Amicus Curiae Brief — Gomis v. Holder (No. 09-194)

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VoPEME Cousi,

FILED

(Z) SEP 1 4 2009

No. 09-194 OFFICE OF THE CLERK

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Ven,

IN THE

Supreme Court of the United States

FRANCOISE ANATE GOMIS,

Petitioner,

Vv.

ERIC H. HOLDER, JR.,

United States Attorney General,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

Corrected BRIEF OF HUMAN RIGHTS FIRST, THE

CENTER FOR GENDER AND REFUGEE STUDIES &

THE HARVARD IMMIGRATION AND REFUGEE

CLINICAL PROGRAM ET AL., AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Alice Clapman Steven Schulman

Center for Applied Legal Counsel of Record

Studies* AKIN GUMP STRAUSS

Georgetown University Law HAUER & FELD LLP

Center 1333 New Hampshire Ave.,

600 New Jersey Ave., NW, NW

Suite 332 Washington, DC 20036

Washington, DC 20001 (202) 887-4000

(202) 662-9751

September 14, 2009

*Title listed for identification purposes

a ee

WILSON-EPES PRINTING CO., INC. — (202)789-0096 -— WASHINGTON, D.C. 20002

TABLE OF CONTENTS

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I. THE CONGRESS THAT ENACTED THE ONE-

I].

YEAR DEADLINE FOR FILING ASYLUM

APPLICATIONS BUILT EXCEPTIONS INTO

THE DEADLINE BECAUSE CONGRESS

UNDERSTOOD THAT MANY BONA FIDE

REFUGEES FACE SPECIAL

CIRCUMSTANCES PREVENTING THEM

FROM APPLYING WITHIN A YEAR OF

ENTERING THE UNITED STATES. .................. 5

A. MANY REFUGEES ARE PREVENTED FROM

FILING FOR ASYLUM WITHIN A YEAR OF

ENTERING THE UNITED STATEG. ............. 6

B. RECOGNIZING THIS REALITY, CONGRESS

DESIGNED TWO EXCEPTIONS—FOR

EXTRAORDINARY CIRCUMSTANCES AND

FOR CHANGED CIRCUMSTANCES—THAT

WERE INTENDED TO BE BROAD AND TO

ENSURE CONTINUED ACCESS TO

PP TR bceoredccrtecnat nee 9

IN PRACTICE, MANY AGENCY

ADJUDICATORS HAVE NARROWED THE

STATUTORY EXCEPTIONS TO SUCH A

DEGREE THAT THEY DO NOT

ADEQUATELY PROTECT REFUGEES ........... 13

A. OVERLY NARROW CONSTRUCTION OF

“CHANGED CIRCUMSTANCES?’ ................ 13

B. IMPROPER ANALYSIS OF POST

TRAUMATIC STRESS DISORDER CASES. 17

ED vnerveneveserseesseasssonrssecesenessssnens 22

Ill. JUDICIAL OVERSIGHT IS NECESSARY TO

RESTORE THE STATUTORY EXCEPTIONS

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a airierdatsderesectvesscsvesasentesssveessesenessese 25

APPENDIX

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ill

TABLE OF AUTHORITIES

Cases

Benslimane v. Gonzales,

430 F.SOG GZS CTE Cir. ZOOS) ..cccccccseccscscseseceses 24, 25

Cao He Lin v. U.S. Dept. of Justice,

BIG FB FOU Ce Cae. BOB) ovcciccdcvccvesscssesccvsccnoveres 24

Fakhry v. Mukasey,

S24 F.36 TOGT (OE Cir, ZOO) ...cssecessiscpecsssssodevonns 15

Gebreeyesus v. Gonzales,

GED Fe Doe CEUs Ce, GD ons svscnceisdscosinesvessscsess 24

I.N.S. v. Cardoza-Fonseca,

rs Ge Fi caine iis apn ntcerateneicadedlnsaina 2, 24

Kanivets v. Riley, 320 F. Supp. 2d 297 (E.D. Pa.

2004) appeal dismissed as moot on other

grounds sub nom. Kanivets v. Gonzales, 424

Fe ee RE Sei, ET fanvn rs cotecunnrtessorarsasantassviaesees 17

Liv. U.S. Atty. Gen.,

4G6- FSG TST CE ER CAr, BOOZ) vivcccvissicssccrccsccsvesens 24

Negusic¢ v. Holder

Bee Sh Gi Be CID siiniiiveaecisaveskcnconmatnndedsesonans 24

Pet. for Writ of Certioran, Viracacha, 129 S. Ct.

OE CNG rr ioc vce veetsitserttcciick eee 15

Poradisova v. Gonzales,

OD Fe Fr Te Gy onc vnvcecceesvvkesecvceosncsesocvence 24

Shardar v. Attorney General of U.S.,

GS ©. DO Oe GAT, BOOT ) oc cceccevoscscncesscccseescsessees 24

Sukwanputra v. Gonzales,

Be Fe CE IE, BO) cn isiccesccsccccescsccveassonstens 17

Viracacha v. Mukasey,

518 F.3d 511 (7th Cir. 2008),

cert. denied, 129 S.Ct. 451 (2008) .................. 14, 15

Statutes

Dae es FO EE hive teen sciastnadspn cen eelenmons 2

ea 5 SN MRI iss vn ssnnessieiederindierouniasneaane 10, 15

UTA FAS b sssssecntaseveccivens - skehe rsh aaa ieee aes 4

eas Se icrkecrnssecsannisccutnietets eens 4

UF TD Ti se ese cenndescshsccndscrceutsoceapsuconsnepernom

International Agreements

U. N. Convention Relating to the Status of

Refugees, July 28, 1951, 19 U.S.T. 6259,

I I os ca sons sasccecaciadvecsvaseeverstevaetens 2, 23

U.N. Protocol Relating to the Status of

Refugees, Jan. 31, 1967, 19 U.S.T. 6223,

re i I ov co sae scnccckav ca dos divnannsatieenas conse 2,23

UNHCR Executive Committee, Conclusion No.

