Dean Henry Perritt, Jr.'s
Refugee's, Asylum and International Law
Henry H. Perritt, Jr.
Dean, Vice President and Professor of Law
Chicago Kent College of Law
Illinois Institute of Technology
565 West Adams Street
Chicago, IL 60661
Asylum and refugee status often are confused. Under
international law, refugee status does not entitle an individual to asylum. Rather, asylum
is a privilege granted in the sole discretion of the statement.
"In the traditional understanding of international
law, the right of asylum is not an individual right; it is instead a right of states.
States, in their discretion, may provide asylum to those they choose to shelter; they do
not thereby commit a wrong against any other state. . . . Article 14 of the Universal
Declaration of Human Rights was carefully worded so as to avoid disturbing that doctrine
or the notion of the sovereign right of control over the entry of aliens that it
Article 13 of the International Covenant on Civil and
Political Rights provides:
"An alien lawfully in the territory of the state
party to the present covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except for compelling reasons of national
security otherwise require, be allowed to submit the reasons against his expulsion and to
have his case reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent authority."
International law pertaining to refugees is aimed at
guaranteeing certain rights to refugees once they are in the country of refuge; they say
nothing about the right to admission. Any entitlement to asylum is entirely a matter of
In the United States, the right of asylum and the right to
enter as a refugee are distinct.
The principal treaties relating to refugees are the Geneva
Convention of 1951,2 adapted by the New York protocol of 31
January 1967,3 and the Statute of the Office of United
Nations High Commissioner for Refugees.4 In addition, the
Universal Declaration of Human Rights guarantees the right to seek asylum in other
Article 33 provides:
"No contracting state shall expel or return (refouler)
a refugee in any matter what so ever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality, membership in a
particular social group, or political opinion."6
The 1951 convention is not self executing under U.S.
law.7 This means that a convention is not a source of
individual rights directly enforceable in the federal courts. Instead, the treaty has
effect under U.S. law only to the extent that the Congress (or states) adopt positive law
granting the rights contemplated by the convention. Failure by the Congress to grant the
rights and the associated failure of U.S. courts to enforce the rights may violate the
treaty, but only the United States in its sovereign capacity is liable, and only
vis-à-vis other signatories; not vis-à-vis individuals. The United States ratified the
Nevertheless, Congress is presumed to intend compliance
with the international obligations of the United States, and this presumption gives rise
to the following principle of statutory interpretation: statutes must be interpreted
insofar as possible to be consistent with, rather than to conflict with, international
law. That can be a powerful argument for a litigant dealing with an ambiguous statutory
The legislative history of U.S. refugee law tracks the
international agreements. The U.S. Immigration and Nationalization Act of 1952 adopted the
definition of refugee from the 1951 Convention,9 and the
Refugee Act of 1980 broadened the definition to comport with the broadened definition of
the 1967 UN Protocol:10 based on a well-founded fear of
persecution based on race, religion, nationality, group membership, or political activity.11 The federal courts have generally taken a broader view of
the definition of refugee than the INS.12
Most of the litigation in federal courts involving U.S.
obligations under the 1951 convention have involved eligibility for asylum and treatment
of "boat people"unauthorized entrants seeking asylum.
Asylum is a traditional discretionary grant of resident
status to persons fleeing persecution. Criteria for asylum are more demanding than the
criteria for refugee status, although under INS regulations, an applicant for asylum must
establish his or her qualification as a refugee under the act.13
A refugee is someone who has fled or been driven out of his home country for whatever
reason causing him the lack the usual protections of citizenship. To be eligible for
asylum as a refugee, one must demonstrate a well founded fear of particular kinds of
Even if an applicant already in the United States is denied
asylum, the INS may withhold deportation.14 To put this in
the employment perspective, suppose an employer believes it will be unsuccessful in
obtaining a traditional visa for a desirable potential employee who recently was driven
out of Kosovo. The employer may be interested in employing the refugee because of the
refugee's capacity to report on ethic cleansing phenomena. What must the employer do to
obtain asylum for the refugee?
A refugee is "a person
who owing to well-founded fear of being persecuted for reason of race, religion,
nationality, membership in a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country."15
Section 1157(c) of title 8 provides:
"(1) Subject to the numerical limitations
established pursuant to subsections (a) and (b) of this section, the Attorney General may,
in the Attorney General's discretion and pursuant to such regulations as the Attorney
General may prescribe, admit any refugee who is not firmly resettled in any foreign
country, is determined to be of special humanitarian concern to the United States, and is
admissible except as otherwise provided under paragraph (3) ) as an immigrant under this
Spouses and children of qualifying refugees are
admissable, but they are charged against numerical quotas for refugees.17
Refugees are not subject to the numerical quotas applicable
to immgrants generally under section 1182,18 but instead
are subject to Presidential numerical limits set on an annual basis after consultation
with Congress.19 The consultation must involve a cabinet
level representative of the president, and must be conducted so as:
"to review the refugee situation or emergency
refugee situation, to project the extent of possible participation of the United States
therein, to discuss the reasons for believing that the proposed admission of refugees is
justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the
national interest, and to provide such members with the following information:
(1) A description of the nature of the refugee situation.
