What do you need to protect people from harm from their countries?

What processes,
considerations, etc.?
 Define refugee - who should we include - internally displaced and people
otherwise displaced?
 Why is the person seeking protection? Specific v. general violence
 Does the harm have to be because of something? Economic v. persecution
(What sort of harm is enough/what is the motivation of the harm)
 Can you distinguish between those fleeing on other bases?
 Different needs based on different geographic locations
 Who bears the costs of relocation?
 Specific needs of certain groups: former child soldiers? Victims of trafficking?
 Where the person should go? Neighborhood country or further? Limit on how
many go to one area or another?
 Should there be a time limit on how long the protection should be? Permanent
or temporary?
 What happens after the time limit?
 Emerging issues - climate, natural disasters? How to handle those?
 Assimilation or keep original culture
 Oversight group for international body? Reduce favoritism/bias?
 Unique relationships of certain countries - how will refugees affect host
country?
 Make sure you don't exploit refugees
 How to keep an objective view if bringing in private sectors to help with
finances
 National sovereignty concerns
 Exclusion clauses (commission of crime, danger to national security, etc.)
 NGO v. private v. international body
 If narrow mandate, will there a provision to extend the mandate in special
cases
 
Original Mandate - protect refugees
1. Repatriation (preferred)
2. Temporary settlement
3. Resettlement
*UNHCR has increased its mission by preventing refugee situations and also opening
up to avenues such as human trafficking
Duties:
 Counseling
 Aide
 Amicus briefs
 Keep track of refugees
 Security
 Physical needs of refugees
 Finding durable solutions
 Broker agreements for extended refugees (5 years or more)
  Help with repatriation and resettlement
 Ensure that children can go along
 Figure out any criminal problems
 Mental health counseling
 Language training
 Microcredit lending
*5,000 employees, 1 billion dollars
 
International Framework:
Definition of refugee (International, US, Australian)
See printout
 
1951 convention
A(1): Those who are already refugees
A(2):
Before 1951 (WWII)
Well founded fear
Must be convention/protection round (religion, race, etc.)
Outside country of nationality
Unable or unwilling to return to the home country because of fear
How does it compare to the earlier definition?
 IRO was meant to be more of a temporary definition (one time deal)
 leaves out member of a social group
 1951 more open and encompassing
1951: fits more under the individual approach because you can show the difference
between you and group
*Eurocentric and anti-soviet because:
 Five things are western rights - race, religion, more political type rights
 Doesn't deal with economic rights and labor - education and healthcare
 Doesn't allow for difference in political thought; allowing one to go to a country
of similar ideals
Problems sought to avoid:
 Feasibility - easier to protect religion/race than culture
 Cost
 Social and economic are easier to treat by the host country
 
1960s protocol changed the definition by:
Takes away temporal and geographic limitation (Europe and before 1951)
*Australia signed convention and protocol. US only signed protocol but bound to
convention
 
Other Definitions:
See handout
OAU: no european limitations, foreign aggression addition (less specific), still requires
you to be outside
 What is the purpose of being outside?
Cartagena: generalized violence, internal strife, foreign aggression, massive violation of
human rights
*getting away from persecution
*going toward something that requires you to flee
 
Hypos:
*None of them that are not out of the country would be offered protection except maybe
under an extension of the mandate
Number 1: As long as outside of the country; probably cool under Cartagena and maybe
OAU, but not foreign aggression, however might meet the general violence portion
Not for UN because don't know if there is persecution
Number 3:
UN: maybe because city dwellers could be a social group; however, unclear if it is
really persecution; possibly argument under political opinion
Persecution? Maybe because sounds somewhat like slave labor. However,
there is no individual targeting. Stronger argument for the ones that are
caught
*could very well be a failure rather than true persecution (no punishment idea)
Caught and punished: probably different political opinion;
OAU: might be because of seriously disturbing public order
Cartagena: probably
 
Conventional protocol requires:
 Can't send back those who are refugees
 No requirement that you grant asylum
 You zoned out; make sure you go over Article 33
 
Recap:
Basic UN definition and elements
Other definitions
UN doesn't require asylum
Only obligation is to not send back
What the UNHCR does
 
Australian Legal System
Sunday, June 05, 2011
6:15 PM
Australian Legal System:
Indigenous people (before 1788)
*lived according to customary law and spoke a lot of languages
*1787 James Cook took it
*Half were convicted felons stopped in 1868
Inherited common law from Britain:
 Based on legal fiction - "land belonging to no one"
 Treated as settled rather than conquered
  Therefore indigenous people had no rights
 Mauburo v. Queensland; rejected "land belonging to no one"
 Found it racist and no grounds for taking away natives' rights to
land
*Still working toward reconciliation
2007: Rudd formally apologized for the state sponsored assimilation
Recently, tried to put together a referendum to change the constitution
1901 Constitution: founded on British and American ideals (bi-cameral)
 Wasn't overly ambitious
 Mainly about trade and commerce
 Favored toward "civilized" men
 Passed as an act of British parliament
 Established federal system and common law
 Legislative and judicial shared between federal and six states along with three
sub-regional (territories)
 Constitution defines law-making powers
 Commonwealth takes priority over the states
 External affairs
 Defense
 Immigration
 States have residual powers (all not listed in article 51)
 Two houses (house and senate/parliament); Queen represented by governor
general)
 Two dominant parties (labour - Dems and coalition - Reps)
 Responsible to electorate every 3 years
 Compulsory voting
 Governor general has to assent (bills must pass both houses), but more formality
because ministers make their recommendations and usually followed
 No longer directly under British dominion; now autonomous communities
 Obstacles:
 Appeals could be heard in UK (until 1986)
 Australian Act? Got rid of formal bullshit….dammit
 Queen Elizabeth technically head
 Could have become a republic, but did not passed (only 8 of 44 constitutional
referendums passed)
 No real "bill of rights", but any property must get just returns, right to jury for
criminal, can't establish religion or persecute, and right to review government
actions
 Writs of mandaus - enables individuals to get judicial review of
government actions
 Has proved to be the vehicle of asylum seekers to get review in
Australia
 Some rights implied: "implied right" of political communication; separation of
powers;
 Highest court: court of final appeal
  7 judges; stay until they turn 70
 Interprets law of Australia; constitutional issues, appeals from federal,
state and territorial courts
 Historically, asylum seekers can also turn to statutory law (Administrative Judicial
Review of Legal Errors(?)) 1977
 '80s explosion of cases in refugee law
 Tension between legislature and judicial - legislation has tried to restrict
avenues open to asylum seekers and judiciary has paired it down
 Judiciary zealously defends its review of governmental actors'
decisions
 Rely on precedent
 Asylum seekers have now been excluded in administrative act; now the migrant
(?) act
 Impact of refugee convention:
 Executive decides extent that international law influences Australian law
 Legislative must approve/incorporate the international treaty into domestic
law
 Voluntarily agreed to not return people under the 1951 definition
 Since 1989, in substance been incorporated into domestic law - varies
because of changes to immigration law
 Australian law
 Right to seek asylum
 If seen as refugee, then can't be return
 Offshore is different than those who are in country (goes toward
commitment of burden sharing)
 Majority comes from offshore
 Onshore asylum seekers generate the most debate
 When claims come before courts; international law comes into play
 Persuasive authority because rocks statutory interpretation
 Ambiguous or silent - will go with what is consistent with AU
obligations
 If interpretation (not clear) - dammit
 Domestic interprets international - favor construction which
conforms to the refugee convention
 Can't rely on international def when AU law is clear
 
Political Landscape as pertains to Refugee law:
SPS documentary - has good overview
1901: pass immigration restriction act (limited immigration primarily to white Europeans)
*Survived until 1970s
*More comfortable with "ordinary" migration than unexpected migrants / asylum seekers
*After WWII, demographics of Australia changed dramatically (700,000)
Mid 70s: first "boat" people arrived - fled vietnam after Saigon overrun
 First five people; didn't speak language; first response was to hush up the arrival
- might start a moral panic if lots of people knew
'76-'81: over 20,000 came
In response, special humanitarian program - help people apply offshore
Late "90s: boats from Sri Lanka, Kenya (?), etc. made people think they lost control of
their borders
*government decided to take it back their borders in how they determine refugee
numbers
On shore: goes toward refugee?????
Offshore is voluntary burden bearing
*By counting onshore as part of intake, blurred distinction between refugee and
migrants
2001: Government took action Norwegian freighter to stop bringing asylum seekers to
Australia
 Litigation followed: ruled that government acted within its powers to refuse the
freighter
 Government constructed the "Pacific solution"
 Tried to prevent arrival of further asylum seekers
 Excised some islands for purposes for the migration act; no longer get to
the courts in these "excise regions"
 Gov won the next election partially as a result of this outcome
2007: Change of government
 Stopped using statutory authority to send them to third countries, instead, they
took them to Christmas Island and off shore peeps can only make application for
asylum if minister says so (?)
 Because of this boats started up again
2010: new PM, wanted to make processing center in East Timor to deal with the boat
arrivals
 Political pressure continued to grow
 About 6,400 were irregular boat people
 High court said Christmas island system failed and East Timor doesn't want to
deal with it
 So now with new deal with Malaysia; 800 undeclared Aussie asylum seekers will
be swapped with 4,000 recognized refugees
 Says even if you make it here, then we might send you to the back of the
line
Hot button issue: way more publicized than worth it
 
Admission of Refugees and Asylees Under the Law (US)
Sunday, June 05, 2011
11:03 PM
Elements of Article 33
1. No contracting state
2. Shall expel or return
3. A refugee
4. In a manner that would threaten their person safety
5. b/c race, religion, nationality, membership of a particular social group,
or political group
*If declared refugee and circumstances change, might need to be returned
(cessation clause) unless
 Still some people from previous administration
 Past persecution was so severe
 
Exclusions from refugee:
 If receiving aid from someone else (Palestinians) - Section D
 Go against UN guidelines (commit a crime) - Section F
 Crime against peace
 War crime
 Serious non-political crime outside of country of refugee
 Guilty of acts contrary to the purposes and principles of the United
Nations
 
Article 33 Exclusions
 Reasonable grounds for regarding as a danger to the security after
having been convicted by a final judgment of a particularly serious
crime
 
Compare the criminal exclusions:
 Article 33 is more broad (took out the word non-political), however,
added particularly which appears to make it a subset of "serious crime"
 Also there is a final judgment under Article 33
*Once a refugee, it is difficult to be sent back (assuming the wording is
intentional
SEE HANDOUT!
 
