Third Circuit Limits “National Security Bar” to Asylum
Appeals Court Recognizes Need to Protect Refugees Facing Political Persecution
New York, August 9, 2011 - The U.S. Court of Appeals for the 3rd Circuit has affirmed limits on the U.S. government’s ability to bar asylum-seekers from refugee protection based on thinly evidenced “national security” concerns, in a rare win for rights proponents. Yusupov v. Attorney General, in which the Human Rights Institute at Columbia Law School submitted an amicus brief, is now the leading case interpreting the “danger to the security of the United States” bar to asylum.
Under the Immigration and Nationality Act’s national security bar, the government must provide “reasonable grounds” to believe a non-citizen “is a danger to the security of the United States” to deport him in spite of the clear probability that he will be tortured or persecuted. As the Human Rights Institute emphasized in its brief, the bar should be applied with caution because it may relegate bona fide refugees to “deferral of removal”—an in limbo status that leaves them under constant threat of removal, contrary to the purpose and values of the international refugee protection system.
In a June 2011 decision, the Third Circuit Court of Appeals agreed, arguing that “courts must strictly interpret exceptions to nonrefoulement”—the prohibition on transfer to torture and persecution—“precisely because they are applied to those determined to be deserving of protection.”
The Court of Appeals took the unusual step of directing the Board of Immigration Appeals to grant petitioners Bekhzod Yusupov and Ismoil Samadov withholding of removal, rather than remanding to the Board for further review, as it had done in an earlier round of litigation.
“The Court’s decision is an unmistakable rebuke to both the government and the Board of Immigration Appeals,” said Naureen Shah, Associate Director of the Institute’s Counterterrorism & Human Rights Project and lecturer-in-law with the Human Rights Clinic.
“When the stakes are this high, with refugees facing possible torture, the government cannot simply invoke ‘national security,'" said Shah. "The Board must scrutinize the government’s evidence."
Yusupov and Samadov faced extradition to Uzbekistan, but they argued the criminal charges they faced were a pretext for religious persecution; the men are followers of an Islamic religious figure viewed with suspicion by the Uzbek government. Uzbekistan secured Interpol warrants after torturing their former roommate into falsely implicating them.
In what the Institute characterized as a puzzling decision, the Board agreed with Yusupov and Samadov that the Uzbek government’s criminal charges were pretexts for persecution, but also found the charges were evidence of a threat to U.S. security. The Third Circuit said such double reliance “would lead to a perverse outcome.”
As evidence of a security threat, the Board also cited the men’s alleged viewing of videos about Chechnya and Osama bin Laden—activity the Institute argued was protected by the First Amendment and international human rights laws regarding freedom of expression and belief.
The asylum system, both in the U.S. and internationally, developed to protect the right to express unpopular views and provide safe haven to dissidents, according to the Institute’s brief.
Echoing the Institute’s analysis, the Court emphasized: “If we were to allow the [Board’s] decisions to stand, it would run counter to this country’s strong tradition of granting protection to individuals sought by authoritarian regimes based on politically motivated charges.”
The Human Rights Institute’s brief also encouraged the Court to consider the comparatively progressive practices of the United Kingdom and Canada. According to the Institute, applying the bar to individuals like Yusupov and Samadov—against whom no concrete link to terrorist activity or a terrorist group was even alleged—would put the U.S. far out of step with international practice.
“The Court’s decision reaffirms the relevance of international law-based arguments to domestic litigation,” said Shah. “U.S. laws implement not just explicit international treaty obligations, but their underlying norms.”
In the case of asylum, these norms developed over centuries in response to chronic government abuse and oppression, according to the Institute’s brief. The movement for stronger refugee protection following World War II resulted in the U.N. Refugee Convention and, later, the 1967 Protocol, to which the U.S. is a signatory.
“Courts are better equipped to interpret domestic law implementing treaty obligations when they are alert to the historical development and evolution of human rights norms,” said Shah.
Yusupov v. Attorney General, No. 09-3032 (3d Cir., June 16, 2011) was argued by Paul Rudnick, of Steel Rudnick and Ruben, and Baher Azmy, of Seton Hall Law School. The Asian American Legal Defense and Education Fund, represented by Becker, Glynn, Melamed & Muffly LLP, and a coalition of immigration law scholars, represented by Debevoise & Plimpton LLP, submitted amicus briefs on behalf of Mr. Samadov
Learn more about the Institute's Counterterrorism & Human Rights Project.
Contact: Naureen Shah, 212.854.2795, [email protected]