Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam
Supreme Court briefJan 22, 2020
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No. 19-161
IN THE
Supreme Court of the United States
_______________
DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Petitioners,
v.
VIJAYAKUMAR THURAISSIGIAM,
Respondent.
_______________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
_______________
BRIEF OF AMICI CURIAE ASYLUM LAW
PROFESSORS IN SUPPORT OF RESPONDENT
_______________
ROY T. ENGLERT, JR.
Counsel of Record
WENDY LIU
ROBBINS, RUSSELL, ENGLERT,
ORSECK, UNTEREINER &
SAUBER LLP
2000 K Street, NW, 4th Fl.
Washington, DC 20006
(202) 775-4500
renglert@robbinsrussell.com
Counsel for Amici Curiae
Asylum Law Professors
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICI CURIAE .......................1
INTRODUCTION AND SUMMARY OF
ARGUMENT .....................................................2
LEGAL FRAMEWORK ...............................................4
A.
The Expedited Removal System:
Statutory
and
Regulatory
Framework .............................................5
B.
The Expedited Removal Process ...........7
ARGUMENT .............................................................10
I.
THE “CREDIBLE FEAR” STANDARD
IS A LOW SCREENING THRESHOLD ........11
II.
ASYLUM
OFFICERS
FAIL
TO
PROVIDE ASYLUM SEEKERS WITH
SUFFICIENT
OPPORTUNITY
TO
SHOW CREDIBLE FEAR ..............................14
A.
The Asylum Officer Has an
Affirmative Obligation to Elicit
Information and Assess Credible
Fear Using Country Conditions
Evidence ...............................................15
ii
TABLE OF CONTENTS—Continued
Page
B.
Because of the Barriers in
Communication, Asking Informed
Follow-Up Questions Is Critical to
the Duty to Elicit .................................16
C.
Asylum Officers Systematically
Fail to Discharge Their Duty to
Elicit .....................................................21
D.
Review by Immigration Judges Is Not an
Effective Check Against Erroneous
Credible Fear Determinations .......................23
III.
BORDER OFFICIALS FAIL TO REFER
ASYLUM SEEKERS TO CREDIBLE
FEAR INTERVIEWS .....................................25
IV.
THE ASYLUM OFFICER ERRED IN
CONCLUDING
THAT
MR.
THURAISSIGIAM DID NOT HAVE A
CREDIBLE FEAR OF PERSECUTION ........27
A.
The Asylum Officer Erroneously
Concluded
that
Mr.
Thuraissigiam Failed to Satisfy
the Low Credible Fear Standard .........27
B.
Mr.
Thuraissigiam’s
Asylum
Officer Failed to Elicit Mr.
Thuraissigiam’s Credible Fear ............29
CONCLUSION ..........................................................32
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Gaksakuman v. United States Attorney
Gen.,
767 F.3d 1164 (11th Cir. 2014) ............................ 31
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ...................................... passim
Ramsameachire v. Ashcroft,
357 F.3d 169 (2d Cir. 2004) ........................... 15, 17
In re S-P-,
21 I. & N. Dec. 486 (BIA 1996) ............................ 28
Tan Jin Yu v. United States Dep’t of
Justice,
226 Fed. App’x 73 (2d Cir. 2007) ......................... 15
Treaty, Statutes, and Regulations
1967 United Nations Protocol Relating to
the Status of Refugees, 19 U.S.T. 6223,
T.I.A.S. No. 6577 .................................................... 2
8 U.S.C. § 1101(a)(42)(A)......................................... 2, 4
8 U.S.C. § 1158 ............................................................ 4
8 U.S.C. § 1158(a) ........................................................ 2
8 U.S.C. § 1158(a)(1) ............................................. 5, 31
8 U.S.C. § 1158(b)(1)(A) .............................................. 2
iv
TABLE OF AUTHORITIES—Continued
Page(s)
8 U.S.C. § 1158(b)(1)(B)(i) ........................................... 4
8 U.S.C. § 1225 .................................................... 2, 5, 6
8 U.S.C. § 1225(b)(1)(A)(i) ....................................... 5, 7
8 U.S.C. § 1225(b)(1)(A)(ii) .............................. 7, 14, 25
8 U.S.C. § 1225(b)(1)(B)(ii) ...................................... 3, 8
8 U.S.C. § 1225(b)(1)(B)(iii)(I) ................................. 5, 7
8 U.S.C. § 1225(b)(1)(B)(iii)(III) .................................. 9
8 U.S.C. § 1225(b)(1)(B)(v) ........................ 8, 11, 16, 20
8 U.S.C. § 1225(b)(1)(E)(i) ................................... 16, 20
8 U.S.C. § 1225(b)(l)(A)(i) ............................................ 9
8 U.S.C. § 1229a .......................................................... 6
8 U.S.C. § 1231(b)(3) ................................................... 4
8 U.S.C. § 1231(b)(3)(A) .............................................. 5
8 U.S.C. § 1252 ............................................................ 5
8 U.S.C. § 1252(e)(5) .................................................. 10
22 U.S.C. § 6431 ........................................................ 25
22 U.S.C. § 6474 .................................................. 25, 26
v
TABLE OF AUTHORITIES—Continued
Page(s)
Refugee Act of 1980, Pub. L. No. 96-212, 94
Stat. 102 ................................................................. 4
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104–
208, § 302, 110 Stat. 3009–546, 579-84............. 2, 5
Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, 112
Stat. 2681 ............................................................... 4
8 C.F.R. § 208.16(b)(2) ................................................. 5
8 C.F.R. § 208.16(c)(2) ................................................. 5
8 C.F.R. § 208.18(a)(1) ................................................. 5
8 C.F.R. § 208.30(d) ........................................... passim
8 C.F.R. § 208.30(d)(5)............................................... 18
8 C.F.R. § 208.30(e)(2) ..................................... 8, 11, 16
8 C.F.R. § 208.30(e)(3) ........................................... 8, 11
8 C.F.R. § 208.30(e)(4) ................................................. 8
8 C.F.R. § 208.30(f) .................................................. 6, 8
8 C.F.R. § 208.30(g)(1) ................................................. 9
8 C.F.R. § 235.3(b)(2)(i) ............................................. 18
8 C.F.R. § 235.3(b)(2)(ii) .......................................... 7, 9
vi
TABLE OF AUTHORITIES—Continued
Page(s)
8 C.F.R. § 235.3(b)(4) ............................................. 7, 14
8 C.F.R. § 235.6(a)(1)(ii) .............................................. 8
8 C.F.R. § 235.6(a)(2)(i) ............................................... 9
8 C.F.R. § 1003.1(b) ..................................................... 6
8 C.F.R. § 1003.42(a) ................................................... 9
8 C.F.R. § 1003.42(d)(1) ............................................... 9
8 C.F.R. § 1208.30(g)(1) ............................................... 9
8 C.F.R. § 1208.30(g)(2)(i) ........................................... 9
8 C.F.R. § 1208.30(g)(2)(iv)(A) .................................... 9
8 C.F.R. § 1208.30(g)(2)(iv)(B) .................................... 9
Legislative and Administrative Materials
H.R. Rep. No. 104-469, Pt. 1 (1996) .......................... 11
142 Cong. Rec. 25,347 (1996) .................................... 12
62 Fed. Reg. 10,312 (Mar. 6, 1997) ........................... 11
83 Fed. Reg. 55,934 (Nov. 9, 2018) ........................... 31
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Miscellaneous
American Immigration Council,
Deportations in the Dark: Lack of Process
and Information in the Removal of
Mexican Migrants (2017),
https://bit.ly/2R50mau ......................................... 26
Deborah Anker, Law of Asylum in the
United States (2019 ed.) ..................................... 4, 6
Sabrineh Ardalan, Access to Justice for
Asylum Seekers, 48 U. Mich. J.L. Reform
1001 (2015) ........................................................... 17
Arrest, Webster’s Third New International
Dictionary (2020) ................................................. 28
CARA Family Detention Pro Bono Project
Complaint, AILA Doc. No. 15121011
(Dec. 10, 2015), https://bit.ly/2FYsSnR ............... 19
Jessica Chaudhary, Memory and Its
Implications for Asylum Decisions, 6 J.
