Unit 5 refugees, due process, rights, and detention (classes 19 23)

Four-part asylum inquiry

(1) Does the harm amount to persecution? (2) Past persecution or likelihood of future persecution? (3) On account of a protected ground? (4) What protection follows: refugee status, asylum, withholding, or CAT?

Refugee law timeline

1951 Refugee Convention (U.S. not a party); 1954 entry into force; 1967 Protocol removes temporal and geographic limits; 1968 U.S. accession to the Protocol; 1980 Refugee Act creates the domestic framework.

MS St. Louis

Ship carrying Jewish refugees from Nazi Germany turned away by Cuba, the U.S., and Canada; many passengers died after return. The animating example for refugee protection.

1951 Convention's original limits

Temporal: events before Jan. 1, 1951. Geographic: Europe only (or optionally elsewhere). The 1967 Protocol removed both.

U.S. protection before 1968

Discretionary, ad hoc protections by the Attorney General under existing statutes; no mandatory non-refoulement bar.

Refugee definition (INA § 101(a)(42))

A person outside their country of nationality, unable or unwilling to return or avail themselves of its protection, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Non-refoulement

A state may not expel or return a person to a territory where their life or freedom would be threatened on account of a protected ground; it concerns any destination, not only the home country.

Who can be a persecutor?

The government, or forces the government is unwilling or unable to control.

Third-country removal (DHS v. D.V.D.)

The government has removed people with withholding to third countries on little or no notice. The claim is for meaningful notice and a chance to raise a country-specific fear. The Supreme Court let the policy proceed pending decision, with argument set for Dec. 2026.

Direct vs. chain refoulement

Direct: removal to danger. Chain: transfer to a country likely to send the person onward to danger (e.g., Ghana onward removal).

Limited remedy of non-refoulement

Only a floor: no return to the country of threatened persecution or torture. No formal status, LPR path, or protection from removal elsewhere; withholding and CAT are country-specific.

Five protected grounds

Race, religion, nationality, membership in a particular social group, and political opinion.

Who falls outside the refugee definition

Victims of environmental disasters, public health emergencies, or general warfare without individualized targeting on a protected ground (they may need TPS).

Asylum vs. TPS

TPS: country-wide designation, temporary, terminable. Asylum: individualized showing of a protected ground, durable, leads to permanent residence.

Refugee admission vs. asylum

Refugee: outside the U.S., INA § 207, DHS through USRAP, presidential ceiling. Asylum: arriving or present in the U.S., INA § 208, USCIS or IJ, no annual cap, discretionary. Same definition; both may seek LPR status after one year.

Affirmative vs. defensive asylum

Affirmative: filed with USCIS by someone present and not in removal proceedings. Defensive: raised before an immigration judge in removal proceedings.

INA § 207(a)(2)-(3)

The President determines the number of refugees admitted based on humanitarian concerns or the national interest and allocates them among groups of special humanitarian concern.

Divided authority over refugees

President: annual ceiling, allocation, emergency increases, in-country processing. Congress: framework, definition, consultation process, funding.

Current refugee admissions

Historically about 75,000-100,000 per year; now a ceiling of about 7,500, mostly Afrikaners designated by executive order, with program funding cut.

Consequences of refugee program contraction

Stranded vetted applicants and family separation; resettlement agencies close (e.g., IRC Tallahassee); overseas processing infrastructure shrinks, with effects outlasting any administration.

Asylum (INA § 208) vs. withholding (INA § 241(b)(3)) text

Asylum: the Secretary or AG "may grant" asylum to a refugee (discretionary). Withholding: the AG "may not remove" a person whose life or freedom "would be threatened" on a protected ground (mandatory).

Asylum vs. withholding: four axes

Risk: well-founded fear (reasonable possibility) vs. more likely than not. Decision: discretionary vs. mandatory. Effect: status in the U.S. vs. bars one country. Durability: path to LPR vs. no status.

Is an asylum application also a withholding application?

Yes; in immigration court every asylum application is also an application for withholding, which must be decided even if asylum fails.

Is "persecution" defined?

No; neither the INA nor the Convention defines it. Clearly severe: rape, severe beatings. Contested: economic deprivation, threats, cumulative harms.

Mirisawo v. Holder (4th Cir. 2010): facts

A Zimbabwean housekeeper in the U.S. claimed economic persecution after the government bulldozed a house she owned in a politically targeted neighborhood.

Mirisawo v. Holder (4th Cir. 2010): holding and takeaway

No persecution, because she never lived there and the loss did not deprive her of basic necessities. Economic persecution requires deliberate deprivation of necessities or severe economic disadvantage; the dissent criticized the majority's assumptions.