(2) A description of the number and allocation of the refugees to be admitted and an
analysis of conditions within the countries from which they came.
(3) A description of the proposed plans for their movement and resettlement and the
estimated cost of their movement and resettlement.
(4) An analysis of the anticipated social, economic, and demographic impact of their
admission to the United States.
(5) A description of the extent to which other countries will admit and assist in the
resettlement of such refugees.
(6) An analysis of the impact of the participation of the United States in the
resettlement of such refugees on the foreign policy interests of the United States.
(7) Such additional information as may be appropriate or requested by such
The most recent Presidential determination provides for
83,000 refugees for 1998.21
-- Refugees: procedures
"(a) Forms. Each
applicant who seeks admission as a refugee shall submit an individual Form I-590
(Registration for Classification as Refugee). Additionally, each applicant 14 years old or
older must submit completed forms G-325C (Biographical Information) and FD-258 (Applicant
(b) Hearing. Each applicant 14 years old or older shall
appear in person before an immigration officer for inquiry under oath to determine his/her
eligibility for admission as a refugee.
(c) Medical examination. Each applicant shall submit to
a medical examination as required by sections 221(d) and 234 of the Act.
(d) Sponsorship. Each applicant must be sponsored by a
responsible person or organization. Transportation for the applicant from his/her present
abode to the place of resettlement in the United States must be guaranteed by the sponsor.
The application for refugee status will not be approved until the Service receives an
acceptable sponsorship agreement and guaranty of transportation in behalf of the
Applications must be filed in the INS office having
jurisdiction over the place where the applicant is, or with a U.S. Consulate.23 Once applications are approved, refugees are placed on
waiting lists, with possible adustments in position according to U.S. policy interests.24
Section 1158 allows
aliens who are present in the United States to apply for asylum.25 When the Attorney General determines that an applicant for
asylum safely can wait in a third country pending processing of his application, the
applicant may be required to do so.26 Typically,
application for asylum is accompanied by an application to withhold deportation. The basic
standard for asylum is a "well-founded fear of persecution."27 Withholding of deportation has a higher standard of proof
than entitlement to asylum.28
"The Attorney General may grant asylum to an alien who
has applied for asylum in accordance with the requirements and procedures established by
the Attorney General under this section if the Attorney General determines that such alien
is a refugee within the meaning of section 1101(a)(42)(A) of this title.
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney
General determines that--
(i) the alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion;
(ii) the alien, having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the community of the United
(iii) there are serious reasons for believing that the
alien has committed a serious nonpolitical crime outside the United States prior to the
arrival of the alien in the United States;
(iv) there are reasonable grounds for regarding the alien
as a danger to the security of the United States;
(v) the alien is inadmissible under subclause (I), (II),
(III), or (IV) of section 1182(a)(3)(B)(i) of this title or removable under section
1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of
an alien inadmissible under subclause (IV) of section 1182(a)(3)(B)(i) of this title, the
Attorney General determines, in the Attorney General's discretion, that there are not
reasonable grounds for regarding the alien as a danger to the security of the United
(vi) the alien was firmly resettled in another country
prior to arriving in the United States."29
Whether resettlement has occurred depends on whether:
"are so restrictive as to deny resettlement. In
determining whether or not an applicant is firmly resettled in a foreign country, the
officer reviewing the matter shall consider the conditions under which other residents of
the country live: (1) Whether permanent or temporary housing is available to the refugee
in the foreign country; (2) nature of employment available to the refugee in the foreign
country; and (3) other benefits offered or denied to the refugee by the foreign country
which are available to other residents, such as (i) right to property ownership, (ii)
travel documentation, (iii) education, (iv) public welfare, and (v) citizenship."30
Spouses and children of persons granted asylum also be
granted asylum, even if they do not qualify for asylum on their own.31
Persons granted asylum must be authorized to engage in
"An applicant for asylum is not entitled to
employment authorization, but such authorization may be provided under regulation by the
Attorney General. An applicant who is not otherwise eligible for employment authorization
shall not be granted such authorization prior to 180 days after the date of filing of the
application for asylum."33
Asylum status is not a right to remain permanently in the
United States, and such refugees lose the privilege of remaining within the United States
