Obama Administration Announces a Relaxations of Some Restrictions on Asylees Found to Have Aided Terrorist Organizations

The Obama administration recently made it easier for people with tangential connections to terror groups to receive refugee status or asylum in the United States.

Two new exemptions to the Immigration and Nationality Act published in the Federal Register Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status. The so called de minimus exception to the harsh consequences of providing material support to a foreign terrorist organization.

The rules will likely affect about 3,000 people who have pending asylum cases and an unknown additional number of people currently in the process of being deported. It will certainly help Syrian refugees who would otherwise be blocked from receiving U.S. aid by existing rules.

The new exemptions apply to “limited material support,” which a DHS spokeswoman said is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”

DHS provided a series of examples of individuals who would have been ineligible for asylum or refugee status before the new exemptions, including business owners who unwittingly provided service to members of a terror group, aid workers who assisted members of a terror group during the aftermath of a natural disaster or civil conflict and people who had to pay a toll or tax to a terror group to pass through opposition-occupied territory.

“For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement,” the DHS spokeswoman said.

Aside from the Federal Register publication, the only public notice announcing the changes came from Sen. Patrick Leahy (D-Vt.), who has for years been championing a change in the “material support” definition.

“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” Leahy said. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”

The DHS spokeswoman did not say how many people would be impacted by the rule change, but Leahy said tens of thousands of refugees would be helped.

Pro Bono Asylum Cases - Lawyers' Committee for Civil Rights

Last week, I received an email from the new asylum coordinator at the Lawyers' Committee for Civil Rights in San Francisco. Contained in the text of the message were the brief synopsis of the cases that need a pro bono attorney to take over the client's representation. Currently, I am swamped with work in my practice as well as the appointed criminal appellate cases I take from the Court of Appeal.

But just to give you a sampling of the horrific cases floating around in the immigration courts, refugees crying out for justice and relief, here are a few of the cases.

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Honduran woman, 29, as teenager became partner to violently possessive man in his 40s who threatened to kill her if she left. She fled to Mexico, but her partner found her and took her back to Honduras, where he continued to abuse her and threatened to kill her family. In Mexico, she was also raped by a police officer. Must qualify for exception to one-year application deadline. Master Calendar hearing January 23, 2014.

Client is a Mayan Guatemalan woman, 20. Her alcoholic partner beat her even when she was pregnant, and would call her an “ugly hag.” When he got a new woman, he forced her from home. She returned to parents with her newborn son. Her partner, having joined a gang, tried to claim the son, cursing her and firing a gun at her. His gang member friends then molested her and told her that her partner had said they could kill her at any time. On their most recent encounter, her partner told her that he would not leave her alone until he killed her. Stockton resident. Must ask Immigration Judge to advance master calendar (preliminary) hearing to on or before June 8, 2014, for timely filing of asylum application.

Client is a Guatemalan survivor of domestic violence who met and married a man when she was 15-years old. He began abusing her, continuing when she became pregnant and she miscarried as a result. His family, whom they lived with, was also emotionally abusive towards her. After becoming pregnant again, she left to stay with family members but he found her and beat her for it. Her partner later left for the United States after which her father-in-law began sexually abusing her. Her partner then came back from the United States and raped her, from which she got pregnant, and continued to beat her even threatening her with a machete. He threatened her life and that of her mother. She decided to come to the United States and fears for her life, especially because her partner has also sometimes come to the United States. The asylum application is largely prepared and the case just needs to be advanced so that the client may file in court.

Client is a gay Jordanian man who comes from a fairly well-off religious family; his father would sometimes beat him when he made mistakes. In August 2013, his family found out he was gay through a Facebook message a friend posted on his wall. His father hit him on two separate occasions, threatened future punishment, and threw him out of the house. He stayed with a friend for three weeks, then raised money from friends and flew to the United States, where he had a visa from a previous work trip. He fears that his father and possibly other extended family members will further harm him if he returns, and that the police will not help him, because they do not protect gay people or involve themselves in internal family matters of honor. His deadline for an affirmative asylum application is November 4, 2014.

Client is a 30-year old Peruvian woman who endured almost a decade of abuse at the hands of her domestic partner, who would beat her and allowed his cousin to molest their 4-year old daughter. Afraid, she left moved to another town, where she was tracked down by the partner. When she went to the police to report him, they discouraged her and said they did not have paper to take a report. The client continued to be harassed by her partner, and decided to come to the United States. Her partner has told her recently that if she does not return to him, he will find her and he will kill her. Her Master Calendar hearing is scheduled for May 19, 2015, but this must be advanced to meet a filing deadline of August 4, 2014 to meet the one-year filing deadline.

Recent Ninth Circuit en banc Decision on Social Groups Cited My Research

The Ninth Circuit Court of Appeals certified the case of an El Salvadorian national who filed a claim for asylum relief based upon her fear of persecution on account of her testifying against gang-members who killed her father. Under asylum law, her claim fell within the nebulous group of membership in a particular social group. The case was rehear en banc with the intention of clarifying how such a claim of membership would be adjudicated, especially since any formulation of a particular social group fearing gang violence, retaliation, of coercion into a gang has been held not to constitute a social group. (See Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).)[The presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity.]

In this case, the asylum seeker fled El Salvador after witnessing the murder of her father at the hands of M-18 street gang. She identified the two men who murdered her father and then testified in open court against them. At the conclusion of her Individual Hearing before the Immigration Judge, the IJ held that she had suffered past persecution and she did have a reasonable fear of future persecution if returned to her native country and that she was a member of a particular social group, "people testifying against or otherwise opposing gang members."

The government appealed the IJ's Oral Decision and the Board of Immigration Appeals reversed the IJ's decision. Henriquez-Rivas en banc review, which was granted.

In the decision, the Ninth Circuit rendered a very narrow opinion that held the BIA misapplied its own precedent in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) in holding that witnesses who testify against gang-members may not constitute a particular social group due to a lack of social visibility.

In the dissent, Chief Justice Kozinski, joined by Justice Bybee, cited my research on what constitutes membership in a particular social group. Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22 (2008) twice on page 11 of the decision.

Here is the full decision:

Henriquez-Rivas v. Holder -