15 (XXX), Refugees Without an Asylum

NN WN ccs csvhsnscenoinaicesedisepiacaeanniaaatsanvaianed 23

Regulations

Ae cite Fe sei sviresesesccaninievenetenennecneres 16

Ae Bee B Be AO), CRD) ccccesscersonsssronciesareverereress 12

re I Dinka dsnevessensiecvvasaxchesmniveessanune 18

Oe BE ocacircitin ss dns:cducshangscuseasineesnaniaboeiesacenanen 4

Rules and Procedures for Adjudication of

Applications for Asyium or Withholding of

Deportation and for Employment Authorization,

59 Fed. Reg. 62,284 (Dec. 5, 1994)...............c0cces00 5

Legislative History

142 Cong. Rec. S11491 (daily ed. Sept. 27,

I cis vasucsuokeen we ccueasdeian ieee ae eeaeiceieneas 10, 16, 18

142 Cong. Rec. $11839-40 (daily ed. Sept. 30,

142 Cong. Rec. S3282 (daily ed. Apr. 15, 1996)........ 9

142 Cong. Rec. $4468 (daily ed. May 1, 1996)........ 5,6

Legislative Materials

Homeland Security Act, Pub. L. No. 107-296 §

OE hg ER UG, BE COED ciivsicecrcncssvssvceserncsoescses 12

Refugee Act of 1980, Pub. L. (1980) ..................... 2,8

Other Authorities

Adam Liptak, Courts Criticize Judges' Handling

Of Asylum Cases, N.Y. Times, Dec. 26, 2005 ..... 25

Department of Justice, Measures to Improve the

Immigration Courts and the Board of

Immigration Appeals (2001), available at

http://trac.syr.edu/immigration/reports/194/inc

lude/Gonzales22ImprovementMeasures.pdf...... 25

Diagnostic Manual, American Psychiatric

Association, 309.81 Posttraumatic Stress

RE TS eee ees rere em 18, 19

Immigration Courts: Still A Troubled Institution,

available at

http://trac.syr.edu/immigration/reports/210/...... 25

Karen Musalo & Marcelle Rice, Center for Gender

& Refugee Studies: The Implementation of the

One-Year Bar to Asylum, 31 Hastings Int'l &

Comp. L. Rev. 693, 716-17 (2008)................ passim

Lawyers Committees for Human Rights (now

Human Rights First), Refugee Woman at Risk

(2002), available at

http://www.humanrightsfirst.org/refugees/re po

vil

Leena Khandwala et al., The One-Year Bar:

Denying Protection to Bona Fide Refugees,

Contrary to Congressional Intent and Violative

of International Law, Immigration Briefings,

Si AINE 9 sncei/coaLaclicu aden aueuaswecentaaeesanvasscrmesananoee te 8

Michele R. Pistone, Asylum Filing Deadlines:

Unfair and Unnecessary, 10 Geo. Immigr. L.J.

SRI ah is cdbinacomscucsietiadanddenicermbasatvanieaiaraubataandeuans 8, 23

Michele R. Pistone & Philip G. Schrag, The New

Asylum Rule: Improved But Still '/nfair, 16

ROO, RUG, Eisele CUD sc cscscesriscnsessevasasescenssnses 7,8

Philip G. Schrag, A Well Founded Fear: The

Congressional Battle to Save Political Asylum

Sa IE RIED sins cesssnushcssesocdecssipiecssstatvaceatedsecens 5

Posttraumatic Stress Disorder Patient Page, 286

EN SIE tient pivicocandsdcatnonssctccsmnonieneonentassaats 18,19

Stuart L. Lustig, Symptoms Of Trauma Among

Political Asylum Applicants: Don't Be Fooled,

31 Hastings Int'l & Comp. L. Rev.

GUT Indanvtcndsacaceritiavegereioattusiasaneicssecbinbinceesadiens 7,29

IN THE

Supreme Court of the Hnited States

FRANCOISE ANATE GOMIS,

Petitioner,

Vv.

ERIC H. HOLDER, JR.,

United States Attorney General,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE

INTEREST OF THE AMICI’

Amici are human rights organizations, legal

services organizations, mental health service

providers, immigration clinical programs, and law

school professors, all of whom advocate for or work

with refugees or are experts in asylum law and policy

in their professional capacities. See App., infra.

Amici are filing this brief in support of the petitioner

to bring to the Court’s attention the impact the one-

year asylum filing deadline can have on bona fide

asylum applicants.

No counsel for a party authored 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.

The parties have consented to the filing of this brief.

INTRODUCTION

The United States has a strong tradition of

welcoming the persecuted. In the wake of World War

II, this country played a leading role in building an

international refugee protection regime to ensure

that the world’s nations would never again refuse to

extend shelter to refugees fleeing persecution and

harm. It has committed to the central guarantees of

the 1951 Refugee Convention and its 1967 Protocol,

and passed the Refugee Act of 1980 in order to bring

domestic laws into compliance with the Refugee

Convention and Protocol by incorporating the

Convention’s definition of a “refugee” and the

protections that flow from this status.”

At stake in this case is the continued availability

of asylum to a significant number of refugees who are

erroneously being subjected to the recently-enacted

one-year bar when they should qualify for an

exception. Unless this Court overturns the decision

2 See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432-41

(1987) (recounting legislative history), Under United States

law, a “refugee” is, in relevant part, a person who is outside his

or her country of nationality or habitual residence and “is

unable or unwiiling 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.” 8 U.S.C. § 1101(a42). The

statutory definition was adapted from the 1951 United Nations

Convention Relating to the Status of Refugees, to which the

United States became a party in 1968 by signing the 1967

Protocol. 1951 United Nations Convention Relating to the

Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S

150; 1967 United Nations Protocol Relating to the Status of

Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267

below, Francoise Anate Gomis will be returned to a

country where she is acknowledged to be in danger of

being subjected to female genital mutilation (FGM);

she will be returned because an Immigration Judge

decided that she could not be excused for filing out of

time even though she presented new facts that

heightened the risk that she would be mutilated (and

therefore significantly strengthened her eligibility for

asylum).

Amici will not repeat Petitioner’s central

argument that 8 U.S.C. § 1252(a)(2)(D) confers

jurisdiction to review agency applications of the one-

year asylum deadline to undisputed facts. Instead,

amici explain from their own experience why judicial

review of one-year deadline determinations is

necessary—to ensure that refugees are _ not

improperly denied asylum or deported back to

countries where they face political, religious and

other forms of persecution. When Congress enacted

the one-year asylum deadline in 1996, it did so

because it perceived that some non-refugees placed in

removal proceedings were abusing the system by

applying for asylum as a delaying tactic. To preserve

asylum for the many bona fide refugees with good

reason for failing to apply within a year of entry,

Congress provided two broad exceptions to the

deadline: one for extraordinary circumstances and

one for changed circumstances.

Congress intended these two exceptions to be

applied broadly so as to protect legitimate refugees.

Unfortunately, in the years since the deadline was

enacted, a number of Immigration Judges (lJs) and

Board of Immigration Appeals (BIA) members have

drastically narrowed the exceptions, with disastrous

consequences for refugees. As the one-year deadline

is now being applied, refugees such as Ms. Gomis are

routinely being returned to countries where they are

in danger of persecution. Others, if they happen to

meet the significantly heightened standard for

withholding of removal, are being afforded only the

limited right not to be returned to the country where

they would face persecution; they are not protected

from removal to other countries or allowed to become

permanent residents, and most importantly they can

never reunite with their families by bringing them to

safety in the United States.*° Without judicial review,

these refugees have no hope of obtaining the

protection of the asylum law as written.

Amici hope that their description of the actual

situation at the agency level—and the contrast

between this current situation and Congress's

original intent—will provide further impetus for this

Court to consider Ms. Gomis’s jurisdictional

arguments.

* Compare 8 U.S.C. § 1159(b) (affording asylees the

opportunity to apply for permanent resident status) and 8

C.F.R. § 1208.21 (providing derivative benefits for the spouse

and children under 21 of asylees), with 8 U.S.C. § 1231(b)(3)

(offering sole protection for withholding grantees: the mght not

to be returned to a country where that person’s “life or freedom

would be threatened” on account of a protected ground)

ARGUMENT

I. THE CONGRESS THAT ENACTED THE

ONE-YEAR DEADLINE FOR FILING

ASYLUM APPLICATIONS BUILT

EXCEPTIONS INTO THE DEADLINE

BECAUSE CONGRESS UNDERSTOOD

THAT MANY BONA FIDE REFUGEES FACE

SPECIAL CIRCUMSTANCES PREVENTING

THEM FROM APPLYING WITHIN A YEAR

OF ENTERING THE UNITED STATES.

