Sunday, March 16, 2008

Yusupov: National Security Bar To Withholding of Removal Requires Proof Person "Is" Not "May Be" A Danger, Incorporating the 1967 UN Protocol

Yusupov v. Mukasey, Nos. 05-4232 & 05-5411 (3d Cir. Mar. 14, 2008). Additional Note -- The Third Circuit issued an amended decision dated March 27, 2008 that added a footnote to elaborate on why the BIA's ruling was a final order capable of being appealed. The Third Circuit overturned the BIA and remanded the case in a decision that agreed on an important point with the immigrant appealing the BIA, but rejected several of the immigrant's arguments.

Congratulations to Lawrence Rudnick of Steel, Rudnick & Ruben in Philadelphia along with Bassina Farbenblum and Paul Engelmayer of Wilmer Cutler Pickering Hale & Dorr in NYC for their work on the combined case! The Third Circuit specifically commended how Mr. Rudnick worked on the case at a substantially discounted fee (nearly pro bono) while Bassina Farbenblum and Paul Engelmayer did a superb job of pro bono representation, including writing an amicus brief for the Harvard Immigration and Refugee Clinic and others.

Immigrants can avoid deportation if they qualify for withholding of removal, which requires proof that the person's life or freedom would be threatened if deported to the other country. (It is a bit more complicated than this simple description.) For withholding of removal and relief under CAT (the Convention Against Torture), even if someone seems to qualify for protection, the United States will refuse to protect anyone for whom there are reasonable grounds to believe the person is a danger to the security of the US. That language is directly from what Congress wrote at INA 241(b)(3)(B)(iv), which is also known as 8 USC 1231(b)(3)(B)(iv). (Keep in mind that even someone who is a danger can still get the limited relief of deferral of removal, so look into that if you need to.)

What Congress wrote, though, was misinterpreted by the BIA, which is part of the Justice Department. The BIA in a decision called Matter of A-H-, 23 I&N Dec. 774 (BIA 2005), stated that the United States can refuse to protect anyone where a reasonable person could believe the person may pose a danger to the national security. Do you spot the problem -- Congress will only block someone who "is a danger," but the BIA misconstrued that as blocking everyone who "may pose a danger." Congress limited the category of those blocked from CAT and withholding of removal to a small group of people who are a danger, not the much bigger group of people who may pose a danger. Yes, the category of people who "are" a danger is not the same as people who "may be" a danger. It's too bad the immigrants had to litigate all the way to the Third Circuit to make this basic clarification.

In other parts of the decision:

The Third Circuit ruled that it was acceptable for the BIA to interpret the "reasonable grounds to believe" the immigrant is a danger as being satisfied with proof similar to probable cause in criminal cases.

The Third Circuit ruled it was acceptable for the BIA to accept proof that is not intrinsically suspect, even if that evidence would not satisfy the Federal Rules of Evidence. (Note, the Third Circuit left open the question whether this rule might violate the Fifth Amendment's Due Process Clause.)

The Third Circuit ruled is was acceptable for the BIA to apply the bar upon proof that the person poses a danger to US security without requiring proof the danger is a serious danger. The Third Circuit's analysis is that saying the danger must be serious would be redundant -- it already is clear that the danger must be serious. (In a sense, the immigrants appealing the case did not lose this issue -- the Third Circuit said their argument was pointless because what they wanted already exists in the law.) In this section of the opinion, the Third Circuit sensibly and commendably looked to the international law standards that Congress intended to incorporate to the fullest extent possible. And therefore, Congress intended exceptions to protection to be applied to the narrowest possible category. Therefore, the Third Circuit fully accepted the unanimous view of international law scholars on the type of protections ensured by Article 33 of the 1967 United Nations Protocol (relating to the Status of Refugees), including the nonrefoulement obligation of Article 33.1 and the limited exception in Article 33.2 for refugees who pose a national security danger.

The Third Circuit makes clear that interpreting asylum, withholding of removal, and CAT relief requires incorporating international law principles from the 1967 U.N. Protocol.


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