INS v. Cardoza-Fonseca (1987): facts

The BIA required an asylum applicant to show persecution was more likely than not.

INS v. Cardoza-Fonseca (1987): holding and takeaway

A well-founded fear requires only a reasonable possibility (even one in ten); withholding requires more likely than not. Asylum has a lower risk threshold than withholding, but asylum remains discretionary.

INS v. Elias-Zacarias (1992): facts

A Guatemalan who refused guerrilla recruitment claimed persecution on account of political opinion.

INS v. Elias-Zacarias (1992): holding and takeaway

Refusal is not necessarily political, and the persecutor's own political goals are not enough; the persecutor must target the applicant because of the applicant's actual or imputed opinion. Nexus turns on the persecutor's motive regarding the applicant's opinion.

Underlying concerns in economic persecution cases

Keeping the bar high to avoid poverty claims, and floodgates concerns when many people suffer the same harm (also recurring in gang and particular social group cases).

Past persecution presumption

Past persecution creates a presumption of future persecution, which DHS may rebut by fundamental change in circumstances or reasonable internal relocation (8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1)).

Humanitarian asylum

Asylum available even after the presumption is rebutted, for compelling reasons arising from severe past persecution or a reasonable possibility of other serious harm (8 C.F.R. § 1208.13(b)(1)(iii)); asylum only, not withholding.

Well-founded fear: two components

Subjective (the applicant genuinely fears persecution) and objective (the fear has a reasonable basis).

"One central reason"

For asylum, a protected ground must be at least one central reason for the persecution.

Political opinion: scope

Can be actual or imputed, and can include support, opposition, or neutrality; does not require party membership.

Evidence of persecutor motive

Persecutor statements, pattern of targeting similar people, timing after public opposition, punishment calibrated to silence an opinion, and country evidence.

Asylum analytical steps

Persecution (severity); probability (past persecution or well-founded fear, about one-in-ten suffices); nexus (why the persecutor targeted the person); protected ground.

Matter of Acosta (BIA 1985): facts

Defining "particular social group."

Matter of Acosta (BIA 1985): holding and takeaway

Members share an immutable characteristic they cannot change or should not be required to change. The foundational PSG test, later the first element of M-E-V-G-.

Matter of M-E-V-G- (BIA 2014): facts

A Honduran youth who refused gang recruitment proposed a group of youth who resisted gangs.

Matter of M-E-V-G- (BIA 2014): holding and takeaway

A PSG requires immutability, particularity, and social distinction; the case was remanded rather than rejecting gang claims outright. The current three-part PSG test; social distinction replaced social visibility.

Henriquez-Rivas v. Holder (9th Cir. 2013) (en banc): facts

A girl who testified in open court against gang members who murdered her father proposed a group of witnesses who testify against gangs.

Henriquez-Rivas v. Holder (9th Cir. 2013) (en banc): holding and takeaway

The BIA misapplied social visibility; literal visibility is not required, and the persecutor's perception can be strong evidence of social recognition. Legal institutions like witness protection laws can show a group is socially recognized.

Mullin v. Al Otro Lado (2026): facts

Challenge to metering, which blocked asylum seekers at the border line of ports of entry.

Mullin v. Al Otro Lado (2026): holding and takeaway

A person blocked in Mexico has not "arrived in the United States," so the INA does not entitle them to apply for asylum or require inspection; metering was lawful. Territory is decisive for access to asylum; the Court did not decide whether ports could be closed to all asylum seekers.

Sale v. Haitian Centers Council (1993): facts

The U.S. interdicted Haitians at sea and returned them without screening.

Sale v. Haitian Centers Council (1993): holding and takeaway

Non-refoulement under Article 33 does not apply to actions outside U.S. territory. Relied on in Al Otro Lado to deny protection at the territorial line.

Four questions for every particular social group (PSG) claim

(1) What characteristic defines the group? (2) Who is in and out? (3) Does the society recognize it as distinct? (4) Was the applicant harmed because of membership (nexus, a separate question)?

M-E-V-G- three-part PSG test

(1) Immutability (Acosta); (2) particularity (definite, commonly understood boundaries); (3) social distinction (society perceives the group as distinct). All three required; nexus is separate.

Particularity

The group must have boundaries with a shared meaning in the society (e.g., "children under 18," not "young people") and cannot be amorphous, overbroad, diffuse, or indeterminate.

Is size alone fatal to particularity?

Contested. The BIA has treated gender-alone groups as overbroad, but race, religion, and nationality also define large groups; floodgates concerns may drive these decisions.

Social distinction

Society (ordinarily the country of nationality, measured countrywide) recognizes the group as distinct; it does not require literal visibility. It replaced the "social visibility" test of Matter of C-A-.

