The conference opened with a short but emotional speech from Alejandro Mayorkis, Director of US Citizenship and Immigration Services (USCIS). What struck me immediately was the warmth with which Director Mayorkis was welcomed and perceived by a room full of immigration lawyers. The son of refugees from Cuba, he expressed a genuine empathy with the plight of the immigrant; it isn't surprising that he understands the contribution immigrants have made to the country.
It is difficult to imagine such a reception for a UK Home Office official – the top official perhaps – at a similar conference in England. Engagement between the executive and the profession is characterized by antagonism and mistrust. Only yesterday a "consultation" was launched by the Home Office requiring a response by … today! It concerned a fundamental part of the application process, submission and return of passports; when our own professional body, the Immigration Law Practitioners' Association, indicated it couldn't respond in the time allowed, the Home Office stated that this stood to delay implementation of the new process, especially if there were objections to it. Talk about a fait accompli.
The mood of conference has been visibly lifted by Wednesday's Supreme Court judgements which strike down the Defence of Marriage Act and (in California) Proposition 8, which outlawed gay marriage in the State. USCIS – in line with the US executive generally - captured this mood by confirming that all same-sex visa denials since February 2011 have been retained and will now be reviewed by the Department of its own motion – something it's hard to imagine the Home Office doing after a lost case.
A big difference here seems to be the will of the politicians who control USCIS, compared to those who seek to run the Home Office. What in the UK is characterized by a wall of intransigence and opposition to immigration contrasts here in the US with a far more positive outlook expressed by political masters. There is heartfelt recognition that immigration is a positive aspect of society, feeding growth and the ability of the nation to cope with, and respond to, global competition and challenge. US politicians talk of immigration enriching their nation and certainly sound like they mean it – the British government on the other hand prefaces a sentence with platitudes such as "While we recognize the benefits of immigration…" then follows this with a massive "…but …".
I left the conference venue over lunch; I'm sure it's been said a million times before, but there is a lot of very visible poverty in the city of San Francisco. I was struck – after leaving the comfort of the Hilton Union Square and the long lines of lawyers queuing with pink tickets entitling them to some lunch – by the long line of destitute, homeless and hungry around the very next block. And I mean right round two sides of the block; a lot of people. The Tenderloin district of the city appears to contain a number of soup kitchens and hostels. Why is this kind of street poverty tolerated? There is as far as I could see no single class of person capable of ending up on SF's streets; young women, black and white, are everywhere. I wonder if the City worries about so many people walking down the street talking to themselves.
Thursday afternoon I attended my first substantive legal session, which related to PSG in asylum determination. The first thing to note is that the US makes a lot more of PSG than we do in English law – it's a really vexed issue here, due I assume to the absence of an international instrument such as the ECHR, which can form the basis of a protection claim regardless of refugee convention reasons. The US equivalent would, I assume, be the Convention Against Torture (CAT), but I discover in a late afternoon session that this offers only limited relief against removal from the US; it's not something that can be pleaded from the outset of a case.
The development of PSG arguments – often in cases involving non-State persecution, for example of ex-gang members in Central and South American countries – may well be of use in cases in which I act. One in particular springs to mind, involving a Russian businessman whose assets have been systematically stripped by organized criminals acting with the acquiescence of local politicians; he spoke out, taking one particularly corrupt official from a neighbouring Caucasian Republic to court. He would I think pass a "social distinction" test as regards PSG, with his wife and daughter already home based on the "family as a social group" concept confirmed in the US by a case called I think Gebremichael, and in the UK by the House of Lords in K and Fornah.
Returning finally the application of the CAT, I wonder how it can be right that so many elements need to be proved in order to succeed under this provision:
1. Severe pain or suffering
2. Intentionally inflicted
3. For a particular reason eg punishment or to obtain confession (so random torture doesn't count?)
4. Public official who has custody must act or acquiesce
5. Acts not arising from lawful sanctions
To cap it all, an individual needs to prove a case on a balance of probabilities; contrast this with the much lower "reasonable likelihood" standard of proof employed in the UK and most other jurisdictions in protection-based cases. The concept of a "defensive form of relief" is anathema to us also: anyone raising such weighty issues as a last-ditch to for example escape deportation after a criminal conviction would face instant criticism from decision-makers because the claim had been raised late.