Congress enacted the one-year deadline in 1996

because it perceived that some migrants without

genuine and viable claims to protection were abusing

the asylum process by applying defensively as a

means of delaying their removal.‘

As Congress considered how to deter baseless

claims, however, it also recognized that there are a

number of reasons why some bona fide refugees

might be prevented from applying for asylum

immediately after entering the country. Members

made clear that they did not want to shut these

* See 142 Cong. Rec. 84468 (daily ed. May 1, 1996)

(Former Senator Alan K. Simpson (R-WY), one of the sponsors of

the deadline, explaining “We are not after the person from Iraq,

or the Kurd, or those people. We are after the people gimmicking

the system”). See also Philip G. Schrag, A Well Founded Fear:

The Congressional Battle to Save Political Asylum in America

47-48 (2000) (describing origins of deadline). The former

Immigration and Naturalization Services also launched a set of

major reforms to eliminate a substantial backlog that had

allowed many asylum cases to languish for years. See Rules and

Procedures for Adjudication of Applications for Asylum or

Withholding of Deportation and for Employment Authorization,

59 Fed. Reg. 62,284 (Dec. 5, 1994).

refugees out from the relief of asylum.° To prevent

such an injustice, Congress devised two broad

exceptions to the deadline: for extraordinary

circumstances and for changed circumstances.

A. Many refugees are prevented from filing

for asylum within a year of entering the

United States.

For a number of reasons, many bona fide refugees

find themselves unable to apply for asylum

immediately after entering the United States. To

apply for asylum, a refugee who has suffered must be

able psychologically to relive past trauma—by

describing and discussing it over and over again, in

writing and in person, with a representative, with

potential witnesses or other sources of corroboration,

and with an asylum officer and/or judge. She may

have to find someone to help her present her facts,

often a lawyer. She also must learn about the law

and rules, procedural and substantive. She must be

able to fill out a complex, 10-page English-language

application form. She has to track down colleagues,

co-workers or other contacts in her home country, as

well as supporting documents, to satisfy a demanding

standard of corroboration. She must translate all her

evidence into English. She needs to juggle all this

work involved in the asylum process with finding a

home, coping with physical and/or psychological

wounds, finding means of support (usually without

permission to work), caring for her family, and

learning the language and customs of a new country.°

And she must judge whether the danger she faces is

sufficient to support an asylum claim (a particular

challenge where the situation at home is volatile).

In light of these demands, it understandably

takes some length of time, sometimes more than a

year, for bona fide refugees to file their application.

Those who have been subjected to past persecution

and/or torture often bear severe psychological wounds

that diminish their ability to face their past or plan

for the future; they may only be able to do so with the

distance of time and/or with long-term improvements

from mental health treatment.’ Those who were

subjected to sexual abuse or other forms of

degradation in their home countries may be

struggling to overcome their shame and/or difficulty

describing such incidents, whether personal, social or

cultural.® Refugees from countries in which the

government monitors the mails and wires may delay

gathering corroboration from relatives in _ their

® See Michele R. Pistone & Philip G. Schrag, The New

Asylum Rule: Improved But Still Unfair, 16 Geo. Immigr. L.J. 1,

8-9 (2001); see also Lawyers Committee for Human Rights (now

Human Rights First), Refugee Women at Risk 15-16 (2002),

available at http://www.humanrightsiirst.org/refugees/reports/

refugee_women.pdf (detailing some of the particular challenges

faced by women refugees as a result of the asylum filing

deadline).

See Stuart L. Lustig, Symptoms Of Trauma Among

Political Asylum Applicants: Don't Be Fooled, 31 Hastings Int'l]

& Comp. L. Rev. 725, 729 (2008) (explaining that, among PTSD

patients, “[jJ]ust recounting the story is enough to trigger

uncontrollable tears, panic attacks, or flashbacks of the event”).

8 See Karen Musalo & Marcelle Rice, Center for Gender &

Refugee Studies: The Implementation of the One-Year Bar to

Asylum, 31 Hastings Int'l & Comp. L. Rev. 698, 716-17 (2008).

country of origin out of the reasonable fear that such

contacts could place their relatives in danger of

persecution. Others may be overwhelmed with

providing food and shelter for their families or caring

for sick family members (or coping with their own

sicknesses or injuries). Still others hope that the

situation at home _ will improve while’ they

temporarily reside in the United States, only to find

that the situation persists or even worsens over an

extended period of time. And some may run afoul of

the deadline while trying to obtain legal assistance or

documentary corroboration.°

A refugee has little or no control over these kinds

of situations. Moreover, these circumstances do not

in any way undermine the substantive validity of an

individual’s asylum claim. To the contrary, some of

them are the direct effects of past persecution and

therefore affect those most deserving of protection

under the U.S. Refugee Act. It is not surprising,

then, that in the years before the one-year deadline

was enacted, fewer than half of the successful asylum

applicants represented by pro bono attorneys working

with Human Rights First (then the Lawyers

Committee for Human Rights) had applied within

their first year in the United States."®

° See id., at 715-16; Leena Khandwala et al., The One-

Year Bar: Denying Protection to Bona Fide Refugees, Contrary to

Congressional Intent and Violative of International Law,

Immigration Briefings, Aug. 2005, at 4; Michele R. Pistone,

Asylum Filing Deadlines: Unfair and Unnecessary, 10 Geo.

Immigr. L.J. 95, 100-101 (1996).

10 See Pistone & Schrag, supra note 5, at 9.

B. Recognizingg this reality, Congress

designed two exceptions—for extraordinary

circumstances and for changed

circumstances—that were intenaed to be

broad and to ensure continued access to

asylum.

Congress recognized the reality described above.

As Senator Edward Kennedy (D-MA) explained in his

speech supporting the amendment to extend a

proposed 30-day deadline to one year,

The bottom line is that the cases where

there appears to be the greatest validity of

the persecution claims—the ones involving

individuals whose lives would be endangered

by a forced return to their particular

countries—are often the most reluctant to

come forward. They are individuals who have

been, in the most instances, severely

persecuted. They have been brutalized by

their own governments. They have an

inherent reluctance to come forward and to

review their own stories before authority

figures. Many of them are so traumatized by

the kinds of persecution and torture that thev

have undergone, they are _ psychologically

unprepared to be able to do it. It takes a great

deal of time for them to develop any kind of

confidence in any kind of legal or judicial

system, after what they have been through,

and to muster the courage to come forward."'

'' 142 Cong. Rec. S3282 (daily ed. Apr. 15, 1996)

{statement of Sen. Kennedy).

For similar reasons, Senator Orrin Hatch (R-UT),

who strongly advocated the one-year deadline,

nonetheless acknowledged that “adequate

protections” were necessary’? and stressed that he

was “committed to ensuring that those with

legitimate claims of asylum are not returned to

persecution, particularly for technical deficiencies.”””

To reduce the risk that the one-year bar weuid

lead to the denial of asylum to refugees, Congress

included two independent exceptions: 1) “changed

circumstances which materially affect the applicant's

eligibility for asylum”; and 2) “extraordinary

circumstances relating to the delay in filing an

application within the [prescribed] period.”"* Two

Senators instrumental in the passage of the one-year

deadline, ‘enators Hatch (who was one of the

conferees) and former Senator Spencer Abraham (R-

MI), engaged in a colloquy in which they repeatedly

described these exceptions as “important” and

endorsed a broad construction of them:

Mr. ABRAHAM.

