1035

[Insert at the end of footnote 4]:

U.S. Dep't of State, 2008 Human Rights Report: Ghana (Feb. 25, 2009); Amnesty Int'l Report 2009: Ghana; Amnesty Int'l, Ghana: a Seven point human rights agenda for the new government (Jan. 1, 2009).

1038

[Delete the first paragraph and insert the following]:

     The government of Ghana has signed and ratified the African Union's Maputo Protocol calling for an end to genital mutilation.

1038

[Insert at the end of footnote 13]:

List of countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and People's rights on the Rights of Women in Africa (Feb. 12, 2009)(Ghana signed on 10/31/03 and ratified on 6/13/07).

1046

[Insert at end of Note # 1]:

      The European Court of Justice apparently agrees with this position. In February 2009 it ruled that asylum seekers in the E.U. did not have to demonstrate that they were specifically targeted for harm if there was widespread and indiscriminate violence in their home country. The case involved an Iraqi man who had worked for a British security contractor that guarded convoys in Iraq, and after he had left Iraq, an uncle who worked for the same company in the country was killed in a terrorist attack and a note had been left on the applicant's home in Iraq that said "death to collaborators." (Forelle, European Court Loosens Requirements for Asylum, N.Y. Times, Feb. 17, 2009.)

1052

[Insert before paragraph about Canada v. Ward]:

            In Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008), the court granted a petition to review a BIA denial of asylum and remanded for further proceedings. In so doing, the court held that petitioner was a member of a "particular social group," i.e., Cameroonian widows. They had an immutable characteristic, a past experience of losing a husband, and they were viewed by society as such a group and subject to discrimination. Indeed, a lack of a national legal code left them defenseless against male-oriented customs.

1058

[Insert at end of Note # 4]:

    The UNHCR states that when a country has near universal practice of FGM, internal relocation should not be considered. But even when FGM is less widespread, such relocation would not be reasonable where a woman would be without family support or very young. Moreover, due to gender, age and other factors, the applicant may face discrimination and be at heightened risk of abuse, violence and deprivation of other human rights. UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation at 13-14 (May 2009), http://www.unhcr.org/refworld/docid/4a0c28492.html, ["UNHCR Guidance Note"].

1060

[Insert after the second full paragraph regarding the Negusie case ("of civilians.'" (citations omitted)."]:)]:

    In March 2009 the Supreme Court issued its decision in Negusie v. Holder, 129 S. Ct. 1159 (2009) on the question of whether the statutory bar to asylum for anyone "who ordered, incited, assisted, or otherwise participated in the persecution of any person" on account of any of the protected grounds applied to a person who had done so as a result of duress or coercion. The Court, 6 to 3, in an opinion by Justice Kennedy, held that this statutory provision was ambiguous and remanded to the BIA for an initial answer to this issue. (Id. at 1162-68.) Justices Scalia and Alito concurred to emphasize that they thought the BIA on remand had the option of adhering to its original decision. (Id. at 1168-70.) Justices Stevens and Breyer, on the other hand, concurring in part and dissenting in part, thought the Court itself should answer the question and hold that the bar did not apply when there was coercion or duress, but then let the BIA first answer how to apply the voluntariness standard. (Id. at 1170-76.) Finally Justice Thomas dissented on the ground that there was no voluntariness requirement for the bar.  (Id. at 1176-85.)

1064

[Insert after Note # 2]:

       3. Circuit courts have held that some asylum applicants have been denied Fifth Amendment due process. In Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009), the court held that immigration proceedings must conform to Fifth Amendment due process requirements. For pro se aliens, the immigration judge must "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." (Quoting Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000).) This requirement was violated, the court held, when the immigration judge erroneously delegated his duties to develop the pro se alien's asylum (and withholding and CAT) case to the attorney for the government. This imposed an unfair conflict of interest on the government attorney and deprived the applicant of a fair development of the record. In Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), the Ninth Circuit reversed the BIA's affirmance of a denial of asylum and remanded the case for further proceedings. Relying on 8 U.S.C. § 1229a(b)(4)(B) and case law, the court held that the applicant's due process rights were denied when the government did not disclose its forensic reports before the hearing or make the forensic expert available for cross-examination. In Banat v. Holder, 557 F.3d 886 (8th Cir. 2009), the court held that there was a violation of due process by the immigration judge's making adverse credibility determination based upon an overseas State Department investigation that was unreliable and untrustworthy.

