TEXT.1- ASYLUM AT THE END OF THE BIDEN ADMINISTRATION — December 23, 2024
Here’s the text without the footnotes. To get the “footnoted version,” please click on the above link.
ASYLUM AT THE END OF THE BIDEN ADMINISTRATION: A Disturbing, Dangerous, Dehumanizing Legacy of Betrayal, Missed Opportunities, and Abandonment of Humane Values!
Originally Delivered in December 2024
By Paul Wickham Schmidt
Successive Administrations, aided by Congress and abetted by the Federal Courts, have broken the U.S. asylum adjudication system almost beyond recognition. Yet, they now have the audacity to blame their victims, hapless asylum applicants and their dedicated, hard working advocates, for the Government’s grotesque failures to carry out their statutory and constitutional duties to establish a fair, efficient, timely, humane, accessible system for asylum adjudication in the U.S. and at our borders.
I. INTRODUCTION & DISCLAIMER
Please listen very carefully to the following important announcement.
Today, you will hear no party line, no bureaucratic doublespeak, no sugar coating, no BS, or other such nonsense. Just the truth, the whole truth, and nothing but the truth, of course as I define truth and see it through the lens of my five decades of work with and in the American immigration system.
I hereby hold you and anybody else associated with this event harmless for my remarks. The views expressed herein are mine, and mine alone, for which I take full responsibility. They also do not represent the position of any group, organization, individual, or other entity with which I am presently associated, have associated with in the past, or might become associated with in the future.
Because we are approaching Christmas, I have a special gift for each of you. It’s a free copy of my comprehensive 3-page mini-treatise entitled “Practical Tips for Presenting an Asylum Case in Immigration Court.”
I also want to caution you that much of what I’m telling you about asylum might become “OHIO” — that is “of historical interest only.” That’s because many believe that that if not living at the end of time, we are living at the end of asylum, at least as we know it.
America has elected a party that basically pledges to destroy asylum along with many of our other precious democratic institutions. But, tragically, the so-called “opposition party” is running scared and has gone “belly up” on asylum and human rights. Not only are they unwilling to defend legal asylum seekers, but they are actively engaged in dismantling the legal asylum system at our borders with some of the worst regulations and policies since the enactment of the Refugee Act of 1980.
It’s truly an appalling situation. We seem determined to repeat some of the most disgraceful parts of our history. I call it a “return to 1939” when xenophobia, myths, and lies about our ability to absorb refugees sent the German Jews aboard the notorious “St. Louis” back out to sea, where most of them eventually perished in the Holocaust. I ask you: “Is that really the world you want for yourselves and future generations?”
What I’m giving you today, is a very broad overview of U.S. asylum law. By necessity, there are many complexities, exceptions, special situations, and variables that I will not be able to cover in this type of survey.
II. REFUGEE DEFINITION
I’m going to start with the definition of the term “refugee” in the Immigration and Nationality Act (“INA”) which was derived in large part from the U.N. Convention on Refugees, created after World War II to deal with the unacceptable response of Western democracies to the mass persecutions that lead directly to the Holocaust. Sadly, how soon we forget where we came from, in more ways than one.
Basically, a “refugee” is:
any person who is outside any country of such person’s nationality . . . and 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, . . . . The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .
I have omitted special provisions relating to statelessness, certain refugees in their native countries, and so-called “coercive population control.”
Under U.S. law, the term “refugee” generally refers to those who apply under our statutory overseas refugee system. Refugees who apply for protection from within the U.S. or at our border are referred to as “applicants for asylum” or, if successful, “asylees.” It is this group that I will discuss further.
III. ELEMENTS
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- Persecution
Interestingly, the Act does not define the key term “persecution.” Courts and administrative authorities are literally “all over the place” on determining where “mere discrimination” or “harassment” ends and “persecution” begins. These determinations are often referred to as “rise to the level.”
During my days on the bench, at both levels, I observed some judges who, remarkably, purported to believe that having a coke bottle shoved up your rectum, being made to stand in a barrel of cold water for days, or being beaten “only” a few times with a belt buckle was “just another bad day at the office” for hapless asylum seekers. I, on the other hand, was a little less immune to pain, my own or others.
On the trial bench, I eventually found helpful guidance in a definition developed by the well-known former 7th Circuit Judge and prolific legal scholar Judge Richard Posner. In distinguishing among the three foregoing concepts, he stated:
Persecution involves, . . . the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity —[for example,] refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.