Would you say that the intent in the

changed circumstances exception is to cover a

broad range of circumstances that may have

changed and that affect the applicant's ability

to obtain asylum?

Mr. HATCH.

%* 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996)

(statement of Sen. Hatch).

13 142 Cong. Rec. S11840 (daily ed. Sept. 30, 1996) (pre-

vote colloquy between Sen. Abraham and Sen. Hatch).

* 8U.S.C. § 1158(a)(2XD).

Yes. That exception is intended to deal

with circumstances that changed after the

applicant entered the United States and that

are relevant to the applicant's eligibility for

asylum. The changed circumstances provision

will deal with situations like those in which

the situation in the alien's home country may

have changed, the applicant obtains more

information about likely retribution he or she

might face if the applicant returned home,

and other situations that we in Congress may

not be able to anticipate at this time.

As to the extraordinary circumstances exception,

Senator Hatch explained:

[T]he extraordinary circumstances

exception applies to reasons that are, quite

literally, out of the ordinary and that explain

the alien's inability to meet the 1-year

deadline. Extraordinary circumstances

excusing the delay could include, for instance,

physical or mental disability, unsuccessful

efforts to seek asylum that failed due to

technical defects or errors for which the alien

was not responsible, and other extenuating

circumstances.”®

Shortly after the one-year deadline was

enacted, the then-Immigration and Naturalization

'S 142 Cong. Rec. S11839-40 (daily ed. Sept. 30, 1996) (pre-

vote colloquy between Sen. Abraham and Sen. Hatch).

wa 3

Services (INS) ' promulgated implementing

regulations. According to the regulations, “changed

circumstances” “may include, but are not limited to. .

(c}hanges in conditions in the applicant's country of

nationality,” as well as “[c]hanges in the applicant's

circumstances that materially affect the applicant's

eligibility for asylum, including changes in applicable

U.S. law and activities the applicant becomes

involved in outside the country of feared persecution

that place the applicant at risk.” “Extraordinary

circumstances” “may include but are not limited to..

[slerious illness or mental or physical disability,

including any effects of persecution or violent harm

suffered in the past, during the l-year period after

arrival,” “liJneffective- assistance of counsel,” and the

rejection of a timely application for technical

defects.'®

The “changed circumstances” and

“extraordinary circumstances” exceptions to the one-

year deadline, as drafted by Congress and

implemented by the INS, were the lynchpins to

balance enforcement objectives with fairness. They

were intended to allow the government to deter

baseless applications while protecting genuine

refugees in situations that justified their failure to

file within a year of arrival. Unfortunately, agency

practice has upset this balance, favoring enforcement

with little consideration of fairness.

7 Pursuant to the Homeland Security Act of 2002, the

former INS was abolished and its functions transferred to

several different agencies within the Department of Homeland

Security. Pub. L. No. 107-296, § 471, 116 Stat. 2135 (2002).

'’ 8C.F.R. § 208.4(a)(4), (a)(5).

II. IN PRACTICE, MANY AGENCY

ADJUDICATORS HAVE NARROWED THE

STATUTORY EXCEPTIONS TO SUCH A

DEGREE THAT THEY DO NOT

ADEQUATELY PROTECT REFUGEES

Despite the clear evidence that Congress

intended for the deadline exceptions to be applied

broadly and the expansive language of the agency

regulations, many JJs and BIA members have applied

the exceptions so narrowly that they no longer protect

the refugees Congress intended to safeguard.

Since the deadline was enacted, tens of

thousands of applications have been rejected as

untimely. '® Thus a statutory measure originally

meant to discourage fraud at the margins has come to

be applied in such a way that it is now one of the

principal grounds on which asylum is denied. Many

amici, as practitioners, have encountered legal errors

in how IJs, and the BIA in its cursory review, apply

the statutory exceptions. The following sections will

discuss several of these in turn.

A. Overly narrow construction of “changed

circumstances”

The first type of error concerns the “changed

circumstances” exception, and the degree or type of

change that it requires. Contrary to the statute, the

legislative history and the regulations, adjudicators

have excluded applicants such as Ms. Gomis from

19 See Musalo & Rice, supra note 7, at 698-99. (citing

statistics from the asylum office), EOIR does not provide

statistics concerning application of the one-year deadline.

this exception solely because the new evidence they

presented went to a fear they already had when they

had entered the United States. In Ms. Gomis’ case,

the IJ reasoned that the fact that Ms. Gomis’ sister

had recently been subjected to FGM could not

constitute “changed circumstances” because it

“simply confirms the preexistent risk of persecution

she claims she had when she arrived here in the

United States.” *° The BIA, by single-member

affirmance, summarized the IJ as having found no

“changed circumstances” because the risk of FGM

was “the entire reason the respondent claims to have

left Senegal in 2001.”*’ In other words, in the IJ’s

view, because Ms. Gomis fled Senegal out of fear of

FGM, no new evidence indicating a heightened

danger of FGM, no matter how compelling, could

possibly be a changed circumstance material to her

eligibility for asylum.

Similarly, in the case of Viracacha ov.

Mukasey,” the IJ had held that an applicant who

feared persecution by the Revolutionary Armed

Forces of Columbia (FARC) could not establish

changed circumstances justifying late filing because

the changes he cited—i.e., the breakdown of the peace

process between the FARC and the Columbian

government and the resumption of civil war—had not

“changed the circumstances in such a way as to cause

a new situation to exist, one that hadn’t existed

during the period in which the respondent was

“0 Pet. App. 44a.

Pet. App. 30a.

*¢ 518 F.3d 511 (7th Cir. 2008), cert. denied, 129 S.Ct. 451

(2008).

obligated to file.””’ In the IJ’s mind, there was simply

no material difference between a potential claim

during a period of uneasy peace and an actual claim

brought during an active civil war. The Court of

Appeals for the Seventh Circuit found that it lacked

jurisdiction to review such an error.”

In Fakhry v. Mukasey,” in which the IJ again

denied asylum based on the same reasoning, the

Court of Appeals for the Ninth Circuit held that such

analysis was incorrect. Specifically, the court

explained that the IJ’s focus on the applicant’s

original motivation for fleeing his country overlooked

that asylum eligibility is based on two elements:

subjective fear and an objective basis for that fear.

Because worsened conditions can increase the

applicant’s subjective fear as well as augment the

objective basis for that fear, they fit the statutory

standard of “materially affectling] the applicant’s

eligibility for asylum.””° The court added that the IJ’s

rule would have the perverse effect of penalizing

individuals who, not wanting to file a frivolous

asylum application, waited to file until conditions in

their country clearly supported an application.”’

Yet another reason why the IJs’ logic fails in

these cases is that the regulations themselves extend

the “changed circumstances” exception to changes in

United States Jaw “that materially affect the

23 Petition for Writ of Certiorari, Viracacha, 129 S.Ct. 451

(No. 07-1363), available at 2008 WL 1906208 (quoting the IJ

decision).

* Viracacha, 518 F.3d at 516.

#5 524 F.3d 1057 (9th Cir. 2008).

