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Law Outlines Refugee Law and Policy Outlines

Refugee Law And Policy Outline

Updated Refugee Law And Policy Notes

Refugee Law and Policy Outlines

Refugee Law and Policy

Approximately 21 pages

Comprehensive, indexed outline for Refugee Law and Policy class taken by JD and LLM students at T14 law school. Examination for class occurred in December 2013....

The following is a more accessible plain text extract of the PDF sample above, taken from our Refugee Law and Policy Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  • The U.N. Convention & Protocol and the U.S. Response: UN Convention 1951: US did not sign convention however signed 1967 Protocol. UN Manual paragraph 196.: burden of proof lies on the person submitting a claim. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. 1951 Convention Protection for Forced Migrants: Defines ‘Refugee’ as: ones outside their country and cannot return to it ‘owing to a well founded fear of being persecuted for (nexus requirement) reasons of race, religion, nationality, membership in particular social group or political opinion’.

    Guarantees: 1.) No refugees may be returned to a land where her life or freedom would be threatened 2.) specific minimum standards of treatment in exercising specific rights.

    Nonrefoulement: Article 33(1): prohibits states from turning away refugees in they would be returned to countries in which they are likely to face persecution. Limited exception in Art. 33(2) based on crimes and security risks.

    - Prohibits return but does not require admission, the granting of any specific rights or permanent residency

    Protection under US Law/ Nonrefoulment in the United States:

    Withholding of Removal. Refugee Act of 1980: AG may not remove an alien to a country if the alien’s life or freedom would be threatened because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. Refugee Act 1980 made s243(h)(now s241(b)) mandatory – previously discretionary. Originally not considered that accession to 1967 Protocol would require legislative change.

    - End of Vietnam generated tones of refugees and had to got to Congress every time to admit more refugees. Cuba boat lift in 1980: Not well designed to deal with the boat lift. Asylum: 1980 Refugee Act added Asylum status to INA under new §208 (addressed procedural deficiencies) however still no right to asylum. Prior to §208, no statutory basis to grant asylum from within the US. Convention equivalent provision – Article 34; §207 covers overseas refugee admissions.

    U.S. Refugee definition INA § 101(a)(42), 8 U.S.C § 1101(a)(42) elements: outside country of nationally, unwilling or unable to return because of persecution or well founded fear of persecution on account of race, religion, particular social group or political opinion. Clear in US not just future persecution, as the UN Convention suggests. Persecution is not defined in UN Convention or in Refugee Act 1980.

    UN Handbook: guidance regarding specific problem areas – mentally disturbed and unaccompanied minors.

  • Matter of Dunar: 14 I&N Dec. 310 (BIA 1973) - Expression ‘well founded fear of being a victim of persecution for reasons of race, religion, nationality or political opinion’ means that a person has either been actually a victim of persecution or can show good reason why he fears persecution. Held no persecution.- Conclude that Article 33 has effected no substantial changes in the application of section 243(h), either by way of burden of proof, coverage, or manner of arriving at decisions. convention and law were already compatible and did not need to change anything however Congress later legislated Refugee Act 1980.

    INS v. Cardoza-Fonseca 480 U.S. 421 (1987): on basis plain meaning and legislative history, held that, to show ‘well-founded fear of persecution,’ alien seeking asylum need not prove that it is ‘more likely than not’ that he or she will be persecuted in his or her own country. Standard of proof for asylum less than for withholding. Court cited Stevic case in support, in which held §208 standard did not apply to s243(h) cases.- 10% rule (Justice Stevens): simply no room in UN convention that if individual has 10% chance of being killed that they have no ability to have well-founded fear.

    Matter of B-R, 26 I&N Dec. 119 (BIA 2013) - BIA uses UN definition to limit the scope of U.S. refugee definition. DLR Language

  • Adjudicating Asylum Claims in the United States: Statutory basis: Asylum INA §208(a), Withholding §241(3)(b). U.N. basis – Asylum: Section of UN Convention Art. 34, Withholding: UN Convention Art. 33. Burden of proof: Asylum: Well founded fear(~10%), Withholding: More likely then not (50%+) Affirmative/defensive application: Asylum: both Affirm/Def, Withholding: defensively only. Note also small number from credible fear process.

    Mandatory/discretionary: Asylum: discretion , Withholding: Mandatory. “Aggravated Felony” bar: Asylum: yes, Withholding: No, but many cases will bar. If get asylum, can’t be removed to a third country. If get withholding, may be removed to third country. Expedited Removal Proceedings: INA §235(b)(1) noncitizens arriving to port of entry can be removed on the order of an immigration officer, not an immigration judge, if found inadmissible under INA §212(a)(6)(C) or (7). Work Authorization: INA §208(d)(2) – constraints on issuing of work authorization. Basic Structure of Review: Found in INA §242. Section 242 limits review of certain cases, such as ones found deportable under most of the crime-related deportation grounds, except for a single crime of moral turpitude.

    Standard of Review: Very deferential standard to finding of facts, unless any ‘reasonable adjudicator would be compelled to conclude to the contrary’. Discretionary decisions will be ‘conclusive unless manifestly contrary to the law and an abuse of discretion. INA 242(f)(2). Note DHS has no right to appeal BIA decisions – all can do is ask AG to take case.

    - INA § 208, 8 U.S.C. § 1158 (asylum process) (CW) – Saved in folder - INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) (withholding of removal) - 8 C.F.R. §§ 208.9, 208.14 (asylum process) US Asylum organizations: DHS, EOIR.

  • Agency Deference: Kang v. Att’y Gen. of U.S: 611 F.3d 157 (3d Cir. 2010) - Can only...

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