The Fear Factor

One day under a hot September sky, Harkeet Singh hurried across a concrete pedestrian bridge from the Mexican city of Juarez into El Paso, Texas.

He was scared at the time and his heart was racing. That day will forever be etched in Singh’s memory – September 21, 2013. It was the day the Indian national walked up to a U.S. immigration officer and surrendered himself. In broken English he said he was seeking asylum in the United States.

The officer ordered Singh to return to Mexico; he refused. So “they just handcuff me,” he said, recalling that morning. He was then charged with entering the U.S. without a visa or passport and booked into a nearby federal holding facility.

Today three-and-a-half years later the United States is still trying to determine if the 29-year-old Punjabi should be allowed to stay in this country.

Despite vows by both the Trump and the Obama Administrations to stem the tide of illegal immigration into the U.S., in many ways little can be done about the unwelcomed arrivals at the border.

Under a U.S. immigration law established in 1980 in accordance with a United Nations Protocol, the U.S. has a legal obligation to give asylum seekers a fair hearing – if they say they fear harm at the hand of their government or a powerful group if returned to their native land.

The fear, however, has to be a credible one.

That’s the tricky part. Determining credibility isn’t that easy. Documentation is often scarce. Most times the word of the asylum seeker is all the court has to go by. Eyewitness testimony is almost non-existent. Decisions also involve a certain amount of speculation on what may happen in the future, if the asylee were to be returned home.

The country from which the asylee is fleeing also matters. The more repressive a regime, the easier a “credible fear” determination.

In 2015, the most recent year for which statistics are available, 2,582 asylum petitioners from China were permitted residency in the U.S. The stories of people fleeing cartel-dominated countries also tend to be more believable. For instance that year asylum was granted to 1,870 Salvadorans, 1,713 Guatemalans and 1,109 Hondurans.

Cases like Singh’s, though, are harder to adjudicate. For one thing, he is fleeing from India, a democratic republic with constitutionally guaranteed legal protections for its citizens. Indians have the lowest success rates when requesting asylum in the U.S.

A 2015 study by the Washington-based think-tank Migration Policy Institute (MPI) calculated that only 1% of Indian immigrants are granted asylum in the U.S. compared to 12% for other immigrant groups. Statistics from the Department of Homeland Security bear that out. In 2015, the U.S. granted asylee status to 190 Indian nationals.

An immigration judge in Texas, an Immigration Appeals Board, and the Fifth U.S. Circuit Court of Appeals in New Orleans heard Singh’s story. His request to be granted asylum, at the end of that process, was denied.

Then last August, the case went before an immigration judge in Oregon, who saw things differently and granted Singh asylum. But now Immigration and Customs Enforcement (ICE), which is prosecuting the case, is challenging the decision.

Singh’s case pivots on the fear factor.

Under Geneva Convention norms, asylum seekers must show a well-founded fear of persecution — were they to be returned to their country — due to race, religion, nationality, political opinion or membership of a particular social group.

Singh, who is a Sikh, a religious minority group in India, claimed he feared persecution by members of largely Hindu nationalist parties. Hindu nationalism is reportedly on the rise in parts of India.

The immigration judge in El Paso, in whose court his case was initially heard, found Singh’s fear of persecution to be credible. Still the judge denied Singh asylum on grounds that he had not suffered persecution for his religion and that there was nothing preventing him from relocating to a region in India more tolerant of Sikhs.

Singh appealed the judge’s ruling up the legal chain in the Fifth Circuit District, which includes Texas. On May 27, 2014, he got the bad news. The Fifth Circuit Court of Appeals denied his petition. He now faced deportation.

A journey that began on a muggy morning exactly one year earlier in May 2013 at Indira Gandhi International Airport in New Delhi and wended its way through five countries – Dubai, Ecuador, El Salvador, Guatemala, and Mexico – with the help of an anonymous smuggling organization was about to come to an end. The trip had cost him more than $50,000, in smuggler fees and legal costs in the U.S. His entire time in the U.S. meanwhile had been spent in the El Paso holding facility – a walled-off prison-like structure – with a bunch of other asylum seekers.

