Book Review: Bench Pressed by Immigration Judge Susan L. Yarbrough

by Jason Dzubow

It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.

Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?
Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?

The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.

This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).

One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).

If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.

Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.

You can see more reviews of Bench Pressed and buy the book here.

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U.S. Embassies Violate Asylum Seeker Confidentiality

by Jason Dzubow

Two recent incidents involving my asylum seeker clients have revealed what might be a disturbing trend at the overseas U.S. consulates: A near complete disregard for asylum seeker confidentiality.

Both incidents involved family members of asylum seekers who had applied for visas to enter the United States. One incident occurred in Europe; the other in the Middle East. In each case, family members of asylum applicants applied for non-immigrant visas to the United States. The asylum cases were pending at the time the family members went for their interviews. In each case, the consular officer denied the visa and told the family member that the reason for the denial was because their relative had filed for asylum in the U.S., and that they (the family members) were thus intending immigrants, ineligible for non-immigrant visas.

Some people just can't keep a secret.
Some people just can’t keep a secret.

Asylum cases are supposed to be confidential. Confidentiality is important because some foreign governments will punish people who have “defamed” them by seeking asylum abroad. Indeed, when the U.S. government has violated an asylum seeker’s confidentiality, it may create a new basis for an asylum claim. The most well-known example is President Obama’s aunt, who received asylum after her case was leaked to the press.

I have successfully made such claims on behalf of clients whose confidentiality was violated by U.S. Embassies during overseas investigations. The most egregious case involved the U.S. Embassy in Cameroon (this was some years ago).  The Embassy submitted a letter, stating that they had inquired only whether a certain police officer worked at a certain police station (the officer had signed a warrant against my client). The Embassy letter emphasized that confidentiality had been maintained. In the response letter from the police in Cameroon, it was clear that the U.S. Embassy had revealed much more information about my client–the letter referenced the case number against the client and the date of his arrest. If the Embassy had revealed only what they claimed to have revealed about my client, there is no way that the Cameroonian police would have had this additional information. By revealing identifying information to the police, the U.S. Embassy put my client at additional risk.

The more recent cases from Europe and the Middle East are perhaps less egregious because the information was revealed to family members and not to the home government. Nevertheless, it is a problem. Many people–including many of my clients–have claimed asylum based on persecution by family members. This is true in cases involving domestic violence, forced marriage, and (sometimes) persecution based on sexual orientation, for example. Thus, revealing an asylum application, even to family members, potentially endangers the applicant.

In addition, of course, it is a violation of the law, which requires confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Indeed, government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002) (unpublished opinion) (affirming decision of Merit Systems Protection Board concluding that breach of section 208.6 was a firing offense irrespective of whether that breach was harmless).  

So what will become of my clients and their family members? And what about the consular officers who violated my clients’ confidentiality?

I don’t see how the rejection of the family members could affect my clients’ asylum cases. Of course, they will remain separated from their families, which is a severe hardship, but it should not impact their chances to receive asylum (in fact, one of the clients did recently receive asylum). As for the family members, instead of coming here immediately, they will now wait for a “follow to join” petition and they will have to come here as asylees. This may not be what they want, but there is no other option.

As for the consular officers, it is unlikely that my clients will make complaints against them. We do not even know their names (though I suppose we could find out) and it would be the family members’ words against the consular officers, so I doubt anything would come of it.

I do hope that the State Department will be more careful about revealing confidential information in the future. There really was no reason to tell the family members about my clients’ asylum applications. The consular officers could simply have denied the visas without an explanation (as they often do anyway).

Confidentiality of asylum claims is important to the asylum seekers and to the integrity of the asylum system. I hope that consular officers will take their responsibility in this regard more seriously.

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The End of Asylum as We Know It – Denouement

by Jason Dzubow

In the last couple posts, I wrote about how the asylum system is being strained by a significant uptick in the number of credible fear interviews and for other reasons. I concluded that the “new normal” for asylum seekers will be longer delays. This means longer separation from family, and greater stress and uncertainty.  Today, I want to discuss some ideas for alleviating this problem.

The most obvious solution is probably the least likely–throw money at the problem. Of course we live in a time when politicians are falling all over themselves to cut spending. But if you will indulge an old (well, middle aged) lawyer, I’d like to suggest some reasons why the asylum program is worthy of more financial support.

Replacing Asylum Officers with computers is one way to save money. What could go wrong?
Replacing Asylum Officers with computers is one way to save money. What could go wrong?

For one thing, there are over 45 million displaced people world-wide (this includes refugees and internally displaced people). As a world leader, the United States has an important role to play in the humanitarian realm. If we do not assist refugees and asylum seekers, other countries will follow suit. Fulfilling our international obligations is part of what makes us a world leader.

Second, while it obviously costs us money to resettle refugees and asylees, over the long run, I believe that most of these people greatly benefit our nation. Some of those we help (such as many of my clients) are men and women who assisted us in our missions in Afghanistan and Iraq. If we wish to maintain credibility with future allies, we cannot abandon those who helped us in the past. More generally, many asylum seekers are successful, talented people who will make important contributions to our country.

