignty of Canada, and the sovereignty of Mexico do not exist until you've crossed the border. For instance, many years ago, I had a client who was accused of having an illegal entry into the United States from Canada. Upon investigation, we discovered this position taken by the US government was incorrect because he had ATTEMPTED to enter the United States and cross the fifty feet between the US border and the Canadian border but the Canadian authorities would not admit him and escorted him back to the United States. Therefore, he never made an entry into Canada. And because he had never made an entry into Canada he could not conceivably be thought of as having made an illegal entry into the United States because he never left. So this is a poignant example of how leaving and returning is not always a simple question.   It also illustrates how immigration problems are never resolved, but always require a little tinkering, like with an old watch that slows down after a while. 

Questions or Comments? I welcome your replies!

Peter Allen 

Law Offices of Peter Allen