On June 17, 2011, in his memorandum, John Morton, the director of Immigration and Customs Enforcement, suggested a new policy that later became an ambitious review program announced by the Obama administration. The policy, detailed in the memo, offered to decrease deportations of illegal immigrants who were young students, military service members, seniors or close family of US citizens.  The announcement certainly raised great expectations in immigrant communities.

In November 2011, the DHS declared that it would promptly begin the review of all deportation cases before the immigration courts. The DHS started the nationwide training program for enforcement agents and prosecuting lawyers to speed up deportations of convicted criminals and suspend deportations of illegal immigrants with no criminal record. The review would also allow significantly help for the overloaded immigration judges to focus on removing foreigners who pose risks to the national security.

Seven months after, out of over 400,000 cases fewer than 2 percent were suspended.  So far almost 300,000 cases were examined by immigration prosecutors and only about 4,400 cases were closed. DHS officials blame the review delays on the criminal background checks of the immigrants. They also promise that many deportations will be suspended within months. 

Clearly, the excitement from the review has surged. What is more, according to Angelica Salas, Executive Director of the Coalition for Humane Immigrant Rights of Los Angeles, the review promised a great hope to keep many families together, but as of today it seems to be a failed attempt at relief. 

Another hidden part is that when deportations are suspended - administratively closed and not terminated, the immigrants do not receive work permits and remain in limbo in terms of legal permanent residency. So that, some immigrants, who have chances to win, prefer to continue removal proceedings and fight in immigration court to gain their  permanent residency. To date about 4,000 immigrants declined the benefits of the review. 

Also, the numbers of suspended deportations varied depending on location.  For example, the review had a success in Washington state, but offered very little help to the immigrant communities in Los Angeles and Chicago. That led to the immigrant group leaders joining the federal lawmakers and church groups to ask the DHS to give relief to a broader group of immigrants. 

Finally, despite the proclaimed efforts to ease on the immigrant communities, a record number of people (1.1 million) were deported in the last three years. The largest amount ever deported in US history.

In a recent case Matter of L-S-, 25 I. &N. Dec. 705 (BIA 2012), the BIA decided that an asylum applicant who no longer had a well-founded fear of future persecution still could warrant a discretionary grant of humanitarian asylum on remand.   This expands the definition to not only completing reasons arising our of severity of past persecution  but can also include  "a reasonable possibility of other harm" that he or she could suffer if returned to his or her country  8 C.F.R. § 1208.13(b)(1)(iii)(B) (2011).

What makes this case interesting is that the "other serious harm" can be totally unrelated to the applicant's past harm and need not be inflicted "on account of" on of the five harms of race, religion, nationality, membership in a particular social group or political opinion. Secondly, it opens up another opportunity for those whose country conditions have changed.  Under Matter of D-I-M  ( BIA 2008)  when the presumption of well-founded fear of future persecution has been rebutted by the government but the applicant can show that they have suffered past persecution, they are eligible for a grant of asylum based on "compelling reasons" but here "other serious harm" is the focus despite not having compelling reasons.  

This case arose out of the Eighth Circuit after the IJ had denied asylum to an Albanian citizen after finding that he did not establish past persecution and that circumstances in Albania had changed so he no longer had a well-founded fear of future persecution.  The Board of Appeals affirmed the Judge's decision.  Further, the Eighth Circuit agreed with the lack of well-founded fear, but remanded the case on the basis that the BIA did not consider all the factors pertinent to the humanitarian asylum which both the Judge and BIA had summarily dismissed. 

The BIA looked at 1208.13(b)(1)(iii)(A) and (B). (A)discusses severe persecution and (B) discusses "other serious harm" that does not have to be related to the applicant's past persecution. This harm need not to be inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion, but it has to be so serious that it equals  persecution.

When deciding on a "reasonable possibility of "other serious harm," specific attention should be paid to the current conditions that could severely affect the applicant. Such conditions may include civil strife, extreme economic deprivation as well as potential for new physical or  psychological harm that the applicant might suffer. The harm should be as severe as persecution, but the nexus with asylum ground is not required. BIA remanded the matter instructing the IJ to review  and stated that L-S- would have the burden of proof. 

This case opens the door to a whole new realm of possibilities when the nexus is not present and the country conditions have changed and it could be very effectively used on a case-by-case basis.