7° 8U.S.C. § 1158(a)(2)(D); Fakhry, 524 F.3d at 1063.

“7 Fakhry, 524 F.3d at 1063-64.

applicant's eligibility for asylum,” thereby making

clear that the key issue is not whether the applicant

has a new reason to fear persecution but rather

whether the grounds of his eligibility have changed.”®

The restrictive IJ construction also contravenes

legislative intent. In pre-vote floor remarks and

colloguy, Senator Hatch assured his colleagues that

the changed circumstances provision would “deal

with,” inter alia, situations “in which an alien’s home

government may have stepped up its persecution” or

where an “applicant may have become aware through

reports from home or the news media just how

dangerous it would be for the alien to return home.””

Senator Hatch’s language squarely contradicts the

view of “changed circumstances” as requiring the

existence of a new and different basis for the asylum

claim, or some wholly new form of danger.

Under the current circuit split on the

jurisdictional question, applicants in the Ninth

Circuit can seek relief from this serious and outcome-

determinative (indeed, in many cases, life-and-death)

error, while applicants elsewhere such as Ms. Gomis

and Mr. Viracacha generally cannot. Amici are

aware of many other cases in which refugees were

denied relief based on the same error; for example, a

Russian woman was granted withholding based on

her homosexual orientation but barred from asylum

for late filing even though she filed shortly after

learning that her same-sex partner had been raped

and beaten to the point of mental incapacitation,””

7 8C.F.R. § 208.4(a)(4)(i)(B).

2° 142 Cong. Rec. $11491 (daily ed. Sept. 27, 1996)

(statement of Sen. Hatch) (emphasis added).

3° Musalo & Rice, supra note 7, at 701.

and a Kyrgyzstani applicant fearing religious

persecution was barred from asylum even though he

decided to apply shortly after receiving a visit from

his mother and learning from her that anti-Semitism

was worsening in Kyrgyzstan.*'

As set forth above, it is evident from the

legislative history that Congress never intended for

IJs to be applying the bar in such a tortured way.

What Congress intended was to allow refugees to file

out-of-time if the conditions worsened in their

country of origin or if their own situation changed in

such a way as to put them at greater risk (and

therefore more likely to be found eligible for

asylum)—regardless of whether the “essential

nature” of the risk was the same or new. Judicial

oversight is necessary to restore this exception to its

intended scope.

B. Improper Analysis of Post Traumatic

Stress Disorder Cases

Many IJs also err in how they consider post-

traumatic mental disorders under the “extraordinary

circumstances” exception. The legislative history

shows that delays due to mental disorders were

foremost among the circumstances that Congress

intended to cover through the “extraordinary

‘3! Kanivets v. Riley, 320 F. Supp. 2d 297 (E.D. Pa. 2004),

appeal dismissed as moot on other grounds sub nom. Kanivets v.

Gonzales, 424 F.3d 330 (38d Cir. 2005). The Third Circuit

generally has held that courts lack jurisdiction to review one-

year deadline determinations. Sukwanputra v. Gonzales, 434

F.3d 627, 635 (3d Cir. 2006).

circumstances” exception to the one-year deadline.”

At the time the provision was enacted, the

Immigration and Naturalization Services recognized

this fact by drafting a regulatory provision requiring

adjudicators to consider “mental disability,”

particularly “any effects of persecution or violent

harm suffered in the past.”* Nonetheless, many

applicants are barred from asylum because their IJs

conclude—against the consensus of the medical

establishment—that anyone who was able to perform

some basic functions during the first vear of her

presence in the United States could therefore have

filed for asylum in a timely manner.

According to the American Medical Association

and the American Psychiatric Association,

individuals suffering from post-traumatic stress

disorder (PTSD) habitually avoid “people, places,

thoughts, or activities that bring back memories of

the trauma.” A person suffering from PTSD, then,

may be functional in everyday life yet unable to apply

for asylum because applying would require her to

engage in the very activity that triggers her panic

responses: remembering the past trauma, discussing

it repeatedly with their lawyer, testifying, trying to

recover details with sufficient specificity to satisfy the

adjudicator, going over these details again and again

%* See 142 Cong. Rec. $11491-02 (daily ed. Sept. 27, 1996)

(statement of Sen. Hatch) (describing the exception as including

“physical or mental disability”).

S 8C.F.R. § 208.4(a)(5)(i).

“ Posttraumatic Stress Disorder Patient Page, 286 JAMA

630, 630 (2001). See also Diagnostic Manual, American

Psychiatric Association, 309.81Posttraumatic Stress Disorder

(2000); Lustig, supra note 7, at 731-32 (2008).

as others probe potential inconsistencies.” To get to

a point where she can discuss the trauma without

reliving it, she may need time and/or intensive

treatment.

Unfortunately, amici have encountered numerous

cases where the IJ declined to find exceptions to the

one-year bar based on his or her own mistaken

intuitions about post-traumatic behaviors rather

than the expert testimony or medical literature. For

example, a Guatemalan domestic violence victim

presented evidence of PTSD suffered as a result of

her abuse. However, because the applicant had

maintained employment and paid her bills since her

arrival in the United States, the IJ concluded that

her PTSD could not have prevented her from mecting

the filing deadline. The IJ denied asylum and granted

relief under the Convention Against Torture and

withholding of removal instead.*° The paradox of

such a ruling is that these latter forms of relief

require a showing of a greater risk of harm than does

asylum.

In another case, the IJ applied the deadline to a

Kenyan applicant and barred her asylum application,

despite a psychologist’s evaluation diagnosing her

with PTSD and Major Depressive Disorder (MDD),

simply because the applicant had managed to join

and regularly attend a church during her first year in

the United States.*’ Some applicants have been

subjected to the one-year bar because they continue

% See id.

Musalo & Rice, supra note 7, at 700.

7 Id. at 704.

to suffer from the same disorder that earlier

prevented them from filing.®

Two particularly egregious cases, described in

The Implementation of the One-Year Bar to Asylum,

bear recounting in detail:

A Kenyan woman whose mother and

grandmother helped her escape FGC [female

genital cutting) as a child. She was

subsequently forced to marry a man with

three other wives. While raping her to punish

her for failing to conceive, her husband

discovered she had not undergone FGC.

When her husband and tribal’ elders

attempted to subject her to FGC, the

applicant attempted suicide. She was

unconscious and hospitalized for four months.

When she recovered her husband beat and

raped her again... . The applicant fled to the

U.S. on a tourist visa and applied for asylum

after the one-year deadline had passed. The

IJ accepted her diagnosis of PTSD but

rejected her contention that it was directly

related to her delay in filing. The IJ reasoned

that the applicant had exhibited

“entrepreneurial skills" by caring for children

to raise money while she was homeless and

isolated, and because her pro se application

was well written and articulate.

a”

An Albanian’ teenager who was

kidnapped by a trafficker, held captive, and

raped and battered while plans were made to

traffic her into prostitution. The adolescent

escaped but could not return home for fear of

being recaptured. She fled to the United

States, entered as an unaccompanied minor,

and applied for asylum 13 months after

entering the country (and while still a minor).

In immigration court, she presented the

testimony of a clinical psychologist who

diagnosed the applicant with PTSD and

MDD. The clinical psychologist testified that

the applicant's psychological conditions

prevented her from speaking about the

trauma she had been subjected to. Despite

this expert testimony, the IJ concluded that

the applicant could easily have rectified her

feelings of shame by seeking out an attorney.