Overall Immigration policy (US):
US citizens - birth or naturalization
Lawful permanent residents (immigrants/green card holders)
Non-immigrants - diplomats, students, tourists, temporary workers, human trafficking
victims, other crime victims
Persons in some sort of protection category - refugees, asylees, Tempered Protection
Status (some sort of disaster - short term for natural disaster, economic, or war), Human
adjustment act (1 year to naturalize usually), specific types of relief for a nationality or
region
Applicants for status
Undocumented persons
This went in concert with ratifying the protocol
*Protocol binds you to the convention
Definition of refugee (101)
Processes (207)
Grant of Asylum (meets def of refugee, but on the border/inside)
Non-refoulment (241)
*looks redundant to have right of asylum and non-return
US: right to apply for asylum and right to not be returned
  
UN v. US definition of refugee
Different Similar
US has persecution or well- Generally have
founded fear (UN only has to be outside of
well-founded) the country
Pres can make exceptions Unable or
(US) even if they don't leave unwilling
to country
*US has coercive provision mainly because of "one child" policy in China (doesn't fall
into one of the five parameters)
 Congress added this provision to help out
What does it actually say?
If it happens then it could be on a protected ground, but still have to show that there
was well-founded fear and what not
*Usually NGO finds person
*then reviewed
*no method of appeal for the refugee corps dude
*get ready to lose
*sent to quasi governmental NGO migration something International Organization for
Migration
*they arrange physical transportation to states
*Once in US you get turned over to your sponsor (usually not a problem to get, usually
faith based organization)
*Department of Health and Human Services hook you up with integration services
 
Should we have a basis for refugee based upon our own actions?
Concerns:
1. Terrorism
2. fraud
Elements of 207 ©
1. Numerical limitation in pursuant subsection a and b
2. Attorney general discretion
3. Any refugee
4. Not firmly resettled
5. Of special humanitarian concern
6. Admissible as an immigrant under this Act
*Special determination of humanitarian concern: must fit within the guidelines
*Fairly generous waiver for admissible (207c5)
Priorities (see above)
1. Individual case, apparent need for resettlement
2. Groups of cases
3. Family member in US
Ineligibilities
  Making material misrepresentation
 Certain types of crimes (convicted)
 Diseases
 Terrorism watch
 Drug trafficking
Section 207 ©(5)
*mainly about drug traffickers, security risks, and terrorists
Waiver requirements
 Public interest
 Family
 Humanitarian purpose
 Attorney general MAY waive (discretionary)
 
Asylum
208 (a)
 Must be physically present
 Irrespective of status (whether undocumented or not)
 Must comply within a year of entry or reasonable time of expiration of
visa/tourism whatever (valid status)
208 (b) (1)
 Have to apply
 Refugee
 Exceptions
 Participated in persecution
 Convicted of particularly serious crime
 Serious reason for belief of nonpolitical crime
 Reasonable grounds that a threat to security
 Attorney General can override reasonable grounds
 Firmly resettled in another country
 
*If you lose at immigration judge you can appeals (skip district court)
Differences between refugee and asylum
Refugee Asylum
Granted overseas Once within the country
Limit on refugees (80,000) No limit on asylum seekers
Lots of exceptions (diseases, Have some exceptions, but already in the country so
security, etc.) slightly easier protocols
  Applicants can't get employment for 150 days after
received(?)
*Both get to bring family and what not
Definition of refugee
Procedure
Non-return provision
Section 241 (b)(3)(b)(3)
Difference with Convention: convention talks about refugee, our law only talks about
aliens (refugees are aliens too)
 One effect is that you can get non-return even if resettled
Differences between withholding and asylum
Benefits of Asylum/Refugee:
 Get a permanent status
 Can bring family
Benefits of Withholding:
 Can never go anywhere else (won't be permanent)
Requirements of Asylum:
 Well-founded fear
 Reasonable person standard
 discretionary
Withholding:
 Objective standard
 Must have facts to show persecution
 Only relief from removal

Australian Version
Monday, June 06, 2011
6:09 PM
Focus on refugees offshore prior to 1970s (Vietnamese changed that)
Split between onshore and offshore
 Distracts attention from asylum seekers
Offshore:
 Majority come from overseas (about 13,000)
 5 subclasses that they apply under
 Visa subclass 200: refugee visa - minister must find compelling factors
(degree of persecution, extent of relationship to Australia, capacity of
Australia, can't be contrary to Australian interests, etc.)
 In practical sense, can only grant so many
 No appeal
 In country special humanitarian 201: rarely used
 Emergency class 203: only for immediate threat
 Women at risk: female head of households, single mothers, etc. - suffered
extreme violence
 Global special humanitarian 202: not a visa for fleeing persecution; for
people who suffer from gross violation of human rights (lower threshold than
persecution)
 Can be denial of work, unreasonably low wages, substandard living
arrangements, refusal of education, denial of passport, etc.
 Catch: must be supported by Australian supporter - can be
individual or group
  Some priority classes and cap on amount allowed in: split families
get preference (if family member is sponsor of other)
*Only small number got to asylum seekers
*the boat people are only a small percentage, most come on valid visa
Onshore:
 If they have a fear, especially if they are in the sexual trafficking
 To help avoid retribution
*In recent years, many unauthorized boat people have shown up
Requirement Section 36 Migration Act 1958 (common law version)
 Must be non-citizen
 Must have obligation or member of same family unit
 Need form 866
 Need substantial compliance
 Some circumstances can't make
*If dual citizen probably boned (for example American Indonesia citizen)
As a general rule, if refugee, Australia has obligation to at least see if they have a duty
to protect
4 elements of refugee:
 Must be outside
 Must fear persecution
 Must fear because of race, religion, social class, political ideal, etc.
 Must be well-founded fear
*Has to meet all four elements
Outside of country: not enough to be stateless, must fear within specified state
Well founded fear:
 Think of Chinese case
 Must establish subjective and objective
 Need state of mind
 Must establish subjective first
 Look at country info
 Objective veracity of person's claim
 Must be REAL CHANCE of persecution
 Need well-founded reason for fear (objective)
Hughes 1999: onus + burden of proof no role - degree of probabilities
 Have subjective
 Have objective
 Not time when flee, time of claim
Element of persecution (91R)
 Essential and significant reason for persecution
 Serious harm
 Systematic threat
 Significant to economic hardship, denial to basic human needs
Onshore can provide:
 Person of valid application that gets denied can do merits review tribunal - can
review facts and law and make new determination
  No right to lawyer but can have interpreter
 Hearings in private
 Can affirm, reverse, remit, remand, etc.
 Need tribunal reasons for why they ruled that way
 Review after that can only be on a legal issue
 Number of challenges has gone up, legislature has moved to restrict by limiting
avenues of review
Case: If you make certain types of legal errors by problem of jurisdiction then going to
trial as if no decision
*Constitutionalized refugee law
*Initially, asylum seekers didn't have access to refugee tribunals
 Asylum seekers now have ability to go with because of failure of other procedural
remedies
Persecution
Tuesday, June 07, 2011
3:58 PM
Recap:
Definition of Refugee (3 approaches)
4 prong structure of refugee (asylum, Section 33, etc)
*Also counterparts in Aussie land
Moving on to process
 
US/Aussie System
Similarities Differences
Based upon the '67 Broader definition in Australia
protocol
Christmas Australia and US detain a lot (percentage wise probably
Island/Guantanam more is AU) - US more after undocumented workers/drug
o traffickers (need criminal background)
Limit blank check US goes in and out with some policies
(remapping of
areas)
Boat people On shore has lower status in AU whereas more or less the
same in US between on shore and off shore (maybe slightly
but not as strong)
On shore and off  
shore programs
Additional criteria  
for humanitarian
 
Malaysia swap system: one goal is to lessen people smugglers/traffickers
*Unclear as to how UNHCR feels about it
 Malaysia isn't a party to certain conventions
 Good because proper procedure
 
Interdiction System
*Been doing it for a grip, started with Cubans in the 60's; more prominence with Haitians
in 90s
 1990: Aristade elected and traffic from Haiti stopped
 US argued they were economic migrants (both not to piss off Haiti, but also to
admit fewer)
 After coup, boat traffic back up; Bush temporarily suspends repatriation and
puts them in Guantanamo (filled up quickly however)
 Bush sends Executive Order that non return didn't apply outside of the United
States
 All screening was ended and just sent back
 Clinton campaigned against but didn't end until '94
So basically Supreme Court made it okay to interdict
Statistics:
2004: more violence in Haiti, increase in boats
*New legislation required "credible reason(?)"
How did it work?
Coast Guard would make an enquiry and ask for help
 Did take most boats that were unseaworthy
*damn you missed it; too many numbers
 
Reasons for interdiction:
 Unlawful enteries
 Resources
 How to screen them
 Health concerns (diseases of the people)
 Danger to the refugees on the boat
 National security concerns
 Have people taking law into their own hands
Bias in the system:
*done way more to Haitians than Cubans
*appeared in many ways (Nicaragua - Sandinistas; Guatemala - dictators we
supported); could win Nicaragua claim because of communist government and the fact
that we supported those governments
*Class action suit was brought to try and remedy this issue; settled the case - agreed to
rehear all the cases (took forever because there were thousands of claims)
 
Standards of Proof:
What is the standard of proof?
What degree of certainty to you need to persuade the court (ex. Criminal- beyond
reasonable doubt; civil (in most cases) preponderance of the evidence)
INS v. Cardoza-Fonseca
With-holding Standard: more likely than not (51%) preponderance of the evidence
Asylum: Well-founded fear - reasonably possible / reasonable person standard
(less than 50%, even as low as 10%)
*was a surprise that they allowed for the lower standard
208(a) procedure: term refugee was an integral part of the act
243(h) procedure: applicant had to demonstrate "clear probability of persecution"
*Congress simultaneously added and amended the statutes so they could have fixed
the language
*Talked about the history of the statutes and how they were used
 Meant to bring us in line with the UN
*Court thought our asylum was mirror of Section 34: contracting states will facilitate
naturalization of the refugees and reduce costs of proceedings
So why the hell is there a higher standard for withholding than for asylum?
The AG has the discretion in asylum cases whereas withholding is mandatory
Chevron Case (argument of Government):
 Allowed to regulate if there is a gap in the law
 Only have to give deference if clearly worded
Scalia Concurrence: Wording is clear, don't need to go into legislative history
 
