My last article dealt with U.S. refugee procedure for those Japanese citizens in Japan who were displaced. In this article I would like to discuss the situation of Japanese tourists who were visiting the U.S. or Mexico on vacation and Godzilla or another Kaiju attacked and ransacked Japan.
Say a Japanese tourist was in Los Angeles and the events of the Godzilla movie, Godzilla, King Ghiddorah, Mothra: Monsters all-out Attack (GMK) occurred. What option would that Japanese tourist have if his or her stay was about to expire and his homeland was being destroyed by Godzilla? In the prior article, I went over the legal standard for refugee status which is also the same for asylum. Asylum is a procedure that a person applies for within the U.S. or at a U.S. port of entry. If they were in Los Angeles and they found that Godzilla was attacking Japanese people because of their nationality with the aim to destroy them and the government of Japan was unable to stop him, they could apply for asylum. The individual applying for asylum has to do so within a year of his entry into the U.S. This should not be a problem for a tourist from Japan as their stay is usually limited to three months or less. However, if a Japanese Citizen was here on another temporary non immigrant visa like an H1B and had lived in the U.S. for two years on that visa and Godzilla began his rampage during the second year, he or she can apply for an exception to the one year requirement such as changed circumstances in the home country or them possessing a valid visa to stay in the U.S. prior to filing the asylum application.[1]
The person would have to file the asylum application with supplemental information to the U.S Citizenship and Immigration office having jurisdiction over their case. In Southern California, this would be the Anaheim Asylum office. Under new regulations under the Trump administration, the individual would be interviewed for the basis of their claim within a month of submission of the claim. During the interview, the officer at the asylum office would ask the person questions for several hours to determine if they meet the standards for asylum. If their case is approved, they are granted asylee status and can apply for Legal Permanent Residency (green card) after one year. If their case is denied by the asylum office, they are referred to Immigration Court for removal proceedings, where they may renew the request for asylum and appear before an Immigration Judge. If the Immigration Judge grants their case, he or she can again apply for permanent residency within a year. If the Judge denies their case, they can appeal the decision to the Board of Immigration Appeals (Board) and if the Board denies it, to the Circuit Court within their jurisdiction.
In Immigration Court, the individual can also apply for other forms of relief that is related to asylum called Withholding of Removal and Withholding of Removal Under the Convention Against Torture.[2] Withholding of removal has fewer bars than asylum, but it has a higher standard. An applicant must show that it is more likely than not that he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon deportation to her home country. That persecution is “more likely than not” is a substantially higher burden of proof than showing a “well-founded fear” which is the standard of asylum as discussed in the previous article. The applicant can also apply for relief under the Convention Against Torture in Immigration Court. In order to qualify for this relief, an applicant must show that it is more likely than not that he or she will be tortured upon deportation to his or her home country. The applicant is not required to show a nexus: unlike with asylum or withholding, the torture that the applicant fears does not need to be inflicted on account of race, religion, nationality, political opinion, or membership in a particular social group. The definition of torture includes both physical and mental pain and suffering such as beating, burns, electric shocks, suspension, suffocation, exposure to excessive light, sexual aggression, prolonged denial of food, hygiene, food and medical assistance, etc. The Convention’s definition of torture covers only acts “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”[3] Torture may be committed by a private actor so long as the government acquiesces to the actions. A public official’s awareness or knowledge of, or “willful blindness” toward, a private actor’s torture is sufficient to meet this requirement. Again, it would be easy to show that the Japanese Citizen would be subjected to conduct defined as torture by Godzilla with the government acquiescing to the torture because of them being overpowered by the indestructible King of Monsters. Being granted withholding of removal or withholding of removal under the Convention Against Torture does not lead to Legal Permanent Residency and Citizenship but just temporary permission to stay in the U.S. and work authorization.
