Birdsong does his share of teaching students at Barry about asylum and presecution grounds. One of my students, Serena S. Watson has done some independent research you might interesting. Her research concerns what happens to those who have been persecutors when they seek asylum in the U.S. She has given me permission to post her paper on the subject. Enjoy and learn.
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PERSECUTION IN THE REVERSE: A DIFFERENT PERSPECTIVE ON THE GRANTING OF ASYLUM |
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By: |
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Serena S. Watson
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I. INTRODUCTION
Imagine the world as one huge dodge ball field. This dodge ball field holds an annual tournament with different participating teams. The teams are Africa, Asia, Australia, Europe, North America, and South America. Each team has the freedom to pick and choose their players. Not all players may want to stay with their original teams, therefore, transferring is allowed. In order to transfer teams a list of requirements must be met. The players are evaluated on an individual basis and there can sometimes be room for discretion. If one is not chosen to transfer, they may be left on an undesirable team sitting on the bench with no playing time.
At some point in our lives, we will all encounter, or have encountered, the dreaded experience of being selected to be a part of or even to participate in something. If one has a reputation of being a person of good character, the process may not be difficult for them. On the opposite side of the spectrum, one who has made some wrong choices in the past may have difficulty transitioning onto a new team. Using dodge ball as an analogy for the process of asylum makes one wonder how the determination is made on whether or not someone is eligible to transfer from one country to another.
The process of asylum is grounded on the idea of persecution. One is eligible for asylum if they can show that they have a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[1] Like all selection processes, there are bars to eligibility. One of the bars to eligibility and the basis of this paper, is the idea that one seeking asylum is not eligible if they have ever persecuted any other person on account of that person’s race, religion, national origin, membership in a particular social group, or political opinion.[2]
Considering that the idea of persecution has not been concretely defined, how are past persecutors who are seeking asylum evaluated? How broad is this notion of persecution? How much of a role should the criminal justice system play in the determination of asylum? Is it being used as a deterrence or a rehabilitative tool?
There have been many instances where an individual was found not guilty of a crime and is now seeking asylum. This paper is going to explore the popular undefined concept of persecution and the past persecutors who seek asylum. From a public policy standpoint, it is understandable why there is a selection process. It’s a scary thought to know that one’s next door neighbor could have participated in an act that involved persecuting someone for one of the previously listed reasons. From a social equality standpoint that some like to believe still exists, the selection process doesn’t make much sense.
This topic wasn’t chosen to campaign for or against the granting of asylum to past persecutors, it was chosen to explore the process and to make reasonable suggestions for change. This author will discuss the societal concerns and constitutional issues surrounding the admitting of past persecutors to the United States (US). The definition and the court’s interpretation of persecution will also be explored. As this author will illustrate, there is not a concrete definition for persecution, therefore, it will be suggested that there be unanimous conformity among the circuits in order to further strict interpretation of the laws.
There are various cases where asylum seekers applications were denied because they were alleged to be a past persecutor. In deciding whether to extend the grant of asylum to these past persecutors, the courts have looked to the phrase ‘assisted or otherwise participated’. In their analysis, the courts have looked to the persecutors behavior as a whole to determine eligibility as opposed to looking at the mental state or voluntariness of the person’s activities. This author will suggest that the courts should continue with their current analysis, but also include the voluntariness analysis.
II. THE NEED FOR ASYLUM
A. Who is Eligible for Asylum?
As of April 2009, there were an estimated 306,222,535 people in the US.[3] Considering the large number of individuals and the different cultures that make up the US, it would be logical to assume that not all of these individuals were physically born in the US. Every year, an estimated 632,000 people migrate to the US.[4] Reasons for migration may stem from various different issues such as financial, health, education, family, etc. Some may be seeking the ever so popular ‘American Dream’, while others are just simply seeking refuge. When an individual is seeking refuge or protection in the US, they must apply for and follow the process of asylum.[5]
Asylum is defined as ‘[A] sanctuary or shelter.’[6] Asylum status is available to persons seeking protection in the United States or at its borders.[7] An alien who petitions for initial admission to the United States is requesting a privilege.[8] In 2008, the US registered approximately 49,000 new asylum applications.[9] For the past three years, US was the largest single recipient of new asylum claims among the group of industrialized countries, accounting for 13 per cent of all claims lodged in the 51 countries.[10] [T]he granting of asylum provides a status under U.S. immigration law that eventually can lead to permanent residency.[11]
In 1951, the formal basis for exercising the right to asylum was established by an international treaty, the Convention Relating to the Status of Refugees.[12] Countries
signing that Convention have an obligation to provide asylum or refuge to people fleeing persecution.[13] A 1967 Protocol removed the geographical and time limitations of the Convention which essentially expanded the scope of the Convention to not only European refugees after WWII.[14] In 1968, the US adopted the 1967 Protocol and incorporated it in their 1980 Refugee Act.[15]
The United Nations Refugee Convention “requires a state party to provide
protection and to guarantee specific rights to persons who face serious violations of their human rights in their home counties, where those violations are on account of certain statuses and beliefs: race, religion, nationality, membership in a particular social group, or political opinion.”[16] The four major forms of protection to persons fleeing persecution are asylum, withholding of removal, refugee status, and Torture Convention relief.[17] Although withholding or removal and refugee status will be briefly discussed, this paper is going to mainly focus on the area of asylum.
