Friday, October 8, 2010

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.
Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:
The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.
Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

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