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It used to be that asylum was practically impossible to get in an Immigration Court.  According to TRAC – the Transactional Records Access Clearinghouse at Syracuse University – the denial rate for asylum cases in Immigration Court was a whopping 89% nationally in 1986.  Times have indeed changed.  TRAC recently reported that thus far in 2010, the national denial rate for asylum cases in Immigration Court is approximately 50%, an incredible jump in just 24 years.  Interestingly, the overall number of asylum cases in the court system has dropped, which is probably one reason so many more cases are granted (assuming, of course, that the types of cases that are no longer being filed weren’t very meritorious in the first place).  Click here to read TRAC’s report and to find additional information on Immigration Court statistics.

Central America is one of the most violent places on earth thanks to rampant, unchecked gang activity and weak governance throughout the region.  Thousands of young men (and sometimes women) are recruited to join these maras every year – and anyone that refuses does so at their own peril.  A recent article in the New York Times illustrates just how high the stakes are for young Central Americans seeking protection from gang persecution in the United States.  Benito Zaldívar, a national of El Salvador, was first recruited by Mara-18 – one of the largest and most powerful gangs in Central America – before he was even a teenager.  He came to the United States illegally in order to escape Mara-18′s high-pressure recruitment efforts, but was caught at the border and promptly applied for asylum.  The Immigration Judge and the Board of Immigration Appeals (BIA) both denied his application, saying that he could not be considered part of a “recognized social group,” one of the five bases for asylum under American law.  Benito returned to El Salvador after the BIA denied his appeal, and was dead within eight weeks - shot in the face by members of Mara-18.  I’m sorry, but if American asylum law doesn’t recognize this as a situation that qualifies for asylum, American asylum law needs to change.  I’ve written before about gang persecution as a basis for asylum, but this case really drives the need for asylum reform home.  Asylum exists to protect people from persecution based on inalienable characteristics, thing that they cannot or should not have to change.  I can think of nothing more inalienable than resisting your own forced recruitment into an organization whose very existence you find repugnant, especially when your government cannot or will not help you out.  America’s collective heart is certinaly big enough to protect these people, who want nothing more than to find a peace that simply does not exist anymore in their home countries.

The Government Accountability Office (GAO) released a report recently called “Humanitarian Assistance – Status of North Korean Refugee Resettlement and Asylum in the United States,” which is fascinating in a number of ways.  First of all, I wasn’t even aware that the U.S. was resettling any North Korean refugees.  The vast majority of North Koreans fleeing their country wind up in South Korea for obvious logistical and cultural reasons -  but I suppose it’s only logical that some would wind up in a relatively immigrant-friendly country like the U.S. as well.  Second, and even more surprising to me, there are some North Koreans that file for asylum in the U.S. – and USCIS actually denies some of their applications!  HUH? North Korean asylum claims are DENIED?  I find that astonishing because the mere act of filing for asylum is a political statement that in all probability merits the death penalty in North Korea.  The only ways I can find to explain these denials are (1) the applicants missed the one-year filing deadline, or (2) they have disqualifying criminal convictions (although in either case, their applications would be referred to an Immigration Judge for additional consideration).  According to the GAO’s report, 33 North Korean asylum claims were filed between October 1, 2004 and March 2, 2010; of those 33, USCIS approved 9, 15 are still pending, and 9 were denied, withdrawn, or dismissed.  I’d be very curious to learn more about these North Korean asylum cases.  How did the applicants make it to the United States?  Who are these applicants in the first place?  Government officials?  Common people?  North Korea is the last true enigma of the international community, a land of secrets, grandstanding, and great suffering.  North Korean asylum seekers that make it to the U.S. are a valuable source of information about this mysterious country, and I certainly hope that any North Koreans that physically make it to the United States are allowed to stay.

I applauded the Department of Homeland Security’s announcement yesterday that it would stop detaining asylum seekers.  I might have been a little too hasty, however, in cheering DHS’s apparent change in policy.  Attorneys are blogging about how DHS’s stated criteria for determining whether to detain asylum seekers – credible fear, able to verify identity, and not a flight risk – are already the factors it takes into account when deciding what to do in this situation.  Although John Morton’s announcement could signal a change in how ICE applies existing law, or maybe a new effort at standardizing operating procedures across points of entry into the U.S., it was ultimately a rather empty gesture, especially if asylum seekers still find themselves paradoxically seeking freedom in detention.  I always hate to assume the worst about our government, but I can definitely see ICE officers saying to themselves “well gee, Billy Bob, this guy from Ghana has a funny looking passport…I don’t think he can properly identify himself.”  The problem with ICE’s three-prong get-out-of-jail test is that many asylum seekers have to enter the country on false travel documents.  Many times, obtaining a real travel document can be a death sentence, especially if it tips the government off that an especially sought-after individual wants to leave the country.  Additionally, how can someone that has no contacts in the United States not be considered a flight risk?  The three-pronged test relies on the good graces of ICE and CBP agents deciding that someone merits an exercise of discretion – something on which asylum seekers shouldn’t have to count in order to stay out of detention.