when circumstances that justified asylum have changed, when the alien obtains another
nationality, returns to the country of origin, or when circumstances arise that would
justify denial of asylum or safe removal to a third country.34
In Bradvica v. Immigration and Naturalization Service,35 the Seventh Circuit affirmed a decision by the BIA denying
asylum and withholding of deportation to a Croat from Bosnia who overstayed his visa. The
court rejected the petitioners argument that generalized conditions of strife in Bosnia
supported a claim for asylum "because they do not show that Bradvica himself will be
singled out for persecution on account of one of the enumerated grounds. If we accepted
Bradvica's broad definition of `persecution' rather than the narrow one that Congress
enacted, most of the population of Bosnia-Herzegovinaand many other war-torn areaswould be
eligible for asylum in the United States."36 The
court also held that the BIA lacked jurisdiction to hear the petitioner's international
law claims under Article 3 of the Geneva Convention relative to the protection of civilian
persons in time of war ("the Fourth Geneva Convention").37 It noted that customary international law is not
applicable in domestic courts when there is a controlling legislative actSection 1158 (a).38
Ivezaj v. INS,39 involved
former residents of Montenegro of Albanian decent who illegally entered the United States
before the Bosnian war broke out. There was no evidence that they were ever persecuted in
Montenegro.40 The Sixth Circuit, following its practice of
taking judicial notice of changed political circumstances in immigration cases,41 nevertheless affirmed the BIA's determination that:
"[The petitioners] did not show that it is more
likely than not that they would be subjected to persecution upon returning to their native
country. [The petitioners] are Albanians from Montenegro. Albanians and Montenegro are
less persecuted than those Albanians residing in Kosovo. Furthermore, [the petitioners]
are Catholic, not Muslim. All of the evidence [the petitioners] have presented demonstrate
Serb oppression of Muslims, not Catholics. [The petitioners] belong to no political
groups, and have never been jailed for political or religious activity. [One of the
petitioners] brother has, but for only one night. The couple's simple allegations hardly
make it more likely than not that [the petitioners] will be subjected to
"The well founded fear standard requires
asylum-seekers to prove specific facts linking the applicant to political, ethnic, racial,
or national oppression. Therefore, if we were to assume some level of Serb persecution of
Catholics in Montenegro, which [the petitioners] have presented no evidence to show, then
[the petitioners] must show simple membership in such a group."43
The court also held that due process was not violated
merely because the immigration judge took a "no nonsense" approach by allowing
the petitioners and their counsel only 30 minutes to cut directly to the gravamen of their
Ahmed Bejna was an ethnic Albanian citizen of Macedonia. He
came to the United States in 1992 on a three month tourist visa and applied for asylum
before the expiration of his visa.45 In a hearing before
the immigration judge, Bejna's testimony was found to lack credibility because it was
internally inconsistent, conflicted with his supporting documentation, and changed from
one moment to the next.46 In part because of the
immigration judges credibility findings, and also because Bejna "has offered nothing
to distinguish his fear of potential harassment from that of all Albanians in
Macedonia," the 7th Circuit declined to overturn the BIA's affirmance of the
immigration judge's decision to deport Bejna.47
In Osmani v. INS,48
Judge Posner rebuked the BIA for "seem[ing] unaware of the elementary facts of
contemporary history, even those that bear vitally on its mission," and failing to
inform itself "about the world events that precipitate applications in the United
"[O]nce the situation in the former Yugoslavia is
understood, the lack of merit of Osmani's petition to reopen become starkly clear. None of
the evidence that he submitted in support of his motion to reopen concerns Macedonia. The
evidence concerns Serbian mistreatment of Muslims in Bosnia and of ethnic Albanians in
Kosovo. There is not a word about the situation of ethnic Albanians, or Muslims, or
Albanian Muslims, in the new nation of Macedonia. Osmani has presented no evidence that if
he has returned to Macedonia, his home land, he will face persecution by reason of being
an ethnic Albanian and Muslim."50 The 7th Circuit
accordingly denied Osmani's petition for review of the decision by the BIA to deport him.51
Aga Dokic was an ethnic Albanian who illegally entered the
United States from Mexico and thereafter applied for asylum in a deportation proceeding.52 The BIA held that the petitioners failed to establish a
well founded fear of persecution.53 The Sixth Circuit,
distinguishing the "bloody, ethnic-based civil war" in Bosnia,54 held that testimonial and documentary evidence concerning
general worsening conditions in certain areas of Yugoslavia was not enough to categorize
petitioners as refugees. Accordingly, they could meet either the well founded fear of
persecution test for asylum, nor the "clear probability of persecution" test of
Tihomir Milosevic left Yugoslavia in 1964 and lived in
