The Third Circuit recently took the opportunity to uphold key refugee law principles and make it clear to the Department of Homeland Security (DHS) that it could not bar deserving refugees from protection in the United States without a good reason. (See Yusupov v. Attorney General, No. 09-3032 (3d Cir., June 16, 2011)).
Bekhzod Yusupov and Ismoil Samadov feared they would face persecution and torture for their religious beliefs if they were deported to their native Uzbekistan. Although the Uzbek government had issued extradition requests for the two men, claiming they were wanted for subversive activity, the U.S. Department of State and two immigration judges recognized that the Uzbek government commonly uses its criminal justice system to persecute political opponents. The immigration judges determined that the men faced a likelihood of persecution and torture and were deserving of refugee protection.
But that wasn’t the end of the story. Because the attorneys for DHS argued that the men were a danger to U.S. national security, and because the Board of Immigration Appeals (BIA) agreed, the men were granted a limited and easily revocable form of protection instead of the broader protection they had sought. And what was the primary evidence that led DHS and the BIA to conclude Yusupov and Samadov were national security risks? The extradition requests. The very same spurious, unreliable extradition requests that the immigration judges and the BIA considered proof that Yusupov and Samadov would more likely than not be tortured in Uzbekistan was also the primary evidence that they were threats to U.S. security.
In fact, DHS offered no direct evidence that either man was actually a threat to national security, basing their argument on speculative and circumstantial evidence in addition to the extradition requests.
The Third Circuit reversed the BIA’s decision and directed the BIA to grant both men withholding of removal, a broader form of protection than that which they had previously been granted. If a person facing deportation can show that they will more likely than not face persecution or torture in the country to which they will be deported, then under U.S. law they must be granted withholding of removal. The law is based on the principle of “non-refoulement” found in both the Convention on the Status of Refugees and the Convention Against Torture, which both state that governments should not deport people into situations of persecution and torture.
Like many countries, the U.S. makes an exception to the non-refoulement principle for individuals that pose a threat to national security. But, as the Third Circuit’s decision made clear, that exception is limited to people who pose an actual, not speculative, threat, and DHS must provide reasonable grounds for believing someone is a threat. In the cases of Yusupov and Samadov, DHS failed to meet that burden.
In its decision, the Third Circuit stressed the fact that Congress passed U.S. refugee law with the intent to fully live up to the United States’ obligations under international refugee law, and that the exceptions Congress created to the non-refoulement principle were to be applied narrowly. To apply the exception broadly enough to cover individuals falsely charged with crimes by despotic governments seeking to suppress their free expression would undermine the entire purpose of U.S. refugee law, as the Columbia Law School Human Rights Institute explained in a brief amicus curiae submitted on behalf of Yusupov and Samadov. The two men, facing politically motivated criminal charges, are text-book examples of a kind of person refugee law is meant to protect. Thankfully, the Third Circuit’s decision reinforces core principles of U.S. and international refugee law, and will allow Yusupov and Samadov to receive the protection they deserve.
Human Rights USA wishes to congratulate the attorneys at Steel, Rudnick & Ruben and Seton Hall Law School’s Center for Social Justice, who represented Yusupov and Samadov, respectively, as well as the amici curiae who contributed crucial legal analysis to the case, Columbia Law School Human Rights Institute, the Asian American Legal Defense & Education Fund, Becker, Glynn, Melamed & Muffly LLP, and Debevoise & Plimpton LLP.
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