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If they leave, will they find refuge?

Jul 12, 2010 If they leave, will they find refuge?

My high school freshman social studies teacher was a smart, caring, humorous man, who also was pro-Reagan. He was fond of saying that a barometer of the level of a nation’s freedom is whether its populace is free to emigrate. That resonated with me until I learned how heavily restrictive immigration law and policies are in the United States and other countries —- particularly by the time I joined my law school’s immigration law clinic and experienced the thrill of victory helping one client obtain political asylum, and the agony of defeat with the denial of asylum at an administrative trial with another client, both of them from Ethiopia during the administration of Reagan, who did not like Ethiopia’s then-Marxist government — even with people who have escaped war and otherwise terrorized lives. 

As immigration law practice goes, seeking asylum for people probably is the most rewarding and exhilarating work —- accompanied by many frustrations trying to convince government decisionmakers — followed by defending people facing adverse immigration consequences from criminal charges and convictions. However, tremendous authority and discretion is given to Executive Branch employees to decide the fates of such people, with very limited beneficial intervention available from the judicial branch. 

Thanks to Fourth Circuit Judge King, joined by Judges Motz and Duncan —- for illustrating how dire are the straits of so many people who flee to the United States, including those victimized by the horrors of China’s forced birth control, abortions and sterilizations arising from China’s one-child-per-family policy. Jian Tao Lin v. Holder, ___ F.3d ___ (4th Cir., July 12, 2010).  

Lin vacates and remands the affirmance of the Board of Immigration Appeals —- which is part of the Executive Branch —- of the denial of asylum by an immigration trial judge, once again an Executive Branch employee, saying: “We agree that the agency so erred [by erroneously relying on a document from the immigration case of an unrelated person, named Liu]. Predicating an adverse credibility determination on unrelated facts derived from another case [in a filing by government counsel] is manifestly contrary to law and constitutes an abuse of discretion.” 

Lin gives the petitioner another shot at seeking asylum, apparently with a rehearing, but in a system where his administrative law judge apparently placed too much reliance on the arguments of government counsel, seeing that government counsel arguments in an unrelated case constituted the only document mistakenly, and therefore erroneously, relied upon by the ALJ. 

This whole story is made all the more heart-wrenching in that Lin’s wife Xue Yun Zheng —- with whom he has several children, against China’s one-child policy —- was denied asylum, which does not automatically mean that Lin will be denied asylum on the next go-around, particularly since his own lawyer may have presented stronger arguments on his behalf than his wife’s lawyer did on her behalf, whether due to different legal teams or better available arguments and evidentiary support over time. If Lin obtains asylum, he will then be able to get legal immigration status for his wife as a consequence. 

The United States government and populace are so quick to welcome the huge influx of Chinese imported goods —- made cheaper than U.S. goods due to lower pay levels in China, often accompanied by harsh work conditions and unfavorable labor laws, and laxer manufacturing laws (including laxer environmental laws) —- but U.S. government appellate lawyers, their superiors, or both had the gall in Lin to argue to affirm the denial of asylum to Lin even when conceding that the ALJ had erroneously relied —- heavily, apparently — upon a document that had nothing to do with Lin’s case. One of the particularly critical areas for Obama to change is to replace such gall and lack of sufficient sensitivity with a more humane approach to asylum seekers.

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