Austria and then West Germany before coming to the United States in 1985. He overstayed
his visitors visa and requested asylum and withholding of deportation based on threats and
interrogation by Yugoslavs secret police during his stay in Germany, his having written a
book critical of the communist regime in Yugoslavia.56 The
immigration judged rejected the arguments, finding that the petitioner had freely traveled
to and from Yugoslavia for a period of 20 years, and that the book was not completed and
might never be completed.57 The Seventh Circuit agreed
with BIA that most of the evidence of fear of persecution depended upon what might happen
if his book were ever published, and that these amounted to mere speculation.58 Moreover, like the immigration judge, the 7th Circuit
noted that the petitioners credibility further was undercut by the fact that he had never
applied for asylum in Germany where he lived for 15 years and never applied for asylum in
the United States until his second wife withdrew her visa application on his behalf and
deportation proceedings were begun.59
Nor did evidence that the former Republic of Yugoslavia was
in "complete chaos," amount to evidence that he had a well founded fear that he
would be singled out for persecution. "If anything, the collapse of the communist
government in the former Republic of Yugoslavia would suggest that Milosevic's still
unpublished anticommunist views are likely to be of less rather than more interest to the
present authorities there."60
Moreover, conditions of political upheaval which effect the
population as a whole or in large part are generally insufficient to establish eligibility
for asylum. This is no doubt driven by Congress' concern that a more lenient policy would
qualify the entire population of many war torn nations for asylum.61
Nebi Ademi was an Albania Muslim from Macedonia. He went to
West Germany in 1972 were he was granted refugee status, and then returned to Yugoslavia
in 1976 to marry and raise a family. In 1984, fearing imprisonment because of pro Albanian
activities, he left Macedonia and went to Austria. He returned legally to Yugoslavia on
one occasion and returned secretly three times.62 When he
sought to enter the United States in El Paso illegally in 1986 he was apprehended by INS,
which commenced deportation proceedings. He sought asylum.63
The 7th Circuit found no error in the BIA's conclusion that interrogation of the
petitioner to discover information about the groups he supported did not necessarily
amount to singling him out for persecution based on his political beliefs, and that his
evidence generally was weak because it pertained to Bosnia rather than Macedonia.64
Vaso and Djela Perkovic, unlike the other petitioners, were
successful in overturning an order of deportation.65 In
their asylum petition, they presented evidence that they had been active in a movement
promoting civil rights in Yugoslavia for ethnic Albanians and that as a result, he was
arrested and questioned all night and beaten.66 After
arriving in the United States, they continued to be active in Albanian protest groups.67 They also adduced evidence that under Yugoslav law, they
could be prosecuted for engaging in political activity outside of Yugoslavia.68 The immigration judge found them qualified for asylum, but
the BIA reversed.69 Analytically, the 6th Circuit noted
that, "disposition of an application for asylum requires a two step inquiry: first,
whether the petitioner is a `refugee' within the meaning of the statute, and second,
whether the petitioner merits a favorable exercise of discretion by the Attorney
"A well founded fear of persecution has both a
subjective and an objective component: an alien must actually fear that he will be
persecuted upon return to his country, and he must present evidence establishing
`objective situation' under which his fear can be deemed reasonable. A well founded fear
of persecution does not require the applicant to show that he probably will be persecuted
if he is deported; `one can certainly have a well founded fear of an event happening when
there is less that a 50% chance of the occurrence taking place.' "71
The BIA had concluded that the Perkovic's did not
qualify as refugees because their fear of persecution resulted only from their commission
of common crimes or from the fact that they engaged in violent insurrection against a
duly-constituted government.72 The Sixth Circuit found
such a conclusion to be inconsistent with the Universal Declaration of Human Rights and
the United Nations protocol on the status of refugees because "if the proscription
and punishment of peaceful manifestations of political opinion can be dismissed as merely
the exercise of a governments `inherent right' to preserve itself, our nations asylum laws
will have lost much of their intended effect of protecting the exercise of internationally
recognized human rights."73 Circuit Judge Kennedy
dissented on jurisdictional grounds and also because she thought that the evidence showing
that Vaso traveled freely throughout Yugoslavia and abroad during the period he claimed
fear of persecution inconsistent with the statutory standards.74
In Berisha v. INS,75
the Ninth Circuit remanded to allow an ethnic Albanian resident of Kosovo to reopen the
record in a deportation proceeding to allow the BIA to take into account changed adverse
circumstances regarding conditions in Kosovo.