Matter of Mogharrabi
Rules:
 Explicitly points out reasonable fear in well-founded fear
 Can be significantly less than clear probability
 Need to have subjective and objective
 If you can get evidence, you should get it, but in worst case can rely on
person's statement (will need explanation as to why there is no more
evidence)
 
Refugee Sur Plus: wasn't a refugee at first, but due to a coup or some other
upheaval becomes a refugee
 
Matter of Pula
*Focus on discretionary: fraudulent representation not enough to immediately withhold
asylum
Examples of circumstances:
 Obtain fake American passport is worse than one from your own country
 Been in other countries
 Has to remain in hiding
 Relatives in this country
 Age
 Length of time before going to US
*Weigh the punishment that will happen to them at home if meet asylum but not
withholding and have some kind of discretionary negative
Rule:
 No negative factors, then give a favorable ruling
  In practice however, always think about discretion as separate factor
 
Prosecution v. Persecution
*UNHCR report is not binding but it is persuasive
Handbook outline:
 Umbrella as to why there needs to be distinction (refugee from justice rather
than persecution)
 May be obscured if punishment is totally excessive
 Criminals can have well founded fear of persecution
 Selective prosecution
 Is crime of such serious nature that it falls under the exclusion clauses

Sadeghi v. INS
Facts: Teacher who tries to convince a fourteen year old to not fight in the Iraq/Iran war.
Outcome: This is not persecution
Dissent: Persecution b/c of assumptions and the fact he is on a watch list
Wrap Up of Persecution, Nexus, and Political Opinion

Wednesday, June 08, 2011

3:55 PM
Random Stuff:
Corroboration requirement - difficulty in collecting evidence (so that is why testimony
could be enough)
 Codification of the newer statute (Real ID of 2005 - see page 3 of INA
handout)
 
Nexus:
Lazo-Majano:
Facts: El Salvadorian woman who got raped, beaten by officer of the military.
(Husband left for political reasons).
What was the protected Imputed political opinion
ground?
How did this rise to Persecution for views of armed forces; the imputed portion is
level of five factors? the threat that the officer would call her subversive if she
didn't bang him
How did majority relate A bit of a strain because harm didn't come from the opinion, it
it to the protected came from fear of reporting to military/police - the fact that
factor? the dude said he was going to say this
What about the The persecution was a personal problem (dispute between
dissent? two people)
Main point: No nexus; it wasn't persecution from Zuniga, too much
emphasis on his role in the military (relatively low level,
sergeant)
What could have She never tried to go to the authorities - majority too quick to
helped? accept that he was a part of the military
*Both majority and dissent knew they had to go through this nexus
 
INS v. Jairo Jonathan Elias Zacarias
Rules:
 Not the persecutor's opinion, it is the victim's
 On account of means, did it fall under one of the five
 In reviewing, evidence can't just support must compel
Standard of Review:
 Substantial evidence when question of fact (wasn't there for hearing of
evidence)
 If it supports the prior ruling, then can overrule
 Question of law (de novo)
 Much more lenient standard (3 reviewing v. one)
Does Scalia make a ruling on No
imputed political belief?
Dissent counters with Political opinion can be expressed negatively as
well as affirmatively
What does Scalia say about that? No difference between indifference and
neutrality
Recap of Rules:
 Victim's protected ground matters
 On account of - does really matter as to persecutor's motivation
 Must show some evidence (circumstantial or direct)
 Clarification of the standard of review
 
Mixed Motive:
In re S-P-
Rules:
 If the action is just for information, it is not a protected ground
 Mixed motives is okay - doesn't have to be solely one ground
 "imputed" grounds could be enough for protected
What was the protected ground? The political belief went against the government
What was it that made them think Geography, political climate, etc. (circumstantial
that? evidence)
 
REAL ID Act of 2005
". . . Or AT LEAST ONE CENTRAL REASON for persecuting the applicant."
Notes:
 More than tangential, superficial, subordinate, etc.
  Got rid of subordinate
 So as long as protected is not incidental
 GOOD POINT OF COMPARISION FOR US AND AU
How does UNHCR differ?
 "effects test"; UNHCR has a lower standard of protected and
motivation
Effects v. Motivation Rule
 
Chen Shi Hai v. Minister for Immigration
*Here the motivation is helpful for causation but not essential
*Court finds there is enough of a link (okay under effects test - like UNHCR)
Would we reach same decision under motivation test?
 
Hypo:
Mr. A page 64
Fear of Yes because of the threats, credible because of Taliban
persecution? history
Convention Maybe political opinion (probably "imputed")
ground?
Nexus? Yes because on account of political opinion
Motivation factor Maybe mixed because information, but also because he is
(US) helping US
Evidence? The inferential link of Taliban soldiers and lying
Effects? Motivation would help, but don't have to show it
*Would be helpful for us to know why he lied (probably helpful to show that he had
political opinion)
 
UNHCR: Something less than motivation of the persecutor
Travaux preparatories: preparatory works for treaties (like the legislative history of a
treaty)
 
Framework: (element by element)
Is there persecution or well-founded fear of persecution?
Severe enough
Prosecution v. persecution
Rebuttable of past persecution
Can you get humanitarian edge
Non-governmental actor acting with complicity of government or
indifference of gov.
Is there a protected part involved?
"Imputed" ground or plain
Required Nexus:
 US: was persecutor motivated
Multiple motivations?
AU/UNHCR: effects test
Unwilling or unable to avail themselves of protection(subsumed in other
elements)
Does person fall in exclusion
Persecuted others
Criminal act
Etc.
Asylum only: favorable exercise of discretion
 
Hypothetical 6:
Applicant:
 Held for questioning because of her affiliation with folk dancing
 Suspected of aiding insurgent groups
 Fled the country
 Neutral - imputed political protection
 Cousin is leader of group
 Fear of torture (happened to people in a similar situation)
Government:
 Persecution requires offensive - only had a one time occurrence of
interrogation (government has a right to seek out information)
 Although there was a cousin, it doesn't mean that the government
knows that
 Given water while being questioned
 Dance folklore wouldn't be a protected social group
 Also not necessarily against the government
 Don't show any evidence of past-persecution (required)
 No showing of nexus (no basis of the five reasons)
 Might pass subjective test, but not the objective
Highlighted Points:
Persecution:
 Severe enough? Maybe, but probably not because only 10 hour
interrogation
 Might have been prosecution rather than persecution (even if found it is
rebuttable)
 Subjective belief of fear - probably had it (other were killed)
 Objective belief - arguable
 Neutrality can be a political opinion (hard to say if really was in this case
because no evidence)
 Questioning showed motivation? Possibly; effect was probably there but
more facts may be needed
Other Points:
 Enough for asylum because discretionary, but probably not withholding
 
Wrap up on Nexus, Political Opinion, Refusal to serve, Race
Sunday, June 12, 2011
4:06 PM
Nexus:
Effects test - UNHCR, AU
Motivation test - US
*Application of a general law can be persecution, but generally not
 Legislated political opinion (e.g. coerced family planning)

Lin v. INS
Important factors for motivation test:
 Timing of the arrest (directly after Tiananmen)
 Context of the movement

Carranza-Hernandez v. INS
Motivation test:
 DNI arrest warrant - direct evidence
 
Political Opinion:
Osorio v. INS
*Very detailed case and what you would want to develop for client
 
Definition of Political Opinion:
 More than traditional notions of government and parties
 Might be enough to simply to oppose governmental, traditional or
societal norms
 Struggling for neutral can be enough
*very broad, social movements are included within it
 
Prosecution v. Persecution
Pre-textual prosecution: in Lin, using trespass to prosecute for his actions in the
democracy movement
*Also grounds of not a real crime
*There can also be no formal charge as in Bellido (lack of valid process) - an indication
of persecution but not for sure
 
Page 64 Hypo #3:
*UNHCR is more concerned with well-founded fear than past persecution
 Might be a "human right" under paragraph 59 of UNHCR
 Under paragraph 57, might be excessive punishment (however this
may not fall under it)
 Under paragraph 60 might be because in relation to our own national
laws
 
Problem over insurgents:
Dwomoh v. Sava:
*If the only way to change the government is to overthrow it violently then it is cool
Vacca dissent in similar case: nation-state takes precedence over some other bull shit
*Could an element of violence bring this all together
 
Refusal to serve in the Military
Page 66 Number 1:
Under UNHCR 170:
 Could be but most times not - genuine religious belief
 Have to show: strong religious convictions (also because 168 says
needs to be more than fear)
*Would have trouble under US law because there is no motivation of the persecutor
*Need religious plus claims
 Think of Ukrainian case where religion wasn't recognized even though
there was exception for other religions
IN Ghebremedhin: It was enough because of severe nature of repercussions (friends
beaten to death)
 
Hypo #2:
 NGOs aren't enough for asylum cases and "unjust" wars
 Probably fails both places (see 171 and see religious plus)
*Hypos meant to show problems with motivation
 Motivation
 Genuineness
 Can't be particular war unless condemnation by international
governmental body
 
Hypothetical Class discussion:
Respondent:
 Religious plus: all the ish that went down
 Cumulation of factors is enough, maybe not enough with just religion
 Well-founded fear because both severe past persecution and
unwillingness of police to intervene against the non-governmental actors
 Race, adverse conditions for them
Government:
 No conclusive proof that the authorities would not protect them
 No indication that the police wouldn't help
 Not sure it went up beyond harassment
 Not clear it falls under the five factors (was marriage not particular religion)
General comments:
 Religion enough?
 Racial thing
 Individual action enough to do the damn thing (like matter of Ese?)
Was there persecution? Maybe, real question as to the severity -
cumulative effect
 Also non-governmental actor
Sub issues: Is once enough? Possibly
What happens with past Rebuttable presumption arises
persecution?
What was the protected ground? Looks more like race than religion
*Note that there may be a Husband's weighs favorably with religion. Wife not
difference of claims as much
You need to look at timing Here, there was no problem prior to marriage
What else did they point to? Ethnic tension in the country
Motivation at issue? Somewhat because hard to establish the
government's real position
 
Other Religious cases:
 Identity
 Belief
 Way of life
*In the hypo it is more the way of life than anything else
*It is required to show some kind of knowledge (particular circumstances)
*Jews are kind of special since race and religion

Recap:
 Different kinds of religious claims
 Identity
 Belief - probably the only one where knowledge is important
 Way of life
 Many case turned on the presumption (burden shift on the
government or not)
 
