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Top of the Ninth: UACs and Persecutor bar

Top of the Ninth: UACs and Persecutor bar

Who wakes up in the morning and says to themselves, "How can I make life even more difficult for the most vulnerable populations in the world? How can I make it so that Jesus himself or a Jew from Nazi-controlled Europe could not get asylum?" I won’t answer that rhetorical question and will leave it to you. Jeff Sessions realizes that he cannot outlaw asylum absent a literal act of Congress, and a withdrawal from international treaties; but, it appears that he is trying to limit the definition of asylum through Attorney General decisions so that most people will not qualify. This week he referred to himself Matter of Negusie, 27 I.&N. Dec. 347 (BIA 2018). Negusie addresses the issue of whether there is a duress exception to the persecutor bar for asylum, withholding of removal and deferral under the Convention Against Torture (CAT). The case went to the Supreme Court and the Supreme Court remanded it to the BIA. In June the BIA issued a very long opinion finding that there was a duress exception for the persecutor bar but then found that Mr. Negusie did not qualify but granted him deferral of removal under CAT. Apparently, the Attorney General was not pleased and referred the case to himself. As Matthew Archambeault said, "Session would have denied asylum to Jesus because he carried the cross." I think that in creating asylum policy, the standard for these self-defined religious Christians should be, would Jesus qualify for asylum if he applied in the United States? If the answer is no, then the policy is wrong. In other news, the BIA held the Immigration Court rather than USCIS had jurisdiction over the asylum claim of an Unaccompanied Alien Child (UAC) who entered the United States at the age of seventeen and turned eighteen before filing for asylum. Nothing came down from the Ninth Circuit this week.

Now for an important Public Service Announcement: the BIA amended its Practice Manual this week and there are two important changes. First, while it is the BIA’s policy to grant one briefing extension per case, the filing of an extension request does not automatically extend the deadline. And, the 21 extra days are added to the original filing deadline. So, if you don’t think you can get the brief filed within the 21 days, immediately file for an extension and then call the Board to make sure it’s granted. Don’t just assume that it is granted. Second, there is now a 25-page limit for briefs and motions (it does not include Tables of Contents, Tables of Authorities, etc. – it’s just the body of the brief or motion). However, as Ben Winograd has pointed out, the filings can be single-spaced. And the Practice Manual states that while Times New Roman 12-point font and double spacing is preferred, the Manual only requires that the brief be easily readable. However, should you have a monster case (I have been known to file 60-page briefs) you can file a motion with the BIA to increase the page limit. Since there are serious due process concerns about this rule, especially with the requirement for administrative exhaustion, I think attorneys can and should effectively challenge this new policy. I also think the BIA should make things easier on themselves and, like the Ninth Circuit, require 14-point font and simply have a word limit for the body of the briefs. Their eyes will thank them.

Here is the cite: BIA Practice Manual.

Attorney General

The Attorney General Referred Matter of Negusie to Himself to Determine Whether Coercion and Duress are Relevant to the Application of the Persecutor Bar

This week the Attorney General (AG) referred Matter of Negusie, 27 I.&N. Dec. 347 (BIA 2018) to himself. Here is a refresher on this case. Daniel Negusie is a dual national of Ethiopia and Eritrea. In 1998, when he was living in Eritrea, a war broke out with Ethiopia and the Eritrean government conscripted him to fight against Ethiopia. Mr. Negusie refused to fight, and the Eritrean government incarcerated and tortured him. Two years later the Eritrean government released him and forced him to work as a prison guard for four years until he managed to escape. He testified that when he was a guard, he carried a gun, guarded the gate, and prevented prisoners from escaping. He kept prisoners from taking showers and getting fresh air. He collaborated in forms of punishment including guarding prisoners to make sure they stayed in the sun; which was a form of punishment. At least one man died on his watch. In 2004 he managed to escape from the prison and find his way to ship that was coming to the United States. He hid in a storage container. On December 20, 2004, he disembarked in the United States and applied for asylum.