Third, we have created many of the messes that led to the large number of displaced people in the world today. That is particularly true in Central America where we toppled governments and supported dictators pretty much willy nilly. It’s also true to a lesser extent in Indochina and the Middle East. I am not saying that in many cases we did not have legitimate geo-political objectives, but since we (inadvertently) helped create the mess, we should help clean it up. 

Finally–and this is probably the most important reason in my opinion–helping people in need is simply the right thing to do.

So for all those reasons, our asylum program deserves sufficient funding to fulfill its purpose without undue delays. The program assists incredibly vulnerable people, fulfills our international obligations, helps us maintain our leadership position in the world, and brings to the United States many ambitious, intelligent, and highly motivated people who will make our country a better place. Thus, my number one solution for reducing delays in the asylum process is to devote more resources to the system.

Some other–less expensive–thoughts on how to solve this problem:

– Issue work permits immediately: If the Asylum Offices know that cases will be delayed more than 150 days (the waiting period before an applicant can file for her work permit), why bother to make people wait? When the Asylum Offices know that a case will be delayed, they should allow the applicant to obtain a work permit immediately. This might require some creativity when it comes to the current law, but it should be do-able, and it would alleviate some of the pressure on asylum applicants.

– Prioritize cases based on family separation, past harm, and strength of the case: While such an evaluation would necessarily be imperfect, giving priority to cases that meet certain criteria would be better than doing nothing. Especially in cases of family unity, moving certain cases more quickly would make a big difference to the more needy applicants.

– Help Mexico: Many asylum seekers come through Mexico, a country that has been making some efforts to improve its asylum law. I wrote about this two years ago, but with all the problems in Mexico, we have not heard much about this lately. If Mexico could fully implement an effective asylum law, asylum seekers could be required to ask asylum in Mexico instead of passing through to the U.S. Something tells me that Mexican asylum law will not be up to speed in the near future, but if our goal is to reduce the number of people seeking asylum in the United States, one way to do that is to assist Mexico in getting their humanitarian act together.

– Eliminate or reform the Cuban Adjustment Act: As I have written before, I am not a fan of the CAA–I think that Cubans should apply for asylum like everyone else. But if we are going to keep this law, it should be reformed. Presently, for various reasons, many Cubans end up in the asylum system while they wait for adjustment under the CAA (they have to be here one year before they can adjust status and obtain their U.S. residency). Since they will obtain status based on the CAA, there is no need for them to have any involvement with the asylum system. It is a complete waste of resources. I don’t think this is a major factor in creating delay, but it certainly wouldn’t hurt to segregate Cuban cases from other asylum cases, as there really is no reason for them to be using any asylum seeker resources.

– Eliminate forced family planning asylum:  The largest number of asylum seekers in the U.S. come from China. One reason for this is because we have a law offering asylum to victims of forced abortion and forced family planning. The anecdotal evidence suggests that a high percentage of these cases is fraudulent. If the special provisions for Chinese asylum seekers were eliminated, it would likely reduce the number of applicants and the instances of fraud.

So there you have it. We seem to be in a time of change for the U.S. asylum program. I am hopeful that our system is flexible enough to deal with the current (hopefully temporary) changes and that we will continue to serve as a refuge for people fleeing persecution. It is our responsibility and our privilege. And it is the right thing to do.

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The End of Asylum as We Know It – Part II

by Jason Dzubow

Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?

I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:

"Don't worry. The Asylum Office will get to your case before you're my age. Probably."
“Don’t worry. The Asylum Office will get to your case before you’re my age. Probably.”

First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).

Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.

Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.

All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.

For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.

In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.

Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.

Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system. 

All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.

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The End of Asylum as We Know It?

by Jason Dzubow

Last time, I wrote about the Dream 9–nine Dream Act activists who were detained at the border when they tried to enter the U.S. without permission. They were released from detention after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the Asylum Officer that they fear persecution in their home country based on race, religion, nationality, particular social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an Immigration Judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asylum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”

Here are some recent statistics from the Department of Homeland Security:

Fiscal Year

Number of Credible Fear Cases Completed

2009

5,523

2010

8,926

2011

11,716

2012

13,607

2013

22,775

So you can see that over the last several years, the number of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done–these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:

Month in FY 2013

Number of Credible Fear Cases Completed

October

1,596

November

1,242

December

1,603

January

1,795

February

1,921

March

2,139

April

3,124

May

3,336

June

3,776

Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?

It seems the system is one wafer thin mi(gra)nt away from bursting.
It seems the system is one wafer thin mi(gra)nt away from bursting.

The most obvious explanation (and one that other commentators and I have discussed before) is that escalating violence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source (and their report has been called into question), the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but–at least based on the statistical data we have now–that does not seem to be a factor.

Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smugglers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point. And why not? We are already seeing organizations in the U.S. trying to make money before the reform has even passed (check out this website, which purports to know what the reform will be, what the fees will be, and will charge you a mere $3,000.00 + $2,500.00 in fees to Get Started Now!).

