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The U.S. House of Representatives Judiciary Committee recently passed H.R.1153, the Asylum Reform and Border Protection Act of 2015 (“the ARBP Act”), a bill that restricts immigration to the United States, except for families fleeing persecution because they homeschool their children. For those families, the bill allocates 500 grants of asylum per fiscal year. In contrast, for women and children fleeing persecution from gangs in Central America, the bill prohibits any federal funding for legal representation, imposes a heightened burden of proof, and creates unnecessary procedural hurdles, such as forcing certain asylum applicants to travel to Mexico or another “Safe Third Country” to apply for asylum.
The bill, sponsored by Rep. Jason Chaffetz, R-Utah, was one of four restrictive immigration enforcement measures passed by the House Judiciary Committee earlier this year. In order to become law, the bills still need the approval of both the U.S. House of Representatives and the Senate, and the signature of the President, which some posit is unlikely to happen.
Human rights advocates rightly contend that these proposed bills, and the ARBP Act, in particular, are “inconsistent with American ideals and would erode the United States’ legacy as a global leader in protecting refugees.” Indeed, as discussed below, the restrictions that the ARBP Act imposes on unaccompanied immigrant children and other asylum seekers are in direct contravention of U.S. domestic and international obligations under the 1967 United Nations Protocol to the 1951 Refugee Convention (“the Refugee Convention”). Article 1(A)(2) of the Convention sets a uniform standard for recognition of refugee status, and thus interpretation and recognition of refugee status should not be subject to national variation.
The restrictive measures the bill imposes on Central American asylum seekers stand in stark contrast to the expansive protections that the bill would otherwise create for families who wish to home school their children. As Rep. Luis Gutierrez, D.Ill, noted: “Shouldn’t children who are fleeing child abuse and violence be afforded the same protection as a child who is denied homeschooling? If we’re going to have this unprecedented carve-out for homeschooling, we should put at the same level children fleeing abuse, rape, gangs and murder.”
Congress should not attempt to carve out protections for specific types of asylum claims. Carve-outs directly conflict with the legislature’s intent in adopting the 1980 Refuge Act to conform U.S. law to the international refugee definition. Instead, Congress should invest in asylum adjudication and provide decision makers with the resources they need to objectively evaluate each asylum case and adjudicate each claim on an individual, nondiscriminatory basis, consistent with the purposes of refugee law and in accordance with the internationally adopted definition of a “refugee.” Congress should allocate greater resources to the immigration courts and to the Asylum Office to alleviate the strain on adjudicators who are grappling with significant backlogs and ensure that adjudicators have the training and support necessary to decide claims in a fair and just manner.
Asylum Grants for Homeschoolers
The provision of ARBP Act that would protect families who suffer or fear persecution because they seek to home school their children echoes a similar 1996 amendment to the U.S. refugee definition, recognizing the claims of asylum seekers fleeing China’s one-child policy.
Driven by pressure from religious and anti-Communist groups, the coercive family planning amendment to the INA recognized that a person who is subjected to coercive family planning procedures or who suffers or fears persecution because of refusing to “undergo such a procedure or for other resistance to a coercive population control program,” is deemed to have been persecuted or to fear persecution on account of political opinion. The amendment made explicit the connection between opposition to coercive family planning practices and one of the five grounds (here, political opinion) protected under the Refugee Act of 1980 and the 1967 United Nations Protocol to the 1951 Refugee Convention.
This linkage, known as the nexus element, between the harm suffered or feared and the grounds is a critical component of both the international and U.S. definition of refugee. With the Refugee Act of 1980, Congress brought U.S. “refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees” and codified the definition of a refugee as “any person who is outside any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added). The U.S. definition of refugee under the 1980 Refugee Act is thus very similar to the definition of refugee under the 1967 Protocol and the Refugee Convention.
The ARBP Act, however, amends the international refugee definition codified in U.S. law, by making explicit the linkage or nexus between the persecution suffered or feared for homeschooling a child and membership in a particular social group, one of the five grounds protected under the Refugee Convention. Under Section 21 of the ARBP:
[A] person who has been persecuted for failure or refusal to comply with any law or regulation that prevents the exercise of the individual right of that person to direct the upbringing and education of a child of that person (including any law or regulation preventing homeschooling), or for other resistance to such a law or regulation, shall be deemed to have been persecuted on account of membership in a particular social group, and a person who has a well founded fear that he or she will be subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of membership in a particular social group.