In setting forth the legal test for asylum eligibility, the Immigration and Nationality Act (INA) has declared that a person may qualify for asylum if he or she meets the international definition of a refugee. A refugee is defined as:
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[18]
“The main criteria for obtaining asylum are contained in the basic refugee definition: persecution or a well-founded fear of persecution on a count of race, religion, nationality, membership in a particular social group, or political opinion.”[19]
‘Race’… has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage.[20] Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population.[21]
Persecution for “reasons of religion” may include the prohibition of membership
of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practice [sic] their religion or belong to a particular religious community.[22] “Mere membership in a particular religious community in most cases will not be enough to establish an asylum claim.”[23]
Persecution for reasons of nationality includes both citizenship and Membership.[24] This
type of persecution consists of adverse attitudes and measures directed against a national (ethnic, linguistic) minority.[25]
Membership of a particular social group is comprised of persons of similar background, habits or social status.[26] Similar to persecution for a religious belief, mere membership in a particular social group in most cases will not be enough to establish an asylum claim.[27]
In order to qualify for asylum based on membership in [a] particular social group, alien must (1) identify group that constitutes “particular social group”, i.e., group of persons, all of whom share common, immutable characteristics, (2) establish that he or she is a member of that group, and (3) show that he or she would be persecuted, or has a well-founded fear of persecution, based on that membership.[28]
Lastly, persecution “for reasons of political opinion” implies that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities.[29] Persecution under this status can also be claimed even if the applicant has not specifically expressed his opinions.[30] If the applicant’s opinion is strong enough, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities.[31]
B. The Procedural Process for Asylum
There are two different agencies that handle asylum applications. One is the Executive Office for Immigration Review (EOIR) and the other is the US Citizenship and Immigration Services (USCIS). The EOIR is a separate agency that oversees immigration cases within the Department of Justice.[32] The EOIR conducts the removal proceedings which are presided over by Immigration Judges (IJ) in immigration courts.[33]
Another area of the EOIR is the Board of Immigration Appeals (BIA).[34] The BIA is an administrative appellate tribunal that reviews the decisions of the IJ’s and some decisions of the USCIS.[35] The tribunal is comprised of administrative judges who are appointed by the Attorney General.[36] Although the decisions of the BIA are binding on all other administrative actors, one may appeal the case to the federal courts.
The USCIS is a bureau of the United States Department of Homeland Security
which performs functions which were previously administered by the United States Immigration and Naturalization Service (INS).[37] USCIS is charged with processing immigrant visa petitions, naturalization petitions, and asylum and refugee applications.[38]
The two ways to obtain asylum in the US are through either Affirmative proceedings, or Defensive proceedings. In affirmative asylum proceedings, individuals who are arriving in or already physically present in the United States, regardless of how they arrived or their current immigration status, may apply for asylum.[39] “[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”[40]
In order to apply for asylum under this process, the asylum seeker must submit
an application within one year from the date of last arrival in the US.[41] If the asylum seeker is unable to file within the one year time frame, she or she must show (1) changed circumstances that materially affected their eligibility or extraordinary circumstances relating to the delay, or (2) they filed within a reasonable amount of time given those circumstances.[42]
Asylum seekers who are ineligible for asylum through the affirmative process or
who have been placed in the removal proceedings may request that their case be heard under the defensive asylum process.[43] Aliens generally are placed into defensive asylum processing in one of two ways: (1) [T]hey are referred to an Immigration Judge by Asylum Officers who did not grant asylum to them; or (2) [T]hey are placed in removal proceedings because they (a) are undocumented or in violation of their status when apprehended in the US; (b) were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.[44]
C. Determination of Eligibility and Alternatives to Asylum
In the context of asylum, the determination of who remains in the US is a difficult decision to make. In order to sustain a level of fairness in the judicial process, certain guidelines must be followed. As previously discussed, Title 8 of the United States Code lays out the guidelines for admitting immigrants into the US. Under the code, “[T]he Attorney General shall establish a procedure for the consideration of asylum applications filed.”[45] The Attorney General also has jurisdiction over asylum applications filed with the Immigration Court.[46]
There have been a number of cases that address the issue of the eligibility of an asylum seeker. As previously stated, in order to qualify for asylum, the petitioner must meet the definition of a refugee, which means the petitioner has the burden of proving their refugee status.[47] “The test for refugee status includes both a subjective and objective component: subjective component is satisfied if the fear is well-founded; objective component requires showing, by credible, direct, and specific evidence in record, that persecution is reasonable possibility.”[48] After their status as a refugee has been determined, the Attorney General has the discretion in whether to grant or deny asylum.[49]
It is important to note that the Attorney General is not required to grant asylum to everyone who meets the definition of refugee. Instead, a finding that an alien is a refugee does no more than establish that “the alien may be granted asylum in the discretion of the Attorney General.[50]
Even though one may be eligible for asylum, their claim can in fact be denied, if so, they are still eligible for withholding of removal.[51] “Asylum and withholding of deportation are two distinct forms of relief.”[52] “[T]here is no entitlement to asylum.”[53] Withholding of removal only provides protection from removal to a specific country if that person’s life or freedom would be threatened in that country.[54] “Asylum and withholding of deportation are closely related and appear to overlap.”[55] In Osorio v. INS, the Second Circuit set out the two important distinctions between asylum and withholding of deportation [removal].[56]
First, ‘the burden of proof that an alien must meet to be eligible for asylum is lower than that required of an alien who seeks withholding of deportation.” Second, once eligibility for asylum has been established, a grant of asylum remains within the Attorney General’s discretion. In contrast, “withholding of deportation for those who qualify [is] mandatory rather than discretionary.[57]
In Osorio, the Guatemalan petitioner submitted an application for asylum or, in the alternative, withholding of deportation because he feared persecution on the account of his political beliefs.[58] The IJ denied applications but granted his application for voluntary departure to Costa Rica.[59] The BIA subsequently affirmed.[60]
The appellate court in reversing the decision of the BIA held that the petitioner was eligible for withholding of deportation because substantial evidence showed that his life or freedom would be threatened in Guatemala on account of his political opinion.[61]
If the applicant is able to meet the higher standard necessary to show eligibility for withholding of deportation, specifically, that “it is more likely than not” that the applicant’s “life or freedom would be threatened in the proposed country of deportation on account of . . . [his or her] political opinion, and none of the exceptions apply, than the BIA must withhold deportation.[62]
Another alternative to asylum is the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).[63] CAT is a “multilateral treaty containing provisions to prevent torture, to prosecute torturers, and to compensate victims of torture.”[64] “The Torture Convention bars states from returning anyone to another state where there are substantial grounds for believing [they] would be in danger of torture.”[65] Torture is defined as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[66]
The BIA has also defined torture as “an extreme form of cruel and inhuman
treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.”[67] This procedure is different from asylum and withholding in that it requires a showing of ‘substantial grounds’ for believing that one would be tortured.[68] Another difference is that there is no requirement of a ‘nexus to a specific ground and there is no preclusion for those who are considered criminals, security risks or torturers.’[69]
