Refugee And Asylum Outline

Refugee, Asylum & Everything Else

Refugees and Asylum-Seekers

1. Refugee Basics

   1. Two Theaters

      1. Offshore Refugees (Overseas) = Refugee Status: Like type of legal immigration from overseas § 208(a)

      2. Onshore Refugees (within U.S. or at border) = Asylum Status: Like Waiver of inadmissibility/deportability § 208(b)

   2. Asylum Only 1 remedy from persecution, with right to remain temporarily, usually permanently in US

   3. Withholding of Removal Another remedy for persecution, but only to not be removed to country of persecution § 241(b)(3)

   4. Benefits

      1. Qualified Alien: Eligible for most federal welfare benefits: For first 7 years, and again after 10 years § 402, 431(b)(2,3,4)

      2. Eligible for Work Authorization: Overseas refugee status, withholding of removal: 8 CFR § 274a.12(a)

   5. The Refugee Act of 1980: Principal Statutory Law on Refugees

      1. Statutory Definition Refugee § 101(a)(42)

      2. Presidential Determination: Determines maximum number to be admitted in coming year § 207(a); Also specifies allocation among countries or regions

      3. Procedure: President must make appropriate consultation with Congress

         1. DHS Secretary may also admit some refugees

            1. Subject to Presidential Determination

            2. Can’t be firmly resettled in foreign nation

            3. Must be of special humanitarian concern to US and admissible § 207(c)(1)

      4. Admissibility § 207(c)(3)

         1. Automatic exemption from labor certification, public charge and required documents: § 207(c)(3)

         2. DHS has discretion to waive most others

         3. Extends to accompanying/following to join spouses or children § 207(c)(2)

         4. LPR eligible after 1 year § 209(a)

      5. Effect on Parole Power

         1. Prohibited DHS Secretary from paroling any statutorily-defined refugee unless compelling public interest reasons for particular alien § 212(d)(5)(B)

         2. Statutory definition does not cover solely war or natural disasters, so parole still happens on those grounds

2. Asylum and Nonrefoulment

   1. Two remedies for refugees within or at border of U.S.

      1. Asylum: § 208: Opportunity for LPR status and permission to remain

      2. Withholding of Removal (Nonrefoulment) § 241(b)(3): Prohibits forcible return to country of persecution BUT not to third countries

      3. Application procedures are the same for both: Asylum applicant automatically treated as applicant for withholding as well

   2. Enforcement of 1967 Protocol in US Courts

      1. 1967 Protocol, art. 1, Article 33.1 “No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”

      2. 1967 Protocol is considered as Non-Self-Executing: Non-Self Executing Legislation is required to implement; Without legislation U.S. Courts not required to follow convention

      3. Matter of D-J: AG deflected arguments that US violated 1967 Protocol by declaring Protocol non-self-executing

   3. Qualify as a REFUGEE: A discretionary form of relief only eligible for discretion if qualify as refugee under statutory definition: § 101(a)(42)(A)

      1. 4 Elements to qualify

         1. Alien must have fear of persecution

         2. Fear must be well founded

         3. Persecution must be on account of: 1) Race; 2) Religion; 3) Nationality; 4) Membership in particular social group; 5) Political Opinion

         4. Unable or unwilling to return because of persecution or well-founded fear of persecution: Return to either country of nationality or country where last habitually resided

   4. Fear of Persecution: First element of refugee definition

      1. Fear defined: Must demonstrate primary reason for seeking asylum is fear, which is defined as genuine apprehension or awareness of danger in another country: Matter of Acosta (BIA 1995)

      2. Definition of Persecution: Acosta: Harm or suffering inflicted on individual to punish for possessing a belief or characteristic persecutor seeks to overcome committed either by government or by persons that the government is unable or unwilling to control

         1. Proposed DOJ asylum regulations: Infliction of objective serious harm or suffering subjectively experienced as serious harm or suffering by applicant, regardless of whether persecutor intends to cause harm; Home government must be either inflicting party or unwilling or unable to control a private actor from inflicting the harm

         2. Economic disadvantage alone is not persecution: Ahmed v. Ashcroft

      3. Persecution: “generally harsh conditions shared by many other persons” is not persecution: Acosta

         1. Must have some individual targeting

      4. Past Persecution v. Future Persecution

         1. PRESUMPTION of Past Persecution applied to future persecution: Automatically qualifies as refugee: § 101(a)(42)

            1. REBUT: Government can only rebut by showing changed circumstances demonstrating absence of well-founded fear – 8 CFR §§ 208.13(b)(1)(i)(A), 208.16(b)(1)(A)

            2. Any forced abortion or sterilization constitutes persecution on account of political opinion: § 101(a)(42)

            3. Matter of CYZ (1997): Board held that forced sterilization constituted NOT ONLY past prosecution but ongoing persecution

         2. Future Persecution: Must be primary motivator for seeking asylum

   5. Well Founded Fear of Persecution: Second element

      1. Acosta: To show fears of persecution by government to be well-founded, must demonstrate

         1. Possess characteristics that the government was seeking to introduced by punishment

         2. Government was aware or could easily become aware that he possessed the characteristics

         3. Government must have the capability and the inclination to punish

         4. Countrywide: The well-founded fear can’t just exist in one place in the country, it must exist nationwide

         5. Acosta: Court finds Acosta’s fear is NOT well-founded because persecution on account of political opinion or membership in a particular social group are rejected

      2. Well-Founded Fear Definition

         1. Refugee experts found that while clearly requires objective risk of persecution, it does not require subjective fear

   6. On Account Of: Third Element

      1. Race, Religion, Nationality

         1. Race/Nationality: UNHCR...

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