Alliance of White Anti-Racists Everywhere – Los Angeles
Asylum
Asylum System May Open Door for Femicide Survivors
01 year ago
“Femicide” isn’t a word you hear too often. The public silence surrounding that term is due to the same reason why it happens in the first place: women around the world who are systematically brutalized and killed are rendered invisible on two levels–first by their murderers, and then by a society that looks the other way. But a narrow window to humanitarian relief could be opening in the for survivors of femicide in the U.S. asylum system.
Ms. Magazine reports that a recent court ruling involving a Guatemalan immigrant could set a precedent for aiding those who are escaping, or want to avoid deportation to, communities where it is dangerous to be a woman.
The case of Lesly Yajayra Perdomo represents the silent plight of thousands of women in impoverished and conflict-ridden regions, where gender-based violence takes place regularly and with impunity. (Beware cultural determinism: it happens right here at home, too.)
After migrating to the U.S. as a teen, Perdomo faced deportation in 2003 and argued that her life would be endangered if she were sent back to Guatemala, where a wave of several thousand murders of women over the past decade have gone largely unpunished (though the government has taken measures to address this, on paper). The judge agreed that she had a valid asylum claim, and she will now argue her case afresh in court.
Carrie Baker explains:
The Immigration
and Nationality Act allows asylum for people persecuted because of
religion, political belief, race, nationality or particular social
group. Gender is not an explicit basis for asylum under U.S. law.
However, advocates have argued that women who are subject to
gender-based violence should be eligible for asylum as a “particular
social group.” Courts have granted asylum to women fleeing domestic
violence, female genital cutting, honor killing, forced marriage and widow abuse. At the end of last year, an immigration
judge granted asylum to Rody
Alvarado, a Guatemalan woman who had a history of extreme abuse by
her husband and who feared he would kill her if she returned to
Guatemala. The Perdomo decision follows and expands this line of
reasoning.
So U.S. asylum law, although gender itself does not automatically confer victim status, forms of persecution that are tied to the social position of women might.
Right wingers claim the asylum system is easy for women to game, but empirical evidence reveals that, in fact, the court system that is often rigged against immigrants, resulting in arbitrary and endless legal limbo.
The ruling could dovetail with other gender-conscious legal remedies for undocumented immigrant women under the Violence Against Women Act and the Trafficking Victims Protection Act. But again, we see piecemeal reforms building a lattice of protections for certain groups, though nothing could substitute for a broad human-rights based framework across the entire immigration system.
In the absence of a comprehensive overhaul that would establish a more uniform standard of justice, decisions like Perdomo are the best hope women have for enfranchisement in a world that treats them, on many levels, as second-class citizens.
Image: flickr via change.org
UK Says Gay Asylum Seekers Can Come Out of the Closet
01 year ago
Anyone who’s ever had to come out to friends and family has probably spent at least some time in denial, careful not to betray any sign of an unaccepted sexual identity. Would you have kept hiding if your life depended on it? Until this week, that’s pretty much the advice that immigration officials in the United Kingdom were giving many LGBT asylum seekers fleeing persecution in their home countries.
The UK Supreme Court just struck down a draconian policy that pushed immigration authorities to question LGBT asylum seekers on whether they might be able to avoid persecution back home if they just made some, you know adjustments. Under the “discretion test,” the Home Office would ask petitioners if they might be ” ‘reasonably expected to tolerate’ conditions back home that would require [them] to be discreet and avoid persecution,” the BBC reports.
The controversial practice caught the attention of the United Nations High Commissioner for Refugees, which advises refugee and asylum policies in key destinations like the UK and the United States (the UN reports, “90 per cent of all refugees resettled every year are accepted by the United States, Canada and Australia”). The level of scrutiny to which aslyum seekers are subjected is a critical issue in the global movement for LGBT rights. The need for LGBT asylum may well intensify around the world, particularly in places like Uganda, Indonesia, Iran, and Iraq, where, according to the International Gay and Lesbian Human Rights Commission, cultural conservatism shades into violence and oppression, especially toward activists who put their lives on the line to challenge prevailing religious, cultural or legal norms.
Not all LGBT asylum claims are categorically rejected on these grounds, but arbitrary denials are reportedly prevalent. In the United States, the asylum rights of LGBT people is cemented in legal precedent, but the process of proving the case in court remains for many claimants a game of roulette.
One of the stories at the center of the UK case reveals the untenable choices confronting one gay asylum seeker:
In one case, currently before the UK Supreme Court, a gay man from Cameroon was told he should relocate elsewhere in his country and be “more discreet” in the future.