“Good American dream,” Singh joked. But he wasn’t about to give up. He hired John Lawit, a seasoned Dallas-based immigration attorney. Lawit, who has practiced immigration law for more than 30 years and taught it at universities in Texas and New Mexico, seized on something that Singh and a number of his fellow detainees had recently encountered at the holding facility.
Angered that they were being detained without parole at the holding facility, a group of about 35 Indian asylees had embarked on a hunger strike. For days, officials at the facility tried to put an end to the strike. Unable to convince the strikers to eat, ICE officials invited a diplomat from the Indian Consulate in Houston to intervene. The meeting between N.P.S Saini, the Head of Chancery for the Indian Consulate, and the strikers at the El Paso facility turned ugly.

The incident was later described in court by eyewitnesses.

According to their testimony, Saini, speaking in Punjabi, bluntly reminded the strikers that they weren’t the doctors and engineers America wanted. Saini said they would only be a burden to the economic system of the U.S. What’s more, he added, they were tarnishing India’s good name by falsely alleging that the Indian government would take action against them after they returned.

Saini then asked the hunger strikers to sign papers that would start the process of returning them to India. Someone in the group asked Saini if he could guarantee their safety. When he responded that he couldn’t, they refused to sign the document. Saini, according to court testimony, grew enraged and threatened to have them committed to American prisons for life or placed in Tihar Jail upon their return. “I will personally see to it myself,” he reportedly said. Tihar is one of India’s largest prisons with nine jails housed in a single location outside of New Delhi, the nation’s capital.

Saini has since been reassigned from his Houston Consulate post. Consulate representatives declined to discuss his current whereabouts and declined to forward a message requesting comment.

Lawit said he was visiting a client at the El Paso facility when he learned about the hunger strike and the diplomat’s visit. It was then that “I realized that the prison officials there had just committed a major breach of diplomatic protocol and that they had screwed up all these detainees’ lives,” Lawit said.

ICE had unwittingly broken U.S. law in the manner in which they went about arranging the meeting between the consulate agent and the group of Indian nationals. “There is nothing wrong with the diplomat wanting to come to the detention center to meet with the detainees,” Lawit said, had ICE been upfront with the strikers, fully disclosed his official identity, and had them sign papers waiving their rights to confidentiality.

The U.S. government by law is bound to keep confidential the identities of asylum seekers to prevent possible retaliatory action by the government of the country from which they’re fleeing. The law has been tested and upheld at the appellate level in numerous cases, including that of Dorothy Anim, a Cameroon national, in 2009; and Kingsley Dayo, a Nigerian native in 2012. Anim’s identity was disclosed while doing a background check on her with Cameroon law enforcement officials; and Dayo’s identity was disclosed while the U.S. made travel arrangements with the Nigerian Consulate on behalf of the alien. Both were granted retrials in immigration court as a result.

In the case of the El Paso hunger strikers, however, no anonymity waiving papers were signed and questions remain about whether the detainees were adequately warned who Saini was. That made the United States complicit in conspiring to deprive the strikers of their right to anonymity, Lawit said. As long as the detainees are on American soil, the U.S. government is obligated to protect the Indian nationals against their own government because they are seeking protection, rightly or wrongly, from it, Lawit explained.

ICE “made a huge error here and created new ground for asylum and the new ground for asylum has tons of evidence about what it would be like if the threat was carried out by the diplomat,” he said.

Alleging a breach of confidentiality by the government, Lawit petitioned the Board of Immigration (BIA), the highest administrative body within the immigration legal system, to reopen the case. The BIA granted the motion.

For Lawit, much is at stake. Singh’s case could establish a sort of precedent for approximately 30 other cases around the country, about two thirds of which are being handled by Lawit himself. All of them were hunger strikers present at the meeting with Saini. Hearings are scheduled later this year in Philadelphia, New York, Washington, D.C., Baltimore, Newark and Los Angeles.

As in Singh’s previous case before a Texas judge, the current case – now before an immigration judge in Portland, Ore., — hinges on “credible fear.”
To add to the credibility of his client’s story, Lawit got two others to also testify at an Aug. 30, 2016 hearing. Taking the stand, in addition to Singh, were:
– A fellow detainee at the El Paso facility, Buta Singh (no relations to Harkeet) who corroborated Singh’s testimony about Saine’s threats during the meeting in El Paso.
– And Cynthia Mahmood, chair of Anthropology at Central College in Pella, Iowa, who is a leading scholar on Sikhs and religious conflicts in India.