Why "social visibility" was replaced

It would exclude long-recognized groups like sexual orientation, whose members may hide where it is unsafe; the statute has no visibility element.

Circularity in PSG definitions

A group defined solely by the persecution it suffers (e.g., "people persecuted by gangs") is circular; the group ordinarily must exist independently of the persecution, though persecution can be evidence of recognition.

Particularity vs. social distinction

Particularity: does the group have intelligible boundaries? Social distinction: does society recognize the bounded group as distinct from the general population?

Evidence supporting social distinction

Laws protecting the group, specialized government or civil-society programs, country reports of patterned violence, and media coverage.

Circuit precedent vs. BIA precedent in PSG cases

M-E-V-G- is the national agency framework, but circuit precedent governs immigration courts within that circuit (Florida, Georgia, Alabama follow the Eleventh Circuit).

Family-based PSG precedent

2017 Matter of L-E-A-: family can be a PSG depending on facts. 2019 AG decision: a specific family needs social meaning beyond kinship. 2021: vacated. 2025-2026: stricter framework returned, measured countrywide.

Loper Bright and PSG

Courts of appeals now review agency interpretations de novo, so litigants can argue the BIA's or AG's reading of "particular social group" is not the best reading rather than that it is unreasonable.

INA § 208(a)(1)

"Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien's status, may apply for asylum."

Metering policy

CBP limited daily asylum processing at southern ports based on asserted capacity, with officers on the U.S. side blocking others; began in 2016 and continued under Trump I; ended about five years before the Supreme Court case.

Two due process questions

Coverage: does the Due Process Clause protect this person in this setting? Adequacy: if so, what process is due? Do not collapse them.

Procedural vs. substantive due process

Procedural: whether more procedure (notice, hearing, evidence, counsel) is required before deprivation. Substantive: whether the government may impose the deprivation at all.

Constitutional spectrum for due process at the border

Knauff (first-time applicant): only what Congress provides. Mezei (19 months away): threshold fiction, no hearing. Plasencia (returning LPR, brief trip): due process applies. Yamataya (present after entry): some process. Thuraissigiam (recent entrant 25 yards in): treated as at the threshold.

Two dimensions of the due process spectrum

Territorial location relative to the border, and the person's existing claim of belonging (admission, residence, ties).

Landon v. Plasencia (1982): facts

An LPR returning from a few days in Mexico was placed in exclusion proceedings for alien smuggling.

Landon v. Plasencia (1982): holding and takeaway

A returning LPR after a brief trip can invoke due process, even in exclusion proceedings; remanded to apply Mathews v. Eldridge. Prior lawful residence and ties create a due process interest at the border; it did not overrule Mezei.

Kwong Hai Chew v. Colding (1953): facts

An LPR seaman returned from a five-month voyage on a U.S. vessel.

Kwong Hai Chew v. Colding (1953): holding and takeaway

He was treated as continuously residing and entitled to process before losing his status. An earlier point on the spectrum between Plasencia and Mezei.

DHS v. Thuraissigiam (2020): facts

A Sri Lankan caught 25 yards inside the border was placed in expedited removal and challenged his negative credible fear finding through habeas.

DHS v. Thuraissigiam (2020): holding and takeaway

No Suspension Clause violation; a recent entrant seeking initial admission has only the process Congress provides. Extends the threshold rule just inside the border; the dissent argued territorial presence triggers due process.

Mathews v. Eldridge balancing test

Weigh (1) the individual's interest, (2) the risk of erroneous deprivation and value of additional safeguards, and (3) the government's interest and the burden of more procedure.

Returning LPRs today

Generally treated as admitted, but § 101(a)(13)(C) lists six circumstances treating them as seeking admission; DHS must prove one applies (Matter of Rivens), usually in § 240 proceedings.

IIRIRA changes to the removal framework

Replaced exclusion and deportation with unified removal proceedings, and the concept of "entry" with "admission"; non-admitted people face inadmissibility grounds, admitted people face deportability grounds.

IIRIRA as a compromise

Unified § 240 proceedings with more protection than old exclusion, paired with expedited removal for specified cases.

Expedited removal

An immigration officer enters a removal order without an IJ hearing, principally for inadmissibility under § 212(a)(6)(C) (fraud) or § 212(a)(7) (no documents); fear screening is the main protection; judicial review is sharply limited.

Judicial review of expedited removal (INA § 242(e))

Individual habeas only on whether the person is a noncitizen, whether an order was entered against them, and whether they can prove USC, LPR, refugee, or asylee status. Systemic challenges only in D.D.C. within 60 days of implementation.

