United States: Help Improve Asylum Regulations
01/18/2001
The Immigration and Naturalizations Service (INS) of the U.S. Government has published a set of proposed regulations that will govern the administration of asylum cases in the United States. The US public has a brief window of opportunity to comment on these regulations, and perhaps to affect their content--in the process, affecting how the US treats refugees from persecution for years to come. Public comments are urgently needed.
The deadline for public comments is fast approaching. The INS must receive comments in writing (*letters in triplicate,* no fax, no email) by MONDAY, JANUARY 22. We encourage those who can meet this tight deadline to write, and to send their letters in the United States via priority mail or courier, if possible, in order to ensure that the letters arrive in time.
SUMMARY
IGLHRC joins a coalition of immigration advocates in requesting the urgent mailing of comments on an INS proposed regulation that will govern the administration of asylum cases in the United States. The regulations provide general guidance on particular legal terms that are relevant to every person seeking asylum in the United States, but in particular to those who have been persecuted by non-State actors, or who have been persecuted because their gender (particularly cases of domestic violence), gender identity, sexual orientation, or HIV status.
The proposed regulations are a good start, but there is room for improvement. The relevant items and our concerns are explained in brief in the attached sample letter. Background information follows the sample letter.
Please note in the letter the section where you are asked to *insert* information on yourself or your organization, as well as on why this issue is important to you. There are three **INSERT** signs in the draft letter.
SAMPLE LETTER
***INSERT DATE***
Director Policy Directives and Instructions Branch Immigration & Naturalization Service
425 I Street N.W., Room 4034
Washington, D.C. 20536
Re: Asylum and Withholding Definitions
Proposed Rule, INS No. 2092-00; AG Order No. 2339-2000
Dear Director:
These comments relate to the recently proposed regulations that seek to provide guidance on the definitions of persecution, the nexus requirement, and membership in a particular social group. ***INSERT who you are and why is this issue important to you***
We commend the U.S. Attorney General and the Immigration and Naturalization Service for their efforts. These proposed rules and the preamble demonstrate the ongoing commitment the Department of Justice has shown to protecting the rights of victims of domestic violence. We particularly welcome the regulations' attempts to recognize domestic violence specifically and gender generally as possible bases for asylum.
The Preamble raises several questions about current interpretation of asylum law, especially as it applies to applicants who are members of social groups, such as women and survivors of domestic violence. We note that international law, other countries and U.S. law encompass protection for these victims of persecution. We believe erecting additional obstacles to obtaining protection for such asylum seekers will violate these laws and undermine recognition of human rights abuses against these groups. The fact that the persecutor may not be the government but, for instance, an abusive husband, does not lessen the protections our laws should afford the victim.
We believe the harm required to show persecution should meet U.S. case law and international standards, and that those making asylum decisions should look to those laws for guidance. We object to any new, higher, standard that would harm women and other social group members who merit asylum.
We applaud the recognition that domestic violence abusers need not persecute other women for their victims to gain asylum. We are concerned, however, that the regulations appear to apply a new, higher standard for showing the motivation of the persecutor. We believe requiring applicants to show that their persecutors were "centrally" motivated to persecute them because of race, religion, nationality, political opinion or social group will eliminate many legitimate asylum seekers, especially women and domestic violence survivors. The regulations should recognize the standard in current law, that such a motivation need only be part of the reason the persecutor harmed his or her victims.
The fact that a government has made some attempt to help victims of the persecution alleged should not undermine legitimate claims to asylum. Many countries, for instance, pass laws against domestic violence, but enforce them only fitfully, if at all. Only government actions that actually eliminate the well-founded fear of persecution by non-government actors should weaken asylum claims.
The regulations should explicitly recognize that women, victims of domestic violence, and other social group members may be persecuted because of their political opinions, or the opinions the persecutor believes they possess, as well as because they belong to a disfavored social group. We are very pleased that the regulations attempt to clarify and encourage social group recognition. However, we are concerned that the explicit list of factors proposed will harm more meritorious applicants than it will help. We suspect that few asylum adjudicators are well-educated in gender violence or domestic violence and may use the list as a checklist instead of gaining the background information they need to make informed decisions. We believe the possibility of such a list being used to deny asylum outweighs its potential benefits.
The proposed regulations appear to impose a new burden on applicants who have shown they suffered persecution in the past. Under current law, the INS bears the burden of overcoming the presumption that they also have a well-founded fear of future persecution. We strongly object to changing this presumption in any way. Showing past persecution is traumatic enough; imposing an additional hurdle to obtaining protection would only inflict further, and profoundly unfair, trauma on the victims of violence and abuse.