Since fear is not a fact but an emotion, courts have to base their analysis both on subjective as well as objective reality. Immigration Judge Andrea Sloan reasoned that Singh’s fear was “subjectively genuine” because he “testified credibly about his genuine fear of being jailed indefinitely and harmed if he is returned to India.”

The judge also noted that Singh’s fear was “objectively reasonable” based on the expert testimony by Professor Mahmood. The academic testified, “The government in India can find virtually anyone that they want to through the national identification database.” In an 11-page ruling, Judge Sloan also noted that “in India, if a diplomat made a serious threat, he could put a name into the database,” and that “in India, applying for asylum in another country is considered treasonous because India prides itself on being the largest democracy and they fear negative public relations.”

In further support of her decision, she pointed out that the Department of Homeland Security failed to provide evidence “that it would be reasonable for (Singh) to internally relocate in India after receiving threats from the Indian diplomat.”

In conclusion, she wrote, “the weight of the evidence establishes that internal relocation would not only be unreasonable but would also be unsafe.”

The ruling was issued on Nov. 21, 2016.

On Dec. 9, ICE attorneys petitioned the judge to reconsider her decision.

In their petition, ICE attorneys conceded that Singh “may have a subjectively reasonable fear of persecution if he returns to India based on what the Indian diplomat may have said when he visited the hunger strikers.” But they added, “The Department did not concede that his fear is objectively reasonable.”

They argued that Singh had not been persecuted for his religious beliefs while living in India and “had not established…a well-founded fear of future persecution.”

ICE attorneys also disputed whether the government actually breached the anonymity of the asylum seekers in El Paso. They submitted as evidence an online newspaper article titled, “Immigrants Begin Protest Inside El Paso Detention Center” that listed the names and Alien-numbers of several Sikh detainees at the detention facility. The article was dated Dec. 3, 2013, approximately four months before Saine’s visit.

In fairness, however, ICE pointed out that Harkeet Singh’s name or Alien number was not mentioned in the article.

Lawit said he is awaiting a response from Judge Sloan to the ICE’s request to reconsider but vowed to continue the legal fight if need be.

“The law is 100% on my side,” he said, “with many avenues of appeals.”

Singh requested that his picture not be taken and that his physical features not be described in the article for reasons of anonymity, as the outcome of his case is still pending.

Singh said, his legal bill thus far has totaled approximately $30,000, That’s in addition to the $50,000 he had to pay smugglers and the initial U.S. lawyer he hired. Singh is working at a convenience store in Portland to help pay the bills. He said, he is also receiving financial assistance from his sister who is a U.S. citizen living in Portland and from his parents both of whom are permanent residents.

As the sibling of a U.S. citizen, Singh could receive a visa to immigrate to this country for eventual permanent residency. But the wait list for that is several years long, he said.

Timeline for Harkeet Singh’s legal struggles in the U.S:

Sept. 21, 2013 — Applied for admission in the U.S.
Nov. 27, 2013 — DHS initiated removal proceedings vs Singh.
Jan. 17, 2013 — applied for asylum and relief under CAT.
Jan. 06, 2014 — testified he’s a Sikh and feared persecution.
Jan. 23, 2014 — Texas judge denied application but found credible.
April 08, 2014 – hunger strike
April 16, 2014, strikes ends.
April 28, 2014 – Board of Immigration Appeals dismissed appeal.
May 9, 2014- Petition Fifth Circuit claiming ineffective assistance.
May 27, 2014 – Petition for review was denied.
Aug. 27, 2014 – files motion to reopen and remand case to the BIA, arguing his asylum confidentiality had been breached.
Oct. 20,2014 – Fifth Circuit Court of Appeals dismissed the Petition for Review
Nov. 14, 2014 – Board of Immigration grants motion to reopen and case remanded to the Immigration Court.
Jan. 13, 2015 – Venue changed from El Paso to Tacoma, WA.
Feb. 26, 2015 – respondent released on bond.
Aug. 30, 2016 – respondent appears before IJ in Portland.
Nov. 21, 2016 – IJ in Portland grants respondent asylum.
Dec. 9, 2016 – ICE files motion to reconsider.

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