III. THE TRICKY PERSECUTION STANDARD
A. Is there a Definition of Persecution?
Merriam Webster defines persecution as ‘the act or practice of persecution esp. those who differ in origin, religion, or social outlook…”[70] Online dictionaries define persecution as ‘a program or campaign to exterminate, drive away, or subjugate a people because of their religion, race, or beliefs’.[71] As you can see, there seems to be no clear cut definition of persecution. When it comes to asylum, there is a substantial amount of confusion as to how persecution in the context of asylum law is truly defined.
“Congress did not define persecution in the INA, nor did the United Nations in the international conventions and protocols that provided the backdrop for congressional asylum legislation and which have thus informed the judiciary’s interpretation of § 208.”[72] “No doubt “persecution” is too strong a word to be satisfied by proof of the likelihood of minor disadvantage or trivial inconvenience. But there is nothing to indicate that Congress intended section 243(h) to encompass any less than the word “persecution” ordinarily conveys — the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.”[73]
As a treaty and statutory term, “persecution” has neither a universal nor a precise definition.[74] Since there is no definition of ‘persecution’ contained in the Refugee Convention, its meaning must be divined by a process of judicial interpretation.[75] Once again, as clear as these instructions are, there are differences of opinions among the circuits.
The First Circuit had [held] that persecution ‘encompasses more than threats to life or freedom, but less than mere harassment or annoyance.[76] The Seventh Circuit has defined persecution as “punishment or “the infliction of harm” for political, religious, or other reasons that are offensive.[77] The Ninth Circuit has made it clear that the statutory term “persecution” includes more than just restrictions on life and liberty; the term encompasses “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.[78]
B. “Well-Founded Fear” of Persecution
The concept of persecution is surrounded by the notion of a “well-founded fear”. Section 208(a) of the Refugee Act (hereinafter referred to as the ‘Act’) requires applicants for asylum to demonstrate a “well-founded fear” of persecution.[79] “Fear of persecution is to be regarded as a valid objection whenever an applicant can make plausible that owing to his religious or political convictions or to his race, he is afraid of discrimination, or persecution, on returning home.”[80]
The term “well-founded fear” requires that (1) the alien have a subjective fear, and (2) that this fear have enough of a basis that it can be considered well-founded.[81] In demonstrating that the applicant has a well-founded fear, they must demonstrate specific facts that give rise to belief.[82] These specific facts must be objective and established through credible and persuasive testimony.[83]
Under 8 U.S.C. § 1226(a), an alien who seeks entry is entitled to a hearing before an Immigration Judge on the validity of his application. At the hearing the alien has the right to present evidence, to cross-examine witnesses, and to examine and object to evidence offered against him. 8 C.F.R. § 236.2(a) (1983). He has the right to counsel. 8 U.S.C. § 1362.[84]
The evidence that is presented must be so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.[85] The Ninth Circuit has held that “mere assertions of possible fear” are insufficient.[86]
INS v. Cardoza-Fonseca is a Supreme Court case that addressed the confusion surrounding the standard of a ‘well-founded fear’.[87] The court held that an applicant for asylum in the United States only needs to demonstrate a “well-founded fear” of persecution, which can be met even if the applicant does not show that it is more likely than not he will be persecuted if returned to his home country.[88] This standard is more subjective because it refers to the applicant’s ‘mental state’ as opposed to the objective ‘more likely than not standard.[89] Although the court made a distinction between the two standards, they did not decide the meaning of ‘well-founded fear’ or how it should be applied; they only decided that this standard was lower than the standard of ‘clear-probability’.[90]
The BIA in the Matter of Mogharrabi, set out four elements which the applicant for asylum must show in order to establish a well-founded fear of persecution: (1) the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the applicant possesses this belief or characteristic; (3) the persecutor has the capability of punishing the applicant; and (4) the persecutor has the inclination to punish the applicant.[91]
IV. PAST PERSECUTORS AS ASYLUM SEEKERS
A. Are they Eligible?
The idea of a past persecutor seeking refuge in another country is somewhat of a
controversial issue. As the author has previously stated, there are obvious public policy reasons as to why past persecutors should be denied asylum. The safety of the law abiding citizens of that country may possibly be at stake, or, the safety of the alleged persecutor may be at stake if they are denied refuge. The threshold question thus becomes, who deserves protection: the innocent citizens, or the past persecutors?
In preserving the integrity of the justice system, the courts allow any alien who is seeking refuge to apply for asylum, however, like any other extended privilege, there are limitations. A Federal statute specifically states that an alien will not be eligible for asylum if the Attorney General has determined that ‘the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion’.[92]
This determination is usually based off of the information presented at the evidentiary hearings. “If the evidence indicates that [the asylum applicant was a persecutor], he or she shall have the burden of proving by a preponderance of the evidence that he or she did not so act.”[93] However, where an applicant seeks to carry this burden solely by offering his or her own testimony denying participation in the persecution of others, a finding that the applicant’s testimony is not credible effectively resolves the asylum claim against the applicant.[94]
Although the statute is very clear, numerous cases have come before the courts to determine the asylum eligibility of a person who falls into this category. The courts in their decisions make very clear distinctions as to what amounts to persecution.