      4. Aliens facing removal or deportation in the U.S. do not have a constitutional right to counsel. But when they do have counsel, the BIA in 2003 ruled that the aliens had a constitutional right to reopen their cases upon documented claims of ineffective legal representation. In 2008, however, Attorney General Mukasey issued an order overruling that position and denying the right to reopen. In June 2009, that order was withdrawn by Attorney General Holder with a decision that the Department of Justics may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel. An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking. (Matter of Compean, 24 I&N Dec.710 (Att. Gen. 2009); Schwartz, Bush Rule Bolstering Deportations Is Withdrawn, N.Y. Times, June 4, 2009; Editorial: A Move Back Toward Due Process, N.Y. Times, June 14, 2009.)

       5. U.S. immigration judges, according to a recent study, are frustrated and demoralized as a result of surging caseloads and chronic lack of resources (insufficient time, shortage of law clerks and language interpreters and failing computers and recording equipment). (Preston, Study Finds Immigration Coutrooms Backlogged, N.Y. Times, June 18, 2009; Preston, Immigration Judges Found Under Strain, N.Y. Times, July 11, 2009).

        6. In recent years in the U.S. arriving asylum-seekers and other undocumented aliens have been detained, usually in county or private jails under contract with the DHS's Immigration and Customs Enforcement (ICE). ICE operates the largest detention and supervised release program in the country. A total of 378,582 aliens from 221 countries were in custody or supervised by ICE in FY 2008; activities in 2009 remain at a similar level. On September 1, 2009, ICE had 31,075 aliens in detention at more than 300 facilities throughout the United States and territories, with an additional 19,169 aliens in Alternative to Detention programs. There have been documented instances of lack of proper medical care for those in such detention, and some have died from such inattention. In addition, these people have more difficulty in winning their asylum cases. (National Immigration Law Center, A Broken System: Confidential Reports Reveal Failures in U.S. Immigration Detention Centers (July 2009), http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf;  National Immigration Law Center,  Immigrant Detainee Rights Are Routinely, Systematically Violated, New Report Finds (July 28,2009), http://www.nilc.org/immlawpolicy/arrestdet/ad097.htm; Bernstein, Another Jail Death, and Mounting Questions, N.Y. Times Jan. 27, 2009; Letter: The Failures of Our Immigration Detention System, N. Y. Times, Feb. 6, 2009; Associated Press, Immigration Agency Is Criticized on Health Care, N.Y. Times, Mar. 18, 2009; Bernstein, Immigrant Detainee Dies, and a Life Is Buried, Too, N.Y. Times, April 3, 2009; Manrique, Detained Asylum-Seekers Find It Harder to Win Release, N.Y. Times, June 2, 2009.) Nevertheless, the Obama Administration has rejected calls for detention regulations and instead has insisted on maintaining so-called performance-based standards monitored by private contractors. (Bernstein, U.S. Rejects Call for Immigration Detention Rules, N.Y. Times, July 29, 2009.)

       But on August 6, 2009, U.S. Immigration and Customs Enforcement (ICE) announced "2009 Immigration Detention Reforms." With the ultimate goal of designing and building facilities located and operated only for immigration detention purposes in the next three to five years, ICE has created the following new offices regarding such detentions:

• Office of Detention Policy and Planning (ODPP). It will pland and design a civil detention system to manage the population of detainees, to manage detention conditions  and functions, to manage programs in the facilities, to manage health care, to develop alternatives to detention, to maange special populations (women, families, the elderly and vulnerable people), and to ensure accountability.
• Office of Detention Oversight (ODO). With regional offices it will conduct routine and random inspections and investigate detainee grievances in a neutral manner.
• Office of Detention Oversight (ODO). With regional offices it will inspect facilities and address any unresolved detainee grievances.
• Office of Detention and Removal Operations (DRO). It will have full operational responsibility for the detention system.

(U.S. ICE, 2009 Immigration Detention Reforms (Aug. 6, 2009),  http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.) These changes were welcomed by immigrant advocates, but seen as insufficient. Instead these advocates assert that legislation is needed to establish and enforce detention standards. (National Immigration Law Center,  A Spark, But Where's the Flame? ICE Announces Modifications to Immigration Detention System (Aug. 6, 2009), http://www.nilc.org/immlawpolicy/arrestdet/ad099.htm.)

       Subsequently ICE released a report that concluded the current system's being based on a criminal justice framework was wrong and called for the creation of a new set of detention standards oriented toward an exclusive civil detainee population. (ICE, Immigration Detention Overview and Recommendations (Oct. 6, 2009), http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf; National Immigration Law Center, Flicker of Change, but No Legal Torch to Light the Way (Oct. 6, 2009), http://www.nilc.org/immlawpolicy/arrestdet/dhs-detention-rprt-nilcstatement-2009-10-06.pdf.)