Persecution on Account of Religion
Monday, June 13, 2011
4:09 PM
What if proselytizing is required by your religion?
 Need to look at the tenants of the faith
 The beliefs of the individual
 "practice and teaching" B(a)(11)
 B(a)(13): "Bearing witness in words and deeds is often bound up with the
existence of religious convictions" - identity or way of life
How to use guidelines:
 You can use these, but make sure that you include the case (cases can be
binding, guidelines are always only persuasive)
  
Protected ground, is the victim's protected ground (Scalia in Zacarais):
*Australian courts tend to go with this (In Okere v. MMA: "Few would question that Sir
Thomas More was executed for reason of his religion albeit that his attainder was
based on his refusal to take the Succession Oath in a form which acknowledged Henry
VII as head of the Church of England"

Takeaways:
 Defined broadly
 Consult UNHCR guidelines
 Can be deistic, atheistic, polytheistic, etc.
 Belief, way of life,
 Sincerity of belief
 Knowledge less relevant than sincerity
 Can include post-departure claims sur plas(?)
 Religion can be imputed like political opinion
 Indefinite list of types of persecution
 Include denial of right, forced conversion, penalties for practice
 Distinction between belief and practice
 
Liadikas(?) case: proselytizing
*Greek dude who lost his case
Why did he lose?
 Wasn't aimed at just one religion
 Wasn't actually severe
 Fear of future would be weak (not that strong of persecution and he would have
to continue his current activities)
 
*No longer allow spouse getting automatic status
*Representation is huge in getting asylum, so really important to get consistent
testimony
*note country report usage in the cases
What else could be used?
 News articles
 Documentation services
 Specialty places like Hastings, Center for Refugee Law, Immigrant Advocates
Network, etc.
 It appears that NGOs can be used for this purpose to bolster the claim, but
make sure it isn't completely self-serving and objective
 Ethnic communities in the US (because family members back home or recent
immigrant)
 Some librarians can help out with legislative intent
*Make sure you make it usable for the judge
 
 
Masood Shirazi-Parsa:
*Lost on credibility; omitted an arrest in original request
 
Persecution based upon Race
Makonnen v. INS
*not enough emphasis that she was in the Oromo Liberation Front in original opinion
 
Shoafera v. INS
*Pregerson tends to rule in favor of applicants
*rape case at gunpoint
Problem with motivation and problem with governmental actor
How did he find the nexus?
 No governmental rebuttal; interesting because the burden is on the applicant
 Testimony by sister
 Documentary evidence
 Established the presumption of past persecution
 
In re O-Z and I-Z
Any doubt of severity?
 Not really, lots of beatings and what not
Rule?
 Must look in the aggregate (cumulative analysis of the events)
 
Membership in a Particular Social Group:
*Didn't exist in the statute originally. Came around during the convention
*Can't use this to make the others redundant
*can't define the social group by the harm (at least not exclusively)
 
Matter of Acosta
Immutable: a characteristic that either is beyond the power of an individual to change or
is so fundametal to individual identity or conscience that it ought not be required to be
changed.
Examples:
 Sex, color, kinship, shared past experience, etc.
Outcome on social group ground: didn't provide protection (could have changed
occupation - not immutable)
Did they consider shared past experience?
Don't actually look at that argument
Political Opinion Argument:
 No real evidence of persecution - own agenda
 No guarantee of a job that you want
 "persecution on account of political opinion" refers not to ultimate politcal end but
to the belief held by an individual that causes him to be the object of the
persecution
 
Sanchez-Trujillo v. INS: "young, urban, working class males without military
service" is too broad for social group and the immutability requirements
However, other cases has large social group
*Now need voluntary affiliation or immutable characteristic in ninth circuit (rest don't do
this)

Australian Social Group Approach

Monday, June 13, 2011
5:37 PM
Next session high court decision mentioned earlier
*If negative, can appeal to refugee tribunal council (?)
*After that, can appeal again but limited
Requirements:
 Check country of residence, former habitual residence
 Well-founded fear (see 91R)
 Essential and significant reason
 Involves serious harm
 Involves systematic and discriminatory conduct
 Nexus (religion, race, nationality, etc.)
 
Particular Social Groups:
Why so controversial?
 Scope is really at issue (occupation, gender, socio-economic class, etc.)
 Not exhaustive definition
 Human trafficking, sexuality, etc. - still not universally
Needs:
1. Relevant social group
2. Fear persecution because of the membership to the social group
Basic/Fundamental Rules:
 Existence of social groups depend on relevant country information and the facts
of each case
 How is the group formulated or qualified; are there alternative formulations
 Whether the group is united by a common element/can you recognize it
 Membership of particular social group will not be made out if past persecution is
the sole element in the definition of the group
 Fear of persecution and membership of the social group
 So first make sure there is a relevant social group
 
Finding citations
1997 190 CLR 225
Go to databases and drop down to law
First point, lexis-nexis AU,
*Best just to use the citation
Applicant A 1997:
Facts:
  Married couple
 From China
 Arrive with child that is 8 months pregnant
 Has baby in AU
 File application because well-founded fear as social group
 Forcible sterilization
Procedural Posture:
 Made it to the high court
 3-2 decision said that they were refugees
Analysis/Importance:
 Set out test for particular social group
 Identify a collection of people who share a certain characteristic or
element that unites all the members of the group
 Size of the group doesn't matter too much
 Relevant characteristic can't be shared fear of persecution
 Must enable the individuals who members to be set aside or
distinguishable from society at large
 Persecution as characterstic is self-serving
 Left-handed men are not a social group, but if they were persecuted then they
could be (therefore, it means that the group is the left-handedness not the
persecution)
 
Missed the name
Facts:
 Dude from Afghanistan
 Claimed Taliban tried to forcibly recruit him
 First time, paid them off
 Second, said he had to talk to parents
 Took off on a boat to AU
Analysis:
 Tried to use the social group of able bodied man
 Problem here: young men were not seen as particular social group within
Afghan society
 Test:
 Group must be identifiable by characteristic or attribute common to all
 Can't be fear of persecution
 Possession of the characteristic or attribute must distinguish the group
from society at large (must be particular social group)
 Not essential that perceived by society as cognizable but it helps
 Must consider subjective and objective
 Objective: country information, religion, social factors, etc.
 Subjective:
 
Social group: can be Voluntary association or immutable characteristics (91S)
 Must go toward the identity of the person claiming that relationship
  
Albanian Blood Feud Case
 Grandfather killed a dude, blood feud ensued; couldn't claim because actions of
grandfather not a protected social group (person under customary law or family not
applicable - it is considered criminal gangs and not persecution under customary
law)
 To clean it up: if criminal activity/feud not protected
*In AU, can probably be a clan and not just immediate family
 
Gender-based violence:
What is gender? How you identify yourself
What is sex? The physical manifestation of male or female or other
 
*Over last few decades, UNHCR has stressed protection for those facing gender
related persecution if the social group is applied in a way that there was a
transgression of social mores
*In AU, gender claims have largely come under social group
 
Pakistani Woman case
Facts:
 Her and three children
 Fleeing from beatings
 Constructed her claim was that Pakistani authorities have systematically
discriminated by refusal to protect women as sanctioned by the state
 Based on lack of protection
 Said her social group was women in Pakistan
Procedural:
 Said terrible, but personal because it was just family violence
 Didn't consider failure of the Pakistani police to protect her
Two Issues:
1. Whether failure of country to protect those from domestic violence can be thrown
in with the persecution mentioned by the convention
2. Where the women or women in Pakistan could constitute a particular social
group
Analysis:
 Persecution may result when criminal conduct of a private party is condoned by
the police … damn missed the last part but just the fact someone is persecuted
then under conduct of two or more agents - expanded to inaction
 Chief justice didn't have problem with the social group (women of Pakistan)
 Two other justices: found that the persecution lies in the discriminatory inactivity
of the state
 At its narrowest, it could be women with a man blah blah blah
*So basically high court said that women could be a social group, but you may want to
narrow that. You can get to the state inaction if there was a discriminatory lack of action
within the guidelines of the UNHCR
*Nexus found by discriminatory manner - withheld on account of social group (woman in
Pakistan)
 
*UNHCR prefers relevant factor over essential in 91R as it relates to serious harm
What is serious harm?
 Threat to liberty
 Physical harassment
 Ill-treatment
 Economic hardship
 Denial of access to basic services
 Denial of capacity to earn a livelihood
 
Gay dudes from Bangladesh:
 Didn't get asylum because if they were silent about it they would be okay initially
 High Court said that it isn't fair to divide into discrete and other homosexual men
 Question is not whether they could live discretely, it is whether there is
well founded fear of persecution
*If a state just doesn't have the funds to protect, then there will be difficulty in getting to
the state actor test

Aussie/US distinctions
Tuesday, June 14, 2011
8:53 PM
Differences:
 Overseas protection system is broader than just refugees (can be
extreme discrimination)
 Special family provision 91S (family has to be persecuted by a
convention ground)
 Mixed motives - convention ground has to be one essential and
significant - probably the same thing
 May have to make it to Australia to make a valid claim (not necessary
so in the US)
 If they are denying citizenship in US, they refer you to this
 Big emphasis in AU to not define refugees as a social group only by
their persecution
Similarities:
 Application process is similar (not a guarantee, but everyone
qualifies to apply)
 Same def of refugee
 Merits review is similar (judicial review)
 
Matter of Toboso-Alfonso:
What was the social group? Homosexual
males
What was the immutable Being gay
characteristic
 
Orlandos-Mantel(?): Gay men in Mexico with women sexual identities
*Made the court look at those who do not conform to regular social norms (autistic boy
from Pakistan, street children in Honduras, etc)
 
In Re C-A-
*requires social visibility and particularity
Reasoning:
 Informants are visible or particular
 Also voluntarily took on the risk
 Fails on motivation (doesn't mention primary motive was on a protected
ground)
 Being against a guerrilla group isn't the same thing as a cartel (motivation
to save your own skin v. ideology)
Criticism:
 Cartels are as strong as government in many countries
Social visibility: recognized by most
Particularity: definable not amorphous term
 
Matter of S-E-G-
Young men who lack stable homes blah blah blah
*Basically court said no unifying characteristic
(gang recruitment in El Salvador)
*Social visibility was not met either
*Lost on political opinion because of motivation in political opinion
*
UNHCR
Social perception OR immutable characteristic
US requires both (all circuits have adopted this)
UNHCR Guidelines:
*not all members have to be persecuted
*size is not a relevant criteria
 
