The following information will be of interest to Barry Law students in the Refugee and Aslym Law seminar. It is an excerpt from Prof. Birdsong’s law review article: “Give Me Your Gays, Your Lesbians and Your Victims of Gender Violence Yearning to Breathe of Sexual Persecution…”: The New Grounds for Grants of Asylum, which was published in the Nova Law Review, Spring 2008.
Eligibility for Asylum
Asylum is a legal remedy available to legal ands illegal aliens who seek protection from persecution they faced or would face in their home country on account of some protected ground.[1] Thus, not all immigrants are protected from persecution.[2] Rather, the persecution must have a connection to protected characteristics. Specifically, those include race, religion, nationality, political opinion and membership in a “particular social group.”[3] An asylum request is automatically considered an application for an alternate claim of relief know as withholding of removal.[4] Both forms of relief require the claimant to demonstrate a certain quantum of persecution that the individual suffered in his or her home country or would suffer if returned there, and both require a “nexus” between the persecution and one of the protected grounds.[5]
Asylum and withholding of removal appear nearly identical but have important differences.[6] Asylum is subject to the discretion of the Attorney General of the United States.[7] Withholding of removal, if proven, is a mandatory form of relief.[8] A person granted asylum may be eligible for permanent residency in the U.S. after one year as an asylee.[9] Most litigants prefer asylum.[10] Withholding of removal guarantees only that the person will not be forcibly returned to his or her country of origin and does not preclude the possibility of being removed to a third country.[11] The applicable standard of proof is also higher in a withholding of removal than in an asylum grant.[12] In order to obtain withholding or removal the claimant must show a clear probability of persecution.[13] The showing for asylum is only a well founded fear of persecution.[14]
Applications for asylum are termed either “affirmative” applications or “defensive” applications. Applicants who are not currently in removal proceedings may file an affirmative application by mailing a Form I-589 to a regional USCIS[15] service center under the auspices of the Department of Homeland Security.[16] A specialized corps of full time professional asylum officers receive the applications and interview the applicants. Asylum officers grant asylum in meritorious cases, which initially ran between 15 and 30 percent, but in recent years have exceeded 40 percent.[17] They do not deny the other cases, instead asylum officer refer them to the immigration court placing the cases in removal proceedings.[18]
C. Immigration Court Proceedings, Appeal and Review
Immigration judges provide the initial evaluation of all defensive applications for asylum and withholding, and they provide a second review of affirmative applications referred by asylum officers.[19] This allows the case to be heard in the more formal setting of the immigration court where witnesses may be examined and cross examined by the alien’s counsel and the Department of Homeland Security (DHS) counsel.[20] If removal proceedings are already underway, the applicant can apply for asylum or withholding only by presenting a defensive application that is heard exclusively by the immigration judge(IJ).[21]
At the hearing the claimant must present evidence to avoid removal. The DHS will present evidence and argument in support of its decision to refuse asylum.[22] Neither state nor federal rules of evidence apply in immigration proceedings.[23] However, evidence presented must be relevant and conform to requirements of constitutional due process.[24] If the claimant persuades the IJ that she meets the statute’s asylum requirements the judge may grant asylum for an indefinite time.[25] In addition, the claimant’s immediate family members who are still abroad may join her in the U.S.[26]
If, on the other hand, the IJ denies the asylum request, she may appeal her case to the Board of Immigration Appeals (BIA).[27] Only one BIA exists and it reviews all appeals from immigration courts throughout the United States.[28] The BIA is an administrative appeals tribunal that is part of the Executive Office for Immigration Review in the Department of Justice. The BIA has never been recognized by statute, it is entirely a creature of the Attorney General’s regulations, and the Attorney General appoints its members.[29] The BIA has several options with respect to the appeals: it can reject the claim on appeal, it may remand a case to the IJ with instructions to follow an appropriate course of action, or it may grant asylum directly.[30] Although the BIA hands down a large volume of appellate decisions each year only a small fraction are designated as precedent decisions for inclusions in the official reports.[31]
If the BIA rules against the claim, judicial review may be available to the claimant by bringing an appeal to the Federal circuit court of the appeals that has jurisdiction over the area from which the case originated.[32] The circuit court may then remand the case to the BIA with instructions for a ruling consistent with the Circuit Court’s findings.[33] Further, if a circuit court of appeals adopts a different rule than the BIA, the new rule will be applied within the court’s circuit in future cases.[34] As a result, circuit splits have arisen because of inconsistent rulings among the circuit courts regarding the same legal issue,[35]
Recent Statistics on Grants of Asylum
The USCIS does not break down its general asylum statistics according to the basis of the claim, thus, there are no official statistics available to indicate the number of sexual orientation and gender violence claims filed or approved.[36] However, USCIS does make available information about the characteristics of asylum seekers.[37] The trend reveals that grants of asylum are on an upswing.[38] The total number of persons who were granted asylum in the United States increased from 25,160 in 2005 to 26,113 in 2006.[39] The number of persons who were granted asylum affirmatively through USCIS decreased from 13,423 in 2005 to 12,873 in 2006.[40] Conversely, the number of persons granted asylum defensively through an immigration court increased 13 percent from 11,737 to 13,240.[41] The leading countries of origin for persons granted asylum in 2006 were China (21 percent), Haiti (12 percent), and Venezuela (5.2 percent).[42] These three countries accounted for the origin of nearly 50 percent of the asylees.[43] Demographic data for 2006 only includes that of affirmative asylees. Of the 12, 873 persons granted asylum affirmatively 80 percent were between the ages of 18 and 54.[44] Fifteen percent were under 18 years of age, and individuals aged 55 or over accounted for less than 5 percent.[45] Forty eight percent were married and 48 percent were single.[46]
In 2006, 53 percent of affirmative asylees were male.[47] This indicates that more women appear to have won asylum claims in the United States if they received 47 percent of the affirmative applications. According to 2003 statistics, male applicants filed sixty two percent of new asylum claims.[48] The lack of a data breakdown by gender specific to sexual orientation makes it impossible to estimate the number of women who apply for asylum on this basis; however, it is likely that male applicants outnumber women by a considerable margin. The fact that landmark cases in the area of sexual orientation asylum law deal with male applicants appear to bolster this assertion.[49]
It is likely that a goodly number sexual orientation and gender violence grants of asylum were to people of color.[50] The statistics indicate that in 2006, 21 percent of the asylum claims were granted to people from China, approximately 12 percent of such claims were awarded to Haitians, 3 percent went to Ethiopians, 2.8 percent to Indonesians, and 2.2 percent to people from Cameroon.[51]
[1] See, Joseph Landau, Soft Immutability and Imputed Gay Identity: Recent Developments In Transgender and sexual orientation-Based Asylum Law, 32 Fordham Urb. L.J. 237, 239-40 (2005).