Finally, we are extremely concerned that the preamble asks whether the "past persecution" presumption should continue to operate in cases involving non-governmental persecutors, e.g., domestic violence abusers. The findings about domestic violence by the Violence Against Women Office, which the Preamble re-articulates, seem to answer this question. Past persecution suffered at the hands of abusers and other "non-state" persecutors merits equal consideration to that suffered at the hands of a government. We strongly object to creating a double standard for asylum seekers whose persecutors are not members of the government.
We thank you for your attention to this important matter.
Sincerely,
*** INSERT NAME, ORGANIZATION, AND SIGNATURE***
BACKGROUND INFORMATION
PROPOSED REGULATIONS
You can find a copy of the proposed regulations at http://www.access.gpo.gov/su_docs/fedreg/a001207c.html , scroll down to the following heading:
Immigration and Naturalization Service
PROPOSED RULES
Immigration:
Asylum and withholding definitions,
76588-76598 [00-30602]
MAIN CONCEPTS
The following notes provide background on the main elements mentioned in the sample letter. These notes are provided solely as background information and do not constitute legal advice.
Asylum: The 1951 Geneva Convention relating to the Status of Refugees (1951 Convention) contains the internationally accepted definition of a refugee. United States immigration law incorporates an almost identical definition of a refugee as a person outside his or her country of origin "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." [Section 101(a)(42) of the Immigration and Nationality Act (Act) (8 U.S.C. 1101(a)(42))]
Persecution: The proposed rule contains a definition of persecution that departs from established case law by adding the adjective "serious." The new definition of persecution is proposed to be: "the infliction of objectively serious harm or suffering that is experienced as serious harm or suffering by the applicant, regardless of whether the persecutor intends to cause the harm." Proposed 8 C.F.R. ¤208.15(a) (emphases added). Although we agree that persecution does not encompass harms which are objectively or subjectively judged to be trivial, we are concerned that the proposed addition of the word "serious" may be interpreted by adjudicators to heighten the level of harm necessary for a finding of persecution. More helpful guidance for adjudicators would refer to the international treaties and human rights standards, serious violation of which would amount to persecution. See, e.g., UK Gender Guidelines ¦ 2A.15 ("Whether particular treatment amounts to 'serious harm' should be decided on the basis of international human rights standards.") (citation omitted); UNHCR Handbook ¦ 51 ("serious violations of human rights ... would constitute persecution.").
Nexus Requirement: Even if it is determined that the harm an applicant has suffered or fears may constitute persecution, the applicant may qualify for asylum only if that persecution is inflicted "on account of'" the applicant's race, religion, nationality, membership in a particular social group, or political opinion. The proposed rule raises the standard in cases where the persecutor has more than one motive for his or her actions. Current practice requires that the persecutor acts "at least in part" because one of the five protected grounds. The proposed rule would require that "mixed motive" cases qualify for asylum only if the protected ground is "central." Instances of police brutality with bribery and/or extortion may be dismissed under the proposed new rules, if the adjudicator determines that the "central" motive was robbery and not homophobia.
Membership in a particular social group: Membership in a particular social group is perhaps the most complex and difficult to understand of the five grounds. The proposed guidelines would codify a definition of "social group" consistent with a number of precedent cases and with international law: "[a] particular social group is composed of members who share a common, immutable characteristic, such as sex, color, kinship ties, or past experience, that a member either cannot change or that is so fundamental to the identity or conscience of the member that he or she should not be required to change it." The crucial aspect of this definition is that, to be immutable, the common trait must be unchangeable or truly fundamental to an applicant's identity. Gender, gender identity, sexual orientation, and HIV status meet this standard, and thus persecution on any of these bases qualifies for asylum under the "social group" ground.
The proposed rule adds, however, a series of additional optional qualifications to the definition of "social groups," that can be confusing and may be used as a checklist in order to deny asylum cases that do not meet these optional qualifications. The proposed list is:
- the members of the group are closely affiliated with each other;
- the members are driven by a common motive or interest;
- a voluntary associational relationship exists among them;
- the group is a societal faction or recognized segment of the population in the country;
- members view themselves as members;
- society distinguishes members of the group for different treatment or status than others in the society.
Political opinion: Some applicants who suffer or fear persecution because of their gender, gender identity, sexual orientation, or HIV status may qualify for asylum also under the "political opinion" ground.
The sample letter was provided thanks to the assistance of:
Gail Pendleton, National Immigration Project of the National Lawyers' Guild Debbie Anker & Nancy Kelly, Harvard Immigration and Refugee Program of Greater Boston Legal Services
Karen Musalo and Stephen Knight, Center for Gender and Refugee Studies
Sarah Ignatius, Political Asylum/Immigration Representation Project (PAIR)
Lauren Gilbert & Vangie Abriel, Catholic Legal Immigration Network (CLINIC)
Bernadette Passade Cisse, Office of the United Nations High Commissioner for Refugees (UNHCR)
Nick Rizza, Amnesty International
Susana Sacouto, DC Bar International Law Section
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