Courts applying the persecutor exclusion have recognized that in order to determine whether an alien ordered, incited, assisted, or otherwise participated in persecution, a court must make a particularized or individualized determination of the alien’s actual role in persecutory acts and must find that the alleged persecutor has been actively and directly involved in such acts. However, they have also recognized that it is the nature of the alien’s involvement that is determinative, rather than whether such involvement was voluntary or motivated by actual persecutory animus.[95]
This section will outline various cases of alleged past persecutors who sought asylum. The cases of the police officer from India and the Chinese truck driver will illustrate the courts clear distinctions of the statutes idea of ‘assisting or otherwise participating.’ Also, the case of the three Rwandan defendants will illustrate a very detailed account of the alleged acts of persecution, the outcome of those allegations, and the public’s view of their future asylum applications.
B. Assisted or Otherwise Participated: Harpal Singh, Head Constable of India Police
On August 5, 2005, the United States Court of Appeals for the Seventh Circuit denied Harpal Singh’s petition for review of the BIA’s denial of his asylum application. The court in their decision held that “Congress has unequivocally prohibited asylum and withholding of removal for any alien who “ordered, incited, assisted, or otherwise participated in the persecution” of any individual on account of the individual’s “race, religion, nationality, membership in a particular social group, or political opinion.”[96]
Singh served as a police officer in a local police department in Punjab, India from 1979-1993.[97] His duties as an officer included patrolling, interrogating, investigating, preparing reports, and taking people into custody.[98] During the mid-1980s a considerable amount of violence erupted in India due to the movement of the Sikhism minority religion.[99] Due to the violence of militant Sikh’s, Singh’s local police force engaged in activities aimed at the preventing violence.[100] Although the police conducted legitimate police activity, it was conceded that they also crossed the line. Some of their line crossing activities included, arresting innocent people, torturing and sometimes killing detainees, and making false accusations of violence to justify police conduct.[101] Singh stated that he did not engage in the beatings himself, but he did in fact assist in the detaining of innocent people and failed to take action to prevent these events from occurring.[102]
It wasn’t until the detaining and torturing of his cousin in 1993 that Singh expressed his opposition.[103] After witnessing the brutal beating of his cousin, Singh decided to intervene and rescue his cousin from any future beatings.[104] Once Singh’s actions were realized by the police force, Singh was seized in his house and arrested.[105] After being subjected to the same level of abuse as his cousin, Singh was released on the condition that he return his cousin to the police. Instead of complying, Singh fled the country.[106] In 1999, Singh applied for asylum in the US after the US government initiated removal proceedings against him.[107] Singh, seeking asylum relief, based his application on the grounds that he is still wanted by the police and would be subjected to persecution upon returning to India.
The appellate court in their analysis of Singh’s petition for review, addressed the terms “assisted” or “otherwise participated” from Title 8 of the United States Code. The threshold question was whether Singh “assisted” or “otherwise participated” in the persecution of Sikhs in India.[108] The court established that there is a distinction between genuinely assisting in persecution and inconsequential association with persecution.[109]
In other words, simply being a member of a local Punjabi police department during the pertinent period of persecution is not enough to trigger the statutory prohibitions on asylum and withholding of removal. Rather, for the statutory bars contained in §§ 1101(a)(42) and 1158(b)(2)(A)(i) as well as in § 1231(b)(3)(B)(i) to apply, the record must reveal that the alien actually assisted or otherwise participated in the persecution of another on account of race, religion, nationality, membership in a particular social group, or political opinion. Furthermore, as an applicant has the burden of showing his entitlement to asylum and withholding of removal, it follows that, “if there is any evidence that an applicant for either kind of relief has assisted or participated in persecution, that individual has the burden of demonstrating by a preponderance of the evidence that he has not been involved in such conduct.[110]
Although Singh was just a member of the local police department during the period of persecution, there was substantial evidence which made it clear that he actually assisted or otherwise participated in the persecution of Sikh members.[111] “By his own admission, Singh was aware that his fellow officers were systematically persecuting innocent Sikhs from about 1983 until the time he fled in 1993.”[112] By choosing to stay on the force for financial reasons, carrying out orders, and being present at the sessions of torture was enough to prove that he was ineligible for asylum.[113]
C. Zhang Jian Xie, Driver for Changle County Department of Health in Fujian Province, China
Zhang Jian Xie’s (Xie) case is a perfect illustration of the fine line the courts use to decide whether or not an asylum seeker is classified as a ‘past persecutor’. For more than a year, Xie was employed as a driver for the Health Department in one of the Chinese counties.[114] Although he performed the typical duties of a driver, such as, transporting officials to villages to inspect restaurants and stores, on about three or five occasions, he also transported pregnant women to places where their abortion would be performed against their will.[115] These abortions were performed in accordance with China’s ‘one-child policy’, also known as, China’s family planning policy.[116] It is well known that the basis of this policy is to limit the number of children to one per married couple.
The record reflects that Xie did not agree with the forced abortions. The sole purpose for continuing his employment as a driver was due to financial reasons.[117] He testified that he would hear the women cry for help as he transported them and an unarmed guard to a hospital.[118] Xie never voiced his concerns or his objections regarding his duties to his supervisors.[119] It wasn’t until he was transporting a pregnant woman who was unaccompanied by a guard that Xie failed to comply with his duty as a driver. Xie testified that he acted out against these force abortions on his last trip when he released the woman from his van, and as a result, he was released from his employment with the department.[120]
Xie entered the US illegally in 1992.[121] In 1993, Xie applied for asylum on the grounds that he was subject to persecution because of his involvement in the student movement.[122] While in the U.S., Xie, met and married another Chinese immigrant.[123] The couple was currently expecting their first child and planned to have more in the future.[124] After Xie’s asylum application was denied by both the Immigration Judge and the Board of Immigration Appeals, he appealed the decision to the second circuit court of appeals.