Health & Biomedical L. 37 (2010) ....................... 18
Dep’t of Justice, Exec. Office for
Immigration Review, Immigration Court
Practice Manual (Sept. 26, 2019),
https://bit.ly/2NzL9Mr ................................... 24, 25
Elicit, Oxford English Dictionary (3d ed.
2019) ..................................................................... 15
viii
TABLE OF AUTHORITIES—Continued
Page(s)
The Expedited Removal Study: Report on the
First Three Years of Implementation of
Expedited Removal, 15 Notre Dame J.L.
Ethics & Pub. Pol’y 1 (2001) .......................... 12, 26
Former Immigration Judge Jeffrey S.
Chase, Attorneys and Credible Fear
Review (July 22, 2018),
https://bit.ly/2NuUipo .......................................... 12
Freedom From Torture, Tainted Peace:
Torture in Sri Lanka since May 2009
(2015), https://bit.ly/2Nwtipo ............................... 29
Global Legal Research Center, The Law
Library of Congress, Report for the U.S.
Dep’t of Justice on Treatment of Tamil
Minority (2012), https://bit.ly/2TvECGc ............. 28
Jane Herlihy et al., Just Tell Us What
Happened to You: Autobiographical
Memory and Seeking Asylum, 26 Appl.
Cognit. Psychol. 661 (2012) ................................. 18
Immigration & Refugee Board of Canada,
Sri Lanka: Treatment of Tamil returnees
to Sri Lanka, including failed refugee
applicants (2013), https://bit.ly/36aocps.............. 31
Int’l Religious Freedom, Barriers to
Protection: The Treatment of Asylum
Seekers in Expedited Removal (2016),
https://bit.ly/2NzFJkz .................................. passim
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Int’l Truth and Justice Project, Unstopped:
2016/17 Torture in Sri Lanka (2017),
https://bit.ly/38ieVgw ........................................... 28
Walter Kälin, Troubled Communication:
Cross-Cultural Misunderstandings in the
Asylum-Hearing, 20 Int’l Migration Rev.
230 (1986) ....................................................... 17, 19
Letter from Am. Immigration Council et al.
to Directors of USCIS and ICE (Dec. 24,
2015), https://bit.ly/370sX6i ........................... 17, 21
Letter from Harvard Immigration and
Refugee Clinical Program to Acting
Secretary of Homeland Security Kevin K.
McAleenan re Request for Comment on
Designating Aliens for Expedited
Removal (Sept. 23, 2019),
https://bit.ly/3afhz8t ............................................. 26
Rachel Nolan, A Translation Crisis at the
Border, The New Yorker, Dec. 30, 2019,
https://bit.ly/2syU4GE ......................................... 20
Molly O’Toole, Border Patrol agents, rather
than asylum officers, interviewing
families for ‘credible fear,’ L.A. Times,
Sept. 19, 2019, https://lat.ms/2uUV9t1 ................. 8
Reflections from the Border, Harvard Law
Today, Nov. 2, 2018,
https://bit.ly/37167vc ...................................... 12, 24
x
TABLE OF AUTHORITIES—Continued
Page(s)
Katharine Ruhl & Christopher Strawn,
Accessing Protection at the Border:
Pointers on Credible Fear and
Reasonable Fear Interviews, in 2015
AILA Immigration Practice Pointers
(2015), https://perma.cc/H25L-AK2H .................. 23
Katherine Shattuck, Preventing Erroneous
Expedited Removals: Immigration Judge
Review and Requests for Reconsideration
of Negative Credible Fear
Determinations, 93 Wash. L. Rev. 459
(2018) .............................................................. 21, 24
Kathryn Shepherd et al., The Perils of
Expedited Removal: How Fast-Track
Deportations Jeopardize Asylum Seekers,
American Immigration Council (2017),
https://bit.ly/30smBtY ........................ 18, 19, 22, 23
Carol M. Suzuki, Unpacking Pandora’s Box:
Innovative Techniques for Effectively
Counseling Asylum Applicants Suffering
from Post-Traumatic Stress Disorder, 4
Hastings Race & Poverty L.J. 235 (2007) ........... 18
U.S. Commission on International Religious
Freedom, 2019 Annual Report,
https://bit.ly/2uVVfAL.................................... 26, 27
xi
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Commission on International Religious
Freedom, Report on Asylum Seekers in
Expedited Removal, Vol. I (2005),
https://bit.ly/38qUIFz ........................................... 24
U.S. Citizenship and Immigration Services
Adjudicator’s Field Manual, App. 15-2,
https://bit.ly/3a1ftZW ........................................... 15
U.S. Citizenship and Immigration Services
Adjudicator’s Field Manual, App. 15-2,
Pt. 2, https://bit.ly/2soq941 .................................. 14
U.S. Citizenship and Immigration Services,
RAIO Asylum Division Officer Training
Course, Lesson Plan on Credible Fear
(Apr. 14, 2006), https://bit.ly/30wCcJ5 .......... 13, 16
U.S. Citizenship and Immigration Services,
RAIO Asylum Division Officer Training
Course, Lesson Plan on Credible Fear of
Persecution and Torture Determinations
(Feb. 13, 2017),
https://bit.ly/378rr22 .......................... 15, 16, 20, 21
U.S. Citizenship and Immigration Services,
RAIO Asylum Division Officer Training
Course, Lesson Plan on Credible Fear of
Persecution and Torture Determinations
(Apr. 30, 2019), https://bit.ly/3awB3Wt .............. 20
INTEREST OF THE AMICI CURIAE1
Amici are professors of asylum law. They study
and publish on U.S. immigration and asylum law and
policy, and they represent indigent claimants in
removal and asylum proceedings. Amici have an
interest in advocating the fair and just application of
immigration laws to persons who seek asylum in the
United States.
Amici are:
Deborah Anker, Clinical Professor of Law and
Founder of the Harvard Law School Immigration and
Refugee Clinical Program. Professor Anker is the
author of a leading treatise in the field, Law of Asylum
in the United States, originally published in 1994 and
updated regularly through 2019. She has published
numerous articles on immigration and asylum law.
Her work has been cited by this Court.
Sabrineh Ardalan, Clinical Professor of Law and
Director of the Harvard Immigration and Refugee
Clinical Program. Professor Ardalan is an expert on
immigration and refugee law and has written
extensively on those topics.
Denise Gilman, Clinical Professor and CoDirector of the Immigration Clinic of the University of
Texas at Austin School of Law. Professor Gilman has
written and practiced extensively in the international
human rights and immigrants’ rights fields.
Karen Musalo, Professor and Bank of America
Foundation Chair in International Law at the
1 All parties have consented to the filing of this brief.
No counsel
for a party has written this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person or entity,
other than amici curiae or their counsel, has made a monetary
contribution to this brief’s preparation or submission.
2
University of California, Hastings College of Law.
Professor Musalo is the principal author of a leading
casebook in the field, Refugee Law and Policy: An
International and Comparative Approach. She is an
internationally recognized expert on refugee and
asylum issues and has written extensively on the
topic.
INTRODUCTION AND
SUMMARY OF ARGUMENT
By domestic and international law, the United
States assumed legal obligations to provide protection
to refugees fleeing persecution or torture. In the
Refugee Act of 1980, Congress authorized executive
branch officials to grant asylum to “refugee[s],” 8
U.S.C. § 1158(b)(1)(A)—persons who are unable or
unwilling to return to their home 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.” Id.
