CGRS Hosts Government Accountability Office Meeting
Study of U.S. Asylum System Is Discussed
CGRS was pleased to host a February meeting with a team from the Government Accountability Office (GAO), the research arm of Congress. The GAO is conducting a national study of the U.S. asylum system, and the meeting gave Bay Area refugee experts, academics, and members of the private immigration bar an opportunity to comment on issues related to the study.
Congress has asked the GAO to investigate specific areas of concern regarding the U.S. asylum system, including factors that affect the wide variability in outcomes in immigration courts, such as the quality of legal representation, challenges posed by the one-year deadline for filing asylum applications, and the impact on refugees of streamlining measures adopted in 2002 by the Board of Immigration Appeals (BIA).
At the meeting, which was held at U.C. Hastings, the GAO team explored attendees’ views on the widely differing approval rates among immigration judges. The analysts also sought the perspectives of the immigration experts on recommendations recently announced by the Attorney General for changes in immigration courts and the BIA.
During the meeting, advocates raised concerns about the prevalence of the Department of Homeland Security practice of pressuring refugees who may be subject to the one-year bar to asylum to abandon their claims in exchange for a grant of withholding of removal. Withholding of removal imposes a higher burden of proof than is required for asylum, but unlike asylum, it does not allow for family reunification or lead to legal permanent residence status. Applicants are given the Hobson’s choice of accepting withholding or having the government vigorously oppose their asylum claims in a full hearing. In addition, in the event a judge does grant them asylum, applicants are warned that the government will appeal, which can result in several years delay or even in a reversal of the decision. As a result, many applicants who are found credible and whose claims are serious enough to meet the higher burden of proof for withholding end up with a form of relief that leaves them in permanent limbo. U.C. Hastings Professor Richard Boswell pointed out that immigration judges are often disposed to encourage this practice, adding to the pressure on refugees to accept the offer of withholding, because it saves the judges the time required to conduct a full merits hearing, or to issue an opinion, and because the possibility of appellate reversal is foreclosed.
Participants also discussed the growing impact of the one-year deadline in asylum cases, which precludes applicants from relief unless they can demonstrate compelling reasons for the failure to file their asylum applications within one year of arrival to the U.S. Advocates pointed out that many applicants are denied asylum despite showing legitimate reasons for their inability to file within the deadline, such as psychological trauma resulting from the harms they suffered in their home countries. Since the one-year bar does not apply to withholding of removal, these denials further add to a population of refugees in the U.S. with this more tenuous status.
Advocates also emphasized the lack of government-funded legal representation in Immigration Court. Removal hearings can have very high stakes, and the correlation between success rates and representation is well-documented. Nevertheless, since immigration proceedings are civil rather than criminal in nature, there is no access to the equivalent of a public defender. This is in contrast to other refugee-receiving countries, such as Canada, Austria, Belgium, Germany and the U.K., where legal representation is provided to applicants. And CGRS Director Karen Musalo pointed out that the GAO study is focused on large urban areas—including San Francisco, Los Angeles, New York and Miami—where there is greater access to pro bono legal services. She noted that this approach might not provide a complete picture of the impact that the lack of guaranteed counsel is having nationwide.
CGRS, which has a wealth of materials in its unique case database, has offered to provide additional information to the GAO about the barriers and difficulties faced by asylum seekers as a result of the one-year bar.
In addition to members of the private bar, the GAO has also been meeting with representatives from the government, the immigration courts and the BIA, as well as the federal courts. Results of the GAO study are expected to be released in the fall of 2007. |