This has been a truly exciting week for immigration.  First, the EOIR swore in six new judges, second, the first CIR-related bill appeared in Congress, and now, an announcement from DHS that it will no longer detain asylum seekers that are found to have a credible fear of persecution.  According to an article in the New York Times, “Foreigners who arrive at a port of entry and are found to have a credible fear will automatically be considered for release into the U.S…[a]sylum seekers still will spend time in detention while they undergo interviews and their information is checked, but the administration hopes to reduce the length of their stay with a policy change…”  This was a real no-brainer for DHS.  America should not want to be known as a country that detains people fleeing persecution.  True, many of these asylum claims might be specious at best, but we still need to give asylum seekers the benefit of the doubt.  After all, asylum claims often involve claims of horrific persecution, and the last thing we should want is to compound potential asylees’ suffering by locking them up for the months or years it takes to resolve their cases.  America purports to be a nation of great humanitarian ideals; let’s ensure that we live up to them in all aspects of our legal system.

There’s an excellent story in today’s online edition of the Wall Street Journal that discusses the plight of the Mira family of St. Paul, Minnesota.  Three children, Pablo, Rene, and Silvia Mira were forced to flee their native El Salvador due to gang harassment, which included threats of bodily harm and death.  According to the article, the street gang that controls their town, Mara Salvatrucha 13 (or MS-13 for short), pressured the two Mira brothers to join the gang, and even threatened their sister, telling her that “‘she would find [her brothers'] bodies in a dumpster’ and be raped or murdered if the twins didn’t join.”  The siblings fled El Salvador in order to escape these threats to their lives and safety, and applied for asylum after they arrived in the United States.

The history of the Mira’s asylum claim is long and convoluted, but suffice it to say that they were rejected at every stage of the adjudications and appeals process, until their case landed before Justice John Paul Stevens of the U.S. Supreme Court (this was after a less sympathetic Justice Alito turned down their request for an emergency stay of removal).  Justice Stevens asked the government to explain why it refused to consider delaying the children’s deportation, and referred the matter to the full Supreme Court for consideration.  Almost immediately afterwards, ICE miraculously released the children from detention, and notified the children’s attorney that it was willing to reopen their removal case. 

Apparently, when the Supreme Court gets involved, DHS listens – and listens well.  My guess is that DHS did not want a Supreme Court precedent involving gang-based asylum claims, and decided to bury the matter in a favorable adjudication before the Court could take further action.  As good as this result is, it shouldn’t take Justice Stevens’ intervention to change the way that DHS treats gang-related asylum cases.  This is a major problem right now for America’s asylum system, and it requires an intelligent and comprehensive solution that prevents a flood of asylum applicants from Central America while recognizing that many of these people truly need protection from gang persecution in their countries. 

Under current immigration law gang persecution is generally not a basis for asylum in the United States.  Asylum requires a well-founded fear of persecution on account of ethnicity, political opinion, religion, nationality, or “social group,” which is the catch-all category for any claims that don’t neatly fit into the first fourt categories.  Since these first four categories generally don’t apply to gang-based persecution cases, attorneys try to fit their clients into a social group, an approach that has met with extremely limited success (political opinion has been used as well, with slightly more success, although these claims are also difficult to prove).  The problem is really that the legal framework for asylum in this country was never designed for gang persecution situations.  Our definition of asylum – cited above – is a product of the post-World War II era, when the Holocaust and other Nazi atrocities served as the basis for identifying protected groups of people.  Specifically, the United States adopted its definition for asylum from the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and is obligated to recognize asylum claims conforming to the standards contained in these treaties.  Gang persecution, though, didn’t exist in 1951, and I doubt that any of the treaty’s drafters could have envisioned the situation that currently exists in Central America, whose governments are virtually powerless to combat their gang problems.  People are being killed because they live in a town controlled by one gang, which angers a rival gang, or they refuse to join their local gang, or maybe their brother or sister joined a gang and left, and now they are being targeted as retribution for this “insult.”  The police are usually outgunned and outmanned by these gangs, and many are even in league with the gangs themselves.  The bottom line is that people are being killed and no one is protecting them, which, as far as I know, is the exact reason anyone is ever granted asylum.

As a matter of basic humanity, the United States should provide a mechanism for people fleeing gang violence to obtain asylum.  Maybe call it something else, and make the grant temporary, or at least renewable every year pending reauthorization from Congress based on country conditions, along the lines of Temporary Protective Status.  Either way, something must be done soon, or many, many people are going to die in Central America unnecessarily.