New limit on review of asylum cases
Immigration judges’ decisions would be harder to overturn
– Bob Egelko, Chronicle Staff Writer
Monday, May 16, 2005
Armen Matevosyan said he fled his native Armenia after being jailed
and beaten for 30 days because he is a Pentecostal Christian. The
immigration judge who heard his claim of political asylum decided
Matevosyan was lying about his religious beliefs because he hadn’t
joined a church in Southern California and because he disagreed with
the judge’s view of the relevance of the Old Testament to his own
faith.
A federal appeals court in San Francisco overturned the judge’s
decision in November, saying it was based on speculation and personal
opinion, and reinstated Matevosyan’s asylum case. But the court might
be barred from making such rulings in the future once President Bush
signs a law narrowing federal courts’ authority to second-guess
immigration judges.
It’s no coincidence the ruling came from the Ninth U.S. Circuit Court
of Appeals. The asylum legislation is a Republican-led attempt to
nail two targets: perceived fraud and security risks in the asylum
program, and the San Francisco-based court. The court is the largest
of the federal circuits and hears far more immigration cases than any
other.
The changes would “return asylum law to the way it was before
activist judges in the Ninth Circuit had their way with it,” the
measure’s sponsor, House Judiciary Committee Chairman James
Sensenbrenner, R-Wis., said in a letter to colleagues.
The asylum rules are part of the Real ID Act, which is attached to a
military spending bill headed to the president after overwhelming
congressional approval.
The asylum provisions have received much less attention than another
section of Real ID, which would require states to demand proof of
legal residency from driver’s license applicants. But the changes
will have a significant effect on a system that handles more than
60,000 asylum applications each year, and grants about half, from
foreigners claiming they would face persecution if deported to their
homeland.
“This legislation will … prevent the ability of potentially
dangerous aliens to show up under false pretenses on our shores and
be granted safe haven, while simultaneously protecting those who are
legitimately fleeing persecution,” Sensenbrenner said on the House
floor.
Immigrants’-rights advocates say the measure will not help security
but will place new obstacles in the path of those seeking shelter
from political oppression.
“These provisions will … harm the victims of human rights abuses,
torture and religious and political persecution who seek the
protection of this society,” said a statement by Human Rights First,
formerly known as the Lawyers Committee for Human Rights.
Each of the bill’s changes would overturn Ninth Circuit rulings that
have made it easier for asylum applicants in California and eight
other Western states to prove their cases.
The measure would:
— Allow an immigration judge to decide that an applicant’s account
is false based on any statements that the judge finds inconsistent or
implausible, or doesn’t believe because of the applicant’s manner or
body language. If the judge, a Justice Department employee who hears
asylum claims at an early stage, decided an applicant was not
believable, a federal court would have limited authority to overrule
that decision.
— Allow the immigration judge to require an applicant to produce
evidence documenting a claim of persecution, unless the applicant
cannot reasonably obtain it. A ruling by the judge that such
documentation was needed would be virtually immune from review in
federal court.
— Require applicants to prove that their status — race, religion,
nationality, political opinion or membership in a particular social
group — was “at least one central reason” they were persecuted in
the past, or were likely to be persecuted if deported.
Each of those revisions would harden definitions in current law.
For example, the federal courts that hear appeals of asylum cases are
already required to defer to an immigration judge’s assessment of a
witness’ truthfulness, unless there is compelling evidence the judge
was wrong. The law would tighten that standard.
Opponents of the change point to cases like Matevosyan’s, where an
immigration judge found an applicant to be untruthful because of the
judge’s notions about the applicant’s religious practices. Critics
also fear the consequences of limiting federal court review of
subjective decisions by immigration judges who work for the executive
branch.
“A person who is very nervous, very timid, from another culture, is
going to be perceived as not truthful,” especially when trying to
describe a traumatic event, said Karen Musalo, director of the Center
for Gender and Refugee Studies at UC Hastings College of the Law in
San Francisco. “Imagine a fearful person entering the United States
who doesn’t know who they’re speaking to and may not have an
interpreter. Is that statement going to be used against them?”
But supporters of the measure say it’s needed to rein in Ninth
Circuit judges who dismiss discrepancies in an applicant’s story as
only minor inconsistencies.
For example, Soghoman Abovian, who said he was persecuted in Armenia
for refusing to join the secret police, testified that Armenia’s
president met with him at least 15 times to pressure him to join, but
never mentioned any such meeting in his written application. Noemi
Garrovillas said in his asylum application that Filipino guerrillas
had shot at him, but denied it on the witness stand and said he
hadn’t read the application a lawyer prepared for him. The Ninth
Circuit reinstated both men’s asylum cases in rulings criticized by
backers of Real ID.
Probably the most hotly disputed provision requires applicants to
prove that their status was a central reason for their persecution.
It does not appear to differ greatly from current law — which makes
asylum available to those fleeing persecution on account of their
race, religion, nationality, political opinion or social group — but
opponents say the subtle shift in language could have harsh results.
In a study of the proposed law, the Hebrew Immigrant Aid Society
predicted dire consequences for victims of religious persecution, who
would be asked to “prove with unrealistic precision what is going on
in their persecutors’ minds.” Other religious groups, including some
conservative evangelicals, also opposed the provision.
Similarly, said Stephen Knight, a lawyer at Hastings’ Center for
Gender and Refugee Studies, immigration judges have found that a
lesbian was given electroshock treatment in Russia to cure her, not
to persecute her, and that African women were subjected to genital
mutilation for cultural reasons — rulings that would be harder to
overturn under the new standard.
But supporters of Real ID say the change is crucial because of a line
of Ninth Circuit rulings, starting in 1988, that found political
persecution in cases where a foreign government imprisoned and
tortured someone who was falsely accused of being a militant.
Under such rulings, said Sensenbrenner, the United States would have
to “grant asylum to aliens whose governments believe they are
affiliated with terrorist organizations.”
He said in a letter to colleagues that “asylum fraud is a vehicle of
choice for terrorists,” citing an asylum application that allowed a
mastermind of the first World Trade Center bombing in 1993 to remain
in the country.
But Congress quickly closed that loophole in 1994, and there’s no
evidence that would-be terrorists are applying for asylum, said
American Civil Liberties Union lawyer Timothy Edgar, an opponent of
Sensenbrenner’s bill.
“Asylum applicants are the most closely scrutinized group of any
immigrants,” Edgar said. “That’s one reason why the 9/11 hijackers
never applied for asylum.”
E-mail Bob Egelko at [email protected].
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