Haitian Refugee Center, Inc. v. Baker,76 involved an injunction issued by a district court against
the forceful repatriation of Haitians based on the Haitians alleged right of non
refoulement77 under Article 33 of the 1967 United Nations
protocol relating to the status of refugees. The court of appeals reversed, finding that
the language of the protocol and the history of United States succession to it led to the
conclusion that Article 33 was not self executing and therefore provided no enforceable
rights to the individual plaintiffs. 78 On the facts of
the Haitian refugee case, even if the treaty was self executing, it had to be determined
to apply to aliens outside the United States, i.e. it had to be determined to have
extraterritorial effect, something the majority was unwilling to do.79
Circuit Judge Hatchett dissented, believing that Article 33
of the 1967 protocol which, incorporates Article 33 of the 1951 convention is self
executing and applies extra territorially.80 Judge
Hatchett concluded that under United States v. Postal,81
the convention is self executing because it neither explicitly calls for legislation or
requires positive legislative action such as the appropriation of money for the imposition
of sanctions.82 Moreover, the committee report
recommending accession provided that the United States is automatically bound to apply
Articles 2-34 of the convention.83
In a subsequent appeal, Haitian Refugee Center, Inc. v.
Baker,84 the court of appeals rejected another
injunction issued by the district court, finding that the Administrative Procedure Act did
not authorize review of claims of violation of the United Nations protocol, the executive
order, the Immigration and Naturalization Act, and the INS guidelines.85 It found that judicial review provisions under the INA
foreclosed APA review, pursuant to 5 U.S.C. § 701 (a) (preclusion of review).86 It distinguished between judicial review provisions
available to aliens within the United States87 from the
absence of judicial review provisions applicable to refugees seeking from outside the
United States.88 The court of appeals holding was
reinforced by the Supreme Court's conclusion that the INA was intended to supplant the APA
in immigration proceedings.89
The court of appeals also rejected constitutional claims
asserted by the Refugee Right Organization, which unsuccessfully argued that the
organization had a First Ame90
Judge Hatchett again dissented, concluding that the HRC
might have a First Amendment right of access to the refugees,91
and that the refugees had standing to claim judicial review under the APA.92
In Shamoun v. District Director, INS,93 the district court implied that the IIRIRA of 1996 ended
habeas corpus as a mechanism for judicial review of refugee deportation decisions made
after September 30, 1996.
-- Asylum: procedures
INS procedures, an application for asylum is initially handled by an asylum officer. 8
C.F.R. § 208.9(a). An immigration judge acquires jurisdiction over the asylum application
if the applicant has been placed in an exclusion or deportation hearing. 8 C.F.R. §§
208.2(b), 208.4(c). Consequently, asylum applicants who are not stowaways cannot be
removed from the United States without having their asylum claims adjudicated in an
adversarial hearing before an immigration judge who is independent of the INS. The
immigration judge is required to advise the applicant that he has a right to counsel and
that free legal services are available. 8 C.F.R. § 236.2(a). At the hearing before the
immigration judge, the applicant has the right to present evidence and witnesses on his
own behalf, 8 C.F.R. §§ 236.2(a), 236.3(c)(3); to examine and object to adverse
evidence, 8 C.F.R. § 236.2(a); to cross-examine witnesses presented by the INS, 8 C.F.R.
§ 236.2(a); to compel testimony of witnesses by subpoena, 8 C.F.R. § 3.35; to a
transcript and record of the entire proceeding, 8 C.F.R. § 236.2(e); and to
administrative review, 8 C.F.R. §§ 3.38, 236.7.
In contrast, the asylum
applications of stowaways are decided in a nonadversarial interview procedure conducted by
an asylum officer who is an INS employee. 8 C.F.R. §§ 208.2(a), 208.9, 253.1(f). The
stowaway applicant may have counsel present, but the regulations do not require the asylum
officer to advise the applicant of his right to counsel or of the availability of free
legal services. 8 C.F.R. § 208.9(b). The stowaway applicant may present witnesses and may
submit affidavits of witnesses and other evidence. 8 C.F.R. § 208.9(b). The
regulations do not require that the interview be recorded, and they require the applicant
to provide his own interpreter. 8 C.F.R. § 208.9(g). If denied asylum, the stowaway
applicant may appeal his denial to the BIA. 8 C.F.R. § 253.1(f)(4)."94
"(b) Interview and procedure. The asylum officer, as
defined in section 235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial
manner, separate and apart from the general public. At the time of the interview, the
asylum officer shall verify that the alien has received Form M-444, Information about
Credible Fear Interview in Expedited Removal Cases. The officer shall also determine that
the alien has an understanding of the credible fear determination process. The alien may
be required to register his or her identity electronically or through any other means
designated by the Attorney General. The alien may consult with a person or persons of the
alien's choosing prior to the interview or any review thereof, and may present other
evidence, if available. Such consultation shall be at no expense to the Government and
shall not unreasonably delay the process. Any person or persons with whom the alien
chooses to consult may be present at the interview and may be permitted, in the discretion
of the asylum officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the number of such
persons who may be present at the interview and on the length of statement or statements
made. If the alien is unable to proceed effectively in English, and if the asylum officer
is unable to proceed competently in a language chosen by the alien, the asylum officer
shall arrange for the assistance of an interpreter in conducting the interview. The
interpreter may not be a representative or employee of the applicant's country of
nationality or, if the applicant is stateless, the applicant's country of last habitual
residence. The asylum officer shall create a summary of the material facts as stated by
the applicant. At the conclusion of the interview, the officer shall review the summary
with the alien and provide the alien with an opportunity to correct errors therein. The
asylum officer shall create a written record of his or her determination, including a
summary of the material facts as stated by the applicant, any additional facts relied on
by the officer, and the officer's determination of whether, in light of such facts, the
alien has established a credible fear of persecution. The decision shall not become final
until reviewed by a supervisory asylum officer.