     7. The United Kingdom also has a practice of detention of asylum seekers and other immigrants along with paying small financial stipends for those not in detention that has been subject to much criticism. (Buchan, Britain's asylum policy is failing, Guardian, May 14, 2009; Gupta, Forcing asylum seekers into destitution, Guardian, Aug. 4, 2009; McVeigh, Immigration and detention--codes of conduct, Guardian, Aug. 30, 2009; McFadycan, How can we lock up children seeking asylum?, Guardian, Aug. 31, 2009; Porter, We are shockingly complacent about locking up 2,000 children a year, Guardian, Oct. 18, 2009; Yeo, Asylum woes at the home office, Guardian, Oct. 29, 2009.) There are also problems with Italian detention of asylum-seekers (and with its intercepting migrants at sea and immediately sending them back to Libya notwithstanding potentially valid asylum claims). (Zulueta, A cruel end for Italy's asylum-seekers, Guardian, May 26, 2009; Cronin, The EU should protect asylum seekers, Guardian, Aug. 27, 2009.)

1072

[Insert as an additional part of Note # 8]:

            UNHCR also publishes "Guidance Notes" to provide guidance on thematic legal and/or procedural issues of refugee law. One is the Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009), http://www.unhcr.org/refworld/docid/4a0c28492.html, ["UNHCR Guidance Note"] that will be discussed in section E (1) below. The Fifth Circuit, however, refused to remand an asylum case to the BIA because of this document as the court thought it was not a binding precedent, did not render the BIA's prior order unsustainable and appeared to contradict the express terms of the U.S. statute. (Kane v. Holder, 581 F.3d 231, 242 (5th Cir. 2009).)

1073

[Insert at the end of section D (2)]:

       An example of UNHCR participation in U.S. asylum proceedings is its amicus brief on issues relating to "particular social group" in a Third Circuit case. (Brief of the UNHCR as Amicus Curiae in Support of the Petitioner, Valdiviezo-Galdamez v. Holder (No, 08-4564 3d Cir. April 14, 2009).)

1082

[Insert at end of Note # 2]:

     The Ninth Circuit has stated that any attempt by the BIA or others "to parse the distinction between differing forms of female genital mutilation is not only a threat to the rights of women in a civilized society, but also runs counter to our circuit precedent." (Benyamin v. Holder, 579 F.3d 970, 976 (9th Cir. 2009).)

1082

[Insert at end of Note # 3]:

See also UNHCR Guidance Note at 5-8 (includes citations to materials from Committee on the Elimination of Discrimination Against Women. Committee Against Torture).

1083

[Insert after last line of subparagraph a ("N Dec. 617, 621-22 (Att. Gen. 2008).")]:

       That Attorney General's decision remanded the case to the BIA for reconsideration. On June 4, 2009, the Board responded with its decision remanding the A-T- case to the Immigration Judge for additional proceedings and a new decision on the application for withholding of removal. (Matter of A-T, 25 I&N Dec. 4 (BIA 2009).) Upon remand, held the BIA, additional evidence may be submitted regarding whether the applicant faces further risk of FGM if returned to Mali, who was responsible for her past FGM and from whom she fears future harm.  (Id. at 10.) The applicant on remand, the BIA added, also must clearly specify the exact enumerated ground(s) for her claim and an exact delineation of the particular social group(s) to which she claims to belong.  (Id.)The Board further stated that the applicant already had established that her past FGM constituted persecution, and there was no need for further evidence on that point. (Id. at 10-11.) If the applicant on remand met her burden, then, held the BIA, the Government would have the burden of establishing that there had been a fundamental change of circumstances such that there was no legitimate fear of future persecution or that she could reasonably be expected to relocate within Mali and avoid any such threat. (Id. at 11.) Finally, the Board noted that asylum would not be an issue on remand as the Attorney General had not objected to the Board's previous finding that the asylum claim was time barred; nor would a "continuing persecution" theory be pertinent on remand. (Id.)

1083

[Insert at end of subparagraph b]:

See also UNHCR Guidance Note at 5.

1083

[Insert at the end of subparagraph c]:

See also UNHCR Guidance Note at 8-9.