Hypothetical 7:
Respondent:
 Past persecution
 Watched parents die
 Incarcerated
 Forced labor
 Had to fight in ten battles
 Had to strip corpses
 Witness killing and torture and mutiliation
 Had to assist in murder of friend
  Future persecution
 No guarantee that he can be reintegrated into normal society
 No longer a child in eyes of government
 Could be detained
 Protected ground
 Social group - common immutable characteristic (captured child
soldier, couldn't change location or where he was from)
 Private actors can commit persecution if the government isn't able to
protect its citizens
Government:
 No well-founded fear
 Vast majority of child soldiers were "treated well"
 Some have been up on treason charges but not all
 Must show life or freedom is threatened (need clear probability)
 Personal decision not a political one
General/Real Deal
 Persecution through loss of freedom, torture, etc.
 Violated human rights law of a child
 Past persecution must be severe and burden shift
 Well-founded fear - future persecution: here different than the past
persecution
 "Continuing harm" of persecution: think of the sterilization cases
 If non-state actor must mean that the government can protect
(unwilling or unable)
 Persecution is failure to protect because of protected ground
(alternative view of how to argue)
 To show political opinion: need more than just criminal activity; must
show circumstantial evidence of Resistance Army of political opinion
 Social group: Uganda children 13-16 who conducted raids
 Nexus: "on account of . . . " - probably mixed motive
 Negative discretionary factors: dangerous individual
 
Matter of Kasinga
*Family members beliefs are likely to be imputed to others
*Women persecuted more as a private actor
Asserted ground in the case: born into a country with FGM; membership to social
group who oppose
 Board saw it as young women of the Tchamba-Kunsuntu Tribe who have
not had FGM and oppose the practice (need "and oppose" because that way it
shows the persecution)
Why didn't we have to do it with John L?
It was compulsory, had to join regardless
THIS CASE IS GOOD FOR AN ANALYTICAL FRAMEWORK
What was immutable characteristic? Being female or member of the tribe; intact
genitals
 How was nexus established? Social group
Motivation? Background information about FGM
Kasinga oral argument is online
What was INS worried about? Cultural practice would open the floodgates and wanted
the "shock the conscience test

Human Rights Commission

Wednesday, June 15, 2011
4:07 PM
*More people in detention now than ever before
Detention Center:
 Mandatory detention
 No time limit
 Not reviewable
Normally, short detention then an assessment of some short
*detained for the whole period while seeking asylum
*over 6,700 in detention
 1,000 children (700 in secure 300 in community)
*High percentages over 6 months in detention
Places:
*Christmas island - really close to Indonesia
 People have been detained for 10ish years there
 Hundreds of millions spent on it
 Meant to hold 800, but holding 1800 right now
 Functions more or less like a jail
Excision Policy:
 Lots of laws given to people in AU aren't extended to these areas
*Strong commitment to secure borders in AU; part of this comes from the fact it is so far
from everyone else
April 9, 2010: Christmas island and training camp filled to capacity; canvas white tents
with wood floor and bunk beds to increase capacity (what sucked was that it rained for 2
months; so suspended processing of all applications especially Sri Lanka and
Afghanistan; also started moving people to the mainland (about 20)
*Afghanis make up the majority of refugees second is Iranian (used to be Sri Lankan)
*only processed under Migration act if you make it to the mainland even if you are later
moved to mainland
 There is limited access to the courts for egregious errors of process or legal
error; however, not the same access as if processed on the mainland
*5 suicides in detention - most were locked up for a significant amount of time
*round about 6,400 are illegal arrivals "boat people"
*increasing self-harm; some just serious attempts at suicide, but also protest stuff like
mass hunger strikes and riots
*Missing from the AU debate is the effects of the detention on the people
*torture survivors, mental issues (more by the experience than prior issues), and
physical impairments
Organization:
  Can make a complaint
 Commission tries to come to some sort of agreement
 Many problems with person being a refugee, but still waiting for security check
( up to 18 months)
 Can make recommendations to government but they are not binding
 Don't pay attention to difference between mainland and excision
 Able to photograph facilities, interview detainees and employees
 Some issues with interviewing detainees because of intimidation tactics
CAT: have to allow international body (UN) to monitor - AU agreed but not ratified
 Human rights standards
 Public reporting
 CERCO - company that runs prisons and what not
Main frustrations:
 Time of detention
 Length of process
 Unfairness in process and outcome
 Due to factual inaccuracies, similar background gets different results, etc.
 No excursions and limited recreational activities
 Increasing mental problems
*Immigration officers are on site with CERCO
Rule on detention: must be necessary reasonable and proportionate in order not to be
arbitrary under ICCPR
*last month or so they have tried to get children out of detention; working on other
vulnerable social groups (community detention has worked pretty well so trying to get
more of that)
*Detention has never been shown to be a deterrent

Gender, Qualifications upon Protection

Wednesday, June 15, 2011
5:23 PM
Saideh Fisher v. INS
Did she win? No
Why not? Just discrimination, neutrally applied law, not a protected ground

Faitin v. INS: two potential social groups: disagreed but complied or disagreed and
refused to comply with wearing of head covering (?) - persecution wouldn't be imposed
on the former group, but it would for the latter
Criticism:
 Makes the person become a martyr in order to comply
*Most of these types of cases fail
 
Khadija Mohamed v. Alberto Gonzales:
*Compared FGM to forced sterilization
 Can't really be done again in same way, but can be done further
 However, covered their ass with general humanitarian
*Used the social group of women in Somalia (seems like a cop out)
 
Abay v. Ashcroft
*Fear of FGM on daughter
*Interesting argument because daughter might qualify and mother may not
*well-founded fear extended to witnessing the pain and suffering of a loved one
*claimed ethnicity, social group, and religion
 
Domestic Violence:
*was unresolved for 10 years or so
Matter of RA was the big case (remember in some case it was enough)
 Abused for years
 Issued a decision but retracted
 Problems
 Was persecution, however husband's motivation didn't meet the standard
 Social group was tough (Guatemalan women who lived with men who
believed woman should be dominated - visibility?)
*Afterwards, Janet Reno vacated the decision
*Ashcroft decertified and made it good law again
*Then, motion to remand based upon social visibility (wanted to allow more testimony)
*Home girl got a amicus brief and granted asylum but no precedent setting
*Now the government recognizes it as a valid claim, but unclear whether courts
will interpret it in the same way (that how Obama do)
*RA tried to make the argument that the persecution was enough (partially why
overturned)
 
Removal Proceedings:
 If they deny, they refer you to removal proceedings
 Notice to appear (immigration and customs department) - alleged facts and
charge either inadmissible or deportation (present without documentation,
crime, overstaying visa, fraudulent visa documents, etc.)
 Only get to asylum, refugee, withholding if you are removable
 
Exclusion Grounds: (Critical Important)
*really common to find people who committed criminal offense
3 main:
1. War crime, crime against peace, etc.
2. Commission of serious nonpolitical crime ouside country of refuge
3. Actions not in accordance with US
*See supplemental page 258*
Exceptions to non-refoulement:
 Reasonable grounds for regarding person as danger to country's security
 The individual, having been convicted by final judgment, of a particularly
serious crime, constitutes a danger to the community of the country
Exceptions to asylum under INA
  Safe third country (only ones that we have agreement with, right now only
Canada)
 Previous application and denial
 Failure to file within one year of entry
Exceptions to refugee status under US law
 Persecution of others
 Being inadmissible under INA 212, but all grounds waivable EXCEPT:
 Controlled substance traffickers
 Coming to US to engage in espionage
 Terrorist activities
 Potential serious foreign policy consequences
 Participation in genocide or acts of torture
Exceptions to asylum under INA
 Persecution of others because of convention ground
 Particularly serious crime
 Serious reasons to believe person has committed a nonpolitical crime
 Reasonable grounds to fear security
 Firm resettlement in another country
Withholding is similar, but differences
 No one year bar
 Criminal bar is different (conviction under 5 years it is cool)
 Firm resettlement
 
Persecution of Others:
Wrap up Exclusion Grounds
Sunday, June 19, 2011
4:11 PM
Recap:
War crimes, crimes against peace
Commission of a non-political crime
Not in accord with UN
Security risk
Missed last one (just go through notes again)
Serious reasons to believe there was serious crime committed
Persecuted others
Terrorist grounds
 
Serious crime:
"Particularly" serious crime (asylum): any aggravated felony
"Particularly" serious crime (withholding): any crime that sentence is for five
years
 
Exclusion from asylum but not withholding
 Firm resettlement
 Took longer than a year to file
  Crime difference mentioned above
 
Duress:
Rodriguez Case - doesn't matter if persecution was ordered by other
Negusie (?) case - overruled case (supplemental materials)
In Fedorenko: Excluded (1) persecution of others (2) voluntarily went against UN
something
 Idea was that the voluntarily made it different
SC went against it by saying not dealing with same statute (Displaced person Act
v. (INA?))
Didn't say there was duress but didn't rule it out
*So no statement explicitly going against duress
 
Serious Non-political crimes
Serious: must be a capital crime or very grave punishable act
Non-political:
1. Genuine political motive
2. Causal link
3. So atrocious that goes against political
*Think of McMullen where bombing of two military barracks and illegal arms shipments
Supreme Court Rule: criminal can't be disproportionate to political action (Juan Anibal
Aguirre-Aguiree)
*no balancing of serious harm v. offense (must give Chevron deference)
CHEVRON IS HUGE UMBRELLA CASE: deference to
 
Just see handout
Conviction:
 When judge or jury finds a person guilty (can be withheld if do community
service or something along those lines - but doesn't count with immigration)
Sentence:
 Not actual incarceration, what was given
Expungements or pardons
 Don't really count if expunged
 Pardons do however
*Delinquency is not a conviction
*Can try ameliorate by amending
*For Cali, have to go through analysis of whether it is actually a conviction or what not
 
Hypo 8 (?):
Respondent:
 No specific definition of "serious crime" - a kind of factors test
 Only happened with PTDS episode where he was drunk
 Witnessed lots of Armenian ethnic cleansing
 Competency of original attorney (intoxicated and can mitigate circumstances)
 Concurrent sentence rather than consecutive
 No future danger
Government:
 Arrested twice already
 Serious crime in grabbing that breast
General Comments:
 Went against the respondent
 Once a felony is found, tough burden; remember back to absolute bar to
 Frentesqui(?) factors
 Nature of conviction
 Underlying facts
 Danger to community
 Serious crime and danger to community (matter of Carburali(?)) shows that it
is one thing
 US law rejects proportionality
 