§§ 1101(a)(42)(A), 1158(b)(1)(B)(i); see also 8
U.S.C. § 1158(a). The Refugee Act implemented the
United States’ obligations under the 1967 United
Nations Protocol Relating to the Status of Refugees,
19 U.S.T. 6223, T.I.A.S. No. 6577, ratified by the
Senate in 1968.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) established the
expedited removal process. Pub. L. 104–208, § 302,
110 Stat. 3009–546, 579-84 (codified at 8 U.S.C.
§ 1225). Under that process, individuals arriving in
this country without valid entry documents may be
summarily returned to their countries of origin
“without further hearing or review.” 8 U.S.C. § 1225.
To guard against the risk that bona fide asylum
3
seekers might be summarily removed in expedited
removal proceedings, persons with a “credible fear of
persecution” are screened out of the expedited
removal process and placed in formal removal
proceedings. Id. § 1225(b)(1)(B)(ii).
The credible fear standard is met if there is a
significant possibility that the person could establish
eligibility for asylum. The assessment of credible fear
in the expedited removal process deliberately uses a
much lower threshold than well-founded fear of
persecution on statutorily specified grounds.2 The
latter standard is used in adjudicating on the merits
whether an asylum claim will be successful. The
lower credible fear standard is merely a screening
threshold intended to safeguard meritorious claims
against return to persecution or torture.
In practice, however, the expedited removal
system has often screened out persons with legitimate
claims of credible fear of persecution or torture. Bona
fide asylum seekers are routinely removed despite
having strong claims to protection. Respondent
Vijayakumar Thuraissigiam’s case is paradigmatic of
how, without review, executive officers sometimes do
not appropriately interpret and apply the safeguards
built into the expedited removal system.
Because the reality of the expedited removal
process fails to meet the statutory and regulatory
requirements governing that process, a noncitizen’s
ability to challenge an expedited removal order is of
critical importance. Only review by the independent
Article III judiciary can ensure that the system
2 Except where context dictates otherwise, all references in this
brief to either a “credible” or a “well-founded” fear refer to fear
based on one of the statutorily specified characteristics.
4
achieves accuracy in making the determinations it is
set up to make. The court of appeals ordered nothing
more than that, and its judgment should be affirmed.
LEGAL FRAMEWORK
By international treaties, domestic statutes, and
implementing regulations, the United States has
assumed legal obligations to provide protection to
“persons physically present or arriving in the United
States who fear persecution or related serious harm
in their home countries.” Deborah Anker, Law of
Asylum in the United States § 2:1 (2019 ed.) (footnote
omitted).
The Refugee Act of 1980, Pub. L. No. 96-212, 94
Stat. 102, codified provisions for granting asylum to
refugees. See 8 U.S.C. § 1158. By statute, a person is
eligible for asylum in the United States if he or she
has a “well-founded fear” of persecution on account of
his or her race, religion, nationality, membership in a
particular social group, or political opinion (the nexus
requirement).
8
U.S.C.
§§ 1101(a)(42)(A),
1158(b)(1)(B)(i). This Court has explained that the
“well-founded fear” standard is a lower standard than
“more likely than not.” A noncitizen satisfies the wellfounded fear standard if there is a one-in-ten chance
that he or she will be persecuted on account of a
protected ground. INS v. Cardoza-Fonseca, 480 U.S.
421, 431-432 (1987).3
In addition to asylum protection, a refugee also may seek
withholding of removal (under 8 U.S.C. § 1231(b)(3)) or
protection under the Convention Against Torture (ratified by the
Senate in 1994 and implemented in the Foreign Affairs Reform
and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277,
112 Stat. 2681), which imposes a duty not to return potential
victims to countries where they may suffer torture. Anker, Law
3
5
Congress extended asylum protection to persons
fleeing persecution, regardless of the location or
manner of a person’s entry. 8 U.S.C. § 1158(a)(1) (a
person may seek asylum “whether or not” he or she
enters at a designated port and “irrespective
of . . . status”). Neither the manner nor the location of
a person’s entry bears on the danger or threat of
persecution faced by asylum seekers.4
A. The Expedited Removal System: Statutory
and Regulatory Framework
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 established expedited
removal procedures for noncitizens who were
inadmissible because they lacked valid travel
documents. IIRIRA § 302 (codified at 8 U.S.C.
§ 1225).
A person subject to expedited removal is ordered
summarily removed by an immigration officer
“without further hearing or review.”
8 U.S.C.
§ 1225(b)(1)(A)(i), (B)(iii)(I).
This process differs
significantly from regular removal proceedings (also
called formal removal proceedings), which provide a
noncitizen with certain procedural rights like the
right to an administrative hearing before an
immigration judge, the right to appeal an adverse
removal decision to the Board of Immigration Appeals
(BIA), and the right to seek judicial review. See 8
of Asylum §§ 1:2, 7:2. Both forms of relief require meeting the
higher “more likely than not” standard.
See 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2); 8 C.F.R.
§§ 208.16(c)(2), 208.18(a)(1).
4 Furthermore, asylum seekers—who are fleeing circumstances
of persecution and torture—often are not able to present
themselves at a port of entry.
6
U.S.C. § 1252; 8 C.F.R. § 1003.1(b); Anker, Law of
Asylum § 1:11. The availability of review provides a
procedural safeguard against an erroneous removal
decision, the consequence of which is a refugee’s
return to circumstances of persecution or torture. See
Cardoza-Fonseca, 480 U.S. at 449 (“Deportation is
always a harsh measure; it is all the more replete with
danger when the alien makes a claim that he or she
will be subject to death or persecution if forced to
return to his or her home country.”).
In the expedited removal system, special
procedures go into effect if the noncitizen expresses a
fear of persecution or torture. The noncitizen is
referred to a “credible fear interview” to determine
whether he or she may apply for asylum. If the
noncitizen is found to have a credible fear of
persecution or torture, he or she must be diverted
from expedited removal proceedings under 8 U.S.C.
§ 1225 and placed in formal removal proceedings
under 8 U.S.C. § 1229a. 8 C.F.R. § 208.30(f). The
asylum officer must refer a noncitizen with a positive
credible fear determination to formal removal
proceedings and has no discretion to do otherwise.
Ibid.
A determination that the noncitizen has
demonstrated credible fear does not mean that the
noncitizen will be granted asylum; rather, the
noncitizen is permitted to apply for asylum,
withholding of removal, or protection under the
Convention Against Torture.
If, however, the credible fear interview results in
the finding that the noncitizen does not have a
credible fear of persecution or torture, and an
immigration judge concurs in that negative
determination, then the noncitizen is removed from
7
the United States.
8 U.S.C. § 1225(b)(1)(A)(i),
(B)(iii)(I); 8 C.F.R. § 235.3(b)(2)(ii).
B. The Expedited Removal Process
Customs & Border Protection Inspection.
A
noncitizen subject to expedited removal must first
undergo an “inspection” by an officer of U.S. Customs
and Border Protection (CBP). During this initial
processing, the CBP official is required to ask four
questions relating to a noncitizen’s fear of return to
his or her home country:
Q: Why did you leave your home country or
country of last residence?
Q: Do you have any fear or concern about being
returned to your home country or being removed
from the United States?
Q: Would you be harmed if you returned to your
home country or country of last residence?
Q: Do you have any questions or is there anything
else you would like to add?
Form I-867 Side B.
If the noncitizen expresses a fear of return or
persecution, the “officer shall refer the alien for an
interview
by
an
asylum
officer,”
8
U.S.C. § 1225(b)(1)(A)(ii) (emphasis added), and
“shall not proceed further with removal,” 8
C.F.R. § 235.3(b)(4). The CBP officer has no authority
to evaluate the noncitizen’s credibility or claim of fear.
Credible Fear Interview.
