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  • Article: Asylum Officer Training Materials on "Real ID Act" Released by The USCIS in Response to a Freedom of Information Lawsuit By David L. Cleveland

    Asylum Officer Training Materials on "Real ID Act" Released by The USCIS in Response to a Freedom of Information Lawsuit

    by


    US-CIS recently released asylum officer training materials dealing with the REAL ID Act. 26 pages of power points, dated March 2017, are available on the “Asylum Officer Materials” page of the Louise Trauma Center: www.louisetrauma.weebly.com.

    The materials were released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC. They are also available on line in the Electronic Reading Room of the CIS website.

    What does “at least one central reason” mean?

    If “at least one central reason” for the persecutor’s acts was a protected ground, the applicant may be entitled to asylum.

    At page 216, it is stated: “The protected ground ‘cannot play a minor role in the [applicant’s] past mistreatment or fears of future mistreatment. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007).” However, at page 217, it is stated:” There is no requirement that the motivation relating to the protected ground be dominant or primary.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).

    Inconsistencies can lead to an adverse finding of credibility

    Page 226 cites Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) for an example of an adverse credibility determination, where a Chinese Christian:
    1]- testified he had to stand outside in the heat on the second day; whereas his written statement said it was the third day;
    2]- could not recall the date or year of arrest; he only said it was “within four, five, or six months” of departure from China;
    3] -gave an incorrect recitation of the Lord’s prayer.

    Suggestions and duties of an asylum officer

    The officer is told at page 230 that “you should inform the applicant” of your concern about credibility and “ask the applicant to explain.”

    At page 232, the officer is encouraged, “when appropriate,” to ask questions out of chronological order and to ask the applicant to “explain again.”


    Comments of the author

    1. The persecutor could have three “central” reasons.

    Generally speaking, a thing only has one center. Only one person is the center on the basketball team. There is only one Central Intelligence Agency. Yet, Congress considered, but did not enact a statute that said, “the central reason;” nor did it enact a statute that said, “a central reason.” It added the phrase “at least one” to the phrase “central.” We must give the phrase “at least one” meaning. It is not superfluous.

    The plain text of the statute “clearly contemplates the possibility that multiple motivations can exist.” Aldana-Ramos v. Holder, 75 F.3d 9, 18-19 (1st Cir. 2014). Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015) ( “persecution may be on account of multiple central reasons” ).

    “Multiple” means “having or involving several parts, elements or members: multiple occupancy; a multiple pile-up https://en.oxforddictionaries.com/definition/multiple.
    “Multiple” means “consisting of or involving many things or types of things” make multiple copies of the report http://dictionary.cambridge.org/dictionary/english/multiple
    Black’s Law Dictionary [10th Edition, 2014] defines “multiple counts” as “Several separate causes of action or charged offenses contained in a single pleading or indictment”

    A persecutor might say, “I harmed the applicant for three equally important reasons:
    1] because of his religion; 2] because he was rich; and 3] because I wanted to show off for my girlfriend.” If so, 33% of his motivation was due to religion; 67% was due to other factors. So, religion is less than 50% of the total. It is less than the other factors. It is not dominant. However, is it “minor”? No, because it is a “central” reason.

    ” There is no requirement that the motivation relating to the protected ground be dominant or primary.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). This means it need not be 51%. It could be less: it could be 49%. It could be 33%.

    Merriam-Webster defines “central” as “of primary importance: essential, principal…”
    https://www.merriam-webster.com/dictionary/central. Yet, the Parussimova court said the reason need not be “primary.” It can be secondary. It can be minor.

    “Minority” means “less than half.” Only a minority of people support military action.
    http://dictionary.cambridge.org/us/dictionary/english/minority
    A “minority shareholder” is one who owns “less than 50 percent of the total shares of a corporation’s stock.” https://definitions.uslegal.com/m/minority-shareholder/

    So, 49% is a minority. At page 216 of the recently-released materials, it is stated: “The protected ground ‘cannot play a minor role in the [applicant’s] past mistreatment or fears of future mistreatment. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007).

    Yes, it can. The protected ground could play a 33% role, and still be a “central reason.” The CIS should revise page 216. The CIS should instead quote from page 213 of J-B-N-, which quotes from the legislative history: the conference report states that the protected ground cannot be merely “incidental or tangential to the persecutor’s motivation.” See H.R. Rep. No. 109-72 at 163.

    2. The inconsistencies in Ren v. Holder were deemed to be trivial by a higher court!

    Page 226 of the recently-released materials cites Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) and gives three examples from that case. The Immigration Judge found the examples to be grounds for an adverse credibility finding. However, the Ninth Circuit ruled that all three examples above were “trivial” or otherwise in error. 648 F.3d at 1084-85. Should asylum officers be given examples which were criticized by an appellate court? The Training Division should revise page 226 of its materials.

    3. The officer must inform the applicant of any credibility concerns, during the interview, so that applicant can correct the problem.

    Page 230 of the materials instructs the officer to notify the applicant [and her attorney] of any credibility concerns. If the officer did not announce any credibility concerns, then the applicant’s lawyer, in her closing statement could say, “The applicant was a credible witness. Mr. Officer, you did not announce any credibility concerns, that I noticed, so, apparently, you have no such concerns. …[Pause]….


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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