Catholic Legal Immigration Network, Inc. (CLINIC)

EOIR VIRTUAL LAW LIBRARY

NATIONAL CLINIC WORK Providing a full range of legal and non- legal 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 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 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 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 EOIRExecutive Office of Immigration Review (Immigration Court) BIABoard of Immigration Appeals (1 st Appellate review of Immigration Judge decision) NTANotice to Appear (Imm. Charging Document) RESPONDENTImmigrant fighting deportation in court DHSDepartment of Homeland Security US ICEImmigration & Customs Enforcement (Branch of DHS charged w/ removing unlawful immigrants) US CISCitizenship and Immigration Services (Branch of DHS charged w/ providing services to immigrants, including asylum applications OUTSIDE of court proceedings)

VOCABULARY, cont… IJImmigration Judge TATrial Attorney (opposing counsel in deportation proceedings) E-28Notice of Entry of Appearance that must be filed in Immigration Court G-28Notice of Entry of Appearance filed with an administrative agency or officer ORR / Office of Refugee Resettlement DUCSDept. of Unaccompanied Children Services (responsible for custody and care of children held while in removal hearings)