Jeffrey S. Chase Blog
https://www.jeffreyschase.com/blog/2019/10/25/when-does-fear-become-well-founded
Oct 25 When Does Fear Become “Well-Founded?”
During a recent radio interview, the reporter interviewing me expressed surprise when I mentioned that an asylum applicant need only show a ten percent chance of being persecuted in order to succeed on her claim. That standard was recognized 32 years ago by the U.S. Supreme Court in the case of INS v Cardoza-Fonseca, 480 U.S. 421 (1987). The holding represented a dramatic shift in asylum eligibility, as prior to the decision, the BIA (and therefore, the immigration judges bound by its decisions) had interpreted “well-founded fear” to require a greater than fifty percent chance of persecution. But what was the practical impact of this change on the adjudication of asylum claims?
Following the Supreme Court’s decision, the BIA and circuit courts set out to define what an asylum seeker must show to satisfy the lower standard. The general test adopted by the circuit courts requires a finding that the asylum seeker possess a genuine subjective fear of persecution, and that there is some objective basis for such fear in the reality of the circumstances so as to make such fear reasonable.1 Prof. Deborah Anker in her treatise The Law of Asylum in the United States emphasizes the link between the subjective and objective standards, noting that while the objective element is meant to ensure “that protection is not provided to those with purely fanciful or neurotic fears,” it is “critical, however, that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.” This is obviously quite different than the purely objective approach necessary under the prior “more likely than not” standard.
In Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019), the U.S. Court of Appeals for the Second Circuit, in an unpublished decision, once again considered the question of what is required for a fear of persecution to be “well-founded.” Although the primary target of the government’s persecution was the petitioner’s husband, an activist with the opposition Democratic Party in their native Albania, police twice sprayed the restaurant jointly owned by the couple with bullets, pushed the petitioner herself to the ground during raids of their home, and at one point threatened to kidnap the petitioner and sell her into prostitution if her husband did not back the ruling Socialist Party candidate for parliament. The local Socialist Party leader also threatened the petitioner that the restaurant would be burned to the ground with her family in it if they did not stop hosting Democratic Party meetings there.
The immigration judge found the petitioner to be completely credible and to have a genuine subjective fear of persecution. However, the IJ denied asylum on the ground that the fear was not objectively reasonable, because the authorities had opportunities to harm her when they were persecuting her husband, but in the IJ’s opinion, did not do so. The judge thus concluded that nothing suggests that the authorities would “suddenly” be inclined to harm the petitioner in the future if they had not done so in the past.
The Second Circuit rejected the above standard as “too exacting,” adding that the applicant’s fear can be objectively reasonable “even if it is improbable that he will be persecuted upon his return to his own country.” The court added that there only need be “a slight, though discernible, chance of persecution,” noting that the standard is whether “a reasonable person in the same circumstances would have such a fear.”
At oral argument, the Chief Judge of the Second Circuit, Hon. Robert Katzmann, directly asked the government attorney if she would be afraid to return to Albania if she faced the same facts as the respondent, adding that he himself would be.
The question of whether one in the asylum seeker’s shoes would be afraid to return is the proper approach to determining if the subjective fear is reasonable. Back in 1992, before either of us were appointed judges, my former colleague William Van Wyke, a brilliant legal mind, authored a much talked about article entitled “A New Perspective on ‘Well-Founded Fear.’” Judge Van Wyke’s approach was to consider the asylum seeker the factfinder: having assessed all of the facts in the home country, the asylum seeker decided that the threat of persecution was enough to warrant fleeing the country. In Judge Van Wyke’s perspective, the asylum adjudicator is placed in the position of an appeals court, reviewing the asylum seeker’s decision for reasonableness. Although such approach sounds radical, it’s really just another way of applying the circuit court standard.
However, too many decisions deny asylum because they pose the wrong question. If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident. The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight? Of course, the answer is yes. The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane. Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable. Or as the Second Circuit held in Qosaj, “no reasonable factfinder could conclude that” the petitioner “did not show at least a ‘discernible [ ] chance of persecution,’” which the Second Circuit confirmed as enough “to render her subjective fear objectively reasonable.”
But how often is this standard applied correctly in asylum adjudication? For example, case law allows an asylum adjudicator to conclude that an asylum applicant’s fear is not objectively reasonable based on the continued safety of family members who remain in the country of origin. But if there is a sufficient ten percent risk of persecution, that means that there is 90 percent chance that nothing will happen. Wouldn’t that mean that it is overwhelmingly likely that the remaining family would suffer no harm? If so, why should their safety to present undermine the claim? Or in assessing whether the government is unable or unwilling to control a non-state actor persecutor, shouldn’t the proper inquiry be whether there is a ten percent chance that the government would not afford such protection?2
It’s a shame that Qosaj wasn’t issued as a published decision. Nevertheless, attorneys might find it useful to reference at least in the Second Circuit as a reminder of the proper application of the burden for determining well-founded fear. And Congrats to attorney Michael DiRaimondo (who argued the case) and fellow attorneys Marialaina Masi and Stacy Huber of DiRaimondo & Masi on the brief (Note: I am of counsel to the firm, but had no involvement with this case).