 
Aussie Process of the Claims
Sunday, June 19, 2011
5:41 PM
*Have to be registered to give immigration advice
Will probably be doing a lot of country based research
So here are the sources:
Department of immigration and citizenship: find application forms, guidance on how it
works, recent changes,
 Legend.com is the bomb but not everyone pays for it
 Quick links has visa subclasses
 You will be interested in on-shore protection visa (200-204 most
applicable, want green)
 Goes through all the policies (so not all law but important policies)
 Google decent place to get stuff on migration law
 Types of cases you will be looking for:
 Decisions by refugee review tribunal (independent from judiciary) - merits
review over applications that were refused (just Google that ish)
 Publishes guide to refugee law in AU
 Found on lexis nexus and first point (?)
 Guidelines of credibility and assessment (useful tool)
 Tribunal not governed by same rules of procedure and evidence as
regular court
 Focus on objectively or reasonably believable
 Opportunity to introduce information to change judge's perspective
 Common law of Obensmen(?)
 Can't overturn court, but can use it to report mistreatment in detention
 
Been intercepted, on Christmas Island
Four key elements to def:
 Outside of his or her country of origin
  Fear persecution against individual or member of group
 Must have an official quality - endorsed or at least tolerated
 Denial of basic necessities/threatens survival
 Must be for one of the five grounds (religion, race, political opinion, social group,
or the other one)
 Convention reason is the significant reason for the fear
 Must be well-founded fear
 "Real Chance" test: must have real and substantial, can't be mere
speculation - can be less than a 50% chance
 
Need Form 866 (on website)
Can be use by family members and people who want to apply for protection
*Takes awhile to fill out
 Lots of background info
 Then detailed statement of what they are afraid of
Question 41:
I am seeking asylum because …
Question 42:
I left that country because
43:
What do you think will happen if you go back
Etc.
 
*Good idea to make sure that interpreter and client understand each other beforehand
on the phone (also ask if they want male or female)
*be wary of people who use Buddhist calendar and spelling correct
*Be wary that some interpreters are not very good
*don't over reach for information
 If client can't remember just get an approximation
*some clients might laugh at the comment of do the authorites take care of you
Why can't they re-locate
Do they have other members of their family here or do they fear persecution
Do they have right to live or right of living in any other country
Why can't they go there
If any delay explain it
Explain no advantage to dressing up their claims
Because if inconsistent or contradictory then probably get denied
If anything implausible, make sure you explain it
Don't forget must be linked to convention grounds (will often be mixed)
Dept. of Imm will make initial determination
Then health and character checks
If rejected
Onshore
 Refugee review tribunal
 Be careful of time limits
 If found not to be a refugee you will have to pay 1400 dollars
If refused
 Leave within 28 days
 Deportation
 Judicial review
 Very limited legal grounds for federal court, magistrate court, high court
 Have to show error of law
 Ministerial intervention
 Can only apply if refused and under humanitarian protection
 Tough because unreviewable and what not - you fucked up
 Significant threat to safety
 Torture or trauma
 Child from Australian partner
 
Next time Human trafficking
 Can apply for under refugee status
 Can go through trafficking framework
Think about (look at form 866) whether you would be able to successfully apply for a
protection visa for a client who comes to you
 Single woman from Ethiopia
 Family died
 Poor and had to accept work contract in Lebanon
 While on contract in Lebanon, didn't get paid properly and had to sleep on
balcony with animals
 Forced by someone to go work in a brothel
 Escaped in taxi but vague about the details - doesn't remember taxi fare was,
how she got money, etc.
 Afraid of going back because she will get trafficked for sexual servitude or
employment
What more would I need to make a persuasive argument that they deserve protection?
 
Offshore boat people:
 Arrive on excised border before the mainland
 Mostly on Christmas island - "non-statutory" process
 There are migration officers (only for short periods; 3-4 clients a day)
 However no access to judicial review
 In November 2010, two Sri Lankans decided to take on off-shore regime
 Both claimed AU owed protection
 Couldn't make valid app for visa unless minister exercised his
unreviewable power
 Refugee status assessment
 "Wizard people" conducted review
 Failed to adhere to procedural fairness
 Process is valid, however, legal errors are still reviewable in
AU courts
  Still can't get protection visa application - still only minister's
discretion; still not eligible
 Pod process introduced
 If intercepted by boat
 Claim evaluated by deportation officer
 Assisted by migration agent to go through statement of
claims (funded by AU)
 After receiving submission; officer makes evaluation
 If positive; recommend to the minister to lift the statutory bar
that blocks them from getting protection visa
 If negative you're fucked…unless legal error
READ Malaysia case;
Feel free to email [email protected]

Exclusion Grounds, Terrorism, process, CAT,

Monday, June 20, 2011
4:05 PM
Exclusion Grounds:
Terrorism - INA 212(a)(3)
Refugees have to show they are admissible
Asylees do not have to (after a year then permanent resident and have to show)
Inadmissible if:
 Engaged in terrorist activities
 AG or other officer has a reasonable ground to believe you are engaged in
terrorist activity
 Member or representative of terrorist group
 Spouse or child of person inadmissible if within the last five years
 Exemption: if didn't know or couldn't have known of terrorist activity
Terrorist activity: hijacking, kidnapping, etc.
See 915-917 for more specifics; generally good headings
*really tough with the "material support" section of the statute
Crucial phrase: "knows or should reasonably have known"
Three tiers of terrorist organization:
1. Designated under section 219 (by statute; Taliban, Al Qaeda, etc.)
2. Otherwise designated upon publication in Federal Register
3. Group of two or more individuals that engage in terrorist activities
For withholding: (section 241(b) p. 912)
 "reasonable grounds to believe that the alien is a danger to the security of the
US" - falls under the third tier of terrorist activity as well
*Became big problem, in 2007, government officials were given the ability to exempt
some people under the "terrorist" heading (with some exemptions)
Dept of State does exemptions by group such as Iraqi National Defense, Kurdish
National Party, etc. and then also according to action
As of June 2009: more than 2,000 exemptions have been given out (usually for
students)
*4,000 or so on hold for terrorism related issues
 
Famous case: when John Lennon got popped for weed (possibly something stronger);
counsel brought out all kinds of stuff from Freedom of Information Act
Appellate Court: Immigration law is reflection of fears of the past
Possible evidence:
 Country information
 Past similar cases
 Evidence that your beliefs run counter to the act committed
 
Firm Resettlement
Does it matter for withholding?
Nope
Matter of Soleimani
Factors of resettlement:
 Offer of permanent status or citizenship (or permanent resettlement)
 Unless:
 Was necessary consequence of the flight
 Substantially and consciously restricted by the authority of the
country of refuge
*Other factors that might be applicable:
 Family, property, etc.
 Example: if you go to Canada but your uncles, cousin whatever is in US
then you might be cool
 
Process:
(missed first part)
Must file for asylum within one year:
*There is extraordinary circumstances can cause the delay
 Valid status can give you extra time (reasonable time)
 Same with changed status in country (reasonable time)
Burden of proof/Evidence
 Economic situation (ability to obtain counsel)
 Knowledge of English
 Illness
 Education level
 Age
Abriel Examples:
Mongolian wife, husband from a ?stan
 On regular visa; met; did mattress mambo; had a baby
 Both countries wouldn't be cool with it because of ethnicity and race
 Lawyer hadn't properly filed
 Wasn't within reasonable time (not extreme enough)
Algerian was detained in New Orleans
 Spoke a little French, but mainly Arabic
 Illiterate
 Not extraordinary circumstances
(Did get withholding however)
 
*used to be 22 on BIA and now down to 11; lost most of the liberal judges so bad
situation for respondents
*Immigration has huge caseloads and have trouble going through them all
Especially with detainees (court transcripts usually have 20 applicants)
 
(zoned out)
Get as much documentation as possible
 Notes from home
 Country information
 Any witnesses
 Photographs
 Some sort of official documentation
 Medical report of injuries
 
Need to interview many times; first one is just to get them to trust you
 Important because have to recount in a way that is consistent and believable
 Very few clients understand the detail needed
 More detailed the statement, greater chance of error when client is on the stand
 However, if you testify to a major point that it isn't in the statement, then
look not credible
 Remember after trauma people have trouble showing emotion
 Children have more trouble than adults with accuracy
 Takes many meetings to get full account (remember more each time)
 "Client centered" approach: now need client to be a real partner and need to
explain what the client needs to provide
 Asking them to write out doesn't really help, need to interview
 Best for you to write final draft, but still want client's voice to come through
 Most difficult: putting the claim together
 Really tough because country is so messed up (think of like Somalia or
Hako (?) case - Azeri hypo); many times judges just don't make connection of
case and what is going on in the country
 Can usually do this in pre-hearing memo; sometimes can do post-hearing
 Make sure it is well indexed and highlighted
 
Stats on Asylum granting in US:
Three ways to do it:
1. Affirmatively; go in and request asylum
2. Defensively; application for relief from removal
3. Oh damn…
*Limit is 80,000
(2009 stats)
 74,000+ got it
 Affirmative 11,933
 Biggest nationality was China then Ethiopia then Columbia
 98,000 filed
 Defensive 10,something
 China, Ethiopia, Haiti
 
Expedited removal Section 235(b)
*Great deal of fear that asylum was being abused (because took months to get in front
of IJ and then years to go before the BIA)
1996: reform to tighten up
 Penalty for frivolous suits
Applies to two groups:
 No documentation
 Misrepresented a material fact
Applies to all countries except in the Western Hemisphere which we don't have
diplomatic relations: Cuba
Questions:
Why did you leave?
Any fear if you leave?
Would you be harmed if you return?
Anything you would like to add?
*If yes to any then you get credible fear assessment by an officer
Credible fear: something less than reasonable person (certainly less than more likely
than not)
 Just needs to be that they could establish a fear
*Was a lot of fear that this expedited process would have them sent back too quickly
*Something like 40% are expedited
*If credible fear then trial with IJ
*If not, just that issue in front of IJ, if disagree full trial
*actually about 90% (?) get put into regular process so fears were overblown
 
US detention:
Concerns:
 Mental health issues
 Facilities being too small
 Detain children
 Arbitrary detention
 It is basically a jail
 separated from family members (at least potentially)
 Usually lawyers can't go there, really expensive to do so, or takes a long time to
get in
 Clouds their thinking
  Can't gather evidence (all on lawyer)
Why detain?
 Keep track; being able to remove
 Security concerns
 Deterrent
Prior to '96: not that much detention
After: began to rise; then 9/11 made it go way up
*Arizona is at the forefront of expanding detention facilities
Stats on detention:
 ICE(?)is largest detainer 370,000 detained
 Some released on own recognizance, monitoring device, or bond
 Length of detention varies
 25% released within a day
 38% within a week
 95% within a month
 Less than 5% more than a year
 Surprising because takes more than a year to process application;
probably because can't stand detention any longer
 Many less females than men
 1400 noncriminal are detained daily
On a positive note: ICE did really comprehensive report in '09 and as a result there will
be "comprehensive changes" such as:
 Increase number of ICE staff
 Greater likelihood of being released (if not substantially likely to commit a crime -
Matter of Joseph hearing)
 