This is the procedure for someone physically in the U.S. who applies for asylum. What happens if a Japanese tourist is visiting Mexico and got stuck there during Godzilla’s rampage on Japan? That individual could come to a U.S. port of entry and request asylum. However, under the new Migrant Protection Protocols by the Trump administration, migrants are prevented from applying for asylum if they passed another country other than their own before arriving to the U.S.[4] That means that asylum seekers from any country but Mexico will now be ineligible for asylum if they show up at the southern border. The person would be forced to show that he or she applied for asylum in Mexico first and had their claim rejected there. The U.S. Courts have not had the same confidence in the ability of the Mexican government to protect citizens under its control as the Trump administration does. In Madrigal v. Holder, the court held that a former Mexican military member who was targeted by the drug cartels in Mexico could be eligible for relief under the Convention Against Torture. 716 F.3d 499, 502 (9th Cir. 2013). The court in Madrigal found that the government of Mexico was unable to curtail the violence there because of high levels of corruption at the local and state levels. Id. 506-507. The court stated, “Voluminous evidence in the record explains that corruption of public officials in Mexico remains a problem, particularly at the state and local levels of government, with police officers and prison guards frequently working directly on behalf of drug cartels” Id. at 510. The court again reaffirmed that the Mexican government’s ineptness in protected vulnerable individuals in Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015). Despite this, the Trump administration has deemed Mexico a safe third country. An interesting dilemma may also develop is if the kaiju, Rodan, began a rampage in Mexico as occurred in the recent movie King of the Monsters. In the movie it was very clear that Mexico was unable to contain Rodan.
If the person applied for asylum in Mexico and was rejected, they could present themselves at the U.S. port of entry and request asylum. The U.S. Customs and Border Protection officials would then conduct something called a credible fear interview.[5] Credible fear of persecution or torture means that the person has proven that he or she has a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture. The individual will then be referred to immigration court to proceed with the defensive asylum application process.
If the credible fear is denied, the individual is ordered removed. The individual can ask for an Immigration Judge to review the process. If the Immigration Judge overturns a negative credible fear finding, the individual is placed in further removal proceedings. If the Immigration Judge upholds the negative finding by the asylum officer, the individual will be removed from the U.S. According to the new rules of the Trump administration, the individual seeking asylum must wait in Mexico until the conclusion of his removal proceedings and will only be allowed in to the U.S. if their asylum case is approved.
Usually when a major calamity like Godzilla’s destruction occurs in a country, and residents of that country are in the U.S., the government of the U.S. starts a program for Temporary Protected Status (TPS) for them. TPS offers a temporary legal status to certain immigrants in the U.S. who cannot return to their country of origin due to ongoing armed conflict, natural disaster, or other extraordinary reasons. The Secretary of Homeland Security has discretion to decide when a country merits a TPS designation and they are usually granted for anywhere from 6 months to a year and a half at a time. Individuals are given work authorization during the pendency of their TPS status. However, the Trump administration has declined to designate TPS status to Bahamians after Hurricane Dorian, Venezuelans after major political instability in their country, and has set end dates for the TPS programs for El Salvador, Honduras, Sudan and Haiti so I would not put too much hope on this effort. It seems like the best option for Japanese nationals to have is to avoid seeking the wrath of Godzilla at any cost or make arrangements to go to Canada instead.
Nikhil Shah is an Immigration Attorney based in the Los Angeles area. His areas of specialty include asylum and refugee law and federal court litigation.
[1] INA § 208(a)(2)(D), 8 CFR §§ 208.4(a)(4) and 208.4(a)(5).
[2] INA § 241(b)(3); INS v. Stevic, 467 U.S. 407, 429-30 (1984); 8 CFR § 208.16(c)(2).
[3] 8 CFR § 208.18(a)(1).
[4] The U.S. already has a safe third country agreement with Canada since 2004.
[5] 8 CFR §§ 208.30, 235.3(b)(1)(4), 1208.30 and 1235.3(b)(1)(4).