B. Protected Grounds
Significantly, not all forms of severe harm, even those “rising to the level of persecution” under the foregoing definition, qualify an individual for asylum. The persecution must be “on account of” one of the five so-called “protected grounds:” race, religion, nationality, political opinion, or membership in a particular social group.
Of these, the first four are fairly straightforward. It’s the last ground “membership in a particular social group,” that is “where the action is” these days.
That’s because the meaning of particular social group or “psg” is not readily apparent, and therefore somewhat malleable. For advocates, this presents a chance to be creative in behalf of clients. But, for government bureaucrats, including Immigration Judges, it often creates the fear of “opening the floodgates” and therefore becomes something that should be restrictively construed and sparingly applied.
My decision in Matter of Kasinga, represents an early positive application of the “immutability or fundamental to identity” characteristic to grant psg protection to a young woman who feared female genital mutilation, or “FGM.” Since then, however, following the so-called “purge” of the Board of Immigration Appeals (“BIA”) by Attorney General Ashcroft, the requirements of “particularity” and “social distinction” have been added in an attempt to restrict the psg definition.
C. Two schools of thought
As we move further into the refugee definition, I will introduce the “two schools of thought” or philosophies prevalent among government asylum adjudicators, including Immigration Judges.
Some believe that asylum law should be construed and applied to further the aims and purposes of the Refugee Convention and the Refugee Act: that is, to generously protect individuals fleeing persecution whenever possible. I’ll call this school “Mother Hens.”
The other school consists of those who believe that asylum is a “loophole” to “normal immigration” and therefore must be construed as narrowly and restrictively as possible in support of DHS enforcement. I call this school “Dick’s Last Resorters.”
Since the Immigration Judiciary and the Asylum Office come disproportionately from the ranks of former prosecutors or government officials, “resorters” overall outnumber the “hens.” Conveniently, denying asylum is generally thought to be less likely to come to the attention of, and annoy or displease, the political officials who control both the Asylum Office and the Immigration Courts. Therefore, denial is often perceived to be more “career friendly” than being in the forefront of those generously granting protection.
D. Nexus
Since many applicants are able credibly to establish that they have, or will face, severe harm upon return, the immigration bureaucracy has developed several methods for limiting the number of successful claims.
One is by “downplaying” the level of harm and straining to find that it “does not rise to the level of persecution.” That explains the “coke bottle up the rectum not a problem if you can still walk afterwards group” that I mentioned earlier.
Another way of denying facially legitimate claims involving severe harm is to actively search for ways to “disconnect” that harm from any of the five protected grounds. This works even in cases where the harm is very severe, clearly rising to the level of persecution. This focus on causation is called “nexus.”
The “no nexus approach” often requires the adjudicator to ignore or circumvent the applicable doctrine of “mixed motive.” By law, a protected ground does not have to be the sole, primary, or even predominant ground for the persecution. It is enough if a protected ground is “at least one central reason” for persecuting the applicant. But, by mis-characterizing the protected motive as merely “trivial” or “tangential” an adjudicator can attempt to avoid “mixed motive.”
Normally, in law, an adjudicator would apply the “but for” test for determining causation. That is, if the harm would not have occurred “but for” the characteristic, then a chain of causation for that factor is established.
However, in immigration, the rules have been turned upside down so that the adjudicator is encouraged to look for any “non-protected motive” and characterize that as the real overriding cause or motivation. Thus, in one infamous precedent involving harm to a family involved in a land dispute, the BIA found, in the words of my esteemed colleague retired Judge Jeffrey S. Chase, that “another non-protected ground renders the family membership ‘incidental or subordinate’ and thus lacking the nexus required for asylum.” In other words, the BIA converted the “but for” test that likely could have been met here into an “anything but” test that searched for a non-protected motive to defeat the claim.
E. Burden of proof/standard of proof
Moving on, the applicant has the burden of proof on asylum. To carry this burden, they must show a “well-founded fear” of future persecution.
The Supreme Court in 1987 established that the standard for a well-founded fear was significantly less than a probability, the position unsuccessfully argued by the Government, and suggested that it could be as low as a 10% chance.