Further evidence that smugglers are driving the increase in arrivals can be found by examining the source countries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals (AILA members can see all these stats here). Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from multiple countries indicates that “pull” factors (i.e., the immigration reform debate) are playing a larger role than “push” factors (problems in the source countries). 

The increasing number of people arriving in the United States and expressing a credible fear of persecution is straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local Asylum Office (Arlington, VA), for example, the interview process has basically ground to a halt.  I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that in the next posting.

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The “Dream 9,” and the Use and Mis-use of Asylum

by Jason Dzubow

If you’re at all following the current debate about immigration reform, you are probably familiar with the Dream 9. The LA Times provides a neat (and mostly accurate) summary of their case:

Last month, the five women and four men, who were brought to the U.S. illegally as children, staged an unconventional and risky protest at the U.S.-Mexico border to spotlight the thousands of people deported under the Obama administration. [Three of the activists left the U.S. recently. They returned with six others who had either left voluntarily or been deported.]
 
When the Dream 9 — named for the Dream Act, which would provide such immigrants a path to legalization — attempted to reenter the U.S. at the Nogales, Ariz., port of entry on July 22, they were arrested. They had been in federal custody since.

On Tuesday [August 6], immigration asylum officers found that all nine had credible fear of persecution or torture in their birth country [Mexico] and could therefore not be immediately removed.

The Dream 9 (minus one): "Mr. Obama - Tear down this wall, a bit."
The Dream 9 (minus one): “Mr. Obama – Tear down this wall, a bit.”

All nine were released, but must appear before an Immigration Judge, who will determine whether they are eligible for asylum. Such cases routinely take two years or more, and the nine men and women will be allowed to remain in the United States while their cases are pending. 

Among immigration advocates and attorneys, there is a heated–and not entirely civil–debate about the effectiveness of the Dreamers’ protest. But in this post, I am more interested in how the Dream 9 used the asylum law to avoid deportation and obtain release from detention. Here’s more from the LA Times:

Some of the Dream 9 are petitioning for asylum, saying that they have family members who have been killed and face death threats themselves.

However, many in the Dream 9 claim they should be granted asylum because they belong to a particular group of people — that they are singled out and persecuted in Mexico because they have lived most of their lives in the U.S. They could become targets for criminal organizations that see them as easy prey for extortion and violence, they claim.

Of course, I know almost nothing about the activists’ asylum claims (and no, that won’t stop me from commenting about them), but given the above information, it sounds like their claims are barely cognizable. Not that that necessarily should stop them from seeking asylum, especially where there is no other option. I’ve litigated many cases that seemed weak, and others that were nearly hopeless, and we managed to win a good number of them. While all that is great for my clients who received asylum and hopefully for the Dream 9, it’s not so great for “the system.”

Essentially what is happening with the Dream 9–and with many others arriving at our Southern border–is this: They reach the border, surrender or get caught, and then express a fear of return to their home country. DHS detains them and schedules them for a credible fear interview. At the interview, an Asylum Officer asks the alien about her case. If she expresses a fear of return based on race, religion, nationality, political opinion or particular social group, she “passes” the interview, and is then placed into removal proceedings where an Immigration Judge will (eventually) make a decision in her case. Many aliens will be released from detention while their cases are pending.

While the theory behind the credible fear interview is sound (screening out meritless asylum claims), the low threshold allows knowledgeable applicants to game the system, pass the interview, and–most likely–be released from detention. Probably the only reason that the system is not completely overwhelmed is because most aliens arriving at the border are not knowledgeable about how to frame their asylum claim in order to pass the credible fear interview. And, of course, almost none of the arriving aliens are represented by attorneys (the Dream 9 are represented by a lawyer, but I do not know whether they received legal advice prior to their credible fear interviews).

This all begs the question: Does the credible fear interview system still work? The problem is complicated by the fact that the number of people arriving at the border has increased dramatically over the last few months and the fact that the new arrivals seem more sophisticated about making claims for asylum. These issues, I will cover in the next posting. But for now, I will say that the Dream 9 have shed light on a real problem with the credible fear interview process: Inadmissible aliens can gain entry into the United States by making barely legitimate claims for asylum. While many of these aliens will “pass” the credible fear interview, most will be denied asylum (only about 2% of Mexican asylum claims are granted). The problem is that the increasing number of claims is causing long delays and is threatening to overwhelm the asylum system.

This problem is not new, and it has been known to Asylum Officers and advocates for some time. However, I suspect that the publicity of the Dream 9–combined with the upsurge of people arriving at the border and expressing a fear of persecution–will bring the system under greater scrutiny. So while I support the effort of the Dream 9 to bring attention to the plight of undocumented immigrants, I fear that a side effect of their activity will be further damage to the credible fear system, and further difficulties for legitimate asylum seekers.

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Arguing with Idiots–or–Why We Still Need HIAS

by Jason Dzubow

For some reason, the Washington Jewish Week–the local Jewish newspaper where I live–found me, and decided I needed a subscription. So for the last few months, I’ve been receiving the paper free of charge (yeh, yeh – insert Jewish joke here).