The homeschooling amendment, if approved by Congress and the President, would thus eliminate the need for asylum applicants to demonstrate nexus between the harm suffered or feared on account of homeschooling and one of the five grounds under the Convention. Instead nexus to membership in a particular social group of homeschoolers would be codified for homeschoolers, just as nexus to political opinion is codified for coercive family planning asylum claims, thus further deviating from the international refugee definition.
The proposed expansion of protections for homeschoolers in the ARBP Act comes on the heels of a recent case involving the family of Uwe and Hannelore Romeike, who fled to the United States from Germany in 2008 in order to home school their children. The family applied for asylum in the United States because homeschooling is banned under German law. The German authorities had repeatedly fined the Romeikes, who are devoutly Christian, for failure to send their children to German schools. In connection with this failure, the German authorities threatened that the Romeikes would lose custody of their children and forcibly took the children to school against the family’s wishes. In their application for asylum, the Romeikes argued that they suffered and feared persecution on account of their membership in a particular social group of homeschoolers and their political opinions in support of homeschooling.
In 2010, an immigration judge in Memphis, Tennessee granted the Romeikes asylum, finding that the family had suffered past persecution and had established a well-founded fear of persecution on account of their religion and their membership in a particular social group of homeschoolers. Subsequently, counsel for Immigration and Customs Enforcement challenged the decision, and the Board of Immigration Appeals, the administrative body that reviews immigration judge decisions, overturned the ruling.
The Board determined that the German government treated homeschoolers, like the Romeikes, the same as other parents who had broken the law, and had not singled them out for punishment. The Board also rejected the argument that homeschoolers constitute a particular social group under U.S. asylum law, finding that they lacked the social visibility and particularity required to constitute a cognizable social group. The Romeikes then appealed to the U.S. Court of Appeals for the Sixth Circuit, which upheld the Board’s decision denying the family’s asylum claim.
The Sixth Circuit found that the Romeikes did not fear persecution, but rather prosecution for failure to send their children to school in Germany. The court explained that “generally speaking, ‘[p]unishment for violation of a generally applicable criminal law is not persecution,’” unless, for example, the law is selectively enforced against a particular group of people who are disproportionately punished for violations of the law. The Sixth Circuit noted that “[f]or better or worse, Germany punishes any and all parents who fail to comply with the school-attendance law, no matter the reasons they provide.”
The court also questioned whether the German authorities had punished the Romeikes “on account of a protected ground,” observing that “[t]he United States has not opened its door to every victim of unfair treatment, even treatment that our laws do not allow.” The court concluded: “The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.”
The Romeikes, represented by the Home School Legal Defense Association, petitioned the U.S. Supreme Court to hear their case, but the Court declined. The family was not, however, deported. Instead, the Department of Homeland Security offered the family “deferred action,” a form of prosecutorial discretion, which allows the Romeikes to stay in the United States indefinitely, as long as the family stays in contact with the Department of Homeland Security and does not run into trouble with law enforcement.
The 2015 ARBP Act attempts to work around the legal concerns raised by the Board and Sixth Circuit in their decisions to reject the Romeikes’ asylum claim. By amending U.S. law to reflect that the persecution suffered and/or feared by homeschoolers constitutes persecution on account of a protected ground (membership in a particular social group), the ARBP Act improperly eliminates the required nexus analysis under domestic and international refugee law, making it easier for homeschoolers to successfully apply for asylum in the United States.
Impermissible Restrictions on Asylum Seekers
In contrast to the protective measures for homeschoolers set forth in the ARBP Act, the bill also includes a series of measures that would make it harder for families, and especially children, fleeing violence in Central America to seek asylum in the United States.
The bill, for example, heightens the burden of proof in asylum cases and in the credible fear interview process. It also restricts the government’s ability to fund representation for children, and allows the government to remove asylum seekers to Safe Third Countries, such as Mexico, for them to apply for asylum there instead of in the United States.
Specifically, Section 2 of the bill would rollback recent steps to provide access to counsel for certain unaccompanied minors and detained immigrants with mental disabilities. It would amend Section 292 of the INA to state that “[n]otwithstanding any other provision of law, in no instance shall the Government bear any expense for counsel for any person in removal proceedings or in any appeal . . . from any such removal proceedings.” (emphasis added).
It would also impose an additional requirement on the credible fear process, which screens in immigrants who fear return to their home countries to allow them to apply for asylum before an immigration judge. The current screening process requires that an asylum seeker demonstrate a “credible fear of persecution,” defined under the INA to mean “that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.” The ARBP Act adds the requirement that an asylum officer determine whether “it is more probable than not that the statements made by the alien in support of the alien’s claim are true.”