Following that decision, the Board of Immigration Appeals, the “BIA,” the highest administrative tribunal in immigration, expressed the well-founded fear standard as a “reasonable likelihood” or “reasonable person,” a familiar legal rubric. In doing so, the BIA specifically noted that asylum could be granted even where persecution is substantially less than probable. In other words, the asylum applicant should be treated generously in accordance with the “benefit of the doubt” described in the U.N. Handbook for adjudicators under the Refugee Convention, a guide that actually was given significant weight by the Supreme Court.
Despite these overt expressions of legal generosity in applying the well-founded fear standard, the reality has proved quite different. Some Immigration Judges, BIA Appellate Judges, and Circuit Court Judges do generously adjudicate asylum claims in accordance with these legal precedents. But, for many, these standards have become mere “boilerplate citations” that are too often not actually followed in practice. Thus asylum denial rates, even for substantially similar cases, have varied widely depending on the predilections of individual Immigration Judges.
F. Past Persecution
You might remember that, in addition to referencing a well-founded fear of future persecution, the refugee definition also states that “persecution” can be a basis for asylum eligibility. This has been taken to refer to “past persecution” as a potentially independent basis for establishing asylum eligibility.
In one of the few administrative actions that actually benefits asylum seekers, and helps implement a more generous and legally appropriate construction of well-founded fear, there are regulations that combine the concepts of past and future persecution.
Thus, an individual who can establish that they have suffered past persecution is entitled to a regulatory presumption of a future well-funded fear of persecution in that country. The burden of proof then shifts to the DHS to rebut that presumption.
The DHS can achieve this in two ways. One is to show that the applicant has a “reasonably available internal relocation alternative” within the country that would allow them to avoid future persecution. The other is to demonstrate “fundamentally changed circumstances” that would obviate the well-founded fear of future persecution.
However, even if the DHS succeeds in rebutting the presumption, asylum may still be granted in the absence of a current well-founded fear, as a matter of discretion, in two situations.
One is if the applicant can establish “other serious harm” — not persecution but harm of a similar level — if returned to their native country. This can be things such as natural disaster, famine, civil disorder, or environmental catastrophe.
The other is if the applicant can show “compelling reasons” arising out of the severity of the past persecution. These are sometimes known as “Chen grants,” after a landmark BIA precedent. In that case, asylum was granted to an applicant whose family had suffered terribly during China’s “cultural revolution,” even though the cultural revolution was by then over.
These are also sometimes described as discretionary grants of “humanitarian asylum.” However, it is wrong to assume that Immigration Judges have a general authority to grant asylum in any humanitarian situation.
These discretionary grants are available only if and when an applicant successfully establishes past persecution and the DHS rebuts that presumption. As we can see, therefore, the concept of “past persecution” is important and carries a number of important benefits for an applicant who can establish it. I will now turn to an additional benefit.
G. Countrywide Fear
Normally, the burden is on an applicant to establish that the well-founded fear of persecution operates “countrywide.” In other words, that they can not reasonably avoid persecution by relocating internally.
However, in two common situations under the regulations, the applicant enjoys a rebuttable presumption that the danger exists countrywide. One is where the government is the persecutor. The other is where the applicant establishes past persecution. In both these instances, the burden would then shift to the DHS to rebut the presumption.
H. Other Key Elements: Credibility, Corroboration, Pattern Or Practice
In any asylum adjudication, the credibility of the applicant is a key factor. Although the regulations state that credible testimony could be enough to support asylum eligibility, this is more theoretical than real. In most asylum cases, a combination of credible testimony supported by reasonably available corroborating evidence will be necessary for success.
There is also a regulatory provision allowing individuals to qualify for asylum, if they can establish a “pattern or practice” of persecution in their home countries. All of the foregoing are important and complex concepts that could easily be the subject of a full class or even a course. Needless to say, they are beyond the scope of this presentation.
I. Exclusions From Asylum
There are a number of categories of individuals who are specifically excluded from asylum eligibility by statute or regulation. Some of these provisions relate directly to exclusions contained in the Refugee Convention. Others do not.
Individuals are ineligible if they are “firmly resettled” in another country.
They are also ineligible if they fail to file for asylum within one year of arriving in the United States. There are exceptions for “exceptional circumstances” directly related to the delay in filing and “materially changed circumstances.”
Persecutors, such as Nazi war criminals, are excluded, as are terrorists and national security risks. It’s worth remembering, however, that “one person’s terrorist could be another’s ‘freedom fighter.’” Ironically, George Washington and other leaders of the American Revolution would be “terrorists” under the INA’s expansive definition.