At first, I was pleased, as I thought it would be good to learn more local Jewish news. But as I read more, I became less thrilled. If the WJW’s goal is to make Jews like me feel part of a larger community, it has failed. The paper might be fine for those Jews (a minority in DC) who oppose President Obama at all costs, support Israeli occupation of the West Bank for all eternity, and who generally don’t like Muslims. But for the majority of us, the–dare I say it–liberal Jews, the paper only helps alienate us from the broader community.

Don’t get me wrong, I enjoy reading points of view that differ from my own–when they are well-reasoned and based on facts. But that’s not the WJW.

The editorial that has most recently raised my hackles is basically a hit piece against the Hebrew Immigrant Aid Society (HIAS).

With its mission accomplished, HIAS employees can finally relax.
With its mission accomplished, HIAS employees can finally relax.

As you may know, HIAS was founded in the late 19th century to help Jewish refugees from Eastern Europe. Over the years, the organization has changed to reflect changing needs. It helped Jewish refugees during and after the two World Wars. Later, it helped thousands of Jewish refugees fleeing the Soviet Block, Ethiopia, Iran, and other countries. HIAS also helped eliminate the discriminatory immigration quota system in the U.S. that–among other things–blocked many Jews from escaping the Holocaust. HIAS also assisted Vietnamese refugees after the fall of Saigon. As the number of Jewish refugees has (thankfully) fallen, HIAS’s mission has evolved. These days, most of its work has little to do with helping Jewish refugees. And that’s where the WJW editorial comes in.

In the editorial, called HIAS in search of a mission, the WJW argues that HIAS has outlived its usefulness. Given that there are “virtually no more Jewish refugees,” the paper asks, “Is there still a need for HIAS?” You can guess the paper’s answer:

[It] takes a certain maturity, and healthy doses of self-confidence and self-awareness for an organization to declare success and move on. Very few organizations are able to do that. Instead, they get caught up in their own stories and start believing their own PR, and view themselves as indispensable societal contributors.

HIAS has had its successes. It served well for close to a century as the Hebrew Immigrant Aid Society. Now its leadership acknowledges that the organization’s original mission is no longer necessary. Rather than search for a new mission in order to justify its continued existence, perhaps it would be better for HIAS to consider an orderly sunset.

So HIAS’s leaders are not mature or self aware? They are caught up in their own PR? How insulting. Oh, and here’s a good one: “HIAS has had its successes.” Talk about minimizing the organization’s accomplishments. Since its inception, HIAS has helped approximately 4.5 million people, in big ways and small. It has saved countless lives.

But I suppose it’s a fair question: Is HIAS still relevant? Here are some facts that were conveniently left out of the WJW editorial: (1) In partnership with Israeli NGOs, HIAS provides trauma counseling and social services to thousands of refugees from Darfur, including many children; (2) From a base in Kenya, HIAS provides resettlement services and social services to hundreds of refugees from East Africa–aside from the UN, HIAS is the only NGO providing these services in the region; (3) It is one of only a few NGOs in Jordan providing assistance to refugees from the Syrian civil war; (4) In the U.S., HIAS provides legal assistance to victims of torture, including those who are detained; (5) It provides resettlement assistance to refugees all across the United States; (6) HIAS works to help pass meaningful immigration reform; (7) HIAS provides an outlet for hundred of young Jews to engage in public service and, in the process, brings them closer to their own Jewish community. And there is much more, as anyone who cares to review HIAS’s programs can easily see. So does WJW think these services are no longer needed, or that HIAS is not the right organization to provide them? Or–as I suspect–did the editors at WJW not know that HIAS provides these services because they didn’t bother to learn what the organization does before they decided to trash it?

Finally, since HIAS’s mission was originally to help Jews, and since Jews are generally not in need of this type of assistance, shouldn’t HIAS just close down? Well, should Catholic Charities only help Catholics? Should Lutheran Immigration and Refugee Services only help Lutherans? Should the Tahirih Justice Center only help Baha’is? You get the point. The religious-based NGOs are an expression of their members’ religious convictions. Just as these groups help refugees (and many others) as an an expression of their faith, so too, HIAS helps refugees–all refugees–as an expression of our Jewish faith. In Judaism, it’s called Tikkun HaOlam–repair of the world–and to limit Tikkun to assisting only Jews is mean spirited, short-sighted, and anti-Jewish.

So here’s a message for the good folks at WJW: Maybe its time to exercise some self awareness of your own, and recognize that your paper suffers from a lack of intellectual honesty. It takes maturity and self confidence to look at the world as it is, and to consider points of view other than your own. And if you can’t adapt to the needs of the Jewish community, maybe its time for an orderly sunset. Or–at the very least–please cancel my subscription because I am no longer interested in what you have to say.

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Stylometrist “Outs” J.K. Rowling, Helps Win Asylum

by Jason Dzubow

You may already be familiar with the story behind the story of The Cuckoo’s Calling, a novel published under the name Robert Galbraith. Turns out, there is no Robert Galbraith. The story was actually written by J.K. Rowling, of Harry Potter fame. Ms. Rowling hoped to publish the new novel without the Potter baggage, but she was foiled by Patrick Juola, a professor at Duquesne University.