The appellate court in their decision held that Xie did not qualify as a refugee under section 208(a) the Immigration and Nationality Act.[125] In their analysis of Xie’s refugee status, the court looked at his prior employment as a driver for a department that performed forced abortions and whether his acts amounted to ‘assisting or otherwise participating’ in persecution.[126]
The court in Xie’s case analyzed a series of cases where the idea of assisting or otherwise participating in persecution was the threshold issue. In a case decided by the Supreme Court in 1981, the court held that an individual who was forced to serve as a guard for the German Army at a concentration during WWII was not eligible for asylum due to his assistance in persecution.[127] In contrast, the second circuit also reviewed United States v. Sprogis. Sprogis’ U.S. citizenship was revoked because of his role as a police officer performing ministerial tasks for the Nazis.[128] In comparing Fedorenko, to Sprogis, the court held that the nature of Sprogis conduct did not rise to a level of assisting in persecution.[129]
In each of these cases, in assessing the character of the individual’s conduct, we looked not to the voluntariness of the person’s actions, but to his behavior as a whole. Where the conduct was active and had direct consequences for the victims, we concluded that it was “assistance in persecution.” Where the conduct was tangential to the acts of oppression and passive in nature, however, we declined to hold that it amounted to such assistance.[130]
In looking at Xie’s actions in transporting the women to undergo forced abortions, the court concluded that Xie did in fact assist in persecution because his actions contributed directly to the persecution.[131] The court also noted that while good acts of redemption may be relevant to an asylum claim, Xie’s act of releasing one of the women was not enough of a basis for him to be relieved of the consequences for having previously assisted in persecution.[132]
Both cases of Singh and Xie illustrate the courts view of the idea of ‘assisting or otherwise participating’ in persecution. The Second and Seventh circuits have both determined that one whose voluntary act(s) contribute directly to the persecution of another makes them ineligible for asylum.
D. Alleged Direct Participation: Francois Karake, Gregoire Nyaminani, and Leonidas Bimenyimana, The Rwandan Defendants
Francois Karake, Gregoire Nyaminani and Leonidas Bimenyimana were all
indicted on two counts of murder, conspiracy to commit murder, and using a firearm during a crime of violence.[133] It was alleged in the indictment that the three defendants were responsible for the brutal killings of two American tourists in Uganda in March of 1999.[134] After a four year investigation, the government produced a total of 29 statements made to both Rwandan and American officials regarding the attack.[135] The defendants, facing the death penalty, moved to suppress the statements arguing, (1) the statements were obtained in violation of the Fifth Amendments Due Process Clause; (2) the Miranda warnings issued by the American interrogators were inadequate to permit them to make a knowing and voluntary waiver of their Fifth Amendment rights against self-incrimination; and (3) a joint venture existed between the United States and Rwandan governments.[136]
The defendants alleged that the statements admitted by the government were the product of physical and psychological coercion, resulting from both their conditions of confinement and their treatment while in Rwandan custody.[137] In deciding whether the defendant’s Fifth Amendment rights were violated, the court looked at the ‘totality of the circumstances’ which included the consideration of both the characteristics of the accused and the details of the interrogation.[138] The characteristics of the accused including age, education, and the level of intelligence.[139] The details of the interrogation including the “lack of advice regarding their constitutional rights, length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.”[140]
Both sides presented evidence as to the characteristics of the accused the details of the interrogation. Captain Kibingo testified on behalf of the government as to the conditions of Kami Camp and the treatment of the defendants.[141] According to Captain Kibingo’s testimony, Kami Camp was more of a “summer camp than a prison facility.”[142] “The defendants were allowed visitors, slept on mattresses, cooked their own food, were able to leave the camp to fetch water and bathe.”[143] The defendant’s were never physically abused or placed in handcuffs because they were ‘good people’.[144]
Based on the defendant’s testimony, the conditions of the camp and the events that occurred were completely opposite to that of Captain Kabingo’s testimony. All three defendants alleged that they received repeated beatings while at the Camp. They were constantly bound and shackled by their wrist and ankles in uncomfortable positions which left visible scars.[145] They were housed in small cells with no chairs, beds, or mattresses.[146] Defendant Karake testified to being beaten by Captain Kibingo after failing to confess to the FBI. He also testified to “witnessing Captain Kibingo beat defendant Nyaminani with a 12 inch piece of rubber.”[147]
Defendant Nyaminani testified that after receiving an extensive beating, he was given paper on which he was directed to write a confession and was even sometimes told what to write.[148] Defendant Bimenyimana’s testimony regarding his confession was similar to that of Nyaminani’s. “After being starved and kicked, he was asked a series of questions in which his responses were written down by one of the soldiers.”[149] Although Nyaminani singed the confession, he did not read the confession, nor was the confession read to him.[150]
After considering the testimonies, the court then determined that an additional factor should be used to determine whether the defendant’s confessions were obtained in violation of the Fifth; the credibility of the testimony.[151] The court in their determination found that Kibingo’s testimony flatly contradicted that of the defendants.[152] In finding that Kinbingo’s testimony was not credible, the court outlined that the testimony was “full of inconsistencies and it was less compelling than the testimonies of the defendants.”[153] Also, the court found that the most compelling evidence was not only the corroboration of the defendant’s testimonies, but the visible scarring on the defendant’s bodies from the physical abuse they received while at Kami Camp.[154]
As to the defendant’s argument that the Miranda warnings issued by the American interrogators were inadequate to permit them to make a knowing and voluntary waiver of their Fifth Amendment rights against self-incrimination, the court once again looking at the ‘totality of the circumstances’, held that under the conditions previously outlined above, “any waiver of Miranda rights could not be voluntary.”[155] The characteristics of the accused, specifically, their limited education and rural upbringing, also determined that they were unable to make a knowing and voluntary waiver of their Fifth Amendment rights.[156] Most importantly, the court was unclear as to whether Miranda warnings were even given, or if given, whether the language of the warning was correct.[157]
In determining whether a joint venture existed between the United States and Rwandan governments, the court held that a joint venture can only exist when foreign officials are rendered “agents” of the US government, or when the cooperation was designed to evade the constitutional requirements applicable to American investigators.[158] Neither of these requirements occurred in the case at hand.[159] Therefore, based on the testimony presented in the case and the methods used by the officers to secure the confessions, the court granted the defendant’s motion to suppress the confessions and the United States Court of Appeals for the District of Columbia subsequently dismissed the charges.