CAT Hypo: (look at your notes for respondent and just make counter arguments for
gov/Kelli wasn't there)
Recap:
 If mental must be administrated by mind altering drugs (see book for more
specifics)
 Need specific intent (targeting the individual)
 Illicit purpose
 Punishment
 Intimidation
 Based on discrimination
 Instigation of the government
 Defined as by 9th circuit: "awareness or willful blindness"
 CAT is not part of our law in statute form only regulation
 Must be in custody
 Deferral and withholding is similar; just that deferral could land you in detention
 Hakob case was cool under CAT with IJ, but reversed by BIA; 9th Circuit sent
back - didn't draw the dots; BIA denied again; 9th circuit said harm wasn't bad
enough (possibly could have found lack of specific intent as well)
 
Process of the claim
Credibility:
 Same as AU
 Can't establish without it
 Country reports might be enough even if not credible under CAT but not
asylum/withholding
REAL ID Act of 2005:
 "totality of the circumstances"
 Demeanor
 Candor
 Inherent plausibility
 Consistency between statement and testimony
 Internal consistency of statements
 Must go to the heart of the applicant's claim has been removed, but can't
focus on just one minor inconsistency
 Need reasoned basis for the finding
 Can be based on any of the above
 Can't draw on prior cases, article in paper, etc. - can't draw on extraneous
or at least has to give a chance to respond
 Corroboration
 Judge can require an applicant to bring in more information unless you
can't reasonably obtain it
Intro: Alazar Radi
The focus of today’s hearing is on the Convention Against Torture as opposed to the
issue of withholding despite the fact that the sentence of armed robbery was for only 4
years and the statutory limit for withholding is 5 years.

Intro into the Rules:

In Navaratwan Kamalthas v. INS, the court explicitly said the analysis for CAT and
those ineligible for political asylum

CAT Broader in the sense: “because it requires no nexus to race, religion, nationality,
political opinion, or social group membership and the statutory bars applicable to
asylum and withholding claims will not preclude relief.

CAT Narrower: because it does not protect against all harms; must meet the more
likely than not standard

Under Article 3 of the Convention Against Torture:

“No State Party shall expel, return or extradite a person to another State where
there are substantial grounds for believing that he would be in danger of being
subjected to torture.”
Under this article an applicant is entitled to either CAT withholding of removal or CAT
deferral of removal.
In order to qualify for withholding an applicant must meet the burden of proof of
establishing the likelihood of future torture and those who do not come within any
of the INA 241(b)(3)(B) bars of persecution of others, a “particularly” serious
crime, person believed to have committed serious non-political crimes, and
individuals who are a danger to society.
The qualifications for CAT deferral are more liberal, however, can be more easily
taken away from an applicant and they could stay in detention. LOOK FOR
BETTER DEFINITION!!!!!!!!!

As the facts will show Alazar Radi would be subjected to torture if returned to Ethiopia
and should be granted CAT withholding or in the alternative deferral.

Torture is defined as “any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or
her or a third person information, or a confession, punishing him or her for an act her or
she or a third person has committed or is suspected of having committed or intimidating
or coercing him or her or a third person or for any reason based on discrimination of any
kind.”

The key elements of torture and the further discussion are:

- Acts which cause severe physical or mental pain or suffering
- Intention (specific and general)
- Impermissible purpose
- By or at the instigation or with the consent or acquiescence of a public
official
- Likelihood of harm (factors test)
- Why not a particularly serious crime within the meaning of the statute

Part 1: Acts which Cause Severe Physical or Mental Pain or Suffering

Facts of this case:
 Deposition page 40-1: Radi’s mother says she does not know where her
husband is fears her husband is dead for his involvement with the Oromo
Liberation Front
 Dep 46: grandfather was killed and dumped in the street
 42: Also, father had been arrested twice for periods of seven months and one
year for distribution of materials; during detention he suffered beatings as
evidenced by bruises on his face and a limp upon return
 o According to US Deportment 2008 Country Reports on Human Rights
Practices, OLF members and other opposition parties have been
beaten while in detention, tortured for days to try and extract
confessions of torture, and fracturing of one individuals right leg and
beaten unconscious. Authorities were complicit or at least notified and
did nothing to prevent these incidents.
 44: mother was detained for 7 months as they interrogated about the OLF;
long term problem with neck and back
o The law and constitution do not allow for arbitrary arrests but they still
go on; and no public disclosure of this incidents to the public
Analogous Cases:
Al Saher v. INS: sustained and severe beatings for a one month period and being
burned with cigarettes
Kouzman v. Ashcroft: routine torture by police officials to exact confessions from
suspected criminals is torture
 Father was beaten until he was limping with bruises on his face
 Mother was routinely beaten and raped while trying to illicit confessions
Distinctions:
Kumar v. Gonzalez: Arrest accompanied by beatings with wooden sticks and belts
 This was only an arrest as opposed to prolonged detention
Settenda v. Ashcroft: low prison standards are generally never torture
 The family was singled out based upon political affiliation and ethnicity
(imputed to the family members)
Mwembie v. Gonzales: gang rape of female inmates is not torture
 Not about the mother and she was beaten regularly in addition

Part II: Intention:

The majority of jurisdictions have followed Matter of JE, where the court said that there
must be a specific and general intent
*In the interest of time, we will deal only with specific intent because if that is found then
you have the general intent as well
Specific Intent:
Problems:
- State of mind
- Motivation, or
- Intention
*In this case, the intention of the government is self evident. The Oromo people make
up 40 percent of the population and would present a large threat to the government and
its policies
 * According to state department, arbitrary arrests of OLF still happen including
those who had no known affiliation with the organization prior
Although a banned organization, ethnic tension and underlying political affiliation
come into constant contention
Analogous Cases:
Jean-Pierre v. AG and Eneh v. Holder: Dudes singled out because of AIDS
 Analogous because both his ethnicity and family line would potential reasons
for him being singled out

Part III: Impermissible Purpose

Impermissible behavior includes coercion, punishment or “based upon discrimination of
any kind”
Doesn’t apply to lawful sanction
Why it doesn’t apply:
 Discrimination (ethnicity and family name)
 Not lawful sanction because the law isn’t supposed to arbitrarily arrest and
what not
In Nuru v. Gonzales “Torture is never a lawful means of punishment”

Part IV: By or at the instigation of or with the consent or acquiescence of a public official
All the incidents of death, detainment and torture took place with the police or security
services directly affiliated with the government

Part V: Likelihood of Harm

Burden on the applicant to show that torture is more likely than not.
More likely than not factors:
 Evidence of past torture inflicted upon the applicant
 Evidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured;
 Evidence of gross, flagrant or mass violations of human rights within the
country of removal; and
 Other relevant material on the country
*No past torture on individual, but there is plenty on the family and the name would be
recognized by police (depo page 59-61) and they would likely be detained
* government continues to detain political prisoners despite letting some free and
no clear indication that the situation has gotten better (arrests from Oct – Dec)
*Relocation is not a viable option because of the prominence of family members
activities and the fact that the government is complicit in the activities of the security
services and police
*All the shit I said before
Part VI:
Although the offense committed was a felony and he was tried as an adult, no one was
injured and the Probation Department characterized the offense as non-dangerous and
non-repetitive
*Incident was just a friend told him to act and he had no prior knowledge
Could have had ineffective counsel at trial because may have lacked the mens
rea to commit the act (UNHCR Paragraph 64)
INA 241(b)(3)(B) bars of persecution of others, a “particularly” serious crime,
person believed to have committed serious non-political crimes, and individuals
who are a danger to society.

Conclusion:
Family persecuted
Offense not violent and unlikely to reoffend
No family in host country or refuge

YOU FORGOT TO USE THE FREDESHI(?) FACTORS

SHOULD HAVE TALKED ABOUT HORRIBLE VIOLENCE OF THE FAMILY
FORGOT SECURITY FORCES CONTINUED TO DETAIN FAMILY MEMBERS OF
PERSON SOUGHT FOR QUESTIONING BY THE GOVERNMENT
 
Story time:
Nicaragua guy was gang raped but had only female counsel and didn't come out until
mom and sister came up from Nicaragua
 Just used to illustrate the importance of gender of lawyers and clients

Trafficking
Tuesday, June 21, 2011
4:11 PM
Hypo Set 9:
Number 1:
(didn't really pay attention)
Essentially could get country reports, use those library people mentioned before to get
actual law, witnesses, proof of social group (AU), etc.
*should also pay attention to what the police said/how they acted (anything to show that
he was beaten and detained because of his gaydom) - might be able to get
circumstantial
 
Number 2:
 Witness statement
  Country information
 Specific info on Royal Cambodian Armed Forces, possibly even on the general
 If possible get records from county or a picture of what happened his house
 Possibly wife or family members
 
Number 3:
 Do a physical now
 Client statement, background information, etc.
 Potentially NGO information on Kurdish issues
 
Human Trafficking:
"A process, a means, and an end"
Process: recruitment
Means: force, fraud, coercion
End: debt bondage, slavery, commercial sex
*US has really taken the lead
Stats:
12.3 million (US 17,000+)
Causes?
 Demand for the sex trade
 Demand for profits/cheap goods
 Poverty
 Lack of education, other resources, etc.
 Lack of criminal procedure
 Complex crime syndicates
 Lucrative business
UN Commission on International crime (Pulermo? Protocol)
 Enact legislation that will criminalize trafficking
 Domestic legislation provides ability of victims to understand legal rights and
opportunity to face offender
 Urged to consider for psychological, physical, and other counseling. Also a
chance to stay in the country
 Comprehensive polices to prevent
 Implement protocols to monitor and combat
*Countries ranked in three tiers
1. Know it is a problem and taken measures to protect
2. Not quite to the protocol but almost
3. Not enough effort on the protocol
*Makes US defacto police on trafficking
Child Soldier Act of 2008: Chad, Burundi and at least two others
 Restrictions on foreign aid
 License to buy military equipment
DOJ
 Criminal division of Civil Rights Office (prosecutes traffickers)
 