Stylometrists are always stylish. Prof. Juola (left) dressed as GQ man Abe Lincoln.
Stylometrists are always stylish. Prof. Juola (left) dressed as GQ man Abe Lincoln.

Prof. Juola is a mathematician who created a computer program–the Java Graphical Authorship Attribution Program (Jgaap)–that can recognize writing tics undetectable by human readers. According to the Chronicle of Higher Education, Prof. Juola “loaded an electronic version of Cuckoo into Jgaap, along with several other [of Ms. Rowling’s] texts.” The program then

compare[d] the sample texts to the Galbraith text using four variables: word-length distribution; the use of common words like “the” and “of”; recurring-word pairings; and the distribution of “character 4-grams,” or groups of four adjacent characters, words, or parts of words.

The findings were not unequivocal, but they made a pretty strong case for Ms. Rowling as the author of Cuckoo. Confronted with this and other evidence, Ms. Rowling admitted her authorship of the book. She told an interviewer that she would have liked to remain anonymous for a while longer stating that, “Being Robert Galbraith has been such a liberating experience… It has been wonderful to publish without hype and expectation and pure pleasure to get feedback under a different name.”

Stylometry, which is the application of the study of linguistic style, has broader uses than just outing famous authors. It is often used to attribute authorship to anonymous or disputed documents. It has legal as well as academic and literary applications, ranging from the question of the authorship of Shakespeare (whose works were obviously written by Francis Bacon!) to forensic linguistics. It also has application to the world of asylum.

Prof. Juola reports that he used his techniques to help an asylum seeker prove that he was the author of several politically charged articles that had been published anonymously on the internet. According to the Professor’s website, “Using statistical linguistics, we were able to analyze the writing style against an ad-hoc collection of distractor authors and to establish using non-parametric rank-order statistics that the documents had indeed been written by the [asylum] seeker.” In other words, Prof. Juola demonstrated a statistical likelihood that the asylum seeker authored the articles in question. Apparently, this evidence was helpful in the case, as the Immigration Judge granted political asylum.

I was interested to read about Prof. Juola’s work, as I faced a similar issue for an Ethiopian asylum seeker some years ago. He claimed that he wrote newspaper articles under a pseudonym, and those articles were offensive to the government. Somehow, his identity was exposed after he left the country, and he feared persecution if he returned. We needed evidence of the client’s authorship, and so I asked him for the usual stuff–rough drafts of the articles, a letter from the newspaper editor, letters from other people who knew about what he had written. In the end, we had to rely on letters from people who knew him and on his own testimony. Fortunately, it proved to be enough, and he received asylum.

Had I known about Prof. Juola, perhaps I could have used him to assist us in the case (though generally, my clients do not have a lot of money for expert witnesses). While the professor’s analysis cannot demonstrate with 100% certainty that a particular person wrote a particular article or book, Prof. Joula could possibly provide additional support to help corroborate a claim. In a close case, this could make the difference between a denial and a grant.

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Cambodian Refugees Deported After Years in the US

by Jason Dzubow

When I meet people who are going to be deported (or their family members), I sometimes tell them the story of Jimmy from South Philly.

In 2001, I traveled to a friend’s home town in the Algerian Sahara. We were hanging out at his neighbor’s house, when in walks a man in his early 30’s. “Yo, waasup, homey” he says to me. This is Jimmy. I learn that he immigrated to the U.S. years ago. He had a green card, but then got into trouble with drugs, alcohol, and gambling. Finally, he was deported to Algeria. Back home, he cleaned himself up, used his English skills to get a good job with a natural gas company, and he married and had children. All in all, he was doing pretty well–very well compared to most Algerians. The deportation was probably the best thing that could have happened to him.

The fact is, some people can’t make it in the U.S. Maybe they have difficulty adjusting to the new culture or the new language. Maybe they don’t do well away from their support system. For whatever reason, some people are better off returning to their home countries. That was true for Jimmy, but I think his story would be cold comfort to a new–and growing–group of deportees: Cambodian refugees who have spent years in the United States and who are now being deported.

Learning to love Cambodian food is just one of the challenges faced by returning refugees.
Learning to love Cambodian food is just one of the challenges faced by returning refugees.

The Wichita Eagle reports that, starting in 2002 when Cambodia agreed to accept deportees from the United States, “hundreds of ethnically Cambodian men and women have been deported from the United States to Cambodia.” “What started as a trickle of deportations has, in recent years, turned into a flood, with the number of deportees increasing dramatically since 2009 and the total number now estimated at around 400.”

The returning refugees receive assistance from a Cambodian non-profit called RISC, the Return Integration Support Center. From the RISC website:

Deportation… often poses an enormous challenge. Individuals are separated from spouses, children, friends, communities and support groups. Most returnees left Cambodia as very young children, or were born in Thai refugee camps, and have little or no memory of Cambodia. Most have limited familiarity with the language, climate, and culture of Cambodia. Many have no known relatives or forms of support in Cambodia. Deportation is a traumatic experience that often leaves individuals feeling lost, rejected, and disoriented. Many barriers stand between returnees and stable, independent lifestyles.