Another significant class of ineligibles are individuals who have committed “particularly serious crimes” in the U.S. Those convicted of “aggravated felonies” under state or federal law — a statutorily defined category that covers some crimes that are neither felonies nor particularly “aggravated” — are specifically covered by this definition. But, other crimes may also be found to be “particularly serious” on a case by case basis involving the weighing of the circumstances surrounding the crime.
Additionally, some individuals who had an opportunity to apply for asylum in what is deemed to be a “safe third country” are also excluded from asylum in the U.S. Right now, the only specifically designated “safe third country” is Canada. Nevertheless, both the Trump and Biden Administrations have de facto treated other countries, some demonstrably dangerous and without functioning asylum systems, as “safe” for various purposes without regard to the law or reality.
Moreover, in what are known as the “Death to Asylum Regulations,” promulgated just before they left office in 2021, the Trump Administration tried to expand the exclusions from asylum to include just about everyone who conceivably could have otherwise qualified. The implementation of these regulations remains enjoined by court order. Nevertheless, the Biden Administration was able to implement forms of some of these exclusions at the border. Undoubtedly, the attempt to finally kill off asylum will be renewed under “Trump 2.0.”
J. Discretion
The granting of asylum is not mandatory. Individuals who “run the gauntlet” to establish eligibility must still merit a favorable exercise of discretion from the adjudicator.
The standard for exercising discretion in asylum cases was previously set forth in my decision in Matter of Kasinga. Consistent with the generous purposes of the Convention and the Refugee Act, asylum should be granted to eligible applicants in the exercise of discretion in the absence of any “egregious” adverse factors.
The previously-mentioned “Death to Asylum Regulations” would have encouraged Immigration Judges and Asylum Officers to deny asylum in the exercise of discretion to almost anyone who might have survived their expanded proposed categories of “mandatory exclusions.” Although those particular regulations remain enjoined, the Biden Administration has invoked various presumptions and restrictions that use discretion to basically shut out most applicants not using their defective “CBP One App” to schedule an appointment at a port of entry.
IV. BENEFITS OF ASYLUM
Among the many benefits of asylum, an asylee is authorized to work in the U.S., can bring in dependents derivatively, can travel with a Refugee Travel Document (although not back to the home country), and has automatic access to the process for a green card after one year of “good behavior.” That, in turn, eventually can lead to eligibility for citizenship.
V. WITHHOLDING OF REMOVAL AND CONVENTION AGAINST TORTURE (“CAT”)
Those denied asylum for mandatory or discretionary reasons can still apply for withholding of removal and protection under the Convention Against Torture, affectionately known as the “CAT!” Although similar in some ways to asylum, there are some major differences, which I can’t go into in detail here.
Generally, withholding and CAT have higher standards to qualify and are mandatory, rather than discretionary in nature. However, they offer less advantageous protection in a number of ways: they don’t protect against removal to third countries; they don’t allow the recipient to bring dependents; they provide no permanent status, path to a green card, or route to U.S. citizenship; they require individual applications for work authorization; and they don’t allow travel. In fact, departure from the U.S will execute the underlying order of removal and bar reentry!
For many who will be denied asylum at the border and beyond under restrictions imposed by Biden and Trump, withholding and CAT, notwithstanding their drawbacks, might become the sole remaining methods for securing protection from persecution and or/torture.
VI. ACCESS TO THE SYSTEM
The INA states that:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .
Individuals arriving at our border are supposed to be asked about fear of return and screened by a trained Asylum Officer for “credible fear” a lesser standard that determines if they have a plausible claim that should be given a full adjudication by EOIR.
Within the U.S., individuals can apply for asylum “affirmatively” to the USCIS Asylum Office or “defensively” before the Immigration Court. Those “affirmatives” not granted by the Asylum Office after interview are “referred” to EOIR for a full hearing on their application.
These very straightforward statutory rights have been violated in numerous ways by the last two Administrations, so much so that the asylum system at border is close to extinction.
We don’t have time to go into all the complex and often incomprehensible details of this scurrilous “bipartisan attack on the legal right to asylum.” Basically, the Biden Administration recently finalized highly restrictive regulations that most experts find blatantly illegal. Essentially, anybody who applies for asylum between legal ports of entry is “presumed ineligible” unless they meet narrow exceptions.
