A Chinese couple applied for asylum on the basis of their two United States citizen children.  The family alleged that the wife would be subjected to forced sterilization and the family to be subjected to fines because having two children is a violation of the China’s one-child-only policy.

As evidence of their claim, they submitted affidavits from family members and friends, newspaper articles about the country policy, and an affidavit from the wife’s mother stating that she has spoken with the local Family Planning office that would have jurisdiction over the family, whom informed her that the family would be subjected to the alleged penalties.

The Immigration Judge found the respondents’ testimony credible and the evidence submitted compelling enough to grant their application for asylum.  The Government appealed, alleging that they did not adequately meet their burden of proof.

The BIA reconsidered the respondents’ applications, and, agreeing with the Government, held that they did not meet their burden of proof.  The Appellate court found especially compelling State Department country reports that stated that US officials were not aware of any official policy in China that mandates sterilization because of the birth of two or more children abroad and instead reported that the government policy of prohibited the use of physical coercion to force sterilization.  The court deemphasized the articles submitted by the Respondents on the basis that they were not adequately authenticated, having to titled author and failing to provide any specific details that supported the Respondents’ contentions.  The court similarly disqualified the affidavits of the family members and friends, specifically stating that they should not be given heavy evidentiary weight since they are not subject to cross-examination and also failed to provide sufficient detail to meet the high burden of proof for fear of persecution.  Because they were not able to show that any specific evidence to show that the wife would likely to subjected to forced sterilization, and that no evidence was submitted to show that the fines would be severe enough to put them at an economic disadvantage, the court vacated the Immigration Judge’s grant of asylum.

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).

Democratic Senator Patrick Leahy of Vermont introduced the Refugee Protection Act of 2010 to the senate this month.  This bill hopes to make improvements to the current law, the Refugee Act of 1980, by making the process for asylum seekers more streamlined and accessible.  This is an improvement that the U.S. Committee for Refugees and Immigrants finds is crucial.

The current legislation requires a waiting period of a year before asylees can be granted work permits.  The proposed bill would eliminate this waiting period, allowing asylees to automatically become lawful permanent residents.  This is arguably even more important for asylees, who often times are fleeing terrible conditions in their home country and are often the most vulnerable, because it will not only provide them the means to be more self sustaining, but also aid in their assimilation to the United States.

The bill is cosponsored by Senators Carl Levin of Michigan, Richard Durbin of Illinois, and Daniel Akaka of Hawaii.

On February 25, 2010, the United States Court of Appeals for the Second Circuit determined that a woman’s repeated returns to her home country was not enough, in and of itself, to bar her claim for asylum.  Petitioner Nan Marie Kone grew up in Cote d’Ivori (the Ivory Coast) in a community that practiced female genital mutilation (FGM).  Since being subjected to the ritual as a young girl, she has had to cope with both the physical and mental harm she suffered.

Ms. Kone first came to the United States in 2002, and between the years began traveling back and forth between her home country and then United States.  During many of her times she returned to her home country, she suffered maltreatment, whether being arrested for her political believes or having family members murdered for their religious beliefs.  Following tumultuous events, she would seek refuge in the United States, but never gave up the hope that eventually the political and ethnic strife in her home country would be resolved.  Eventually, this hope dissipated, and she sought out asylum in the United States in 2005.

This petition was denied, based primarily on the evidence of her repeated returns to the Ivory Coast.  Asylum is based on the premise that a safe-haven will be given to those who face persecution in their home countries.  A finding of past persecution creates a rebuttable presumption that fear of future persecution is well-founded.  Evidence of FGM is generally held to be fundamental evidence of past persecution.  This places the burden on the government to show that by a preponderance of the evidence, the reasons for this fear no longer exist, because of changed circumstances.  In Ms. Kone’s case, the government argued that the evidence of her frequent visits back to her home country were enough to meet the burden of proof to show a change of circumstances.  Though the trial court agreed with this argument, the appellate court for the Second Circuit disagreed.  They instead held that while it may be relevant evidence, such evidence alone is not enough to meet the preponderance of the evidence standard.  Based on this finding, the court remanded the case for a new trial to reevaluate the circumstances surrounding Ms. Kone’s case in light of this new rule.

This holding, that the simple fact of safe return on a particular occasion does not negate the potential of future harm, can help provide precedence for many immigrants who are torn between facing heinous treatment in their home country and living a better life in the United States, at the cost of abandoning their family, friends, and previous lives.  By allowing more leeway for those who don’t up and leave their lives in one final move, this helps many of those in the worst situations have a greater chance of having hope of a better life once they have made their final decisions.

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.