The BIA dismissed the young woman's

appeal.”

There is nothing in the statute or legislative

history that suggests Congress intended for IdJs,

when deciding whether to excuse a late filing, to be

parsing the degree of trauma experienced’ by

individuals who suffered years of continuous rape,

beating and imprisonment to the point where they

attempted suicide and nearly succeeded, or by minors

who suffered rape, imprisonment and beating.

* Musalo & Rice, supra note 7, at 704-05.

C. Other errors

In addition to the two key errors listed above,

amict routinely encounter and are aware of other

unduly restrictive applications of the exceptions to

the one-year deadline. For example, one IJ applied

the bar to an applicant who argued that she had been

consumed with caring for her terminally ill minor

child while living in a shelter,*° and another IJ

applied the bar to an Afghani woman who bore two

children out of wedlock while living in the United

States and feared persecution on account of her new

status as a single mother.*’

Because a significant number of those denied

asylum instead receive withholding, one result of

these unduly restrictive applications of the law is a

growing class of refugees who are living in the United

States without any hope of ever assuming the rights

and obligations of citizenship in their adopted

country.** There is no evidence that, when it set out

9 Id. at 708.

Id. at 709. The applicant was granted withholding of

removal. Jd.

** Musalo & Rice, supra note 7, at 721. Another source of

this growth, and another development Congress could not have

intended or even foreseen, is the DHS practice in some regions

of pressuring refugees into “settlements” in which they

withdraw their asylum claim in return for a promise of

withholding of removal (or relief under the Convention Against

Torture). See id. at 719-21 (providing examples). As a

substantive legal matter, this practice makes no sense. An

applicant who meets the stringent “more likely than not” test for

withholding clearly would have qualified for asylum but for the

one-year deadline problem and may well ment exemption from

the deadline (e.g., based on PTSD). Moreover, because

withholding grantees unlike asylees are not allowed to bring

to curtail asylum fraud and clear away backlogs

while protecting bona fide refugees, Congress

intended this effect.

II. JUDICIAL OVERSIGHT IS NECESSARY TO

RESTORE THE STATUTORY EXCEPTIONS

TO THEIR PROPER SCOPE

Without judicial review, the errors outlined above

will continue, and the United States will continue to

deny asylum to the very victims of persecution

Congress intended to protect and deport some of

them to back to the country where they face a threat

of persecution.**

their family over, the human consequences of these plea

bargains are disastrous. Many asylum seekers fled in great

haste, and traveled to the U.S. under hazardous conditions to

which they would not have wanted to subject their minor

children. These individuals are forced to choose between their

fear of persecution and, on the other hand, their desire to

reunite with the family left behind and to rescue them from

danger.

*8 In addition, narrow construction of the one-year

deadline runs contrary to U.S. commitments to protect refugees

from refoulement under the Refi:gee Convention and Protocol, as

well as customary international law. See UNHCR Executive

Committee, Conclusion No. 15 (XXX), Refugees Without an

Asylum Country (1979) at (1) (formally stating that “failure to

(file within a certain time limit], or the non-fulfillment of other

formal requirements, should not lead to an asylum request

being excluded from consideration”); Pistone, supra note 8, at

103 (quoting Letter from UNHCR representative to Chair of the

House Judiciary Committee, which expressed fear that the filing

deadline and other provisions “will have a grave impact on the

ability of the United States to offer protection to those fleeing

from persecution.”). The United States is a member of the

Executive Committee of UNHCR.

In many other areas of asylum law, courts of

appeals have played a critical role in ensuring that

legitimate refugees are not deported back to the

countries where they would face political, religious

and other forms of persecution. Courts have also

helped to ensure that asylum law develops uniformly

and in a manner that comports with the statute and

with Congressional intent.“

Courts have overturned insufficiently reasoned

denials.** They have vacated and remanded adverse

credibility findings based on speculation,

unsupported assumptions, and flawed reasoning. “°

They have vacated and remanded where IJs failed to

assess evidence of past harm cumulatively and taking

into account the particular characteristics of the

victim.*” The have made sure that the BIA considers

the evidence before it, properly construes_ the

applicant’s claims, and does not stray from its own

precedent without explanation.“ Indeed, it was

judicial criticism of the overall quality of Immigration

“ See, e.g., Negusie v. Holder 129 S. Ct. 1159 (2009)

(striking down agency holding that the “persecution” bar to

asylum applies to individuals who assisted persecutors under

duress); J.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (stnking

down agency application of “more likely than not” standard to

asylum applicant, and holding that the proper standard, “well-

founded fear,” required a significantly lower showing).

‘© See Benslimane v. Gonzales, 430 F.3d 828, 833 (7th Cir.

2005); Li v. U.S. Atty. Gen., 488 F.3d 1371, 1375 (11th Cir.

2007).

Cir. 2005).

7 See Poradisova v. Gonzales, 420 ¥.3d 70 (2d Cir. 2005).

‘8 See Shardar v. Attorney General of U.S., 503 F.3d 308,

315-17 (3d Cir. 2007); Gebreeyesus v. Gonzales, 482 F.3d 952,

955 (7th Cir. 2007); Li, 488 F.3d at 1375-76.

Court adjudication as having “fallen below the

minimum standards of legal justice” that recently led

to widespread internal review and reform goals in

2006.*°

The same concerns that Courts of Appeals have

raised generally about the asylum system apply to

agency applications of the one-year deadline, many of

which are dispositive of the applicant’s protection

claim. Judicial review of one-year-deadline

determinations is necessary to ensure that IJs

correctly apply the law and that the United States

continues to protect those who come to this country

seeking refuge from persecution.

CONCLUSION

For the foregoing reasons, amici respectfully

submit that the petition for the writ of certiorari

should be granted.

*’ Benslimane, 430 F.3d at 830. See ulso Adam Liptak,

Courts Criticize Judges' Handling Of Asylum Cases, N.Y. Times,

Dec. 26, 2005, at Al; Department of Justice, Measures to

Improve the Immigration Courts and the Board of Immigration

Appeals, available at http://trac.syr.edu/immigration/reports/194

/include/Gonzales22ImprovementMeasures.pdf (last visited

Sept. 10, 2009). The Transactional Records Access

Clearinghouse at Syracuse University (TRAC) has studied these

reform proposals and concluded earlier this year that

implementation as yet “has failed to achieve many of its

ambitious purposes.” See Immigration Courts: Still A Troubled

Institution, available at http://trac.syr.edu/immigration/

reports/210/ (last visited Sept. 4, 2009).

Respectfully submitted,

Alice Clapman Steven Schulman

Center for Applied Legal Counsel of Record

Studies AKIN GUMP STRAUSS

Georgetown University HAUER & FELD LLP

Law Center 1333 New Hampshire Ave.,

600 New Jersey Ave., NW

NW, Suite 332 Washington, DC 20036

Washington, DC 20001 (202) 887-4000

(202) 662-9751

September 14, 2009

APPENDIX

LIST OF AMICI CURIAE

The Advocates for Human Rights is a non-

governmental, non-profit organization dedicated to

the promotion and protection of internationally

recognized human rights. Founded in 1983, today

The Advocates for Human Rights engages more than

800 active volunteers annually to document human

rights abuses, advocate on behalf of individual

victims of human rights violations, educate on human

rights issues, and provide training and _ technical

assistance to address and prevent human rights

violations. The Advocates for Human Rights provides

pro bono legal assistance to indigent asylum seekers

in the Upper Midwest. The Advocates for Human

Rights has a strong interest in seeing that the United

States construe legal protections for refugees and

asylum seekers in a way that is consistent with

international human rights standards and that does

not leave actual victims of persecution outside iis

reach.