The only somewhat viable alternative is waiting in extremely dangerous, and often squalid, conditions in Mexico to schedule an appointment through a notoriously inadequate “CBP One App” — a process that can take many months, at best. However, the incoming Trump Administration irrationally has pledged to eliminate CBP One thus effectively cutting off access to asylum at the border.
Disgracefully both the Trump and Biden Administrations have encouraged Mexico, Panama, and other countries in Central America to stop migrants from reaching the U.S., often using force, without any access to fair asylum adjudication. Sometimes, the U.S. actually funds these lawless deportations by so-called “transit countries.”
VII. WOES OF ADJUDICATING BODIES
Both the Asylum Office and EOIR are running ungodly backlogs, including well over one million un-adjudicated asylum cases at each agency! Additionally, EOIR has an overall backlog of Immigration Court cases approaching four million, and growing as we speak.
Both the Asylum Office and EOIR suffer from endemic inefficiency, antiquated procedures, severe quality control issues, shortage of staff, and chronic leadership problems that Administrations of both parties have failed to address in a serious manner. In fact, each of the last few Administrations has aggravated these problems in many ways, leading to an astounding level of dysfunction and systemic unfairness.
Moreover, in Immigration Court, there is no right to appointed counsel, despite the “life or death” stakes. So, many applicants are forced to face the system unrepresented or with woefully inadequate representation. Detention of many asylum seekers in substandard, inherently and intentionally coercive conditions, in obscure locations compounds these problems. EOIR also has a huge inconsistency problem with individual Immigration Judge asylum grant rates “ranging” from 0-99%.
Somewhat ironically, despite all of the anti-asylum bias and roadblocks in the system, individuals fortunate enough to get well-qualified representation, and to have applied before the onslaught of “death to asylum regulations and policies,” win their asylum cases on a daily basis. This adds to the “crap shoot” atmosphere for “life or death” justice that disgracefully has been fostered by Administrations of both parties. Nevertheless, we must remember that even in these challenging times, there are many thousands of lives out here that can be saved through great lawyering!
VIII. CONCLUSION
In summary, successive Administrations, aided by Congress and abetted by the Federal Courts, have broken the U.S. asylum adjudication system almost beyond recognition. Yet, they now have the audacity to blame their victims, hapless asylum applicants and their dedicated, hard working advocates, for the Government’s grotesque failures to carry out their statutory and constitutional duties to establish a fair, efficient, timely, humane, accessible system for asylum adjudication in the U.S. and at our borders.
Nobody in the “power structure” of any branch of the Government, in either party, appears seriously interested in fixing this dysfunctional travesty of American justice. The result has been a series of gimmicks, restrictions of access, skewed results, and failed “deterrents” that have put lives in jeopardy and undermine our entire justice system.
One political party “gins up” fear mongering, hate, and lies about asylum seekers in an attempt to eradicate them for political advantage. The other party is too cowardly to defend them.
Few, if any, politicos on the national level have the moral courage and clear vision to mount a well-justified, evidence-based defense of asylum seekers and other migrants. Likewise, few of them advocate for investing in achievable improvements in the system. Instead, they seek partisan political advantage, on the backs of the desperate and disenfranchised, by eagerly and cynically pouring money and manpower into cruel, ultimately ineffective, enforcement and “deterrence” gimmicks.
The latter, not incidentally, have spawned a highly profitable and politically potent industry that benefits from every deadly, failed border deterrence “enhancement.” No wonder positive change and creative problem solving are so elusive, and so many of our politicos lack the guts effectively to protect immigrants’ lives, human dignity, and rights at the border and beyond!
More than 50 years of experience working in our immigration systems, at different levels, and from many angles, tell me the following inalienable truths:
- Human migration is real;
- Forced migration is exactly that;
- It won’t be stopped by walls, prisons, deterrents, or other cruelty;
- Asylum is a human and legal right;
- Immigrants are good for America; and
- Due process for all persons in the U.S. is essential.
My time on the stage is winding down. But, yours, my friends, is just beginning. I call on you to join our New Due Process Army (“NDPA”), use your skills, commitment, and power to resist the haters, oppose the wobbly enablers, expose political bullies who trade away lives and rights that aren’t theirs, and fight to finally deliver on our nation’s yet-unfulfilled promise of due process, fundamental fairness, and equal justice for all in America!
Thank you for listening, and due process forever!
(01-09-25.1)
Sarah Nagle, J.D. ’24, reviewing Ms. S’s case prior to her Asylum Interview (Fall 2023).
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