(c) Authority. Asylum officers conducting credible fear
interviews shall have the authorities described in § 208.9(c).
(d) Referral for an asylum hearing. If an alien, other
than an alien stowaway, is found to have a credible fear of persecution, the asylum
officer will so inform the alien and issue a Form I-862, Notice to Appear, for full
consideration of the asylum claim in proceedings under section 240 of the Act. Parole of
the alien may only be considered in accordance with section 212(d)(5) of the Act and §
212.5 of this chapter. If an alien stowaway is found to have a credible fear of
persecution, the asylum officer will so inform the alien and issue a Form I-863, Notice to
Referral to Immigration Judge, for full consideration of the asylum claim in proceedings
under § 208.2(b)(1).
(e) Removal of aliens with no credible fear of
persecution. If an alien is found not to have a credible fear of persecution, the asylum
officer shall provide the alien with a written notice of decision and inquire whether the
alien wishes to have an immigration judge review the negative decision, using Form I-869,
Record of Negative Credible Fear Finding and Request for Review by Immigration Judge, on
which the alien shall indicate whether he or she desires such review. If the alien is not
a stowaway, the officer shall also order the alien removed and issue a Form I-860, Notice
and Order of Expedited Removal. If the alien is a stowaway and the alien does not request
a review by an immigration judge, the asylum officer shall also refer the alien to the
district director for completion of removal proceedings in accordance with section
235(a)(2) of the Act.
(f) Review by immigration judge. The asylum officer's
negative decision regarding credible fear shall be subject to review by an immigration
judge upon the applicant's request, in accordance with section 235(b)(1)(B)(iii)(III) of
the Act. If the alien requests such review, the asylum officer shall arrange for the
detention of the alien and serve him or her with a Form I-863, Notice of Referral to
Immigration Judge. The record of determination, including copies of the Form I-863, the
asylum officer's notes, the summary of the material facts, and other materials upon which
the determination was based shall be provided to the immigration judge with the negative
determination. Upon review of the asylum officer's negative credible fear determination:
(1) If the immigration judge concurs with the
determination of the asylum officer that the alien does not have a credible fear of
persecution, the case shall be returned to the Service for removal of the alien.
(2) If the immigration judge finds that the alien, other
than an alien stowaway, possesses a credible fear of persecution, the immigration judge
shall vacate the order of the asylum officer issued on Form I-860 and the Service may
commence removal proceedings under section 240 of the Act, during which time the alien may
file an asylum application in accordance with § 208.4(b)(3)(i).
(3) If the immigration judge finds that an alien stowaway
possesses a credible fear of persecution, the alien shall be allowed to file an asylum
application before the immigration judge in accordance with § 208.4(b)(3)(iii). The
immigration judge shall decide the asylum application as provided in that section. Such
decision may be appealed by either the stowaway or the Service to the Board of Immigration
Appeals. If and when a denial of the asylum application becomes final, the alien shall be
removed from the United States in accordance with section 235(a)(2) of the Act. If and
when an approval of the asylum application becomes final, the Service shall terminate
removal proceedings under section 235(a)(2) of the Act."95
-- Temporary Protected Status
In addition to refugee status and asylum status, Section
1254 of Title 8 provides for "temporary protected status" for an alien who last
habitually resided in a state96 designated as having
ongoing armed conflict which poses a serious threat to the safety of any alien returned to
Designations must be published in the Federal Register and
last from 6 months to 18 months subject to periodic review.98
State designations are not subject to judicial review.99
By implication, individual determinations are subject to judicial review.