In 2002, the year deportations began, RISC emerged to assist returnees overcome these barriers…. As deportations continue, and the returnee community continues to grow, RISC’s services continue to be an integral form of support for a unique group facing an extraordinary challenge.

As the law now stands, most (if not all) deportees will never be able to return to the U.S., even for a visit. As one deportee describes the situation, “Those who get sentenced to life in prison in the U.S. at least get to see their families at weekend visitations, and if someone dies they take you to the funeral. If my parents pass away I won’t even get to attend their funerals.”

On one level, it is easy to dismiss these deported refugees. The U.S. brought them here, resettled them, and gave them a chance at a new life. They blew it by committing crimes, joining gangs, and using drugs. But on a deeper level, it seems to me that it is not so easy to justify deporting these people.

First, the U.S. was not completely innocent in creating the political situation that led to the refugee crisis in Cambodia. But that aside, we made a commitment to resettle refugees, who are–almost by definition–damaged people who have suffered severe trauma. When such people are brought to an alien country, integrated (or not) into poor urban neighborhoods, and left largely to fend for themselves, it is predictable that some will have difficulty. Given this situation, deporting them after they have been punished for their crimes is basically punishing them a second time for being refugees (i.e., not being U.S. citizens).

And what is to be gained by deporting these refugees? If the point is to protect our communities from criminals, then how do we justify sending these criminals to Cambodia, a country that really has no connection with them, and certainly is not responsible for creating the situation that led them to become criminals. Why should Cambodia have to deal with them?

Under some circumstances, there are defenses to removal available for refugees (and asylees) who commit crimes, even crimes that are aggravated felonies. One is the refugee waiver under INA § 209(c). Another is a request for withholding of removal under INA § 241(b)(3) or relief under the United Nations Convention Against Torture. It is often difficult to succeed with these defenses, but for the foreseeable future, they are the only options available to a refugee facing removal for an aggravated felony.

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The Most Important Words in Every Lawyer’s Vocabulary: I Don’t Know

by Jason Dzubow

Recently, I worked on a couple cases where my clients got bad advice, which got them into trouble.

The first case involved a woman with an otherwise strong asylum claim. As a young girl, she and her family were refugees in Iran. Someone in her community advised her it would be better not to tell the U.S. government (or her attorney) that she had been in Iran. The community adviser thought it would harm my client’s chances for relief if she revealed that she spent time in Iran. The client took this advice and did not tell the U.S. government (or me) that she lived in Iran for a few years. The problem, of course, was that the U.S. government–and the Asylum Officer who interviewed her–knew that she had been in Iran. Nevertheless, she denied having been there. After the interview, she told me that she had, in fact, been in Iran, and we submitted a letter to the Asylum Office explaining what happened. She may still get asylum, but her lie damaged her credibility, which could easily result in a denial. We shall see.

If you don't know what you're talking about: Stifle, would-ya?
If you don’t know what you’re talking about: Stifle, would-ya?

The second case involved a woman who had been in the United States for more than one year. She was still in lawful status when conditions in her country changed causing her to fear return. About eight months after the changed circumstances, she went to a reputable non-profit organization to ask about asylum. She did not speak to an attorney, but was advised by a paralegal (or maybe a secretary) that she was ineligible for asylum since she missed the one year filing deadline. In fact, the client met two exceptions to the one-year filing deadline: First, changed circumstances, since country conditions changed, giving rise to her fear of persecution, and second, extraordinary circumstances given that she was still in lawful status when she went to the non-profit seeking advice about asylum. I recently litigated this case and the Immigration Judge granted asylum, but it was a close call. Had the client filed for asylum in a more timely manner, it would have been a much cleaner case.

In both cases, the advisers were (probably) well meaning, but in each case, they gave advice that greatly reduced the client’s chances for success. So my question is, when people don’t know what their talking about, why do they feel compelled to open their mouths and release some sort of useless–and worse than useless–noise?

I remember a similar phenomenon from when I lived in Nicaragua (and I and other people have experienced it in different countries). I would need to find the post office, for example, and so I would ask someone on the street. The person would give an answer, like “Walk two blocks towards the lake, make a left at the church and you’ll see it on the next block.” In fact, the person had no idea where the post office was; he just didn’t want to admit that he didn’t know.

So what gives? Maybe in part, its because people like to look knowledgeable and don’t like to admit ignorance. People often think they know more than they do, or that they understand the way things work, when they don’t. This can be a particular problem in an area like immigration law, where the rules of logic and common sense often do not apply.

To quote Noah ben Shea, “To be wise, we only have to go in search of our ignorance.” Indeed, had my clients’ advisers simply stated that they did not know, it would have saved everyone a lot of trouble. And so here is my advice for asylum seekers: Be careful when taking advice from friends or community members who “know how things work.” The law can be complicated and it sometimes changes. Just because your friend got asylum does not make him an expert–no two cases are the same, and what worked for one person might result in disaster for another. It feels uncomfortable and self serving for me to tell people to hire a lawyer, but time and time again, I see people whose cases (and lives) have been screwed up by bad advice. So find a reputable attorney and pay for some decent advice. In the long run, it may save you a lot of money and a lot of heartache.

