In this context, Gashi's admonitions that the immigration judge, and thus BIA on appeal, "offered no explanation," "did not indicate what standard of persecution [was] employed," and applied "probably an incorrect allocation of burden of proof" reflect the Second Circuit's continuing dissatisfaction with the quality of decision-making by immigration judges and the BIA.
In such a system it is also not particularly difficult to imagine how potential applicants may see the odds so stacked against them that they are swayed by the promises of foolproof benefits offered by immigration "consultants" and notarios. Helpfully, though, as much as the Gashi case can be seen as continuing to sound the alarm on the procedural effects of the representation crisis for both applicants and the administration of justice, Gashi also demonstrates a welcome effort on the part of the Second Circuit to hold the line against narrow substantive interpretations of immigration law by the BIA and immigration judges.
The key substantive requirement in asylum cases is that an applicant must establish a threshold likelihood of future "persecution" in his or her home country. In case law, the Second Circuit has noted that persecution is more than mere "harassment" or "discrimination," but that persecution need not require a showing of physical violence.9
Additionally, it must be established that persecution occurs "on account of" a characteristic protected under asylum law. While persecution based on race, religion, ethnicity, and political opinion make perhaps the most intuitive asylum claims, there is also a fifth basis for asylum: membership in a "particular social group." Claims made on this basis have extended protection to deserving applicants who might not otherwise qualify on the other asylum grounds, including those fearing persecution based on sexual orientation or female genital mutilation. Although the potentially broad reach of the "particular social group" concept has led courts to impose additional requirements for social group claims, in order to prevent opening the floodgates to millions of asylum seekers, Gashi illustrates that social group claims can still be a useful tool for dedicated and creative asylum advocates.
The "particular social group" asserted in the Gashi case appears to have been "potential witnesses against Haradinaj." The Second Circuit first reaffirmed the primary "immutability" test for "particular social group" claims, which requires that members of a "particular social group" share a characteristic that is "beyond the power of the individual to change" or "so fundamental to individual identity or conscience that it ought not be required to be changed."10
In Gashi, the Second Circuit correctly found that there was no way for the respondent to change his identity as a member of his proposed group, since his membership was based on past actions of witnessing Haradinaj's war crimes and speaking to the U.N. about them. Gashi also reaffirmed a "particularity" requirement for particular social group claims, which refers to the requirement that a social group for asylum purposes be definable to some extent in objective terms. The Gashi court noted that the group of potential witnesses in that case, given the singularity of the war crimes investigation at issue, was acceptably discrete and verifiable.
Gashi, however, pushed back against the BIA and immigration judge interpretations of the "visibility" requirement for particular social groups, which requires membership in what would be understood to be a discrete social group by a significant portion of the population in a person's country of origin. The court prudently rejected efforts by the immigration judge and Board of Immigration Appeals to locate the "visibility" requirement in physical aspects of a person's identity, such as recognizable ethnicity. The BIA's interpretation potentially would have doomed social group claims based on sexual orientation, for example, which have been accepted as valid for decades. One needs only to consult Courts of Appeals cases in which immigration judges have been chided for denying asylum on the basis of sexual orientation to applicants who did not "look gay" to understand why the Second Circuit was right to understand "visibility" as referring to social visibility, and not its physical counterpart.
The Gashi court rightly found that multiple incidents of persecution aimed at keeping Gashi from testifying, along with reports of intimidation of other potential witnesses, demonstrated that the group of potential witnesses in the Haradinaj case was sufficiently "visible" in Kosovar society. In the process, the Second Circuit kept the avenue of particular social group claims well open for future creative asylum applicants.
Future of Cases in New York
Dedicated advocates continue to push for the right to competent and ethical counsel in all immigration proceedings, including for those who face persecution in their country of origin.11 Until that day arrives, however, the Second Circuit's decision in Gashi shows that there is a wealth of opportunities to help non-citizens make meritorious claims of asylum despite the roadblocks that stand in their way. Indictments of allegedly unqualified and dishonest application preparers should not discourage the bar from taking on the challenge of representing some of the most vulnerable New Yorkers in their journeys to liberty and safety. Nor should immigration judges and the BIA be allowed to address the representation crisis by restrictively interpreting laws to reduce caseloads before applicants have had a proper day in court.
Short of requiring appointed counsel, the immigration representation crisis will only be solved by concerted efforts of pro bono lawyers to assist non-citizens in need, and for all lawyers in immigration proceedings to take advantage of cases like Gashi as they advise and represent their clients.
Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Jesse Rockoff, a law clerk, and Nancy H. Morowitz, counsel, assisted with the preparation of this article.
1. Press Release, U.S. Attorney's Office, Southern District of New York, Dec. 18, 2012, available at http://www.justice.gov/usao/nys/pressreleases/December12/AsylumFraudChargesPR.php.
2. No. 10-2584-ag, 2012 U.S. App. LEXIS.25835 (2d Cir. Dec. 18, 2012).