In a recent decision the Court of Appeals for the 7^th Circuit upheld the denial of asylum for Johanna Cece, a citizen of Albania, who argued on appeal that young Albanian women in danger of being trafficked for prostitution constitute a social group. See Cece v. Holder, No. 11-1989, February 06, 2012 US 7^th Circuit. The Circuit Court, determined that the group, defined solely by the persecution feared by its members, lacks the type of common, immutable characteristics which are prerequisite to constitute a particular social group. In addition, Cece did not establish a well-founded fear of persecution upon her return to Albania. The Circuit Court denied petition for review.

Cece entered the US in 2002 on a fake Italian passport under the Visa Waiver Program. She was 23-year-old at that time. Cece timely applied for asylum and withholding of removal claiming that she could not return to Albania because she would be kidnapped and forced into a prostitution ring as a young woman living alone. Also, she stated that the  police would not protect her since she is an Orthodox Christian and supports an opposition democratic party that was not in power at that time.

At a hearing before an Immigration Judge ("IJ"), Cece explained how the leader of a local Muslim gang harassed and stalked her throughout the city she lived. Police took no action in response to her complaints. In fear that she would be kidnapped, she moved 120 miles north to live with her sister but her sister moved to the US shortly thereafter. Living alone again, Cece felt unsafe in fear that Reqi or another gang member would kidnap her and force into prostitution, so in 2002, she entered the US on a fake Italian passport. The IJ granted her asylum in 2006. While Cece's expert witness testified about the pervasive sex trafficking problem in Albania, the IJ concluded that Cece belonged to a particular social group consisted of "young women who are targeted for prostitution by traffickers in Albania" that the government is unwilling or unable to protect. However, subsequently, the BIA decided that the group lacked social visibility and did not share "a narrowing characteristic other than the risk of being persecuted. On remand, the IJ accepted the BIA's conclusion that Cece failed to identify a "cognizable social group."

Generally, particular social group is defined by immutable or fundamental characteristics. It also has to be "socially visible" and "particular," i.e. very specific. However, the 7^th Circuit rejects "social visibility" and "particularity" of the social group that other circuits require.  See Gatimi v. Holder,578 F.3d 611 (7^th Cir. 2009) (rejecting social visibility), Benitez- Ramos v. Holder,589 F.3d 426 (7^th Cir. 2009) (rejecting particularity requirement). The governing case law states that a social group must share "immutable or fundamental characteristic beyond the risk" of past or present harm. See Escobar v. Holder, 660 F.3d 267, 271 (7^th Cir. 2011), Gatimi v. Holder, supra at 616; In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996).

In its majority decision the Court further explained that even if the members of the proposed group fear forced prostitution, a social group cannot be established merely by the fact of persecution or "the shared characteristic of facing danger." See Jonaitiene v. Holder, 660 F.3d 267, 271 (7^th Cir. 2011). And young Albanian women who fear forced prostitution have very little or nothing in common besides being targets of those criminal activities. See Gatimi v. Holder, 578 F.3d 611, 616 (7^th Cir. 2009).

The majority decision listed other difficulties with Cece's asylum application: her fraudulent entry to the US; and  objective fear of future persecution on account of her membership in the particular social group was not established - she did not report any specific or ongoing threat in her testimony; and the record provided that she could relocate safely within Albania.
 

image source

The D.C. Council filed for D.C. to be opted out of this program, but the Federal Government's response was that this is not an option.  The only way to opt out would be if the local security forces never check criminal records against FBI databases, and this is unrealistic.  Yet Mayor Gray refused to give in and has ordered the D.C. police not to question people about their immigration status when they pull them over for routine stops and minor violations.  There is also legislation that is currently underway that would allow D.C. to turn over suspected illegal immigrants to ICE only if they're wanted for violent crimes that were performed in the last decade.  Even then, the suspected illegals would only be held for twenty- four hours and with expectation of reimbursement.

Washington D.C.'s resistance to Secure Communities has earned it the title of "sanctuary city", and we hope that it will remain so.

The problems with this are multiple such as arrests of US citizens; less reporting on crimes for fear of arrest; rounding up of persons who have minor infractions such as traffic violations; clogging up an already backlogged immigration court system and causing potential harm to US children of illegal parents as they would be abandoned and sent into guardianships or deported with the parents.

For more information, please click here.

photo source