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Edward Snowden and the Realpolitik of Asylum

by Jason Dzubow

As of this writing, it appears that Edward Snowden, the NSA “whistleblower,” is holed up in the Moscow airport looking for a country to take him in. He already has offers of asylum from Bolivia, Venezuela, and (mi país) Nicaragua. I’ve previously written that Mr. Snowden likely does not qualify for asylum under international law, so why would these countries offer him refuge? The answer is what I would call the “realpolitik” of asylum law.

Realpolitik has been defined as “politics or diplomacy based primarily on power… rather than ideological notions or moralistic or ethical premises.”  

Remember when living in an airport used to be cute?
Remember when living in an airport used to be cute?

As applied to asylum law, realpolitik means that the receiving country is not concerned about whether the applicant meets the international law definition of refugee. Rather, the receiving country has some ulterior motive for granting asylum; it hopes to benefit itself or harm a rival by granting refuge.

In Mr. Snowden’s case, it’s not hard to imagine why certain countries–Russia, China, Bolivia, Venezuela, and Nicaragua–have been willing to facilitate his journey. Russia and China, for example, have poor human rights records, authoritarian governments, and restrictions on press freedom (Freedom House rates both countries “not free”). China in particular is known for censoring the internet and cyber piracy. Venezuela has a less than stellar record when it comes to press freedom and free speech, and it apparently spies on its own citizens. Maybe by assisting Mr. Snowden, these countries hope to improve their own image while bringing the U.S. down a notch or two. Bolivia and Nicaragua perhaps see helping Mr. Snowden as “pay back” for years on the receiving end of American foreign policy (I’m thinking of the Contras in Nicaragua and–more recently–the diversion of the Bolivian president’s plane in an effort to capture Mr. Snowden).

In addition, all these countries might want to show the world that they are not afraid to stand up to the U.S. They might gain prestige (at least in their own minds) if they are seen confronting the big kid on the block.

Another reason that the different countries might offer asylum to Mr. Snowden is that they want to encourage people who damage the U.S. government’s foreign policy. Particularly when foreign relations are viewed as a zero sum game, it makes sense to diminish your rival in order to help yourself. I can see how this rationale might apply to China and the Latin American countries, but I am not sure it works with Russia. Both the U.S. and Russia have been harmed by extremist Islamic terrorists, and you’d think that there would be a mutual interest in fighting this threat (the two countries worked together after the Boston Marathon bombing, for example). It would seem to me that Russia’s protection of Mr. Snowden (and the implied endorsement of his actions) would be counter to that country’s interest in cooperating with us to stop terrorism.

Finally, I suppose it’s possible that the countries aiding Mr. Snowden are helping because they truly believe he did the right thing and they want to support him. Call me cynical, but this I doubt. The idea that Russia or China believe in the principle of government transparency is laughable. Even the Latin American countries, with their Left leaning governments that might support government transparency, seem more interested in antagonizing the U.S. and asserting their independence than in standing up for the principles that Mr. Snowden represents.

As a lawyer interested in humanitarian international law, I fear that when the asylum law is misused for realpolitik purposes, the system is weakened and made less legitimate. Asylum cases always implicate international relations; Mr. Snowden’s case more than most. But the hope is that such considerations can be minimized in order to provide protection to people fleeing persecution, regardless of the political consequences of granting (or denying) asylum.

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Remembering the Evian Conference, 75 Years Later

by Jason Dzubow

Next week marks the 75th anniversary of the Evian Conference, held from July 6-15, 1938. The purpose of the meeting was to find a solution to the problem of Jewish refugees fleeing from Nazi Germany. Unfortunately, the conference was an utter failure.

First, a bit of background: Adolph Hitler came to power in 1933, in the midst of a world wide depression. At the same time, tight immigration quotas limited the number of people permitted to come to the United States, and given the dire economic situation, there was little political will or public interest in lifting restrictions to assist refugees. Meanwhile, the noose was tightening around German Jewry. As early as 1933, laws were enacted to restrict Jewish rights. In 1935, the Nazi government passed the Nuremburg Laws, which deprived Jews of their German citizenship. German Jews began to flee the country in increasing numbers. 

You know you're in trouble when you make Rafael Trujillo look like a humanitarian.
You know you’re in trouble when you make Rafael Trujillo look like a humanitarian.

By 1938, about half of Germany’s 900,000 Jews had left the country, mostly to British Palestine (this, despite strict limits on the number of Jews who were legally permitted to immigrate to Palestine). Meanwhile, in March 1938, Hitler annexed Austria, bringing an additional 200,000 Jews under Nazi jurisdiction.

A few months later, in July 1938, Great Britain, the United States, and 30 other countries met in France at Evian-les-Baines. The purpose of the Evian Conference was to address the refugee crisis created by Jews and others fleeing Nazi persecution. Despite high hopes, in the end, the conference accomplished little. The U.S. agreed that its existing quota of 30,000 immigrants per year from Germany and Austria would be reserved for Jewish refugees. Great Britain committed to accept a similar number of refugees, and Australia agreed to accept 15,000. With the exception of the Dominican Republic, no other country agreed to take significant numbers of refugees.  