The credible fear
interview is a screening process that evaluates
whether a noncitizen could qualify for asylum,
withholding of removal, or protection under the
Convention Against Torture. “The purpose of the
interview shall be to elicit all relevant and useful
information bearing on whether the applicant has a
8
credible fear of persecution or torture.” 8 C.F.R.
§ 208.30(d).
Noncitizens claiming fear are interviewed by U.S.
Citizenship and Immigration Services (USCIS)
asylum officers, who make a finding as to whether the
noncitizen has a “credible fear of persecution or
torture.”
8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R.
5
§ 208.30(d). To find a credible fear of persecution, an
asylum officer must determine that “there is a significant possibility, taking into account the credibility of
the statements made by the alien in support of the
alien’s claim and such other facts as are known to the
officer, that the alien could establish eligibility for
asylum.”
8 U.S.C. § 1225(b)(1)(B)(v) (emphasis
added); see also 8 C.F.R. § 208.30(e)(2), (e)(3)
(significant-possibility standard for withholding of
removal and Convention Against Torture claims).
If the asylum officer finds that the noncitizen has
a credible fear of persecution or torture, the noncitizen
must be referred to formal removal proceedings,
where he or she will get a full administrative hearing,
subject to judicial review, on the far more exacting
claim of a well-founded fear of persecution or torture.
8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30(f),
235.6(a)(1)(ii).6 If the asylum officer determines that
According to recent news reports, CBP officers, rather than
USCIS asylum officers, have begun conducting credible fear
interviews. See Molly O’Toole, Border Patrol agents, rather than
asylum officers, interviewing families for ‘credible fear,’ L.A.
Times, Sept. 19, 2019, https://lat.ms/2uUV9t1.
5
6 Likewise, if there is a significant possibility that the noncitizen
is eligible for withholding of removal or protection under the
Convention Against Torture, then the noncitizen must be
referred to formal removal proceedings. 8 C.F.R. § 208.30(e)(2)(4), 208.30(f).
9
a noncitizen does not have a credible fear of
persecution or torture, the noncitizen may seek review
of the credible fear determination before an
immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8
C.F.R. § 1208.30(g)(1).
Review of Credible Fear Determination.
On
request by the noncitizen, the asylum officer will refer
the noncitizen to an immigration judge for review of
the
negative
determination.
8
U.S.C.
§ 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.30(g)(1),
235.6(a)(2)(i), 1003.42(a), 1208.30(g)(2)(i).
The
immigration judge is directed to “make a de novo
determination as to whether there is a significant
possibility” that the noncitizen can demonstrate
eligibility for asylum or withholding of removal. 8
C.F.R. § 1003.42(d)(1).
If the immigration judge concurs with the asylum
officer’s negative credible fear finding, “the case shall
be returned to [the Department of Homeland Security
(DHS)] for removal of the alien,” and the immigration
judge’s decision “is final and may not be appealed.” 8
C.F.R. § 1208.30(g)(2)(iv)(A).
Conversely, if the
immigration judge finds that the noncitizen has a
credible fear of persecution or torture, the
immigration judge will vacate the asylum officer’s
negative credible fear determination, and the
noncitizen will be placed in formal removal
proceedings, where the noncitizen can further pursue
his or her claim for relief. Id. § 1208.30(g)(2)(iv)(B).
The statute precludes administrative review by
the BIA or judicial review by the federal courts of
appeals of credible fear determinations.
8
U.S.C. § 1225(b)(l)(A)(i); 8 C.F.R. § 235.3(b)(2)(ii).
The statute provides for judicial review in habeas
corpus proceedings of only whether “an order in fact
10
was issued and whether it related to petitioner,” but
not review of “whether the alien is actually
inadmissible or entitled to any relief from removal.” 8
U.S.C. § 1252(e)(5).
ARGUMENT
The credible fear standard is deliberately set as a
low screening threshold to ensure that noncitizens
with viable asylum claims will not be removed without
the protections of the full process. For this screening
process to work, asylum officers must effectively
divert bona fide asylum claims out of expedited
removal proceedings, which are intended for those
noncitizens lacking valid entry documents who do not
have fear of persecution or torture on protected
grounds.
In practice, however, expedited removal
proceedings consistently fail to ensure that bona fide
asylum claims are directed into formal removal
proceedings. This failure is threefold: (1) a misunderstanding of the burden of proof necessary to
satisfy the credible fear standard; (2) failures by
asylum officers to “elicit” all information from asylum
seekers relating to credible fear and make
determinations using country conditions evidence;
and (3) failures by border officials to refer asylum
seekers to a credible fear interview.
The result is the expedited removal of bona fide
asylum seekers to circumstances of persecution and
torture. Mr. Thuraissigiam’s case is but one example
of an erroneous credible fear determination,
highlighting the importance of review by an Article III
court.
11
I. THE “CREDIBLE FEAR” STANDARD IS A
LOW SCREENING THRESHOLD.
To satisfy the credible fear standard, a noncitizen
need show only “a significant possibility” that he or
she could establish eligibility for asylum, withholding
of removal, or protection under the Convention
Against Torture. 8 U.S.C. § 1225(b)(1)(B)(v) (defining
“credible fear of persecution”); 8 C.F.R. § 208.30(e)(2),
(e)(3).
Credible fear screening is not a full adjudication of
an asylum claim; rather, “it is an initial review meant
to quickly identify potentially meritorious claims and
screen out frivolous ones.” U.S. Comm’n on Int’l
Religious Freedom, Barriers to Protection: The
Treatment of Asylum Seekers in Expedited Removal 34
(2016) (Barriers to Protection), https://bit.ly/2NzFJkz;
see also 62 Fed. Reg. 10,312, 10,320 (Mar. 6, 1997)
(credible fear standard is a screening mechanism that
sets “a low threshold of proof of potential entitlement
to asylum; many aliens who have passed the credible
fear standard will not ultimately be granted asylum”).
Accordingly, the credible fear standard is
intentionally less rigorous than the well-founded fear
standard used in evaluating an asylum claim on its
merits. The credible fear standard is satisfied if there
is a “significant possibility” of a well-founded fear,
which in turn is merely a one-in-ten chance that a
noncitizen will be persecuted on account of a protected
ground. See Cardoza-Fonseca, 480 U.S. at 431-432
(describing well-founded fear standard as a one-in-ten
chance of persecution).
The credible fear standard was intentionally set
low so that “there should be no danger that an alien
with a genuine asylum claim” would be summarily
“returned to persecution.” H.R. Rep. No. 104-469, Pt.
12
1, at 158 (1996). As the principal sponsor of the bill,
Senator Orrin Hatch, explained when IIRIRA was
enacted, the credible fear standard is “a low screening
standard for admission into the usual full asylum
process.” 142 Cong. Rec. 25,347 (1996).7
In practice, however, immigration officials
frequently fail to understand this low screening
threshold. See Reflections from the Border, Harvard
Law Today, Nov. 2, 2018, https://bit.ly/37167vc
(immigration judge reviewing negative credible fear
findings “was misstating the legal standards, mixing
up the higher bar for those who had already been
previously deported from United States with the
lower one for those who had just entered for the first
time”); ibid. (asylum seeker in a negative credible fear
proceeding “compellingly recounted his story of
horrific persecution on account of his race only for the
[immigration] judge to declare, inexplicably, that he
had not testified that he was persecuted on account of
his race”); see also The Expedited Removal Study:
Report on the First Three Years of Implementation of
Expedited Removal, 15 Notre Dame J.L. Ethics & Pub.
Pol’y 1, 70 (2001) (three-year study documenting
problems with “the accuracy of determinations made
during the expedited removal process” and with
7 See also Former Immigration Judge Jeffrey S. Chase, Attorneys
and Credible Fear Review (July 22, 2018), https://bit.ly/2NuUipo
(“This interview is designed as a screening, not a full-blown
application for asylum. The noncitizen being interviewed has
just arrived, is detained, often has not yet had the opportunity to
consult with a lawyer, probably does not yet know the legal
standard for asylum, and has not had the opportunity to compile
documentation in support of the claim. Therefore, the law sets
what is intended to be a very low standard[.]”).
