New Form of Asylum?
Recent case law suggests that there may indeed be a new form of asylum. The new basis, which has apparantly been recognized by the Third Circuit Court of Appeals, is the United Nations Convention Against Transnational Organized Crime, Nov. 5, 2000, 2225 U.N.T.S. 209 [Ratified October 7, 2005, Effective December 3, 2005]. This form of relief is similar to the “State-Created Danger” theory, which may or may not raise a colorable claim in the immigration context.
The State-Created Danger theory is as follows. Generally, individuals do not have any constitutional right, under the Due Process Clauses of the 5th and 14th Amendments, to force that the government protect them from harm from private individuals.
However, under certain circumstances, the government may have an affirmative duty to protect people from harm, from private individuals. Outside of the immigration context, this doctrine has been used to sue the police, for example, for deliberately stranding a woman in a high crime area, where she was raped. The government can be liable for harm, inflicted by a private individual, under this doctrine if: (1) the harm ultimately caused to the plaintiff was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur. Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir.1996) (citations omitted).
In the immigration context, the Ninth Circuit Court of Appeals held that a foreign national could not be deported where the U.S. deliberately put him in a position where he would be tortured by Chinese officials. Wang v. Reno, 81 F.3d 808, 818-19 (9th Cir. 1996).
Outside of the Ninth Circuit, the Courts of Appeals for the First, Third and Tenth Circuits have rejected applying the State-Created Danger doctrine to the immigration laws. The Fifth Circuit has cited it many times, and very possibly may accept that doctrine. It does not appear that the Seventh Circuit Court of Appeals has addressed this issue. However, this doctine can only help where U.S. officials acted in wilful disregard for the danger they created, as they were found to have done in Wang. One hopes that this happens only rarely, however the issue was also raised in a well publicized case in which the U.S. sent a Canadian citizen to Syria, allegedly, to be tortured there.
The two drawbacks to this doctrine are that it has been rejected in several circuit courts of appeals, and that it is limited to misconduct by U.S. officials. More common is where a foreign national fears criminals in her own country, where the U.S. is completely blameless. In some such cases, the foreign national may have a right to remain in the U.S., under the Convention Against Transnational Organized Crime [hereinafter CATOC]. For CATOC to apply, there is no need to demonstrate any misconduct by U.S. officials.
In a recent case, the Third Circuit Court of Appeals acknowledged that a foreign national, who was in danger from organized crime figures in Albania, could be eligible for relief from removal under the CATOC. Not only that, the Court held that a deportation order could be reopened due to the prior attorney failing to raise a CATOC claim. The case is Rranci v. Attorney General, (3d Circuit, 2008). In Rranci, the Third Circuit remanded the matter to the Board of Immigraton Appeals to determine what rights the foreign national had, under existing law, pursuant to the treaty.
It is important to review the treaty itself, and its protocols, to determine its scope. The relevant section of the CATOC states: “Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention…”, 2225 U.N.T.S. 209, Art. 24(l).
Thus, the CATOC requires the U.S. to afford protection to witnesses to offenses covered by CATOC. The offenses covered by CATOC appear to include, for example, money laundering (Annex I, art. 6), obstruction of justice relating to a CATOC offense (Annex I, art. 23). Thus, if a foreign national is a witness to a human trafficking or other organized criminal activity, the U.S. would be obligated to establish “procedures for the physical protection of such persons, such as…relocating them…” (Annex I, art. 24(2)(a). Morever, the CATOC provides “States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this article.” Annex I, art. 24(2)(b). Paragraph 1 relates to witnesses. Note that the treaty uses the term “shall consider”. By contrast, Annex I, art. 26(5), for example, says “States Parties may consider…” [emphasis added]. It appears that the CATOC obligates the U.S. to arrange for witness protection, if need be, by entering into arrangments with other countries.
Based on the CATOC Treaty, foreign nationals who fear returning to their countries, based on being witnesses to crimes of human trafficking or other forms of organized crime, should seek legal advice whether they may have a viable claim to protection of the immigraton laws of the U.S.
Stephen Berman has practiced immigration law since 1991, and practices out of the Chicago and Milwaukee offices of AzulaySeiden Law Group.
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