The Immigration Judge denied his asylum and withholding case finding that he assisted in the persecution of others by working as an armed guard. The IJ granted him deferral of removal under CAT. (Deferral of removal simply means that the U.S. government cannot remove the noncitizen to his or her home country absent a finding that s/he will no longer be subject to torture in the home country. There is no right to a work permit and there is no right to release from detention. It is protection in its most basic form. 8 C.F.R. § 208.17). The BIA affirmed the IJ’s decision. The BIA held that the fact that Mr. Negusie "was compelled to participate as a prison guard and may not have actively tortured or mistreated anyone is immaterial…That is because "’an alien’s motivation and intent are irrelevant to the issue of whether he "assisted" in persecution…[I]t is the objective effect of an alien’s actions which is controlling…. (quoting Matter of Fedorenko, 19 I.&N. Dec. 57 (BIA 1984)." Quoted in Negusie v. Holder, 555 U.S. 511, 516 (2009). The case went to Fifth Circuit and they agreed with the BIA that whether the there is no duress exception for the persecutor bar. Negusie v. Gonzalez, 231 Fed.Appx. 325, 326 (5th Cir. 2007). Mr. Negusie filed a writ of certiorari and the Supreme Court granted cert.

The Supreme Court held, ‘Dudes! You’re conducting the wrong analysis and looking at the wrong statute and case law! Seriously!’ Okay, they may not have used those words, but that is what they meant. These are the exact words: "The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue of whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise." Negusie, 555 U.S. at 516. See, it’s practically the same thing. Which brings us to the question, what is Fedorenko?

In Fedorenko, the Supreme Court interpreted the Displaced Persons Act of 1948 (DPA). Congress enacted the DPA to enable Holocaust survivors to immigrate to the United States without regard to traditional immigration quotas. But, the DPA excluded any individual "who can be shown (a) to have assisted the enemy in persecuting civil populations of countries, members of the United Nations; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nation." Negusie, 555 U.S. at 519. The question in Fedorenko was whether an individual’s service as a concentration camp armed guard made him ineligible to immigrate to the US under § 2(a) of the DPA. The Fedorenko Court held that "the deliberate omission of the word ‘voluntary’ from § 2(a) compels the conclusion that the statute made all those who assisted in the persecution of civilians ineligible for visas." Fedorenko v. United States, 449 U.S. 490, 512 (1981). The Fedorenko Court found it was a simple issue of statutory construction.

The BIA applied the Fedorenko rule to the persecutor bar to the definition of refugees and asylees in the Immigration and Nationality Act. The Supreme Court slammed the BIA holding:

Our reading of these decisions confirms that the BIA has not exercised its interpretive authority but, instead, has determined that Fedorenko controls. This mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply the Fedorenko rule that motive, and intent are irrelevant to the persecutor bar at issue in this case. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency.

Negusie, 555 U.S. at 522-23. See, they said, ‘Dude! Wrong statute; wrong interpretation!’ The Supreme Court remanded the case to the BIA to determine the statutory meaning of "persecution."

In June 2018, the BIA issued its decision recognizing a limited duress exception to the persecutor bar; but finding that Mr. Negusie did not fall within the exception. They did find that he qualified for deferral of removal under CAT. The BIA created a five-part test to determine if the noncitizen falls within the duress exception. The noncitizen must establish by a preponderance of the evidence that:

  1. The noncitizen acted under an imminent threat of death or serious bodily injury to himself or others. Death or serious bodily injury has a proportionality requirement and the noncitizen must show that the threatened harm to himself or others was greater than or equal to the harm the noncitizen was forced to inflict. The BIA gave examples of what it considers to be “great bodily injury” including being shot in the leg or being hit in the head with a baseball bat.
  2. The noncitizen reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting.
  3. The noncitizen had no reasonable opportunity to escape or otherwise frustrate the threat.
  4. The noncitizen did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting. And,
  5. The noncitizen knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

This determination requires a lot burden shifting. First, the noncitizen must establish eligibility for asylum. Then DHS has to show that the noncitizen assisted or otherwise participated in the persecution of others. Once DHS meets its burden, then the burden shifts to the noncitizen to show by a preponderance of the evidence that the persecutor bar does not apply to the noncitizen because either he did not engage in persecution or because he acted under duress. It is a very long and complicated opinion with a lot of cites to international law and to the Model Penal Code. This is a concurring/dissenting opinion in this case. Judge Malphrus concurred in the result but argued that there is not a duress exception to the persecutor bar. Matter of Negusie, 27 I.&N. Dec. 347 (BIA 2018). But, the saga does not stop here. On October 18, 2018, the AG referred the case to himself. The parties’ briefs are due November 8, 2018 and the amici briefs are due November 15, 2018.