13
officers’ handling of “complex legal or factual
determinations”).
The asylum officer training materials exacerbate
this issue: Although the asylum officers’ training
materials previously included language about the low
screening standard, USCIS (the component of DHS
governing the asylum office) issued revised training
materials in February 2014 that “eliminated the
above statement from Senator Hatch about the low
screening standard.” Barriers to Protection 35. The
revised materials also removed prior materials’
accurate characterization of the credible fear
standard as a “protective net” that “will capture all
potential refugees and individuals who would be
subject to torture if returned to their country of feared
persecution or harm.” See USCIS, RAIO Asylum
Division Officer Training Course, Lesson Plan on
Credible Fear 12 (Apr. 14, 2006) (2006 Credible Fear
Training Course), https://bit.ly/30wCcJ5.
The consequence is a substantial risk, borne out in
practice, that asylum officers are erroneously
concluding that the credible fear standard has not
been met.
Indeed, after these revised training
materials were implemented, the rate of positive
credible fear determinations declined substantially
from what it had been for years. See Barriers to
Protection 36 (discussing decline of more than 10% in
credible fear grant rates from the preceding year).
Without judicial review, immigration officials will
continue to misunderstand and consequently
misapply the low screening threshold of the credible
fear standard. This circumstance is not new or unique
to expedited removal: Until the Court clarified the
well-founded fear standard in Cardoza-Fonseca in
1987, immigration judges and the BIA incorrectly
14
thought that the well-founded fear standard was
equivalent to a more-likely-than-not standard. See
480 U.S. at 448–449 (holding that the well-founded
fear standard is lower than the more-likely-than-not
standard). Judicial review in the expedited removal
process is needed to provide guidance on the legal
standard for credible fear.
II.
ASYLUM OFFICERS FAIL TO PROVIDE
ASYLUM SEEKERS WITH SUFFICIENT
OPPORTUNITY TO SHOW CREDIBLE
FEAR.
By statute, noncitizens claiming fear of return to
their home country must be referred to a “credible
fear” interview. 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R.
§ 235.3(b)(4).
The regulations specify that the
credible fear interview must be conducted by an
asylum officer, and “[t]he purpose of the [credible fear]
interview shall be to elicit all relevant and useful
information bearing on whether the applicant has a
credible fear of persecution or torture.” 8 C.F.R.
§ 208.30(d) (emphasis added).
As the USCIS’s training materials acknowledge, in
“eliciting” information, it is “critical” to “prob[e] for
additional information and follow[] up on [the asylum
seeker’s] statements.” USCIS Adjudicator’s Field
Manual, App. 15-2, Pt. 2, https://bit.ly/2soq941.
Asylum officers, however, frequently fail to discharge
their regulatory obligation to elicit all information
from the asylum seeker and to use country conditions
evidence in assessing credible fear of persecution or
torture.
15
A. The Asylum Officer Has an Affirmative
Obligation to Elicit Information and
Assess Credible Fear Using Country
Conditions Evidence.
“Eliciting” requires more than merely asking a rote
question. See Elicit, Oxford English Dictionary (3d ed.
2019) (To “elicit” means “to draw forth” or “to bring
out.”). As the USCIS’s training materials explain,
“‘[e]liciting’ information often means more than
simply asking questions and receiving responses. The
officer may need to draw forth from the interviewee
information that has a bearing on his or her eligibility
[for asylum].” USCIS Adjudicator’s Field Manual,
App. 15-2, https://bit.ly/3a1ftZW; accord USCIS,
RAIO Asylum Division Officer Training Course,
Lesson Plan on Credible Fear of Persecution and
Torture Determinations 13 (Feb. 13, 2017) (2017
Credible Fear Training Course), https://bit.ly/378rr22.
Consistent with the regulatory requirement that
an asylum officer “elicit all relevant and useful
information” relating to the asylum claim, 8 C.F.R.
§ 208.30(d), the asylum officer must “ask questions to
expand upon and clarify the interviewee’s statements
and information contained on the form,” see USCIS
Adjudicator’s
Field
Manual,
App.
15-2,
https://bit.ly/3a1ftZW. “The response to one question
may lead to additional questions about a particular
topic or event that is material to the claim.” Ibid.
Among other things, follow-up questions may probe
into the circumstances surrounding a traumatic
event, see ibid., or inquire into any history of problems
with the police or government, see Tan Jin Yu v.
United States Dep’t of Justice, 226 Fed. App’x 73, 75
(2d Cir. 2007); see also Ramsameachire v. Ashcroft,
357 F.3d 169, 180 (2d Cir. 2004).
16
In assessing the asylum seeker’s claim of credible
fear, the asylum officer is statutorily required to
consider “such other facts as are known to the officer”
beyond the information the asylum seeker provides
during the interview. See 8 U.S.C. § 1225(b)(1)(B)(v);
8 C.F.R. § 208.30(e)(2). By statute, “such other facts”
include country conditions information, on which
asylum officers are required to have been trained. 8
U.S.C. § 1225(b)(1)(E)(i) (“‘[A]sylum officer’ means an
immigration officer who has had professional training
in country conditions . . . .”); see also 2017 Credible
Fear Training Course 14 (“Such ‘other facts’ include
relevant country conditions information.”).
Accordingly, to elicit all information relevant and
useful to the asylum seeker’s claim of credible fear,
the asylum officer should ask follow-up questions that
are informed by the conditions of the country from
which the asylum seeker fled. Cf. 2006 Credible Fear
Training Course 31 (“An officer who has a good
understanding of country conditions can identify the
most relevant parts of the testimony more clearly and
ask specific questions to develop the relevant issues
further.”).
B. Because of the Barriers in Communication,
Asking
Informed
Follow-Up
Questions Is Critical to the Duty to Elicit.
It is often extremely difficult to elicit the full story
from an asylum seeker at first. Psychological issues,
as well as differences in language and culture, are
systemic barriers to the communication of an asylum
seeker’s fear of persecution or torture. In these
circumstances, probing an asylum seeker’s story and
asking follow-up questions is critical to understanding
whether the asylum claim is legitimate.
17
Reticence. “[B]ecause those most in need of
asylum may be the most wary of governmental
authorities, the BIA and reviewing court must
recognize, in evaluating the statements made in an
interview, that an alien may not be entirely
forthcoming in the initial interview.” Ramsameachire
v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004). Indeed,
“former members of political parties and groups which
were illegal in their home countries have deeply
internalized the values of secrecy and suspicion
toward outsiders.”
See Walter Kälin, Troubled
Communication: Cross-Cultural Misunderstandings
in the Asylum-Hearing, 20 Int’l Migration Rev. 230,
232 (1986). Accordingly, those individuals may be
reserved in the manner in which they communicate,
leading them to “present . . . fragmented and
confusing stor[ies].” Ibid. The same is true for other
refugees and members of minority groups that were
persecuted in their home countries.
Trauma. Even if a noncitizen can relay some
details regarding his or her persecution or torture, it
is common for victims of trauma to be reluctant to
share the details of their traumatic circumstances.
Indeed, it can take experienced asylum attorneys
several meetings over many days to build the trust
needed for clients to share the traumatic
circumstances that prompted them to flee to the
United States. See, e.g., Letter from Am. Immigration
Council et al. to Directors of USCIS and ICE, 2-3 (Dec.
24, 2015) (AIC Letter), https://bit.ly/370sX6i.