Founded in 1994 by a small group of concerned

professionals, Advocates for Survivors of Torture

and Trauma (ASTT) provides comprehensive mental

health care and social services to survivors of torture

and war trauma. ASTT is an independent, nonprofit

organization whose mission is to alleviate the

suffering of those who have experienced the trauma

of torture, to educate the local, national, and world

community about the needs of torture survivors, and

to advocate on their behalf. ASTT’s mental health

services include psychological assessment, individual

and family psychotherapy, and group treatment. In

appropriate cases, psychologists will conduct a full

psychological evaluation for use as expert asylum

court testimony. In addition, ASTT psychologists

also help clients deal with the often intense emotional

stress that accompanies the process of seeking

asylum. ASTT is based in Baltimore and operate

satellite offices in Washington, D.C. and Wheaton,

MD.

Catholic Charities Immigration Legal

Services was established in 1986 to _ provide

professional immigration legal services to low-

income, foreign-born individuals residing in the

Washington, DC metropolitan area. A multi-lingual

staff of attorneys and BIA-accredited representatives

provides thousands of direct legal services on a

variety of immigration matters each year, including

asylum. Last year, Catholic Charities assisted 78

individuals with applications for asylum, affirmative

and defensive, as well as referring additional

individuals to our pro bono panel for assistance with

their applications.

The Center for Gender & Refugee Studies

(CGRS) has a direct and serious interest in the

development of immigration and _ refugee law,

including the issues under consideration. Founded in

1999 at the University of California, Hastings College

of the Law, CGRS is the nation’s leading organization

supporting women asylum-seekers fleeing gender

related harm, at both the practice and policy levels.

Through its’ scholarship, expert consultations,

advocacy, and appellate litigation, CGRS has played

a central role in the development of refugee law and

policy on a wide range of issues. Judicial review of

the one year bar — the central issue under

consideration — implicates a matter of great

consequence to CGRS. The Center has analyzed the

impact of the one year bar in over 200 asylum cases

and has published a journal article on _ the

implementation of the bar.

The Cornell University Law School

Immigration Appellate Law and Advocacy

Clinic is one of the only law school clinics in the

country that focuses exclusively on appellate

immigration cases. Under the supervision of the

Clinic Directors, law students represent immigrants

fleeing persecution in their appeals before the Board

of Immigration Appeals (BIA) and federal counts.

Since the clinic's founding in 2003, approximately

fifty law school students have worked on twenty-five

cases. The Clinic has won nearly half the cases it has

taken, which is a far greater rate of victory than most

appeals before the BIA and the federal courts.

The Harvard Immigration and Refugee

Clinical Program (HIRC) has worked with

hundreds of immigrants and refugees since its

founding in 1984. It combines representation of

individual applicants for asylum and related relief

with the development of theories and policy relating

to asylum law. The U.S. Department of Justice and

the Department of Homeland Security have engaged

the HIRC in the training of immigration judges,

asylum officers, and supervisors on issues related to

asylum law. The HIRC published the first major

treatise on U.S. asylum law, Law of Asylum in the

United States. In addition, the HIRC provides advice,

support, and supplemental services to advocates

around the United States. The HIRC has an interest

in the proper application and development of U‘S.

asylum law, so that claims for asylum protection

receive fair and proper consideration under existing

standards of law. The HIRC regard the one-year

filing deadline issue in this case as_ especially

important, since it affects many of the clients the

clinic represents.

The Harvard Immigration and Refugee

Clinic at Greater Boston Legal Services Greater

Boston Legal Services (GBLS) is New England's

largest legal services organization. The Harvard

Immigration and Refugee Clinic is a clinic based at

Harvard Law School and at GBLS. The Women

Refugees Project of the Harvard Law School

Immigration and Refugee Clinical Program and

Greater Boston Legal Services has worked with

hundreds of women from around the world since its

founding in 1992. It combines representation of

individual women asylum applicants with the

development of theories, policy and _ national

advocacy. GBLS frequently works with clients who

face one-year filing deadline issues, and has an

interest in the proper application and development of

U.S. asylum law so that claims for asylum protection

receive fair and proper consideration under existing

standards of law.

Since its founding in 1881, the central mission of

the Hebrew Immigrant Aid Society (HIAS) has

been to rescue Jews and others fleeing persecution

and to assist them to start their lives anew in peace

and security in the United States and elsewhere. In

fulfillment of this mission, HIAS maintained staff at

Ellis Island to assist individuals through the

immigration process, including representation in

exclusion proceedings. More recently, HLAS attorneys

and accredited representatives have provided legal

representation to asylum seekers in Immigration

Courts in the New York area, including at

immigration detention facilities. HIAS has

successfully represented numerous asylum seekers

throughout the appellate process, up to and including

the Federal Courts of Appeal. Through this

experience HIAS has learned that there are many

sound reasons — permitted within Congress’

exceptions to the one-year deadline for applicants to

apply for asylum after arriving in the United States -

as to why individuals who would face persecution in

their home country do not apply for asylum during

their first year in the U.S. HIAS also understands

how — in this and other aspects of pursuing asylum

claims — it can take several layers of review before

adjudicator error on this issue is_ effectively

addressed. Therefore, HLAS believes it is crucial that

individuals fleeing persecution have the opportunity

for judicial oversight of exceptions to the one-year

deadline to file for asylum.

Human Rights First has worked since 1978 to

protect and promote fundamental human rights.

Human Rights First grounds its refugee protection

work in the standards set forth in the 1951 Refugee

Convention, its 1967 Protocol, and _ other

international human _ rights’ instruments, and

advocates adherence to these standards in U.S. law

and policy. Human Rights First (previously known

as the Lawyers Committee for Iluman Rights) also

operates one of the largest pro bono asylum legal

representation programs in the country, providing

free legal representation to indigent refugees in

partnership with volunteer attorneys at law firms.

Many of these refugee clients have been affected by

the asylum filing deadline.

In the Immigrant Rights Clinic at the

University of Baltimore School of Law students,

under the supervision of faculty, represent low-

income immigrants in Immigration Court, in

Maryland District Court, and before the Department

of Homeland Security U.S. Citizenship and

Immigration Services. Students' caseloads are

diverse, touching on many areas of immigration

practice, including asylum law. Clients in the

Immigrant Rights Clinic come from all over the

world, including Africa, Asia, Europe, and Central

and Latin America.

Immigration Equality is a national

organization that works to end discrimination in U.S.

immigration law, to reduce the negative impact of

that law on the lives of lesbian, gay, bisexual,

transgender (LGBT) and HIV-positive people, and to

help obtain asylum for those persecuted in their home

country based on_ their’ sexual orientation,

transgender identity or HIV-status. Immigration

Equality also runs a pro bono asylum program and

provides technical assistance and advice to hundreds

of attorneys nation-wide on sexual orientation,

transgender and HIV- based asylum matters.