1084

[Insert at the end of subparagraph d]:

       The Ninth Circuit has remanded a case to the BIA to consider in the first instance whether a girl's father had a derivative claim for asylum based on one daughter's past FGM persecution and another daughter's well-founded fear of future FGM persecution. (Benyamin v. Holder, 579 F.3d 970 (9th Cir, 2009).)

      The UNHCR has endorsed the view that a parent (mother and father) should have a derivative claim for asylum based upon their daughter's being threatened with FGM, including the parents' witnessing the pain and suffering of the daughter. UNHCR Guidance Note at 8.

1085

[Insert at end of Note # 6]:

      UNHCR has said the "particular social ground" ground is satisfied in FGM cases because gender and age are innate and immutable at any point in time and can be defined narrowly (e.g., girls belonging to an ethnic group that practices FGM) or broadly (e.g., young girls or women) with the size of the group being irrelevant under the Refugee Convention. UNHCR Guidance Note at 12. In addition, according to UNHCR, FGM cases sometimes can be based on a political opinion against FGM and those who support its continued use or on religious belief. Id. at 12-13.

1086

[Insert at end of Note # 7]:

    Of course, in most FGM cases, the person performing the FGM procedure is a private citizen. Thus, the issue is whether the state is unable or unwilling to protect girls and women from the practice. Even when the state has adopted laws against FGM, they may not be consistently enforced. In such situations, there should be a legitimate claim for asylum due to a well-founded fear of being subjected to the procedure. UNHCR Guidance Note at 9-11. On the other hand, if the procedure were to be performed in government-run facilities or by its medical personnel, the state itself is the persecutor. Id. at 10.

1086

[Insert at end of Note # 8]:

See also UNHCR Guidance Note at 7-8.

1090

[Insert after the last line of the carry-over paragraph ("violence and asylum. Id.")]:]

       On October 28, 2009, the 14-year asylum struggle of R-A- (now publicly identified as Rodi Alvarado-Pena) was finally legitimated by the government. The government on that date filed with the BIA a one-page document stating that subject to a review of certain records, she was entitled to asylum based upon DHS' review of her most recent submission. Thereafter, the BIA remanded the case for further proceedings to the immigration judge, who is expected to grant the asylum request. Dep't of Homeland Security Response to the Respondent's Supplemental Filing of August 18, 2009, In the Matter of Rondi ALVARADO-PENA (BIA Oct. 28, 2009). See generally Solar & Musalo, Time to End an Asylum Limbo for Abused Women, Washington Post, July 18, 2009; Preston, U.S. Signals Spouse Abuse Claims Could Lead to Asylum, N.Y. Times, Oct. 30, 2009 ["Preston 10.30.09"]; Editorial: Rody Alvarado's Odyssey, N.Y. Times, Nov. 9, 2009; Editorial: Fleeing Abuse, Washington Post, Nov. 10, 2009; e-mail, Center for Gender & Refugee Sudies to Krohnke (11/11/09)

             The submission by R-A that had been approved by DHS had argued that she had suffered persecution and had a well-founded fear of future persecution, on account of her membership in a "particular social group," i.e., married women in Guatemala who are unable to leave the relationship." This group, she argued, met the requirements for a ground for asylum because her relationship with her husband could be described with particularity, her husband believed he had the right to batter and abuse her because she was his wife and societal perceptions in Guatemala accept abuse and reinforce her husband's beliefs in his right to abuse. (Respondent's Legal Memorandum and Supporting Documentation, In matter of Rody Alvarado Pena (BIA Aug. 18, 2009).)

          R-A-'s brief that was approved by the DHS was based upon a remarkable DHS quasi-regulatory submission to the BIA in another domestic abuse case, In Matter of L.R., after which the BIA remanded that case to the immigration judge for further proceedings. Dep't of Homeland Security's Supplemental Brief, In the Matter of [respondents' names redacted, but believed to be L.R.] (BIA April 13, 2009)["DHS Supp. Brief"]. See generally Preston, New Policy Permits Asylum for Battered Women, N.Y. Times, July 16, 2009 ["Preston 7.16.09"]; Editorial: Asylum for Battered Women, N.Y. Times, July 19, 2009; McGreal, Obama moves to grant political asylum to women who suffer domestic abuse, Guardian, July 24, 2009; e-mail, Center for Gender & Refugee Sudies to Krohnke (11/11/09).

          In urging the BIA to remand that case to an immigration judge for further factual development, the DHS affirmatively set forth two "alternative formulations of 'particular social group' [for domestic abuse cases] that could, in appropriate cases, qualify aliens for asylum or withholding of removal." (Id. at 5.) Those formulations were the following:

• Mexican women in domestic relations who are unable to leave; or

• Mexican women who are viewed as property by virtue of their positions withink a domestic relationship.