Francois Karake, Gregoire Nyaminani, and Leonidas Bimenyimana are now seeking asylum into the US. It has been stated that they are in fear of persecution upon returning to Rwanda. Their asylum applications have not yet been decided.
V. CONTROVERSY SURROUNDING PAST PERSECUTORS AND
POSSIBLE SOLUTIONS
The information presented in this paper illustrated the rationales that both the government and judiciary used to address past persecutors who submit asylum applications. Although many terms and phrases have not been clearly defined, the courts have tried to take a very systematic approach in reaching their decisions. It is an obvious assumption that these decisions have not pleased everyone. This section regarding the controversy surrounding past persecutors, will give the author an opportunity to illustrate the societal concerns of admitting or denying an asylum seeker who is an alleged past persecutor.
Problems with the judicial system arise when things are left open for personal
interpretation. It is common for the circuits to not be in agreement with one another on certain issues, but if the law is very clear, there should be no confusion or controversy. Some advocate for strict interpretation of the laws, while others may take a more liberal approach. In cases where one’s life, liberty, and freedom is at stake, the strict interpretation approach will further the goal of maintaining a fair judicial system
In regards to asylum claims, this author believes the courts should adopt stricter guidelines when making their determinations. In order to do so, there needs to be concrete definitions for these controversial and ambiguous terms and phrases such as ‘persecution’, ‘well-founded fear’, and ‘assisted or otherwise participated.’ Regardless whether the Ninth Circuits view is adopted over the Third Circuits view or vice versa, there needs to be unanimous conformity. Also, as previously stated, in criminal cases where the defendant is relieved of criminal liability, the presumption of guilt should not linger over to the asylum claim.
The definition for persecution should always include the terms from the Act: race, religion, nationality, membership in a particular social group, or political opinion. Although this might seem like the confusing area when it comes to the persecution definition, this author believes that the beginning verbiage complicates the definition. Most definitions of persecution start off with ‘the act’ or ‘the practice’, these phrases can encompass many ‘acts’ or ‘practices’, therefore, it is hard to determine what in fact is persecution. Maybe it would be a bit odd to begin the definition with ‘the threatening, spitting, hitting, stabbing, cutting, shooting, etc…but at least there would be something more concrete in place.
A. Who Deserves Constitutional Protection?
The US is known as a melting pot of people from different places with different cultures. In furthering this multicultural growth, certain immigration laws have been set in place. The history of immigration laws in the US is a tale of accommodation between the humanitarian goal of accepting into this country those immigrants who seek to build a new life here and a variety of reasons for restricting immigration.[160] Our immigration laws also provide those who may be at a disadvantage in their country with the opportunity to prosper in the US. In going even further, the US also gives those who no longer feel safe in their country an opportunity to seek refuge within our borders.
The Due Process Clause provides that No person shall be … deprived of life, liberty, or property, without due process of law.[161] The Equal Protection Clause of the 14th amendment provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.[162] The concept behind this constitutional provision is that ‘all men are created equal’. For many years, the immigration laws explicitly discriminated against persons of various races and nationalities.[163] Both provisions of the Constitution allows for one to receive the same benefits as others in the US. Thus, the Constitution guarantees protection of an alien within this country’s borders as well as a US citizen.
In whether to deny a past persecutor with the protections of the US Constitution, the courts should look to whether their decision serves a legitimate governmental purpose. In most cases, this is not a hard standard to meet. The courts could rely on legislative history and statistics to come up with a standard as to the probability of danger imposed to society. The safety and protection of the law abiding citizens may serve as a legitimate government purpose, no matter how unlikely it is that the past persecutor will strike again.
As previously stated, there are different forms of persecution. The courts in many of their decisions have analyzed these forms and have also used them as guidelines in making their determinations. In deciding the threshold question of who do we constitutionally protect, it is fair to look at the level of persecution and the amount of assistance offered, whether voluntary or involuntary.
The case of the Rwandan defendant’s is a perfect example of an extreme level of persecution. The manner in which the victims were killed can bring a chill to anyone’s body. The court in deciding the admissibility of the confessions also took note of the manner in which the victims were killed, but nonetheless decided that the integrity of the constitution must still be upheld.
The Court is painfully aware that two innocent American tourists were brutally killed at Bwindi on March 1, 1999. But that sentiment may not, under the law, dictate the result here. It is the government’s burden to prove that defendants’ multiple statements were each “the product of an essentially free and unconstrained choice.” The government cannot, however, meet its burden where defendants’ statements were extracted only after countless hours of repetitive questioning over a period of many months, during which time they were subjected to periods of solitary confinement, positional torture, and repeated physical abuse. It is a “fundamental . . . concept” of our constitutional system of criminal law that “neither the body nor the mind of an accused may be twisted until he breaks.”[164]
Considering that the investigation resulted in coerced confessions, and the case was subsequently dismissed, should the asylum applications of Francois Karake, Gregoire Nyaminani, and Leonidas Bimenyimana be denied?
Although their asylum case has yet to be decided, people are already voicing their concerns regarding the possibility of the defendants living in the US. An article in the Washington Times included an opinion of a former INS senior criminal investigator and intelligence specialist regarding the defendant’s asylum application. Michael W. Cutler stated, “”Why in blazes would we entertain the idea of accepting asylum applications from men who have been described by US law-enforcement authorities as cold-blooded killers?” he asked.”The fact that the judge tossed the confessions doesn’t make them innocent.[165]
The obvious stigma of the criminal case, even though dismissed, will follow the defendants on their journey in seeking refuge in the US. If their applications are in fact denied, would the integrity of the Constitution be compromised? The liberal optimist would probably answer that question affirmatively while some conservatives would take the opposite view. This author would also answer the question in the affirmative, but, that answer is contingent upon whether or not any other evidence besides the defendant’s coerced confessions would be used to determine past persecution. If the criminal courts dismissed the charges based on the evidence being obtained in violation of the constitution, then it would be contradictory and plain hypocritical if the immigration courts were to give them any merit. If their applications are decided solely on other acts that were not admitted to in their confessions, then the constitutions integrity would not be compromised.
