Asylum Granted!

Human Rights USA wishes to congratulate Colleen O’Brien of Steptoe & Johnson for her recent victory in an asylum case. When her client Farid* first contacted Human Rights USA, he was deeply afraid of returning to his native India where he had already suffered persecution at the hands of family and community members who could not accept his homosexuality. Farid believed his family would try to force him into marriage and subject him to further punishing attempts to “cure” him if he returned. Steptoe & Johnson agreed to take Farid’s case, and with Human Rights USA’s support and many hours of hard work and creative legal thinking by Colleen and her team at Steptoe, Farid’s case was approved by the asylum office in Los Angeles, which will allow him to remain in the United States.

If you are an attorney handling an asylum case involving forced marriage, check out Human Rights USA’s Guide and Sample Briefs.

*The name has been changed to protect the individual’s privacy.

One Man’s Persecution is NOT Another Man’s National Security Threat

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.

T visas and HHS Certifications Are Up, but Many Are Still Left in the Cold

Welcome to the first in my series of articles on the 2011 Trafficking in Persons Report. As I wrote earlier, the Department of State’s (DOS) evaluation of U.S. anti-trafficking efforts contained some encouraging examples of genuine self-reflection, but also raised many additional questions and concerns in my mind. Today’s article addresses the system of granting government benefits to trafficked persons through T visas and Health and Human Services (HHS) certifications.

Grants of T visas and certifications by HHS have increased, which is good to hear. The DOS report also notes that foreign victims who do not have a T visa or HHS certification are ineligible for government services, and fortunately, it actually recommends making services available to all trafficking victims regardless of what immigration relief they seek, or even if they seek none.

At least, it recommends making services available to all “eligible” victims. This may merely mean that anyone applying for services will have to prove they are a trafficking victim. That would make sense. But maybe the word “eligible” was included to affirm the continued existence of the caveat to availability of services...

Adult trafficking victims are expected to assist with investigations or prosecutions of the traffickers in order to receive a T visa or HHS benefits. Though there is an exception for victims who are too traumatized to work with law enforcement, successfully proving that one is too traumatized may not always be easy. Also, victims may wish not to cooperate with law enforcement for reasons other than trauma, such as fear of retaliation by traffickers. The requirement of cooperation with law enforcement, as numerous advocates have stated over the years, places the goal of prosecution over that of victim protection, and violates many victims’ human rights.

The new report does not fully acknowledge this problem (and that is an understatement). The report states that the government has “encouraged” foreign national and citizen victims to assist law enforcement.

Encouraged?

Foreign nationals who need to remain in the United States for their own protection are essentially obligated to assist law enforcement. The report also notes that the T visa application does not require the approval of the investigating agency. While this is true, it is far easier to acquire a T visa if the victim can get a Law Enforcement Certification (LEC), a form signed by a law enforcement officer to certify that the victim has been willing to cooperate in the investigation or prosecution. The lack of an LEC can undermine an application.

Additionally, although DOS notes the difficulty reported by advocates in getting law enforcement officers to certify victims who are reluctant to cooperate, this also understates the problem. Even victims who are eager to cooperate may be denied certification by officers who do not find them useful, for example, if their testimony is not necessary or if the investigators decide not to continue the investigation. Victims are still eligible even if no investigation is ever opened, but law enforcement officers and prosecutors in many jurisdictions are unlikely to certify victims unless there is an on-going case and the victim’s testimony is crucial to it. The DOS report does not discuss this, and glosses over the importance of getting an LEC at all.

Currently, foreign victims who choose a form of immigration relief other than a T visa are not eligible for government services under the Trafficking Victims Protection Act (TVPA).

Why is this a problem?

Consider the plight of an asylum seeker. Although anyone who is granted asylum is eligible for refugee benefits (the same services available to T visa holders), these benefits are not available while the asylum application is pending. Asylum seekers are thus treated differently than T visa applicants, who can receive services while their application is pending. Not only does the pending asylum application NOT entitle asylum seekers to government services, most will also be ineligible for work authorization. They must survive on the charity of others – which puts them at risk for further abuse, including trafficking – for the duration of the application process, which can take years.

From a policy standpoint, this is a confusing distinction in general – why should asylum seekers be deemed less worthy of assistance and the right to work than trafficking victims? But from a TVPA policy standpoint, it is especially problematic, considering some trafficking victims will be ineligible for T visas (as well as U visas) and asylum may be their only option. Not only those who choose not to cooperate with law enforcement, but people trafficked outside the United States who flee here to seek protection cannot receive T visas. Thus, despite being in as much need of services as a T visa-eligible trafficking victim, asylum seekers are out of luck.

I am very happy to see that DOS recommends making government services available to all trafficking victims, even those who do not apply for T visas, but the problem was woefully understated, and I hope that provision of services to asylum seekers would not be conditioned on cooperation with law enforcement.