Notes:
1. See, e.g., Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).
2. I thank attorney Joshua Lunsford for bringing this point to my attention.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
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Here’s a link to the full decision in
Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019):
https://casetext.com/case/qosaj-v-barr
Jeffrey’s article raises two important points.
First, three decades after Cardoza-Fonseca, and nearly four decades after the enactment of the Refugee Act of 1980, EOIR Judges are still getting the fundamentals wrong: basics, like the correct legal standards to be used in evaluating asylum claims.
Getting that asylum standard correct should be neither complex nor difficult. Just look at how relatively short, concise, and to the point the Second Circuit’s reversal in Qosaj was, particularly in comparison with the legal gibberish spouted by Barr and Sessions in attempting to rewrite the law intentionally to screw migrants in some of their unconstitutional and unethical precedents.
Improper adjudication by Immigration Judges is hardly surprising in a system that emphasizes law enforcement and speedy removals over quality and Due Process. Then, it’s compounded by politicos attempting to improperly and unethically influence the judges by spreading false narratives about asylum applicants being malafide and their attorneys dishonest.
It’s really quite the opposite. There is substantial reason to believe that the system has been improperly, dishonestly, and politically “gamed” by the DOJ to deny valid claims (or even access to the system) to “discourage” legitimate asylum seekers and further to intentionally abuse those (often pro bono or low bono) lawyers courageously trying to help them.
Also, massive appointments of Immigration Judges at both the trial and appellate levels, some with questionable qualifications, and all with no meaningful training on how to recognize and grant asylum claims have compounded the problem.
Does anyone seriously think that the “New Appellate Immigration Judges” on the BIA, some of whom denied asylum at rates upwards of 95%, were properly applying the generous legal standards of Cardoza-Fonseca to asylum seekers? Of course not! So why is this unconstitutional and dysfunctional system allowed to continue?
Which brings me to my second point. It’s nice that the Second Circuit actually took the time to correct the errors, unlike some of the “intentionally head in the sand Circuits” like the 5th and the 11th, who all too often compound the problem with their own complicity and poor judging. But, failing to publish important examples of DOJ/EOIR “malicious incompetence” like this is a disservice to both the country and the courts.
It leaves the impression that the Second Circuit doesn’t really value the rights of asylum seekers or view them as important. It also signals that the court doesn’t really intend to hold Barr and EOIR accountable for lack of quality control and fundamental fairness in the Immigration Court system.
Furthermore, it deprives immigration practitioners of the favorable Article III precedents they need to fight the abuses of due process and fundamental fairness being inflicted on asylum seekers every day at the “retail level” — in Immigration Court. It also fails to document a public record of the widespread “malicious incompetence” of DOJ and EOIR under Trump’s White Nationalist restrictionist regime.
It’s also horrible for the court. You don’t have to be a judicial genius to see where this is going. Unqualified, untrained Immigration Judges are being pushed to cut corners and railroad asylum seekers out of the country. The BIA has been “dumbed down” and weaponized to “summarily affirm” this substandard work product. That means that the circuit courts are going to be flooded with garbage — sloppy, unprofessional work. As the work piles up or is sent back for quality reasons, the Administration will blast and blame the Article III courts for their backlogs and for delaying deportations.
So why wait for the coming disaster? Why not be proactive?
The Second Circuit and the other Circuits should be publishing precedents putting the DOJ and EOIR on notice that Due Process, fair treatment, and quality work is required from the Immigration Courts. If it’s not forthcoming, why shouldn’t Barr and the officials at DOJ and EOIR responsible for creating this mess be held in contempt of court?
Two historical notes. First, our good friend and former colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, successfully represented the respondent before the Supremes in Cardoza-Fonseca (for the record, as DHS DGC. I was aligned with the SG on the “losing” side). Therefore, I sometimes call Judge Marks the “Founding Mother” of modern U.S. asylum law.
Second, immigration practitioner Michael DiRaimondo who successfully argued Qosaj before the Second Circuit began his career in the General Counsel’s Office of the “Legacy INS” during the “Inman-Schmidt Era.” He then went on to a distinguished career as the INS Special Assistant U.S. Attorney in the Eastern District of New York before entering private practice. Way to go, Michael D!
PWS
10-27-19