It is understandable for one to express a strong negative opinion in the case of the Rwandan defendants, but what about cases where the asylum seeker ‘assisted or otherwise participated?’ Should society be more lenient on those who actions weren’t necessarily voluntary?
As the cases have previously illustrated, the denial of security and freedom into the US is a huge price for one to pay in exchange for financial security in their home country. Although not all cases encompass the same circumstances, the mental state of mind of these alleged past persecutors should be a factor in cases of ‘assisted or otherwise participated.’ The court in Xie did not look at the ‘voluntariness’ of the person’s actions, they instead, looked to their behavior as a whole.[166] This author believes that the courts should in fact look at the voluntariness of the persons actions as one of the factors to determine asylum eligibility.
If it is clear from the evidence that their participation was in fact voluntary because of the actual cause (i.e. continuing employment so more Jews will be exterminated), then their applications should be denied. If their participation was not strictly voluntary for the actual cause (i.e. staying employed for financial reasons or for the safety of their family), then their applications should be accepted pending further investigations. In either case, the individual’s personal circumstances at the time should always play a role because there seems to be a very harsh penalty for those who are forced to submit to the realities of their countries.
[1] Deborah Anker, Law of Asylum 4 (Paul T. Lufkin ed., Refugee Law Center 1999)
[2] Immigration and Nationality Act § 208(b)(2).
[3] https://www.census.gov/
[4] Migration Policy Institute, Annual Immigration to the United States: The Real Numbers, available at https://www.migrationpolicy.org/pubs/FS16_USImmigration_051807.pdf
[5] See Anker at 4.
[6] Black’s Law Dictionary 49 (2d ed. 2001).
[7] See Anker, note 17 at 4.
[8] Augustin v. Sava, 735 F.2d 32, 36 (2d Cir. N.Y. 1984); citing, Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216, 97 L. Ed. 956, 73 S. Ct. 625 (1953).
[9] United Nations High Commissioner for Refugees, Asylum Levels and Trends In Industrialized Countries (2008), https://www.unhcr.org/statistics/STATISTICS/49c796572.pdf
[10] Id.
[11] See, Anker at 13.
[12] https://en.wikipedia.org/w/index.php?title=Convention_Relating_to_the_Status_of_Refugees&oldid=286643915 (last visited Apr. 3, 2009).
[13] Aslyumlaw.org, Inc. available at https://www.asylumlaw.org/asylumseeker/
[14] https://en.wikipedia.org/w/index.php?title=Convention_Relating_to_the_Status_of_Refugees&oldid=284659582 (last visited Apr. 18, 2009).
[15] Id.
[16] See Anker at 7.
[17] Id. at 2.
[18] INA § 101 (a)(42(A);
[19] See Anker at 4.
[20] United Nations High Commissioner on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 68 (1992) (UNHCR Handbook)
[21] Id.
[22] Id. at ¶ 72
[23] Id. at ¶ 73
[24] Id. at ¶ 74
[25] Id.
[26] Id. at ¶ 77
[27] Id. at ¶ 79
[28] Fatin v. INS 12 F3d 1233 (3d Cir. 1993)
[29] UNHCR Handbook at ¶ 82.
[30] Id.
[31] Id.
[32] Executive Office for Immigration Review, https://en.wikipedia.org/w/index.php?title=Executive_Office_for_Immigration_Review&oldid=209603665 (last visited Apr. 18, 2009).
[33] Deborah Anker, Law of Asylum 7 (Paul T. Lufkin ed., Refugee Law Center 1999)
[34] Id.
[35] Board of Immigration Appeals,
https://en.wikipedia.org/w/index.php?title=Board_of_Immigration_Appeals&oldid=284457085 (last visited Apr. 18, 2009).
[36] Id.
[37] United States Citizenship and Immigration Services,
https://en.wikipedia.org/w/index.php?title=United_States_Citizenship_and_Immigration_Services&oldid=282284402 (last visited Apr. 18, 2009).
[38] Id.
[39]United States Citizenship and Immigration Services (USCIS), https://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c1d80efdea7fe010VgnVCM1000000ecd190aRCRD&vgnextchannel=3a82ef4c766fd010VgnVCM1000000ecd190aRCRD (last visited April 18, 2009).
[40] Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953):
[41] Id.
[42] See USCIS
[43] Id.
[44]Id.
[45] 8 USCS § 1158(d)(1)
[46] Id.
[47] Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991)
[48] Singh v. Ilchert, 801 F. Supp 313 (N.D. Cal. 1992)
[49] Id. (even if the petitioner establishes that he is a refugee under this section the Attorney General has discretion whether to deny refugees asylum, citing, INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987)
[50] Cardoza-Fonseca, 480 U.S. 421, 428 (1987).
[51] Withholding of removal was previously referred to as withholding of deportation or return. This amendment can be found in 8 U.S.C.S. § 1231(b)(3).
[52] Cardoza-Fonseca at 429.
[53] Id.
[54] 8 U.S.C.S. § 1231(b)(3)(A).
[55] Osorio v. INS, 18 F.3d 1017, 1021 (2d Cir. N.Y. 1994).
[56] Id., (citing Cardoza-Fonseca).
[57] Id. at 1021.
[58] Id.
[59] Id.
[60] Id.
[61] Id. at 1033.
[62] Id. (citing, Cardoza-Fonseca)
[63] Deborah Anker, Law of Asylum at 465
[64] Kristen B. Rosati , International Human Rights Treaties Can Make a Difference
U.S. Implementation of Article 3 of the United Nations Convention Against Torture, available at https://www.abanet.org/irr/hr/winter01/rosati.html
[65] Osorio at 467.