Who may be placed in expedited removal

Applicants for admission inadmissible under § 212(a)(6)(C) or (a)(7); DHS may extend it to people not admitted or paroled who cannot show two years' continuous presence. Former designation: 100 miles and 14 days. Current: nationwide up to two years.

Credible fear screening

Expressing fear or intent to seek asylum requires referral to an asylum officer; the standard is a significant possibility of establishing asylum eligibility. Positive: § 240 proceedings. Negative: limited IJ review, then expedited removal.

Why negative credible fear findings are often reversed

Trauma, language access problems (e.g., Indigenous languages), and lack of counsel; declarations and expert evaluations can correct the record.

Detention and due process for non-admitted people (preview)

The Fifth Circuit held people not admitted, even after decades, have no due process right to process before prolonged detention beyond what Congress provided; other courts root protection in physical presence.

Problem: boundary hypothetical. A person entered without inspection eighteen months ago, lives fifty miles from the border (near El Paso), and DHS places them in expedited removal under the current nationwide designation. Does the Due Process Clause protect them beyond the statutory process?

Open question. For the threshold fiction (Thuraissigiam): no admission, classified as an applicant for admission under § 235(a)(1), under the two-year statutory ceiling, and the sovereign-prerogative reasoning. For constitutional coverage: physical presence well inside the country, a longer period of residence, and the narrow facts Thuraissigiam relied on (25 yards, soon after entry); Plasencia-type interests such as family unity and safety may develop regardless of admission and strengthen the claim.

Perverse incentives argument in two contexts

Thuraissigiam (Alito): more process for surreptitious entrants encourages unlawful entry. Al Otro Lado (Sotomayor): requiring a foot on U.S. soil to seek asylum encourages unlawful entry over presenting at ports.

Statutory vs. constitutional status

Related but not identical: Plasencia makes prior lawful residence and ties significant even at the border; Thuraissigiam lets Congress set process for recent entrants. Long-term presence without admission remains unresolved.

Three positions on due process at the threshold (review)

Initial applicant (Knauff, Thuraissigiam): Congress-supplied process controls. Returning LPR (Plasencia): prior residence creates an interest in some process. Territorial person (Yamataya): presence can trigger process, narrowed near the border by Thuraissigiam.

Framework for rights claims in this unit

Whose right is claimed; whether it is constitutional (Muñoz, Thuraissigiam, Plasencia) or statutory (Franco-Gonzalez); what procedure is sought; who enforces it and in what forum.

Department of State v. Muñoz (2024): facts

A U.S. citizen sought the reason her husband's visa was denied (suspected gang ties).

Department of State v. Muñoz (2024): holding and takeaway

A citizen has no fundamental liberty interest in a noncitizen spouse's admission, so there is no due process right to a reason, and Mandel review is never reached. Consular nonreviewability controls; the right was framed narrowly under Glucksberg as a right to live with a noncitizen spouse in the U.S.

Franco-Gonzalez v. Holder (C.D. Cal. 2013): facts

A class of detainees with serious mental disabilities could not represent themselves in removal proceedings.

Franco-Gonzalez v. Holder (C.D. Cal. 2013): holding and takeaway

The Rehabilitation Act entitles them to a qualified representative as a reasonable accommodation. A statutory, not constitutional, route to representation; led to the National Qualified Representative Program.

J.E.F.M. v. Lynch (9th Cir. 2016): facts

Children brought a class action seeking appointed counsel in removal proceedings.

J.E.F.M. v. Lynch (9th Cir. 2016): holding and takeaway

Their claims must be channeled through removal proceedings and petitions for review, not district court. The right to counsel for children remains unresolved.

C.J.L.G. v. Barr (9th Cir. 2019): facts

A child unrepresented before the IJ and BIA claimed a right to appointed counsel.

C.J.L.G. v. Barr (9th Cir. 2019): holding and takeaway

Because he had counsel on appeal, the court declined to decide the right. No court has recognized or squarely rejected a right to appointed counsel for children.

INA § 212(b)(3)

Exempts certain crime and security inadmissibility grounds from the usual requirement to tell a denied applicant the basis of the finding.

Consular nonreviewability

The default rule that consular visa denials are generally final and unreviewable, rooted in the Chinese Exclusion Cases, plenary power, and Knauff/Mezei.

Mandel exception structure after Muñoz

Two steps: (1) does the citizen have a fundamental right burdened by the denial? (2) If so, Mandel review for a facially legitimate and bona fide reason. Muñoz failed step one.

Can LPRs invoke the Mandel exception?

Unresolved, but after Muñoz no LPR can claim a right regarding a spouse's admission when even a citizen has none.

Washington v. Glucksberg test

For an unenumerated liberty interest: (1) carefully describe the asserted right; (2) ask whether it is objectively deeply rooted in the Nation's history and tradition.