The man, only identifiable as “HT”, was attacked by an angry mob back home which had seen him and his partner kissing in public.
“Some people stopped me and said we know you are a gay man,” HT told the BBC.
He has been fighting removal from the UK for the past four years.
“I cannot go back and hide who I am or lie about my sexuality,” he says.
The Supreme Court’s decision will help establish a new standard for determining asylum status that is in line with international human rights guidelines. As Lord Rodger wrote in the ruling, “[To] reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the [Refugee] Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution.”
At the core of the debate is the idea that sexual orientation, unlike race or religion, is a lifestyle choice that can be muted through self-control. Just like the woman who was raped because she wore a revealing dress, or, a few decades ago, the Black youth who got a beating because he should have known better than to drink from the wrong water fountain. Or, as UNHCR officer Alexandra McDowall told the BBC, “Would we have asked a Jew to hide in the attic to avoid being sent to the concentration camps?”
In the murky legal world of humanitarian asylum, it turns out that advocates could overturn a policy of dehumanizing interrogation simply by asking the right questions.
Photo: Creative Commons/Quinn Dombrowski
Court of Appeals Finds USCIS Acted Outside the Law
01 year ago
Yesterday, the Ninth Circuit Court of Appeals issued a simple but clear reminder to the United States Citizenship and Immigration Services (USCIS) that it must act within the bounds of the law. The issue before the court was whether USCIS could properly deny an employment-based, “extraordinary ability” visa because the petitioner had not demonstrated “the research community’s reactions to his [scholarly] publications” – an arbitrary requirement with no justification in the law. The court, in Kazarian v. USCIS, found that USCIS unlawfully imposed a requirement on the petitioner that was not found in the regulations. The court said that “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” In other words, USCIS cannot bypass the law.
Unfortunately, what happened in this case is not an isolated incident, and therefore immigration advocates nationwide warmly welcome the court’s admonishment of the agency. There are countless examples of the immigration agencies adding new requirements or additional bars to immigration applications that have no basis in law. Over the past few years, the American Immigration Council’s Legal Action Center (LAC) has challenged several unlawful agency practices and has forced the government to change its policies. Successful LAC challenges include:
- The agency attempted to preclude “arriving aliens” (a subset of parolees) who are in removal proceedings from applying for adjustment of status even though the statute clearly made them eligible. After successful litigation challenging this policy, the agency changed its position.
- USCIS adopted regulations requiring foreign physicians who have practiced in medically underserved areas of the United States to meet requirements not authorized by Congress before they are eligible for adjustment of status. The court of appeals said that the agency’s policy was in conflict with the law and struck down the regulation.
- USCIS was requiring employment-based third preference (EB-3) workers to have a bachelor’s degree or a single foreign equivalent degree even though the statute allows a person to qualify for EB-3 classification by demonstrating that she possesses the equivalent of a bachelor’s degree based on the combination of education and employment experience. The court concluded that USCIS had no authority to limit eligibility in this way.
In addition, the LAC currently is challenging an immigration court regulation that impermissibly adds a geographic limitation to the statutory right to file a motion to reopen, even though the statute contains no such limitation. Already, two courts of appeals have found that this limitation is unlawful.
Immigrants and their advocates must be vigilant. When the immigration agencies operate outside the law, they must be held accountable. As the Ninth Circuit reminded us this week, the courts provide necessary oversight of government-decision making and help to ensure that the government is playing by the rules.
Photo by Metagrrrl
Progress Report: Is DHS Making the Grade?
01 year ago
Yesterday marked the seventh anniversary of the Department of Homeland Security (DHS) and its immigration agencies: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). It also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. While the internal review results have never been made public, an external review reveals that DHS is struggling with the challenges of reform—both administrative and legislative—and finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.
The Immigration Policy Center released “DHS Progress Report: The Challenge of Reform” today which measures DHS actions over the past year against recommendations made to the Obama Transition Team’s immigration-policy group. The “Transition Blueprint” produced by a wide range of immigration advocates focused on administrative improvements that would instill fairness, create efficiencies, and build support for comprehensive immigration reform in several key areas: due process, enforcement, detention, family immigration, naturalization, immigrant integration, and asylum.
On the plus side, there has been more public engagement and discussion of DHS priorities. ICE has announced, although not fully implemented, numerous detention reforms. It has done away with the massive worksite raids of the past few years, placing greater emphasis on employer violations. The Obama Administration and USCIS have made some genuine inroads into immigration fee reform, backlog reduction, and expanded naturalization and integration efforts. Secretary Napolitano has also invested significant time and resources into developing plans for comprehensive immigration reform.
