It was one of those hearing dates you look forward to with great anticipation, trepidation and guarded apprehension. An Individual Calendar hearing date before an immigration judge in Immigration Court; the trial date so to say and the stakes cannot be higher.
Immigration Court these days is not for the faint hearted especially for a Respondent with a pending deportation case at the court. The environment is tense, business like and with the warmth of an undertakers office.
There I was the other day representing two clients (Respondents) on Removal Proceedings (deportation trial) the final hearing. An unfavorable verdict or ruling will result in the removal of the respondents from the United States back to their country of origin.
The matter began over two years ago when the Respondents entered the United States through the border as refugees and immediately claimed asylum. They were placed on Removal Proceedings and given a court hearing date to present their asylum case and evidence to support their asylum claims.
After multiple immigration court appearances and hearing dates, the Individual Calendar hearing date (trial date) was finally set. The respondents through counsel had submitted a comprehensive and detailed application for asylum with supporting evidence and documentation to the immigration court and the United States government attorneys office.
The hearing (trial) started at 8:30AM on the dot. Present was the Judge, the government attorney, respondent’s attorney (myself), the two respondents (my clients) and the court officers (security). The judge read out the charges against the respondents and acknowledged the asylum application filed by respondents. The judge announced that immediately after the hearing that a decision will be rendered. The judge yielded the floor and asked respondents counsel to present their case.
The Case – For the next 90 minutes or thereabout the respondents testified one after the other and introduced evidence and answered counsel’s questions. This was followed by blistering cross examination from the government attorney and then the judge asked the respondents her own questions. The tension was palpable and the stakes cannot be higher. After both sides rested and the closing arguments were made, the hearing ended. The judge took a break and left the courtroom to go write her decision. A decision that will either grant asylum that will allow the respondents to stay in the United States or immediate deportation from the United States.
Respondents had fled Nigeria after being targeted by the Nigerian authorities/government for being active members of the Indigenous Peoples Of Biafra IPOB. Respondents presented evidence, pictures, newspaper articles and reports etc. including testimony in support of their asylum claims. The government attorney aggressively cross examined and questioned the veracity of their testimony and fear. Neither the government attorney nor the judge questioned the legality or status of IPOB as a legitimate group throughout the entire proceedings.
At the 30 minute mark, the judge returned with the court judgement. One thing that is noticeably different now in immigration court is how fast the proceedings go.
Asylum is a discretionary form of relief available to applicants physically present or arriving in the United States. An applicant is eligible for asylum under section 208 of the Immigration and Nationality Act ‘INA’ if the application was timely filed and the applicant is eligible for asylum and not statutorily barred from relief and the applicant is a refugee within the meaning of section 101(a)(42)(A) of the Act. The applicant bears the burden of establishing that he or she is eligible for asylum and not statutorily barred from relief.
The respondents (my clients) are members of the Indigenous People Of Biafra ‘IPOB’. They presented evidence of their membership in the IPOB, evidence of personal prosecution and run-ins with the Nigerian authorities/government as members of the IPOB.
An immigration judge may not grant asylum to an applicant if there are reasonable grounds to believe that the applicant is a danger to the security of the United States. A noncitizen is statutorily barred from asylum if they are engaged in terrorist activity, which includes individual activity as well as membership in or rendering “material support” to a terrorist organization, as defined by the Secretary of State or in the INA.
To be statutorily eligible for asylum, an applicant bears the burden of establishing that he or she is a refugee. A refugee is a person who is unable or unwilling to return to his or her of country of nationality and who is unable or unwilling to avail himself or herself of the protection of that country. INA section 101(a)(52)(A). An asylum applicant can demonstrate refugee status by establishing that he or she has a well founded fear of future persecution, or alternatively, the he or she has suffered past prosecution, which gives rise to a presumption that he or she has a well founded fear of future prosecution.
An applicant who has suffered past persecution on account of a statutorily protected ground is presumed to have a well founded fear of future prosecution on account of that same protected ground.
Where an asylum applicant raises membership in a particular social group as the enumerated ground that is the basis of her or his claim, she or he has the burden to clearly indicate the exact basis of her or his claim, she or he has the burden to clearly indicate the exact delineation of any particular social group(s) to which she or he claims to belong. To demonstrate prosecution on account of membership in a Particular Social Group ‘PSG’ an applicant must establish that they are a member of the PSG, that the PSG is cognizable, and that there is a nexus between the alleged harm and their membership in the PSG.
The Decision – The Immigration Judge following the trial found that the two applicants are nationals of Nigeria and members of IPOB. That they are statutorily eligible for asylum and are not barred from asylum. The Court further found that the applicants are members of a recognized PSG ‘IPOB’ persecuted by the Nigerian authorities/government. The Court found that respondents have presented a well founded fear of future persecution on account of their membership of IPOB. The Court granted asylum on those grounds. The government reserved their right to appeal the Court’s ruling. No appeal was subsequently filed by the government and the Court’s ruling became final. Precedent made.
📌The Point – IPOB is a PSG recognized in the United States as a legitimate non-terrorist group/organization whose members are persecuted by the Nigerian authorities/government and on those grounds the court granted asylum to two members of IPOB after they presented sufficient evidence of legitimate and well founded fear of future persecution at the hands of the Nigerian state.
Jay.