It is therefore unsurprising that asylum seekers,
as victims of trauma, may be less forthcoming about
the circumstances of their persecution or torture. See
Sabrineh Ardalan, Access to Justice for Asylum
Seekers, 48 U. Mich. J.L. Reform 1001, 1001-1002
18
(2015) (discussing story of man who was overwhelmed
when trying to discuss his abduction, beating, and
torture by government forces during his interview
with an asylum officer).
Refugees, due to the very trauma that led them to
flee their homes, are prone to high levels of depression
and Post-Traumatic Stress Disorder (PTSD). Jane
Herlihy et al., Just Tell Us What Happened to You:
Autobiographical Memory and Seeking Asylum, 26
Appl. Cognit. Psychol. 661, 664-665 (2012).
Depression and PTSD negatively affect the encoding
of memories. Jessica Chaudhary, Memory and Its
Implications for Asylum Decisions, 6 J. Health &
Biomedical L. 37, 44-45 (2010); Herlihy, 26 Appl.
Cognit. Psychol. at 663-669. As a result, refugees
suffering from those conditions are less likely to recall
the details of their persecution, especially peripheral
details, consistently over time, and are more likely to
recall memories in overgeneralized terms. See
Chaudhary, 6 J. Health & Biomedical L. at 49; Carol
M. Suzuki, Unpacking Pandora’s Box: Innovative
Techniques for Effectively Counseling Asylum
Applicants Suffering from Post-Traumatic Stress
Disorder, 4 Hastings Race & Poverty L.J. 235, 257
(2007); Herlihy, 26 Appl. Cognit. Psychol. at 663, 667,
671.
Language Barriers. Although it is required that
translators be present during credible fear
interviews,8 the government regularly fails to provide
qualified translators. Barriers to Protection 27-28;
Kathryn Shepherd et al. The Perils of Expedited
Removal: How Fast-Track Deportations Jeopardize
Asylum Seekers, American Immigration Council
8 See 8 C.F.R. §§ 235.3(b)(2)(i), 208.30(d)(5).
19
(2017) (The Perils of Expedited Removal),
https://bit.ly/30smBtY. When a qualified translator is
unavailable, immigration officials sometimes require
asylum seekers to proceed in a language they do not
speak fluently, require another noncitizen being
processed to interpret, or ask airport staff to interpret.
Barriers to Protection 27-28.
These alternatives lead to badly skewed results.
Ibid.; see also The Perils of Expedited Removal 15-16
(Guatemalan woman struggled to tell officers in
Spanish about the repeated rape threats she had
received when no translators for her native
indigenous language were available); CARA Family
Detention Pro Bono Project Complaint, AILA Doc. No.
15121011, at 8 (Dec. 10, 2015), https://bit.ly/2FYsSnR
(An asylum seeker who spoke the Mayan language
Achi had his credible fear interview conducted in the
different Mayan language Quiche, although
documentation stated the interview was conducted in
Spanish. Because of inadequate interpretation, the
asylum seeker was “[u]nable to properly communicate
his fear of return,” resulting in a negative
determination.).
Even when a translator is available, the translator
frequently fails to translate idioms or cultural
differences in language, potentially resulting in
erroneous negative credible fear determinations. For
example, an asylum officer may erroneously reject as
implausible an asylum seeker’s claim that his
“brothers” helped him both escape jail, purchase plane
tickets, and clear customs at the border; however, in
some cultures, “brothers” refer to all members of a
tribe rather than familial relatives. See Kälin, 20 Int’l
Migration Rev. at 234; see also Rachel Nolan, A
Translation Crisis at the Border, The New Yorker,
20
Dec. 30, 2019, https://bit.ly/2syU4GE (woman was
deported after translator did not make clear that
when the asylum seeker said she was persecuted in
Guatemala because of her “blouses,” she meant she
was persecuted because of her huipil, a handwoven
blouse worn by Mayans). Translation by phone
creates further difficulties in comprehension between
the asylum seeker and the translator, as discussed
infra.
Because of these psychological, linguistic, and
cultural
barriers
to
an
asylum
seeker’s
communication of the details of his fear and
persecution, it is critical that asylum officers use all
tools at their disposal to “elicit all relevant and useful
information bearing on whether the applicant has a
credible fear of persecution or torture.” 8 C.F.R.
§ 208.30(d). At a minimum, an asylum officer cannot
just recite the questions listed on her interview form.
Rather, the asylum officer must probe and ask followup questions that are informed not only by the asylum
seeker’s statements but also by information relating
to the country from which the asylum seeker has fled.
See 8 U.S.C. § 1225(b)(1)(B)(v), (1)(E)(i); 8 C.F.R.
§ 208.30(e)(2) (asylum officer must consider “such
other facts” known to the officer).
The USCIS’s recent update to the asylum officer
training manual exacerbates these problems. This
update removes language directing asylum officers to
consider the impact of cross-cultural issues, trauma,
and problems with interpretation when making
credibility assessments. Compare 2017 Credible Fear
Training Course 19-20, with USCIS, RAIO Asylum
Division Officer Training Course, Lesson Plan on
Credible Fear of Persecution and Torture
Determinations 14-15 (Apr. 30, 2019) (2019 Credible
21
Fear Training Course), https://bit.ly/3awB3Wt. By
failing to alert asylum officers to psychological,
linguistic, and cultural issues of communication, the
update increases the possibility that asylum officers
will ignore the impact of these issues on asylum
seekers’ ability to explain what has happened to them,
and that asylum officers accordingly will reach the
wrong conclusions.
C. Asylum Officers Systematically Fail to
Discharge Their Duty to Elicit.
It cannot be repeated often enough that the government has recognized (and imposed on its agents) a
duty to “elicit all relevant and useful information
bearing on whether the applicant has credible fear of
persecution or torture.” 8 C.F.R. § 208.30(d); see also
2017 Credible Fear Training Course 13 (“[A]sylum
officers have an affirmative duty to elicit all
information relevant to the legal determination.”).
Yet asylum officers systematically fail to elicit all
relevant information and to ask informed follow-up
questions. For example, asylum officers often direct
asylum seekers to give short “yes” or “no” answers to
questions, repeatedly cut off the asylum seekers’
responses, or fail to flesh out details of the noncitizen’s
asylum claim. See, e.g., AIC Letter 5 (describing the
stories of Kezia, who was told to give yes or no
answers to questions, and Adriana, who was
repeatedly cut off by her asylum officer); Katherine
Shattuck, Preventing Erroneous Expedited Removals:
Immigration Judge Review and Requests for
Reconsideration
of
Negative
Credible
Fear
Determinations, 93 Wash. L. Rev. 459, 482-483 (2018).
(quoting an attorney’s discussion of how asylum
officers at one detention facility neglected to elicit
22
sufficient detail from the asylum seeker relevant to
the asylum claim).
The result is erroneous negative credible fear
determinations. Take the example of Beatriz. Beatriz
received a negative determination from the asylum
officer when she did not disclose during her credible
fear interview that she had witnessed the murder of
her mother while she and her sister “were hit with
bullets fired by gang members demanding extortion.”
The Perils of Expedited Removal 25-26. Although she
disclosed those facts before the immigration judge, the
immigration judge declined to reverse the negative
determination. Ibid. In both proceedings, she failed
to share that she also had been gang-raped by men
targeting her for extortion “to show [her] that they
followed through on their threats,” because she was
“afraid it would get back to the men in Guatemala.”
Ibid.9
The risk of erroneous credible fear decisions is
heightened by the USCIS’s increased use of telephonic
credible fear interviews. In 2009, only two percent of
all 5,369 credible fear interviews were conducted by
telephone. Barriers to Protection 36. The number and
rate of telephone interviews skyrocketed in just five
years: By 2014, 59 percent of the 51,001 credible fear
interviews were conducted by telephone.
Ibid.
Telephonic interviews, however, are inherently
problematic.
“Asylum seekers interviewed by
telephone may find it more difficult to recount fully to
the asylum officer, through an interpreter, the details
of violent and traumatic events.” Ibid.