But the disappointments are many. DHS is still trying to enforce its way out of a broken immigration system with programs like Operation Streamline, a program which requires mandatory criminal prosecutions of non-violent border crossers, clogs the federal court system and drains resources that could be used to prosecute more serious criminals. DHS is also expanding partnerships with state and local law enforcement agencies (Secure Communities and 287(g) programs) in their search for “criminal aliens.” These programs often identify people with no criminal history and persons “identified” but found not to be deportable. Meanwhile, immigration practitioners continue to criticize USCIS for the lack of transparency on how decisions to grant or deny applications are made.
These are just some of the examples of changes within the last year. Ultimately, this first year was both promising and frustrating—a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one steps backward, inching its way toward a more humane and just system. There is clearly much more that can and should be done at an administrative level—without Congressional action—to improve the system. But we are living on borrowed time. Without immigration reform that gives DHS the breathing room to do the right thing, annual reviews will increasingly be catalogs of more enforcement measures without corresponding opportunities for immigrants to make the kinds of contributions to our country that enrich us all.
Photo by Sharon Day.
New Report Provides Solutions to Broken Asylum Employment Authorization Clock
01 year ago
Asylum applicants and their attorneys have long struggled to better understand how the employment authorization asylum clock (“EAD asylum clock”) functions. The clock, which measures the number of days after an applicant files an asylum application before the applicant is eligible for work authorization, affects potentially more than 50,000 asylum applicants each year. While the law requires asylum applicants to wait 150 days after filing an application to apply for a work permit and in some instances, permits the government to extend this waiting period by “stopping the clock” for certain incidents caused by the applicant, some applicants often wait much longer than the legally permitted timeframe to receive a work permit, which can cause a host of problems.
In an effort to find workable solutions to the asylum clock problems within the current regulatory framework, the American Immigration Council and Penn State Law School’s Center for Immigrants’ Rights released a new report, Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock, which examines the laws, policy, and practice of the “Employment Authorization Document (EAD) asylum clock and provides targeted recommendations.
What Happens When the Clock Stops?
When the Executive Office of Immigration Review (EOIR) or USCIS personnel stop an asylum applicant’s employment authorization “clock” before 150 days, the applicant is not eligible to apply for work authorization. This inability to work can have devastating consequences for applicants, who, in many cases, are fleeing persecution in their home countries and do not have strong support networks in the United States. Without the ability to work, asylum applicants may find themselves vulnerable to exploitation, unable to support their families, and in extreme cases, compelled to return to the countries from which they fled.
Why Does the Clock Stop?
According to EOIR and USCIS policy, the EAD asylum clock stops in response to certain actions by the asylum applicant. The reasons for the stop may include requests for a continuance to better prepare an asylum case, time to seek representation, or even adjournment due to the illness of an applicant. In many instances, asylum applicants and their lawyers believe the clock was improperly stopped or do not agree with the agency policy that resulted in the stop.
Key Problems
The new report identifies several key areas of EAD asylum clock problems that plague asylum applicants and their advocates, and calls on the agencies that control the clock to improve how the clock functions. The key categories of asylum clock problems include: a lack of transparency in the government’s administration of the clock; the absence of clear guidance about how agencies should administer the clock; and problems related to the agencies’ interpretation and implementation of the law governing the clock.
Recommendations
The report also provides targeted recommendations for USCIS and EOIR intended to address each of the categories of problems. Among the solutions, the report recommends that EOIR develop comprehensive new, clear and explicit policy regarding the clock. The new policy should treat the employment clock separately from the adjudications clock (the 180 day clock for completing an asylum application), properly distinguishing the statutorily distinct clocks. In addition, the report recommends that EOIR better interpret existing regulatory language to stop the clock only when there is a delay “without good cause.” The report also recommends that EOIR stop the EAD asylum clock on the record and provides a new system for appealing agency errors relating to the asylum clock.
The report concludes by calling upon EOIR to create a task-force made up of stakeholders involved in the EAD asylum clock that include, but are not limited to AOs, NGOs, private attorneys and EOIR personnel to discuss EAD asylum clock issue and implementation of the policy.
Ultimately, as the report carefully points out, the agencies must bear responsibility for ensuring asylum applicants are able to work and support themselves while pursuing legitimate asylum claims.
Photo by wwarby.