[2] Id.
[3] See, INA 101(a)(42)(A), 8 USC 1101(a)(42)(A)
[4] This provision of the law is found INA 241(b)(3)(A) and was formerly known as withholding of deportation. The amendments to the INA in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act replaced former hearings known as Deportation hearings and Exclusion hearings and renamed them both as Removal hearings. Removal is synonymous with deportation. The concept of deportation is readily recognized by most people.
[5] See, Landau, Soft Immutability, supra at note 41 at 241.
[6] Id.
[7] Id.
[8] See, INA 241(b)(3)(A), 8 USC 1231(b)(3)(A)
[9] See, INA 209(a)(1)(B), 8 USC 1159 (a)(1)(B)
[10] See, Landau, Soft Immutability, supra at note 41 at 241.
[11] See, Weissbrodt and Danielson, supra, Immigration law and Procedure, note 22 at 327-28.
[12] Id at 238.
[13] Id at 335.
[14] Id.
[15] This is the abbreviation for the U.S. bureau of Citizenship and Immigration Services, Department of Homeland Security. Created in 2003, this bureau houses the principle services and adjudications functions inherited from the Immigration and Naturalization Service (INS), including asylum officers and the refugee corps. It is sometimes referred to as CIS. See, Martin, et al., Forced Migration Law and Policy, supra, at note 36 at p xi-xii.
[16] See, Id at p 79.
[17] Id.
[18] Id.
[19] Id at 81.
[20] Id at 80 and see, at p x.: ICE – Bureau of Immigration and Customs Enforcement, Department of Homeland Security. Created in 2003, this bureau houses interior enforcement functions transferred from the former INS, including investigations, detention and removal, and the trial attorneys who represent the government in immigration court.
[21] Id at 80. Typically the alien makes known at the master calendar hearing (the first appearance in immigration court) her wish to seek asylum or withholding as a form of relief from removal, and the judge then grants a specified period of time for the completion of the Form I-589 to be filed with the immigration court.
[22] See, Bennett, The “Cure” That Harms, supra, note 5 at p 284.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] See, Martin, et al., Forced Migration Law and Policy, supra, at note 36 at p 83
[30] See, Bennett, The “Cure” That Harms, supra, note 5 at p 285.
[31] See, Martin, et al., Forced Migration Law and Policy, supra, at note 36 at p 83
[32] See, Bennett, The “Cure” That Harms, supra, note 5 at 285.
[33] Id.
[34] Id.
[35] Id.
[36] See, Morgan, Not Gay Enough, supra, at note 33 at 141-142.
[37] Id.
[38] On Thursday, November 15, 2007, this author had the opportunity to have a telephonic interview with Attorney Victoria Neilson who is the Legal Director of Immigration Equality. Immigration Equality is a national organization, based in New York City, that works to end discrimination under U.S. immigration laws for lesbian, gay, bisexual and transgendered immigrant and those immigrants who may be HIV positive, and to help obtain asylum for those who are persecuted in their home country based on their sexual orientation.
Attorney Neilson maintains that her organization have seen an increase of asylum claims based on sexual orientation over the years since the organization was founded in 1994. She, further advised that in the last year Immigration Equality has handled approximately seventy five GLBT asylum cases and have had a very high success rate in winning asylum. She advises that two thirds of the cases won were affirmatively filed cases. One third of the cases won were by a defensive filing while the claimants were in removal proceedings.
She opined that their high rate in gaining asylum resulted because they do not accept every GLBT that comes to then. They accept only the cases they believe likely will merit a grant of asylum. It was her further opinion that agencies such as Immigration Equality have attorneys who prepare their affirmatively filed cases very well with ample documentation. Such agency attorneys are well prepared for trials in the defensively filed for cases. It is her observation that IJ’s love such level of preparation and trial skill.
See, www.immigrationequality.org.
[39] See, DHS, Annual Flow Report: Refugees and Asylees: 2006 at p 5, https://www.dhs.gov//immigrationstatistics.
[40] Id.
[41] Id.
[42] Id.
[43] Id. See, also Id. at p 6: The largest percentages of individuals granted asylum in 2006 affirmatively were living in Florida (41 percent) and California (24 percent). Sixty five percent of the affirmative asylees were located in one of these two states. Other major states included New York (10 percent), Maryland (4.1 percent, Washington (2.1 percent), Virginia (1.9 percent), and Georgia (1.5 percent).
[44] Id at 5.
[45] Id.
[46] Id.
[47] Id.
[49] Id.
[50] Id at p 143.
[51] See, DHS, Annual Flow Report: Refugees and Asylees: 2006, supra at note 78 at 4.