9 Without the assistance of her counsel, Beatriz likely would have
been deported. She ultimately was not. Ibid.
23
For example, in the case of Fiorella, “the use of a
phone interpreter” during the credible fear interview
“made her feel uncomfortable and prevented her from
sharing important details.” The Perils of Expedited
Removal 20. As Fiorella explained:
I could not express myself fully because I kept
losing my train of thought because the officer
would cut me off so that the interpreter could
finish translating… I felt as though the asylum
officer was very dismissive of what I was telling
her and would not let me share my story and
the real reason why I am afraid to return to
Haiti.
Ibid. Legal service providers have reported “that
telephonic credible fear interviews are shorter, less
accurate, and more confusing than in-person
interviews.” Barriers to Protection 36.
D. Review by Immigration Judges Is Not an
Effective Check Against Erroneous
Credible Fear Determinations.
The government contends that the de novo review
of an immigration judge is a sufficient safeguard
against erroneous credible fear determinations. See
Pet. Br. 45-46. But asylum officers’ failure to elicit
relevant information results in a flawed record on
appeal, regardless of the standard of review. Some
immigration judges “see their role on review as
strictly appellate in nature, and will only consider
that which was submitted to the [asylum officer] or
referenced in the [asylum officer] referral.” Katharine
Ruhl & Christopher Strawn, Accessing Protection at
the Border: Pointers on Credible Fear and Reasonable
Fear Interviews, in 2015 AILA Immigration Practice
Pointers 741, 748 (2015), https://perma.cc/H25L-
24
AK2H. They refuse “to consider any information
outside ‘the four corners’ of the credible fear
interview.” Shattuck, 93 Wash. L. Rev. at 496 n.252
(quoting interview with asylum attorney). Because
the immigration judge often relies on the asylum
officer’s record, immigration judge review does not
remedy the asylum officer’s failure to elicit relevant
information.
Some immigration judges permit the noncitizen to
introduce additional testimony or evidence. But in
practice this has not proven to be a meaningful
safeguard. Some immigration judges conclude that
providing new details at the review hearing that were
not offered during the credible fear interview is
indicative of untruthfulness. “[I]n 25 percent . . . of
the cases in which the credible fear notes were cited
as a basis to find that the applicant lacked credibility,
the immigration judge specified that the applicant
was not credible because at the immigration hearing,
(s)he added detail to the claim originally expressed
during the credible fear interview.” U.S. Commission
on International Religious Freedom, Report on
Asylum Seekers in Expedited Removal, Vol. I, at 58
(2005), https://bit.ly/38qUIFz; see also Reflections
from the Border, Harvard Law Today, Nov. 2, 2018,
https://bit.ly/37167vc (“[T]he Judge essentially crossexamined my client over every tiny discrepancy or
omission in his Credible Fear Interview.”).
Furthermore, the role of attorneys is limited
during these immigration judge proceedings. At the
direction of the Attorney General, the Executive Office
for Immigration Review issued an Immigration Court
Practice Manual to provide guidance to parties
appearing before immigration judges.
Dep’t of
Justice, Exec. Office for Immigration Review,
25
Immigration Court Practice Manual (Sept. 26, 2019),
https://bit.ly/2NzL9Mr. According to the Practice
Manual, although an attorney may consult with the
asylum seeker before the proceeding, the attorney is
not permitted “to make opening statements, call and
question witnesses, conduct cross examinations,
object to evidence, or make closing arguments.” Id. at
116.
Finally, immigration judge review proceedings are
often extremely brief, sometimes taking as little as ten
minutes.
And usually those brief proceedings
comprise boilerplate advisals, findings, and
translation. Many of the hearings are conducted by
telephone or videoconference, additionally hindering
the noncitizen’s communication of his or her credible
fear for the same reasons discussed supra.
III.
BORDER OFFICIALS FAIL TO REFER
ASYLUM SEEKERS TO CREDIBLE FEAR
INTERVIEWS.
The credible fear interview is no safeguard at all
when asylum seekers are not referred to the credible
fear interview in the first place. Although border
officials are required to refer all noncitizens
expressing any fear of persecution or torture, 8
U.S.C. § 1225(b)(1)(A)(ii), border officials frequently
fail to do so.
The U.S. Commission on International Religious
Freedom (USCIRF) is an independent and bipartisan
U.S. government advisory body that is statutorily
authorized to study and advise the executive and
legislative branches on U.S. refugee and asylum
policy. See International Religious Freedom Act of
1998 (IRFA) § 201 (codified at 22 U.S.C. § 6431)
(establishing the USCIRF); IRFA § 605 (codified at 22
26
U.S.C. § 6474) (authorizing USCIRF to study
expedited removal proceedings).
Based on its
monitoring of expedited removal proceedings for
“more than a decade,” USCIRF concluded, “DHS
officials often fail to follow required procedures to
identify asylum-seekers and refer them for credible
fear determinations.” USCIRF, 2019 Annual Report
17, https://bit.ly/2uVVfAL.
Pursuant to the International Religious Freedom
Act of 1998, USCIRF conducted a study in 2005 on the
impact of expedited removal proceedings on asylum
seekers. IRFA § 605 (codified at 22 U.S.C. § 6474).
The study revealed systematic failures by border
officials to divert asylum seekers to formal removal
proceedings. Barriers to Protection 19 (“[I]n nearly 15
percent of the cases observed . . . asylum seekers who
expressed a fear of return were removed without
referral to a USCIS asylum officer for a credible fear
determination. Moreover, in nearly half of those
cases, the files indicated that the asylum seeker had
not expressed any fear.”); see also American
Immigration Council, Deportations in the Dark: Lack
of Process and Information in the Removal of Mexican
Migrants 2 (2017), https://bit.ly/2R50mau (“More than
half of the respondents surveyed (55.7 percent) were
not asked if they feared returning home.”); The
Expedited Removal Study, 15 Notre Dame J.L. Ethics
& Pub. Pol’y at 57-58 (documenting “cases . . . in which
persons who expressed a fear were not referred to a
credible fear interview”). Indeed, sometimes CBP
officers “improperly pressured asylum seekers to
retract their fear claims and withdraw their
applications for admission.” Barriers to Protection 19.
To date, these problems have not been addressed.
See, e.g., Letter from Harvard Immigration and
27
Refugee Clinical Program to Acting Secretary of
Homeland Security Kevin K. McAleenan re Request
for Comment on Designating Aliens for Expedited
Removal (Sept. 23, 2019), https://bit.ly/3afhz8t.
“[T]he unaddressed flaws in the system [have] placed
even more asylum-seekers at risk of erroneous
return.” USCIRF, 2019 Annual Report 17.
IV.
THE ASYLUM OFFICER ERRED IN
CONCLUDING
THAT
MR.
THURAISSIGIAM DID NOT HAVE A
CREDIBLE FEAR OF PERSECUTION.
Based on amici’s review of the record, the asylum
officer indisputably erred in concluding that Mr.
Thuraissigiam had not established a credible fear of
persecution based on a protected ground.
Mr. Thuraissigiam’s statements during his
credible fear interview satisfied the low screening
threshold
of
credible
fear
of
persecution.
Furthermore, the asylum officer failed to discharge
her legal obligation to elicit all relevant information.
If the asylum officer had assessed Mr.
Thuraissigiam’s claim in the context of conditions in
Sri Lanka and had asked him informed follow-up
questions, then the asylum officer should have
concluded that Mr. Thuraissigiam satisfied the
credible fear standard.
A. The Asylum Officer Erroneously
Concluded that Mr. Thuraissigiam
Failed to Satisfy the Low Credible Fear
Standard.
During his credible fear interview, Mr.
Thuraissigiam provided the asylum officer with
28
sufficient information to establish a credible fear of
persecution.
