ANDREW BROOKS, J.
This article discusses the basics of asylum representation in the context of the current political environment.
“Miriam”1 never wanted to come to the United States. She was content with her life in San Salvador, where she was born and raised. Ten her husband started beating her. She called the police, but the calls went unanswered. She went to the police station in person to file a complaint, but the police told her that they would not get involved in her marriage. Te attacks worsened and became more frequent. With no end to the abuse in sight, Miriam fed her home in the middle of the night, taking only the essential belongings she could carry in her arms. She spent the night at a friend’s house. Her husband found her there the next day, dragged her home, and threatened to kill her if she ever left again. Not having anywhere else in El Salvador to go, she traveled overland through Guatemala and Mexico to request asylum in the United States, and stay with her cousin in Colorado. With the assistance of a competent lawyer, Miriam has a chance of winning asylum.
Would you take Miriam’s case?
There is an ever-growing demand for pro bono asylum attorneys in Colorado.2 Te demand for asylum lawyers is currently so high that the Colorado Bar Association has partnered with the Rocky Mountain Immigrant Advocacy Network (RMIAN) to train pro bono lawyers to take these cases.3 Additionally, a group of lawyers formed the Colorado Asylum Project to place cases with pro bono attorneys. 4
Clients like Miriam need representation to successfully pursue their claims. Tis article discusses the basics of asylum representation in the current political climate.
How Asylum Law Evolved
After World War II displaced millions of people, the United Nations adopted the 1951 Convention Relating to the Status of Refugees.5 Te 1951 Convention first defined the term “refugee,” which initially applied primarily to Europeans.6 In the 1960s, the decolonization of Africa, the Cold War, and other events led the U.N. to adopt the 1967 Protocol Relating to the Status of Refugees,7 to which the United States acceded in 1968. Congress passed the Refugee Act in 1980 to conform to the 1967 Protocol, 8 which codified into U.S. law the 1967 Protocol’s definition of “refugee.” A “refugee” is currently defined as:
any person who is outside any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.9
A “well-founded fear” means persecution is a reasonable possibility, and the Supreme Court has held that a 10% chance of persecution is sufficient to show a “well-founded fear.”10
Among other requirements, an applicant for asylum must
■ be a refugee,11
■ warrant the favorable exercise of discretion,12 and
■ file within one year of the refugee’s arrival in the United States.13
An economic migrant14 is not a refugee, and whether a person qualifies as a “refugee” may depend on the “particular social group” in which the person claims membership, as discussed below.
Asylum Practice in Colorado
A foreign national may request asylum in the United States through either an affirmative or a defensive application. “Defensive” asylum applicants are those in removal proceedings, and “affirmative” asylum applicants are those not in such proceedings.
If a foreign national residing in Colorado applies affirmatively, an asylum officer for the U.S. Citizenship and Immigration Services (USCIS) will adjudicate the application. As of January 31, 2018, asylum applications are being processed in a last-in, first-out basis.15 Affirmative asylum applications pending for fewer than 21 days are prioritized.16 If the asylum application is denied, the applicant is generally placed in removal proceedings and pursues the asylum claim defensively.17
“Defensive” asylum applicants are those in removal proceedings, commonly referred to as deportation, which may be initiated because the foreign national is apprehended at the border attempting to enter the United States, or because the foreign national has already entered the United States and has been placed in removal proceedings.18 A foreign national apprehended at the border who expresses a fear of return to her country19 is detained 20 pending a “credible fear interview,” where she must show a significant possibility of establishing eligibility for asylum.21 If she does not pass the interview, she may ask an immigration judge to review the decision.22 If the immigration judge does not vacate that decision, however, the foreign national is removed expeditiously; there is no subsequent appeal.23
current policy, once the foreign national passes the credible
fear interview, he is usually released from detention under a
discretionary process called “parole” and will
then litigate the asylum case.24 Te process of being
released on parole, however, may take months in
Colorado,25 but a detained asylum case may not
take that long.26 In a February 2018 decision, the
Supreme Court held that foreign nationals apprehended at the
border who pass a credible fear interview must be detained
for the duration of the asylum case; there is no implicit
right to a bond hearing every six months, as the Ninth
Circuit had held.
Asylum applicants who pass a credible fear interview at the border and have a Colorado contact are released on parole and may move to Colorado to be with their contacts here. Te Denver Immigration Court, located in downtown Denver, has jurisdiction over non-detained asylum applicants. Te dockets at the Denver court are so backlogged that it currently takes, depending on the courtroom, between two and three years to get an individual hearing once the asylum application is fled with the court. Immigration judges in Denver are administrative law judges and serve as employees of the Executive Office of Immigration Review (EOIR), which is an agency housed within the Department of Justice (DOJ). Decisions from the immigration courts may be appealed to the Board of Immigration (BIA) appeals, also part of EOIR. As DOJ employees, immigration judges and BIA judges are bound by DOJ policy memoranda.
Adding to the difficulty of proving an asylum claim, the BIA recently held that an asylum case based on persecution on account of membership in a particular social group (PSG) must articulate the PSG before the immigration court.28 Te BIA, therefore, will not accept formulations of PSGs on appeal that were not proposed and litigated below.29 It is imperative that the applicant provide all possible formulations of a PSG in immigration court. Tis task is one of many in an asylum case that requires the assistance of a competent attorney.
Attorneys must competently, zealously, and honestly apply the statutes, regulations, and case law to asylum cases. Further, knowingly fling a frivolous asylum application renders the applicant permanently ineligible for any immigration benefit in the United States.30
Several Colorado Rules of Professional Conduct are particularly relevant to asylum cases. The Preamble requires that “a lawyer zealously assert the client’s position under the rules of the adversary system.” Rule 1.1 requires competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”32 In an asylum case, this means that the lawyer knows, for example, which PSGs are legally cognizable. It also means that the lawyer fully examines...