Immigration Equality has provided trainings to

asylum officers on asylum cases based on sexual

minority and HIV status and has co-authored the

leading manual on preparing sexual orientation-

based asylum claims.

The Immigration Law Clinic of the Rogers

College of Law, University of Arizona provides

students with the opportunity to gain hands-on

experience with immigration law by providing

services to immigrants in Southern Arizona. Its

clients include asylum seekers detained in Eloy,

Arizona, whom students, under attorney supervision,

represent in removal proceedings. The Clinic has

represented immigrants from countries including

Vietnam, Libya, El Salvador, Guatemala, Cuba,

Nepal, Thailand, Iraq, Syria, Cambodia, Laos, Korea,

the Sudan, Uganda and Haiti. Students in the Clinic

also provide advice and pro se assistance to non-

detained respondents in_ removal proceedings,

including asylum seekers. Such assistance, at times,

includes completion of asylum applications. The one-

thereto feature prominently among the issues the

Clinic and its clients must confront in preparing and

litigating their cases.

Jubilee Campaign USA is a Non Governmental

Organization (NGO) that promotes human rights and

religious liberties for ethnic and religious minorities

throughout the world. Jubilee has been granted

Consultative Status by the United Nations (UN) and

participates annually in the United Nations Human

Rights Caucus Session in Geneva, Switzerland,

raising concerns of persecuted religious minorities

and others from various parts of the world. Jubilee

undertakes advocacy and representation of refugee

cases, particularly those fleeing religious based

persecution.

The Pennsylvania Immigration Resource

Center (PIRC) is a non-profit legal services

organization founded in 1996. Located less than a

mile from York County Prison, PIRC has become the

leading source of legal services to immigrants

detained by DHS in Pennsylvania. PIRC focuses on

providing services to the most vulnerable immigrants

in detention. Through the Detained Torture

Survivors Project, PIRC provides direct legal

assistance to detained torture survivors appearing

before the Immigration Courts and federal courts of

appeal in complex cases involving Convention

Against Torture, Asylum, Cancellation of Removal,

and Withholding of Removal claims.

Physicians for Human Rights (PHR) was

founded in 1986 on the idea that health professionals,

with their specialized skills, ethical duties, and

credible voices, are uniquely positioned to investigate

the health consequences of human rights violations

and work to stop them. PHR mobilizes health

professionals to advance health, dignity, and justice

and promotes the right to health for all. The members

of PHR's Asylum Network assist asylum seekers by

conducting mental and physical evaluations’ to

document the forensic evidence of abuse. Our

clinicians also use their expertise to educate their

colleagues and to inform public policy affecting

refugees and asylum seekers. PHR is headquartered

in Cambridge, Massachusetts, and maintains an

office in Washington, DC. It is a non-profit, non-

sectarian organization funded through private

foundations and by individual donors.

Public Counsel is the largest pro bono public

interest law firm in the world. Founded in 1970,

Public Counsel is dedicated to advancing equal

justice under law by delivering free legal and social

services to the most vulnerable members of our

community. The Immigrants’ Rights Project (IPR)

provides legal representation to individuals seeking

asylum in the United States based on past

persecution or a_ well-founded fear of future

persecution on account of political opinion, race,

religion, nationality, or membership in a particular

social group. IRP represents clients from all over the

world for whom the US. is the last place of refuge

and where return to their home country may mean

death or torture. Depending on the _ procedural

posture of a case, asylum applicants are provided

representation in administrative trials’ before

Immigration Judges, on appeal before the Board of

Immigration Appeals, and before the U.S. Court of

Appeals for the Ninth Circuit. In some cases,

representation is provided in non-adversarial

proceedings before the Department of Homeland

Security.

Located in Falls Church, VA, and Houston, TX,

the Tahirih Justice Center (Tahirih) is a non-profit

organization offering free legal services to women and

girls fleeing violent human rights abuses such as

female genital mutilation, torture, rape, human

trafficking, honor crimes, forced marriage, and

10a

domestic violence. Since 1997, through direct services

and referrals, Tahirih has assisted almost 10,000

women and children. Tahirih has represented clients

in more than ninety gender-based asylum cases

before the U.S. Citizenship and Immigration Services

(USCIS) Asylum Office, the U.S. Immigration Courts

of Arlington and Baltimore, the Board of Immigration

Appeals (Board) and the U.S. Courts of Appeals.

Building on the landmark case Matter of Kasinga,

Tahirih is at the forefront of organizations using the

refugee definition and the asylum process to protect

women and girls fleeing gerder-based persecution. In

addition to direct services, Tahirih also engages in

national public policy advocacy, working to pass laws,

develop regulations, transform policies, and establish

precedent so that systemic change will ensure the

long-term protection of women and girls from

violence. Many of Tahirih’s asylum clients have been

adversely impacted by the one-year filing deadline.

Additionally, the following law professors have

joined as amici in their individual capacities as

educators, clinical directors, researchers, authors and

experts in asylum law and policy:

Deborah Anker

Clinical Professor of Law; Director, Harvard

Immigration and Refugee Clinical Program

Harvard Law School*

Stacy Caplow

Professor of Law; Director, Clinical Education

Program

lla

Brooklyn Law School*

Michael J. Churgin

Raybourne Thompson Centennial Professor

University of Texas School of Law*

Alice Clapman

Clinical Teaching Fellow, Center for Applied Legal

Studies

Georgetown Law*

Regina Germain

Adjunct Professor of Law

University of Denver, Sturm College of Law*

Denise Gilman

Clinical Professor of Law, Immigration Clinic

University of Texas School of Law*

Anjum Gupta

Clinical Teaching Fellow, Center for Applied Legal

Studies

Georgetown Law*

Dina Francesca Haynes

Associate Professor of Law; Director, Immigration

Project

New England Iaw*

Harvey Kaplan

Adjunct Professor of Law

12a

Northeastern Schoo! of Law*

Nancy Kelly

Clinical Instructor; Co-Managing Director, Harvard

Immigration and Refugee Clinic at Greater Boston

Legal Services

Harvard Law School*

Beth Lyon

Associate Professor of Law

Villanova University School of Law*

Elizabeth McCormick

Associate Clinical Professor of Law;

Immigrant Rights Project

University of Tulsa College of Law*

Nancy Morawetz

Professor of Clinical Law

New York University School of Law*

Hiroshi Motomura

Professor of Law

UCLA School of Law*

Rachel E. Rosenbloom

Assistant Professor of Law

Northeastern University School of Law*

Andrew Schoenholtz

Director,

l3a

Visiting Professor of Law; Deputy Director, Institute

for the Study of International Migration

Georgetown University*

Philip G. Schrag

Professor of Law

Georgetown University*

Deborah S. Smith

Adjunct Professor of Law

University of Montana School of Law*

Gemma Solimene

Clinical Associate Professor of Law

Fordham University School of Law*

Shoba Sivaprasad Wadhia

Clinical Professor of Law; Director, Center for

Immigrants’ Rights

Penn State Dickinson School of Law*

John Willshire-Carrera

Clinical Instructor; Co-Managing Director, Harvard

Immigration and Refugee Clinic at Greater Boston

Legal Services

Harvard Law School*

*affiliation provided for identification purposes only

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.