AU Human Trafficking
 Many knew they were going to work in the sex industry, but didn't know that it
would be such bad conditions (told they would make big money but forced to pay
off huge debts)
 Some physical coercion as well (used a client as an example)
 Generally not the really horrible stuff in AU, much more subtle
 Created AU Federal police to combat traffickers
 Set up visa framework along with laws in 2004 (in '99 came some laws on
slavery and sexual servitude)
 Also funded Victims Support Fund currently administered by the Red Cross
 13 convictions and 180 victims have been put on the government support
program since '04
 Numbers don't include those who refuse to talk to the police
 Mainly because the Victim Support Fund is meant for those who will be
witnesses
 Types of visas
 Bridge visa: not on valid visa, police think you might be trafficked, 30 day
visa, police may investigate further
 Criminal justice stay visa: exists to enable people providing evidence in
prosecutions to remain in AU, can easily be revoked by police
 Witness protection trafficking visa: two types with same criteria - however
to get permanent need a temporary one for two years (2004)
 Lots of criticism: people who had been trafficked, became incredibly
anxious about whether they would actually get a visa and can't bring
family members over
 Got rid of temporary
 New process: (remember only works if they are cooperating with police)
 Stage 1: bridging visa/now 45 days
 Don't have to participate in interviews with law enforcement
 Also allow for compelling circumstances to extend another 45 days
 Constraints: can't work, not told what will happen next, etc.
 Stage 2: Criminal Justice Stay Visa
 Work and study rights
 Access to certain health care entitlements
 Stage 3: Working Class(?) Protection visa
 Highly discretionary
 Have to show the person would be in danger if returned to their
country of origin
 Framework in practice
 Frustrating because of discretion
 Talk a lot with AU police
 Document fears
 Will have to rock a statement and what not if you are trying to stay
 Police request the certificate and the AG approves it and then immigration
decides if they will allow for the person to apply or not (so essentially 3 layers)
  These visas are available to all kinds of trafficking (sex or slave labor)
 Can facilitate family reunification under this framework
 Lower bar of "well-founded fear" under this framework than refugee
 Homegirl has never had one refused because minimal evidence
required once trafficking is proven (client doesn't have to link the fear to
any particular ground)
 Can be tough to prove parental rights in these types of cases
 The Thai case where the mother wasn't really married (only in
custom not legally)
What to do with clients that are unwilling or unable to contribute to police?
 Think of the example of the woman who got trafficked then stayed illegally (police
where nice and gave her the bridging visa, but didn't really have anything to
provide them at that point)
 If they can't help, how do they feel about going home (may be able to apply for
refugee)
 Fears of going home: end up in same situation, persecution, discrimination
in the community, medical problems, retribution, public humiliation of being
former sex worker, etc.
 Two basic options:
 Refugee protection framework
 Ah shit…
 Don't forget need to not be in the excise zone
 Don't have to have fled because of the persecution that you now fear
 May be enough that you were deceived coming over and now fear
persecution
Sources to find information:
 State Department country reports
 Refugee tribunal website
 Client statement
 Witnesses
 Make sure there is an awareness of any mental health issues (psych reports)
Problems with getting refugee status for :
1. Official quality of the persecution
2. Social group (can't just be Thai women trafficked)
Began to have trouble knowing what it meant for one person to own another
 That treatment of a person in such a way can have the effect of slaving someone
 Remember Melbourne brothel that had Thai women working off 40 grand
debt, but not under lock and key - High Court called it slavery because the
brothel owner bought them for 20 grand and they were obligated to repay the
debt
(need to turn facebook off)
Need to show:
 Belong to particular social group
 Can't just exist because fear of persecution
 Not as hung up on past and future persecution
  
Ethiopian Woman Hypo:
 Review Tribunal accepted that you could be social group as young Ethiopian
women who went to work in Lebanon as domestic workers (high risk of trafficking)
 Then from there could get couldn't go back, etc.
(zoned out)
Client without Aussie boyfriend or husband or hasn't suffered violence or from T-1
country: (Example South Korean)
 Section 417: gives minister of immigration a chance to review and rule with his
discretion/intervention
 Get to him by self-petition or get referred by the refugee tribunal
 No formal grounds to protect from torture (so need to fall within trafficking
framework, section 417 or regular refugee
Dammit Adam, pay attention
*If you have a baby with an Aussie man then might be able to get the mother in on it
What a ministerial report might look like this
*Minister's decisions are non-reviewable and doesn't have to give a reason
Complimentary Protection Visa
*Cases of FGM, domestic violence, and what not - made it easier to show a social
group
 Discrimination comes from them being women
 Separate issue if state doesn't have funds

Alternative relief
Wednesday, June 22, 2011
4:12 PM
3 questions on exam:
First one worth 70% - Asylum, withholding (US)
Second 20% - Other forms of relief - CAT, trafficking, temporary visa, etc.
Third 10% - Compare and contrast AU and US law (protocol on trafficking, nexus
requirements, refugee convention, CAT, or something)
 Actually complying with the convention
 
CAT
*detained with criminal immigrants (probably why they weren't allowed asylum)
*AU has a process but only upon the discretion of the minister
 Not binding and not really in line with obligations under the treaty
US Process Asylum:
1. Affirmative application to asylum court
2. If denied, referred to removal proceedings
3. Ask judge to look over application
4. For withholding and deferral to CAT - only if within referral procedure
*Never concede removability unless all else is exhausted
*AU $250 to file and $1400 if you are denied
 
U and T approval rate is 90% (might have said 80% but missed it)
T and U visa:
3 year standard - can be expanded to 4 years
Can apply for permanent status beforehand
Benefits:
 To the victim
 Can bring in spouses, if children under 21 can bring in parents, siblings under 18
(or maybe 16)
T visa: health benefits too
T visa elements:
1. Must be or have been victim of a severe form of trafficking
i. In sex
ii. In labor
2. Either is under 18 or complied with assistance in investigation
i. Has to actually go to law enforcement to assist
ii. This is important lawyer point because interviews are really long and
difficult and could make a big demand (might have to testify)
3. Physically present in the US
4. Would suffer extreme hardship involving unusual and severe harm (never been
dismissed because of this, trafficking is almost always enough)
Plus:
 Not engaged in trafficking AND
 Must be admissible
*Really broad waivers (because trafficked people sometimes have to watch others,
steal, engage in sex, etc.)
(see 297)
*strongly recommended you get law enforcement note to say you were trafficked
 Can use secondary evidence, but stronger if law enforcement backs you up
 Do have to write a statement regardless
If you are a prosecutor:
 Reluctance to sign the waiver because defense counsel will impeach the
testimony
(you zoned out, but think got the important stuff)
Continued Presence:
 Even before T visa; granted by ICE, can be requested by law enforcement - get
same benefits as T visa
 450 principles 459 derivatives
 Gender 35% male 65% female
 50/50 between labor and sex
U visa:
 Have to have law enforcement agency sign off
Requirements: (LOOK AT 306, you kinda f'ed up)
1. Applicant victim of severe form of human trafficking (mental or physical abuse)
i. LEA endorsement (p. 297)
 
Su-chi Hypo:
T or U visa or nothing?
T Visa:
Element 1: Has to be trafficked (severe form)
Deception about what she would doing
How are you zoning out…damn
*Probably need some more documentation
U Visa:
*Only need substantial harm - a bit less than a t visa so should be cool so long as they
(domestic violence is included here)
 
*On a practical level can apply for both but will only get one. T visa is probably better
because don't have to cooperate with law enforcement, but might not meet higher
threshold of severe form
 
Vamos(?) Petition - not on test
 Must have US citizen spouse
 That was abusive
 Lot like AU partner visa
 Self-petition
 Available to spouses and children (under 21)
 Also parents of abusive adult citizens - elder abuse
 Broad interpretation can be emotional, mental or physical
 Have to be of "good moral character"
Kid visa?????
 Reunification not viable because of abuse
 Child actually needs to be in need of care, can't be superficial
 
Cuban Adjustment Act
 Have to be paroled after a year
 Can apply for permanent residence
 Have to show they are admissible
 Nun pro tunct(?) - as it was then
 
Temporary Protected Status:
 Goes toward regions or countries
 Environmental disaster
 Civil war
 Extraordinary/extreme circumstance
 Must be a national
 Person requirements
 No felonies or two or more misdemeanors
 Doesn't include family members
 Never lead to permanent residence (supermajority requirement to override)
*Used it for Haiti, but not Japan
 
Applying for Asylum or Nonrefoulment/Witholding of Removal: 

Asylum: Permits person to remain in US at least temporarily and in most cases

permanently. Requires persecution or a well-founded fear of persecution. The motive for
seeking asylum must be fear, which is evaluated subjectively and objectively.
Subjectively, there is a genuine fear because subject is afraid to return because he is in
a group that the government is targeting.

The fear is reasonable through documentation and evidence because the degrees
prohibited all union activity and many of Alejandro’s friends were arrested and detained
because of their union activity. It may be argued that the arrest and trial of Alejandro’s
friends was simply prosecution because of the governmental decrees against trade
union activity, but this level of prosecution may be seen as persecution when it is taken
into account that many people were severely beaten in addition to the fact that some
people disappeared as a result of the arrest and detainment. The actual harm or fear of
persecution is inflicted by the government, thus satisfying this portion of the
requirements necessary for asylum.

This fear must be well-founded. He possesses belief of trade union activity that the
persecutor seeks to overcome by means of punishment (placing on blacklist, beatings,
etc). Government is aware because they started the decree initially. Government has
ability to punish individual and have the inclination to punish individual through past
actions. Mogharabbi states that well founded fear is made out when an applicant, on the
basis of objective circumstances personally known to him, believes that he has at least
a one in ten chance of being killed by the guerillas.

Alejandro saw three people disappear after being arrested by the guerillas, this may
satisfy the 1 in 10 chance. Well-founded portion satisfied. Persecution feared must be
on account of race, religion, nationality, membership in a particular social group, or
political opinion”--Vicente Osorio v INS proves that trade union membership could count
as political opinion and the motives of oppressors may be used as evidence to establish
victim’s political beliefs--The decree stemmed from the President’s belief that unionists
supported the failed coup.

Alejandro unwilling to return to his country of origin because of his well-founded fear of
persecution. Discretion in Asylum cases: in Matter of Pula, Applicant came to US with
false document such as Alejandro came with a fraudulent passport. Must look at totality
of circumstances. _________ However, he was convicted of a felony (maximum time
over one year), so he is barred from asylum and withholding. Also barred by the one-
year bar.