The Judiciary Committee summary of the ARBP Act explains that “[t]he bill tightens the standard aliens have to meet in order to curtail fraud.” But the credible fear interview is merely intended to be a threshold screening process to determine whether a person could establish a well-founded fear of persecution, since asylum applicants screened through the process then have to present their claims and have them adjudicated in removal proceedings before an immigration judge. This added evaluation requirement imposes an undue burden on asylum applicants and asylum officers, alike.
In addition, the ARBP Act restricts the definition of “unaccompanied minor” to children under 18 who do not have any parent, legal guardian, or immediate relative (sibling, aunt, uncle, grandparent or cousin) in the United States. The Act allows immigration authorities to wait up to seven days (instead of 48 hours, under current law) before notifying the Department of Health and Human Services (HHS) that an unaccompanied minor is in immigration custody and up to 30 days (instead of 72 hours), before transferring the child to HHS. As a result, the Act would permit children to remain for much longer periods of time in detention facilities that are not meant for children.
Furthermore, the ARBP Act would permit the removal of asylum seekers to any “safe” third country, like Mexico, and force them to apply for asylum there, instead of in the United States. The ARBP Act would also amend INA § 208(b)(2)(A)(vi), 8 U.S.C. § 1158(b)(2)(A)(vi), to allow for the return of asylum seekers to countries where they “can live . . . in any legal status . . . without fear of persecution,” rather than solely to countries where the asylum seeker has been firmly resettled with an offer of permanent residence prior to arrival in the United States.
These restrictive measures reflect a fundamental misunderstanding of U.S. asylum law, and its relationship to international law, among certain members of Congress. For example, a recent USA Today article quoted Rep. Raul Labrador, R-Idaho, as saying: “Asylum law is not there to protect crime victims, it is there to protect those persecuted by government.” Yet, it is well established that asylum law protects those persecuted by both state and non-state actors, not just by government agents. Refugee law provides surrogate protection where an individual’s home country is either unwilling or unable to provide protection.
As the U.S. government training materials for asylum officers explain:
[a]n applicant may establish that he or she suffered past persecution by a non-government actor, if the applicant demonstrates that . . . the government of the country from which the applicant fled was unable or unwilling to control the entity doing the harm. To meet this burden, the applicant is not required to show direct government involvement or complicity in the action that harmed him or her.
The USCIS asylum officer training materials further note that “[e]vidence that the government is unwilling or unable to control the persecutor could include [inter alia] . . . statements indicating an unwillingness to protect certain victims of crimes.”
Contrary to Rep. Labrador’s assertion that people fleeing violence in Central America are not refugees, federal courts have repeatedly recognized asylum claims brought by people who suffered or fear violence at the hands of Central American gangs. Indeed, just two weeks ago, the federal court of appeals for the Fourth Circuit in Hernandez v. Lynch determined that a Salvadoran woman who blocked gang recruitment efforts and prevented her son from joining a gang, had a well-founded fear of persecution on account of threats she received because her family membership.
Measures like H.R. 1153, which are aimed at restricting asylum claims from Central America, while at the same time opening the door to asylum seekers from Europe, are driven by political considerations rather than fair and just interpretation and application of the international refugee definition and U.S. asylum law. Congress’s efforts to alter the international definition of refugee codified in U.S. law, by eliminating the need to establish nexus in homeschooling asylum cases, stand in stark conflict with the legislature’s intent in adopting the 1980 Refuge Act to conform U.S. law to the international refugee definition. In addition, the ARBP Act’s restrictive measures are improperly driven by floodgate concerns, given the number of Central American refugees who have fled to the United States to escape persecution in recent years.
The ARBP Act reflects the House Judiciary Committee’s blatant disregard for the need to apply the same, objective criteria to each asylum claim, consistent with the purposes of the 1980 Refugee Act and the 1967 Protocol to the Refugee Convention. The U.S. Congress should abide by its obligations under domestic and international law to provide protection to all those who suffer or fear persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. The ARBP Act fails in this respect.
The amendments to the INA set forth in the ARBP Act unnecessarily hamper asylum adjudication, undermining the objective decision making process Congress established with the 1980 Refugee Act. If Congress seeks to reform the asylum adjudication, as it purports to do with this bill, it should instead invest in the asylum officer corps and immigration court system to provide adjudicators with the resources and support they need to reach reasoned and fair decisions in a timely manner.
 For further discussion of the differences and similarities between the international and U.S. refugee definition, see generally Deborah E. Anker, Law of Asylum in the United States (West 2014).
 Under U.S. regulations, an asylum-seeker “is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes” an exception to this rule. 8 C.F.R. § 208.15. The exceptions are as follows: “(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or (b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.” 8 C.F.R. § 208.15.