Temporary protected status was granted individuals from
Bosnia,100 but not those from Serbia-Montenegro.101 In a habeas corpus case, the Federal District Court for
Colorado found the determination that Serbia-Montenegro is not in a state of war supported
by the record and approved denial of TPS status to a citizen of Serbia confronted with
deportation to that state.102 Kosovo was added to the
list on June 9, 1998.103
To qualify for temporary protective status, aliens must
have been continuously present in the United States since the relevant state designation,104 and must be admissible as immigrants.105 In determining the admissibility-as-immigrant criterion,
the Attorney General may waive the requirements of 8 U.S.C. § 1182 (a)(5) and (7)(A), and
may waive any other provision of Section 1182 (a) "for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest."106
Aliens granted temporary protected status are not
considered to be residing permanently in the United States under color of law,107 may be deemed ineligible for public assistance by a
state108 and is considered as maintaining a lawful status
as a nonimmigrant.109
The section represents the exclusive authority of the
Attorney General to allow aliens to remain in the United States because of their
nationality or region of foreign state of nationality when they are otherwise deportable.110
Aliens who are granted temporary protective status are
entitled to remain in the United States while the status is in effect,111 and are authorized to work.112
1 David A. Martin, Refugees and Migration, in Oscar Schacter and
Christopher C. Joyner, 1 United Nations Legal Order 391, 412 (1995).
2 U.N.T.S. 189, P.137,
3 U.N.T.S. 606, P.267,
4 , adopted by the U.N. General Assembly in 1950, A/RES/428 (b)
5 Art. 14, para. 1.
6 Convention Relating to the Status of Refugees, art. 33, para. 1, 198
U.N.T.S. 150, 176 (July 28, 1951). , quoted in 949 F.2d at 1113 (Hatchett, J.,
7 Fil Artega.
9 Elizabeth Kay Harris, Economic Refugees: Unprotected in the United
States by Virtua of an Innacurate Label, 9 Am. U. J. Int'l L. & Pol'y 269, 271 (1993).
10 Harris, id. at 273.
11 8 U.S.C. § 1101(a)(42)(B) (defining refugee).
12 See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (interpreting
well-founded fear basis for asylum) [check]; compare Pierre v. Rivkind, 825 F.2d 1501,
1506 (11th Cir. 1987 ) (reversing district court and finding no persecution [check] with
Desir v. Hchert, 840 F.2d 723, 727-30 (9th Cir. 1988) (disagreeing with INS and finding
that persecution for refusal to pay bribes constituted political persecution)[check].
13 " The burden of proof is on the applicant for asylum to
establish that he or she is a refugee as defined in section 101(a)(42) of the Act. "
8 C.F.R. § 208.13(a)
14 " If the applicant is found to be ineligible for asylum under
either section 208(a)(2) or 208(b)(2) of the Act, the applicant shall be considered for
eligibility for withholding of removal under section 241(b)(3) of the Act." 8 C.F.R.
§ 208.13 (c(1)
15 1967 Protocol, art. 1.
16 8 U.S.C. § 1157(c
17 8 U.S.C. § 1157(c(2).
20 8 U.S.C. § 1157(e).
21 Presidential Determination No. 97-37, Sept. 30, 1997, 62 F.R.
22 8 C.F.R. § 207.2
23 8 C.F.R. § 207.1
24 8 C.F.R. § 207.5
25 8 U.S.C. § 1158(a)(1).
26 8 U.S.C. § 1158(a)(2)(A).
27 See also Jukic v. INS, 40 F.3d 747 (5th Cir. 1994) (generalized
fear of consequences of failing to respond to draft notice after breakup of Yugoslavia
insufficient showing of requisite fear of persecution); Avramovski v. McElroy, 1993 WL
541189, No. 93 Civ. 8926 (MGC) (S.D. N.Y. Dec. 29, 1993) (Muslim failed to show reasonable
fear of persecution by Serbs if he returned to now independent Macedonia where there is no
evidence that Muslims are subject to religious persecution, no evidence that Serbia is
likely to invade Macedonia and initiate a campaign of ethnic cleansing, and no evidence
that he would be persecuted by Macedonian government because he would oppose violations of
the rights of ethnic Albanians)
28 Bradvica v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997) (contrasting
asylum standard with withholding of deportation standard under 8 U.S.C. § 1253 (h)).
29 8 U.S.C. § 1158(b)
30 " Any applicant who claims not to be firmly resettled in a
foreign country must establish that the conditions of his/her residence in that country .
. . " 8 C.F.R. § 207.1(c)
35 128 F.3d 1009 (7th Cir. 1997).
36 128 F.3d at 1013.
37 128 F.3d at 1014, citing 6 U.F.T. 35.
38 128 F.3d at 1014 n.5.
39 84 F.3d 215 (6th Cir. 1996),
40 84 F.3d at 217.