[66] 8 CFR 208.18.
[67] Matter of J-E, 23 I&N Dec. 291 (BIA 2002).
[68] Id at 469.
[69] Id.; (see also, Matter of Y-L-A-G-, R-S-R-, 23 I&N. Dec. 270 (A.G. 2002) (“although respondents are statutorily ineligible for withholding of removal by virtue of their convictions for “particularly serious crimes,” the regulations implementing the Convention Against Torture allow them to obtain a deferral of removal…if they can establish that they are “entitled to protection” under the Convention.”).
[70] Merriam-Webster’s Ninth New Collegiate Dictionary 877 (9th ed.1990).
[71] Available at www.dictionary.com.
[72] Balazoski v. INS, 932 F.2d 638, 641-42 (7th Cir. 1991).
[73] Kovac v. Immigration & Naturalization Service, 407 F.2d 102, 107 (9th Cir. 1969).
[74]See Anker at 171
[75] Michelle Foster, International Refugee Law and Socio-Economic Rights 87 (James Crawford & John S. Bell eds., Cambridge University Press 2007). Foster discussed the UNHCR’s 1979 explanation that ‘[t]here is no universally accepted definition of ‘persecution’ and various attempts to formulate such a definition have met with little success’: UNHCR Handbook, at para. 51.
[76]See Leonard Birdsong, “Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution…”: The New Grounds for Grants of Asylum, 32 Nova L. Rev. 357, 369 (2008).
[77] Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992)
[78] INS v. Cardoza-Fonseca, 480 U.S. 421 (U.S. 1987).
[79] Id.
[80] Id. at 438.
[81] Id
[82] Id.
[83] Id.
[84] Augustin v. Sava, 735 F.2d 32, 36 (2d Cir. N.Y. 1984);
[85] Zriba v. INS, 1994 U.S. App. LEXIS 15540, (citing INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992)
[86] Id. (citing, Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir. 1983)).
[87] 480 U.S. 421
[88] Id.
[89] Id.
[90] Id. at 448, (“There is obviously some ambiguity in a term like “well-founded fear” which can only be given concrete meaning through a process of case-by-case adjudication…..[w]e do not attempt to set forth a detailed description of how the “well-founded fear” test should be applied.”) ‘Clear-probability’ standard is an objective determination that it is more likely than not that the applicant will be persecuted upon return to their home country.
[91] Matter of Mogharrabi, 1987 BIA LEXIS 5 (B.I.A. 1987)
[92] 8 USCS § 1158(b)(2)(A)(i)
[93] Zhang Jian Xie v. INS, 434 F.3d 136, 139 (2d Cir. 2006)
[94] James Lockhart, J.D., Construction and Application of 8 U.S.C.A. 1101()(42), 1158()(2)(A)(), 1231()(3)(B)(), Predecessor Statutes, and Applicable Regulations, Providing that Alien is Disqualified from Refugee Status and Ineligible for Asylum or Withholding of Removal if Alien Ordered, Incited, Assisted, or Otherwise Participated in Persecution of Individual Because of Individual’s Race, Religion, Nationality, Membership in Particular Social Group, or Political Opinion, 29 A.L.R. Fed. 2d 267
[95] Id.
[96] Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir. 2005).
[97] Id. at 737
[98] Id.
[99] Id.
[100] Id.
[101] Id.
[102] Id.
[103] Id.
[104] Id. at 738.
[105] Id.
[106] Id.
[107] Id.
[108] Id. at 739
[109] Id.
[110] Id. at 739-40.
[111] Id.
[112] Id.
[113] Id.
[114] Zhang Jian Xie v. INS, 434 F.3d 136 (2d Cir. 2006)
[115] Id.
[116] Id.
[117] Id.
[118] Id.
[119] Id.
[120] Id.
[121] Id.
[122] Id. at 138. (student movement focuses on making changes in schools)
[123] Id.
[124] Id.
[125] Id. at 139.
[126] Id. at 140.
[127] Id. at 142. citing, Fedorenko v. United States, 449 U.S. 490 (U.S. 1981). The Supreme Court concluded:
An individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians
[128] United States v. Sprogis, 763 F.2d 115, 117 (2d Cir. N.Y. 1985)
[129] Id.
[130] Zhang Jian Xie at 142.
[131] Id.
[132] Id (.See also, Chen v. U.S. Atty. Gen.,513 F.3d 1255 (11th Cir. 2008). The Court in Chen held that although the applicant released an eight month pregnant woman from a facility that performed forced abortions that did not absolve her of the consequences of her personal culpability for her assistance in previous abortions. She voluntarily took on employment, was paid for her work, and fully understood that forced abortions were being performed.)
[133] United States v. Karake, 443 F. Supp. 2d 8 (D.C. Cir. 2006).
[134] Id.
[135] Id.
[136] Id. at 12
[137] Id.
[138] Id. at 51
[139] Id.
[140] Id.
[141] Id. at 128
[142] Id. at 147
[143] Id.
[144] Id.
[145] Id.
[146] Id.
[147] Id. at 135
[148] Id. at 139
[149] Id. at 144
[150] Id.
[151] Id. at 128
[152] Id. at 147
[153] Id. at 152
[154] Id. at 153
[155] Id. at 238-239; (quoting, Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 256, 61 L. Ed. 2d 197 (1979)). The evidence indicates that defendants were in no position to refuse to speak with the American investigators, regardless of any arguable comprehension of their Fifth Amendment rights.)
[156] Id. at 239
[157] Id.
[158] Id. at 250 (quoting, United States v. Maturo, 982 F. 2d 57, 61 (2d Cir. 1992).
[159] Id.
[160] Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980).
[161] U.S. Const. amend V.
[162] U.S. Const. amend XI V.
[163]Civiletti at 453.
[164] Karake at 251.
[165] Jerry Seper and Jim McElhatton, Suspects in massacre seek U.S. asylum, Wash. Times, August 17, 2008.
[166] Zhang Jian Xie at 142.