Tamils have been the target of persecution by the
Sri Lankan government for decades. See, e.g., Global
Legal Research Center, The Law Library of Congress,
Report for the U.S. Dep’t of Justice on Treatment of
Tamil Minority 1 (2012), https://bit.ly/2TvECGc
(discussing continued “arbitrary detention without
trial, abductions and disappearances, [and] killings”
for Tamils following conclusion of Sri Lanka’s civil
war).10 Accordingly, asylum law recognizes that
Tamils who are persecuted for Tamil-nationalist
political views satisfy the nexus requirement. See,
e.g., In re S-P-, 21 I. & N. Dec. 486, 496 (BIA 1996)
(Tamil asylum seeker satisfied the nexus requirement
because “it is reasonable to believe that those who
harmed [the Tamil person] were in part motivated by
an assumption that his political views were
antithetical to those of the Government”).
Mr. Thuraissigiam is Tamil. J.A. 67. During his
credible fear interview, Mr. Thuraissigiam explained
that men came to his farm, abducted him in their van,
and then beat him severely. See J.A. 70-74. He
consistently referred to his seizure as an “arrest,” see
J.A. 70-71, a term associated with seizure of people by
government officials. See Arrest, Webster’s New Third
International Dictionary (2020) (defining “arrest” as
10 To date, Tamil persons who have a real or perceived
connection, however minimal, with a Tamil nationalist group are
targeted for torture by the Sri Lankan government. See Int’l
Truth and Justice Project, Unstopped: 2016/17 Torture in Sri
Lanka 14 (2017), https://bit.ly/38ieVgw (documenting cases
where Tamils were detained or tortured due to political work for
a Tamil candidate, even where that work was as low level as
canvasing and passing out flyers).
29
“to take or keep in custody by authority of law”).
These facts are consistent with Sri Lankan country
conditions evidence that the Sri Lankan government
persecutes Tamils through abductions of ethnic
Tamils by plainclothes officers in white vans—a
practice so common that it is referred to simply as
“white van abductions.” See Freedom From Torture,
Tainted Peace: Torture in Sri Lanka since May 2009
28, 32 (2015), https://bit.ly/2Nwtipo.
Mr.
Thuraissigiam’s testimony alone, which was found to
be credible, should have been sufficient for the asylum
officer to find that Mr. Thuraissigiam satisfied the low
credible fear standard.
Instead, in concluding that the nexus requirement
was not satisfied, the asylum officer relied on the fact
that Mr. Thuraissigiam did not identify his attackers.
See J.A. 87. But Mr. Thuraissigiam was asked
whether he knew the identity and “name(s)” of the
individuals who arrested him, J.A. 71—not generally
whether there was a connection between his
abductors and Sri Lankan government officials.
These kinds of misunderstandings, as discussed
above, are common among asylum seekers during a
credible fear interview.
B. Mr. Thuraissigiam’s Asylum Officer Failed
to Elicit Mr. Thuraissigiam’s Credible
Fear.
Had the asylum officer who interviewed Mr.
Thuraissigiam considered his asylum claim in the
context of Sri Lankan country conditions and probed
for additional information, the asylum officer should
have concluded that Mr. Thuraissigiam had a credible
fear of persecution.
30
The asylum officer failed to ask Mr. Thuraissigiam
follow-up questions relating to whether he had any
previous political activity, even though Mr.
Thuraissigiam was Tamil, a minority group whose
members have been persecuted for nationalist
political beliefs. The asylum officer also failed to ask
key questions regarding the factual circumstances of
Mr. Thuraissigiam’s abduction, even though he had
stated that he had been kidnapped in a van. See J.A.
70-74. Mr. Thuraissigiam repeatedly stated that he
had been “arrested,” but the asylum officer failed to
ask him whether his “arrest” had any connection to
the state authorities. J.A. 70-71. Mr. Thuraissigiam
testified that he could not go to the Sri Lankan police
because “the problems will be more,” and that he was
“fearful of returning to Sri Lanka,” J.A. 72, 75, 80, but
the asylum officer failed to ask any follow-up
questions regarding Mr. Thuraissigiam’s fear of the
Sri Lankan police.
The asylum officer failed to elicit all relevant facts
by failing to ask these follow-up questions. Had the
asylum officer elicited the fact of Mr. Thuraissigiam’s
political work and the circumstances of his abduction
and “arrest,” the asylum officer should have learned,
among other things, that Mr. Thuraissigiam had a
history of supporting and arranging public meetings
for M.K. Shivajilingam, a local politician belonging to
the Tamil National Alliance, a Tamil-affiliated
political group. J.A. 23 ¶¶ 37, 40 (habeas petition).
The asylum officer also failed to consider Mr.
Thuraissigiam’s responses in the context of country
conditions evidence, which should have made
manifest
that
the
circumstances
of
Mr.
Thuraissigiam’s abduction were consistent with the
“white van abductions” used in the persecution of
31
Tamils. J.A. 23 ¶ 42 (habeas petition). That information should have easily passed the “low screening
standard” in establishing Mr. Thuraissigiam’s
credible fear of persecution or torture.
The immigration judge’s review did not provide a
meaningful safeguard against the asylum officer’s
mistakes. The immigration judge likewise failed to
consider Mr. Thuraissigiam’s credible testimony of
fear in the context of country conditions evidence on
Tamils in Sri Lanka. J.A. 29 ¶ 58 (habeas petition).
Because the asylum officer and immigration judge
did not correctly apply the low screening standard for
credible fear, Mr. Thuraissigiam was erroneously
removed during the expedited removal proceedings.11
* * * * *
If properly applied, expedited removal proceedings
should screen bona fide asylum claims into the full
asylum process. But expedited removal proceedings
have systematically failed to provide a robust process.
The unfortunate reality is that the expedited removal
process results in the erroneous removal of refugees
fleeing persecution or torture.
The erroneous
determination that Mr. Thuraissigiam lacked credible
fear is just one example, of which there are many, of
11 The consequence of an erroneous removal decision for a Tamil
asylum seeker like Mr. Thuraissigiam is serious. Tamil persons
who fail to secure asylum are particularly at risk of arrest, sexual
assault, and torture upon their return to Sri Lanka. See
Gaksakuman v. United States Attorney Gen., 767 F.3d 1164, 1170
(11th Cir. 2014); Immigration & Refugee Board of Canada, Sri
Lanka: Treatment of Tamil returnees to Sri Lanka, including
failed refugee applicants (2013), https://bit.ly/36aocps.
32
the systematic failures of the expedited removal
process.12
In practice, the expedited removal system fails to
provide its intended protective net for bona fide
asylum seekers. Instead, bona fide asylum seekers
are summarily returned to the circumstances of
persecution and torture from which they are fleeing,
in contravention of the United States’ obligations
under domestic and international law. Without
meaningful judicial review of their expedited removal
orders, Mr. Thuraissigiam and other asylum seekers
who were erroneously removed under expedited
removal proceedings cannot seek protection.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
12 The risk of erroneous removals is further heightened by recent
regulations restricting asylum to persons presenting themselves
at ports of entry only. See 83 Fed. Reg. 55,934 (Nov. 9, 2018).
These “ports of entry” restrictions ignore the legal requirement
that persons are eligible for asylum regardless of their manner
of entry. See 8 U.S.C. § 1158(a)(1). They also ignore the reality
that asylum seekers, who are fleeing persecution or torture, are
often not able to present themselves at a port of entry.
33
Respectfully submitted.
ROY T. ENGLERT, JR.
Counsel of Record
WENDY LIU
ROBBINS, RUSSELL, ENGLERT,
ORSECK, UNTEREINER &
SAUBER LLP
2000 K Street, NW, 4th Fl.
Washington, DC 20006
(202) 775-4500
renglert@robbinsrussell.com
Counsel for Amici Curiae
Asylum Law Professors
JANUARY 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.