41 84 F.3d at 219.
42 84 F.3d at 221.
43 84 F.3d at 221.
44 84 F.3d at 220.
45 Bejna v. INS, 98 F.3d 1344 (7th Cir. 1996) (unpublished
48 14 F.3d 13 (7th Cir. 1994).
49 14 F.3d at 14.
50 14 F.3d at 15.
51 14 F.3d at 15.
52 Dokic v. INS, 999 F.2d 539 (6th Cir. 1993) (unpublished).
53 999 F.2d at 539.
54 999 F.2d 539 at n.1.
55 Id., Section V.
56 Milosevic v. INS, 18 F.3d 366, 368 (7th Cir. 1994) (referring to
asylum request under 18 U.S.C. § 1158 (a) and withholding of deportation request under 8
U.S.C. § 1253 (h)).
57 18 F.3d at 369.
58 18 F.3d at 371.
59 18 F.3d at 372.
60 18 F.3d at 373.
61 18 F.3d at 373-74, quoting Sivaainkaran, 972 F.2d at 165 and
Arriga-Barriatos v. INS, 925 F.2d 1177, 1180 (9th Cir. 1991)).
62 Ademi v. INS, 31 F.3d 517, 518 (7th Cir. 1994).
63 31 F.3d at 518.
64 31 F.3d at 519.
65 Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994).
66 33 F.3d at 616-17.
67 33 F.3d at 617.
68 33 F.3d at 617.
69 33 F.3d at 618.
70 33 F.3d at 620, citing INS v. Cardoza-Fonseca, 480 U.S. 421, 428
71 33 F.3d at 620-21.
72 33 F.3d at 621.
73 33 F.3d at 622-23.
74 33 F.3d at 624 (Kennedy, J., dissenting).
75 35 F.3d 570 (9th Cir. 1994) (unpublished disposition).
76 949 F.2d 1109 (11th Cir. 1991),
77 Refoulement is the return of a refugee seeking asylum to the
country from which the refugee fled.
78 949 F.2d at 1110.
79 949 F.2d at 1115.
80 949 F.2d at 1111, 1113 (Hatchett, J., dissenting).
81 589 F.2d 862, 875 (5th Cir. 1979),
82 949 F.2d at 1114, citing Postal, 589 F.2d at 877 (Hatchett, J.,
83 949 F.2d at 1114 (citing Sen. Exec. Rep. No. 14, 90 SCONG. 2nd
Session (1968)) (Hatchett, J., dissenting).
84 953 F.2d 1498 (11th Cir. 1992),
85 953 F.2d at 1505.
86 953 F.2d at 1505.
87 under 8 U.S.C. § 1253 (h), 1252 (b), 1105a,
88 under 8 U.S.C. § 1157. 953 F.2d at 1506.
89 953 F.2d at 1509, quoting Ardestani v. INS, 502 U.S 129, ___
90 ndment right of access to refugees. 953 F.2d at 1514-1515.
91 953 F.2d at 1518;
92 953 F.2d at 1519.
93 967 F. Supp. 1051, 1054 (N.D. Ill. 1997) (allowing deportation
under habeas corpus position, of Iraqi refugee convicted of violating control substance
94 Marincas at 199-200.
95 8 C.F.R. § 208.30
96 8 U.S.C. § 1254 (a)(1).
97 8 U.S.C. § 1254 (b)(1)(A).
98 8 U.S.C. § 1254 (b)(2) (effective period of designation); Id.
§ 1254 (b)(3) (periodic review, terminations, and extensions).
99 8 U.S.C. § 1254 (b)(5)(A).
100 62 Fed.Reg. 41420 (Aug. 1, 1997)
(extending TPS for Bosnia)
101 Filimonovic v. District Director, INS, 900 F. Supp. 1410,
1417 (D. Colo. 1995).
102 Filimonovic v. District Director, INS, 900 F. Supp. 1410, 1417
(D. Colo. 1995).
103 63 Fed.Reg. 31527 (June 9, 1998)
104 8 U.S.C. § 1254 (c)(1)(A)(i).
105 8 U.S.C. § 1254 (c)(A)(iii).
106 8 U.S.C. § 1254 (c)(2)(A). The Attorney General may not waive
provisions excluded those relating to criminals.
107 8 U.S.C. § 1254 (f)(1).
108 8 U.S.C. § 1254 (f)(2).
109 8 U.S.C. § 1254 (f)(4).
110 8 U.S.C. § 1254 (g).
111 8 U.S.C. § 1254 (a)(1)(A).
112 8 U.S.C. § 1254 (a)(1)(B) (entitlement); Id. § 1254
(a)(2) (duration as long as status remains).