DHS Supp. Brief at 14.

         These formulations were justified by the DHS in the L.R. case. There could be cases, it said, in which the applicant's status in a domestic relationship is immutable; economic, social, physical or other constraints could make it impossible for the applicant to leave a relationship with past persecution, and an abuser might not recognize a divorce or separation as ending his right to abuse the applicant in the future. Depending on the country's customs, the two proposed alternative groups for domestic abuse could reflect social perceptions or distinctions, i.e., have visibility, as required by BIA precedents. The necessary specificity as to "domestic relationship" was provided by an immigration statute that defined such relationships for the "crime of domestic violence" (INA § 237(a)(2)(E)(1)). (Id. at 11-21.)

         This, however, as DHS emphasized in L.R., did not mean that every victim of domestic abuse would be entitled to asylum. (Id. at 12.) Indeed, DHS said that the past or future harm had to be serious, there must be no possibility of internal relocation, and the home government must be unwilling or unable to protect the applicant; these in and of themselves were significant barriers. Moreover, most victims of domestic abuse did not have the resources or ability to leave their home country and come to the U.S., and Canada had not experienced a surge of such cases since it had recognized such claims. (Id. at 12-14.)

         In L.R., DHS made this warning or prediction explicit when it attacked the female respondent's case. DHS asserted that the female respondent's proposed "particular social group" as "Mexican women in an abusive domestic relationship who are unable to leave" was invalid.  The deficiency in this definition was circularity; it defined the group by the persecution suffered or feared, contrary to BIA and court precedents. (Id. at 5-6, 10-11.) It also lacked particularity because there was no evidence of a Mexican consensus as to what constituted an "abusive" relationship. (Id. at 11 n.8.)  In addition, DHS stated that she had failed to establish (a) that she had suffered and/or will be persecuted on account of her purported feminist political opinion, (b) that "extraordinary circumstances" prevented her from filing her asylum application within one year after arrival in the U.S., (c) that the Mexican government was unwilling or unable to protect her and her two brothers and (d) that they could not avoid future harm by relocating within Mexico. (Id. at 21-29.) Thus, there was no guaranty that they would be entitled to asylum upon remand.

         As previously noted, DHS justified its approved formulations of "particular social group," in part, by citing BIA precedents that such groups must have visibility. Judge Posner of the Seventh Circuit, however, has been scornful in his criticism of this test. In Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), the court vacated a BIA denial of an asylum application by a Kenyan who had defected from a group of the Kukuyu tribe that had obscure political aims, idiosyncratic religious observances  and financially motivated and violent criminal activities. The BIA's denial was based on its conclusion that the applicant had no characteristics that would cause other Kenyans to recognize him as a former member of this group. This meant, said Judge Posner, that the only way the applicant and other former members of the group could qualify for asylum on this ground was to pin a target on their backs with the legend "I am a defector of the group." Moreover, this test would invalidate Judge Posner's decision for the court that a member of a group of former employees of Colombia's Attorney General's Office was entitled to asylum even though the group members were not recognizable or visible on the street to strangers. (Sepulveda v. Gonzalez, 464 F.3d 770 (7th Cir, 2006). See also Oral Argument, Ramos v. Holder (No. 09-1932 7th Cir. Oct. 30, 2009), http://www.ca7.uscourts.gov/tmp/SH13RSQA.mp3 (Judge Posner' vigorous questioning of government lawyer).)

        UNHCR also has been most critical of the "visibility" test for "particular social group." It advanced this criticism in a submission to the Third Circuit that argued that youth in Central America who resist gang recruitment or oppose gang practices could constitute a "particular social group." (Brief of the UNHCR as Amicus Curiae in Support of the Petitioner, Valdiviezo-Galdamez v. Holder (No, 08-4564 3d Cir. April 14, 2009). Contra Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (El Salvador); Ramos-Lopez v. Holder, 2009 WL 1012062 (9th Cir. Apr. 16, 2009) (Honduras); Ramos-Barrios v. Holder, 567 F.3d 451 (9th Cir. 2009) (Guatemala).

         In the meantime, the government continues to work on preparing new regulations regarding asylum claims based on domestic violence. DHS Supp. Brief at 4; Preston 7.16.09; Preston 10.30.09; Bahrampour, Clearer Rules Urged for Asylum Seekers, Washington Post, Oct. 1, 2009.