On a side note, there has been some interesting discussions in the immigration community as to whether the AG’s decisions should be granted Chevron deference. Negusie v. Holder has a very interesting back and forth between the majority and the dissenting opinions over the meaning and purpose of Chevron deference. The majority, lead by Justice Kennedy, posits that judicial deference in the immigration context is of special importance. He notes that executive officials exercise especially sensitive political functions that implicate questions of foreign relations. "The Attorney General’s decision to bar an alien who has participated in persecution "may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions." Negusie, 555 U.S. at 517, quoting, INS v. Aguirre-Aguirre, 527 U.S. 415, 425 (1999). Kennedy then goes on to recognize that the AG has delegated this authority to the BIA in the immigration context.

Then Stevens and Breyer who dissent in part and concur in part [they agree that Mr. Negusie should at a minimum, get deferral of removal; but they think he should not be subject to the persecutor bar] go into a heavy analysis of Chevron. They looked at the issue differently than the majority: "Courts are expert at statutory construction, while agencies are expert at statutory implementation." Negusie, 555 U.S. at 530 (Stevens, J. concurring and dissenting). The dissent held that this question was one of statutory construction. "I think it plain that the persecutor bar does not disqualify from asylum or withholding of removal an alien whose conduct was coerced or otherwise the product of duress." Negusie, 555 U.S. at 534-35 (Stevens, J Dissenting). So, if anyone is thinking of challenging these Attorney General decisions under Chevron, I strongly recommend that you read Negusie very carefully. As for Mr. Negusie, well, let’s hope that he is able to remain in the United States under CAT.

Matter of Negusie, 27 I.&N. Dec. 481 (A.G. 2018).

Board of Immigration Appeals

The Immigration Courts Not USCIS Have Jurisdiction Over the Asylum Application of a UAC Who Enters the United States at the Age of Seventeen but Turn Eighteen Prior to Filing for Asylum

The BIA held that Immigration Courts, not USCIS, have jurisdiction over unaccompanied minors who file for asylum after turning 18. M-A-C-O- is a native and citizen of El Salvador. On or about January 1, 2015, M-A-C-O- was apprehended by DHS when he tried to enter the United States. He was seventeen years old. (I just want to say that I live with a seventeen-year-old male. While he is very smart, witty, clever, and is excelling at school; he is also clueless, and the courts should treat him like a juvenile. He is a child). On January 15, 2015, DHS served M-A-C-O- with a Notice to Appear. On March 21, 2015, M-A-C-O- turned eighteen. On March 31, 2015, he appeared as his initial immigration court hearing with his aunt. The Immigration Judge noted that M-A-C-O- was now eighteen. She transferred his case from the UAC docket to the adult docket and continued proceedings to give him an opportunity to retain counsel.

On July 22, 2015, M-A-C-O- appeared in Immigration Court with his attorney. The attorney said that he had filed an application for asylum with USCIS because he had entered the United States as a UAC. The IJ found that she had jurisdiction; not USCIS. The attorney, not being stupid, had prepared a second asylum application to file in court; which he did that day. On September 29, 2017, the IJ denied the asylum claim.

M-A-C-O- appealed the case. The only issue on appeal is whether USCIS or the IJ had jurisdiction over the asylum claim. M-A-C-O- cited to an internal USCIS memorandum to asylum officers that states that once a noncitizen is determined to be a UAC, the asylum office will adopt that determination without further factual inquiry, absent an "affirmative act" by HHS, ICE or CBP to terminate it before an initial asylum application was filed. Memorandum from Ted Kim, Acting Chief, USCIS, Asylum Division, to Asylum Office Staff (May 28, 2013). The BIA said, "no." They held that under INA § 208(b)(3)(C) an asylum officer has initial jurisdiction over any asylum application filed by an unaccompanied alien child. They then quoted the Sixth Circuit and held, "Viewing the statute as a whole, nothing in the TVPRA or the statute it revised suggests that the jurisdiction al provision applies to formerly unaccompanied alien children." Harmon v. Holder, 758 F.3d 728 764 (6th Cir. 2014).

The BIA further notes that the policy set forth in the Kim Memo is not embodied in a regulation that has the force and effect of law. "Thus, although it may be relied on to the extent it is persuasive, it is not binding on either the Immigration Judges or this Board." Matter of M-A-C-O-, 27 I.&N. Dec. 477, 480 (BIA 2018). So, if a child enters as an unaccompanied minor, but turns eighteen before filing for asylum it appears that s/he is an adult and is subject to the jurisdiction of immigration court – at least according to the BIA.

Matter of M-A-C-O, 27 I.&N. Dec. 477 (BIA 2018).

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