In an interesting historical footnote, the dictator of the Dominican Republic, Rafael Trujillo, who was responsible for killing tens of thousands of his own people, agreed to accept 100,000 Jewish refugees. He even donated land in his country for them to settle. Ultimately, only about 800 refugees were able to reach the Dominican Republic, and after the war, most resettled in the United States.

The American politician Walter Mondale eloquently summed up the conference’s failure 40 years after the fact:

At stake at Evian were both human lives – and the decency and self-respect of the civilized world. If each nation at Evian had agreed on that day to take in 17,000 Jews at once, every Jew in the Reich could have been saved. As one American observer wrote, “It is heartbreaking to think of the …desperate human beings … waiting in suspense for what happens at Evian. But the question they underline is not simply humanitarian … it is a test of civilization.”  

According to the United Nations, there are currently about 15 million refugees and 27 million displaced persons in the world. As we debate the current immigration bill, and decide how we will respond to this ongoing crisis, I wonder how our actions will be judged by history. I hope we have learned something in the last 75 years, and that we will remember our moral duty to help those in need.

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Immigration Reform and Asylum Fraud

by Jason Dzubow

As lawmakers consider changes to the asylum system, one area of concern is asylum fraud.

If it takes one to know one, Congress should be great at eliminating fraud.
If it takes one to know one, Congress should be great at eliminating fraud.

The Senate Bill, in its current form, would eliminate the one-year asylum filing deadline. This deadline was created in an effort to stop asylum fraud. In reality (and as I discuss here), the one-year deadline does little to stop fraud, but often harms legitimate refugees. What, then, could the Senate do to help reduce asylum fraud? Below are a few suggestions:

  • Investigate and Prosecute Attorneys and Notarios Suspected of Facilitating Fraud – Based on my experience and my conversations with Asylum Officers and DHS attorneys, I believe that a small number of attorneys and notaries are responsible for a large percentage of fraud. Asylum Officers, DHS Attorneys, and Immigration Judges will often harbor suspicions about which attorneys and notaries are producing fraudulent asylum cases. The Government could (1) create a national database of suspected fraudsters; (2) question the clients of suspected fraudsters closely, in order to determine what role the attorney or notario played in preparing the case. Such information could be entered into the database to help build a case against the suspect; (3) if there is sufficient evidence against a particular fraudster, the person could be investigated; (4) attorneys and notarios should be prosecuted for fraud, and—where prosecution is not possible—a bar complaint should be filed against suspected attorneys; and (5) where possible, notarios should be prosecuted for practicing law without a license.
  • Create a Mandatory Immigration Bar – The Executive Office for Immigration Review (“EOIR”) is in the process of creating an electronic registry for attorneys who practice before the Immigration Courts. This registry could be expanded into a mandatory immigration bar. Immigration Judges and Asylum Officers who suspect an attorney’s involvement in fraud could submit a complaint to the bar for investigation. Also, aliens who have been victimized by an attorney could make a complaint to the bar association. 
  • Create a Mandatory Notario Registry – The asylum form, Form I-589, requires that the applicant give the name and contact information for whoever helped the applicant prepare the form. The I-589 form could request additional information about the preparer: (1) whether she charges a fee; (2) what her relationship is to the applicant (hired professional, friend, family member); (3) whether she is an attorney; (4) if she is not an attorney, whether she has informed the applicant that she is not an attorney; and (5) a copy of her photo ID. DOJ and DHS could require all hired preparers to register, and could track the cases they submit in a notario data base. Notarios who engage in bad behavior could then be punished and/or prevented from providing services to asylum applicants.

It seems to me that the above approaches would do more to reduce fraud than the one-year asylum filing deadline. In my experience, the deadline does nothing to stop fraudulent cases.  Instead, it tends to block legitimate asylum seekers who are ignorant of the law, or who don’t file because they hope the situation back home will improve. Other people miss the deadline because they have been traumatized in their country and they do not want to re-live their difficult experiences by having to prepare an asylum case.  One group that has been particularly hard hit by the one-year deadline is LGBT asylum seekers. Often, such people are not “out” when they come to the United States, and they need time before they are able to discuss their sexual orientation publicly. Another group disproportionately affected by the deadline is women, who often fail to file due to shame or lack of knowledge about the asylum system.

Requiring notarios and attorneys to register, and keeping track of them, is more work than simply imposing an arbitrary deadline, but it would have the virtue of actually doing something to solve the problem.

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Senators Try to Help Women Immigrants, But Ignore Women Asylum Seekers

by Jason Dzubow

A proposed amendment to the Senate Immigration Bill would reserve 30,000 green cards for people in jobs traditionally held by women, such as nannies, home health-care workers, and early childhood educators. The amendment is sponsored by 12 of the 20 women in the U.S. Senate.

According to the Washington Post, the “lawmakers say pending immigration legislation is unfairly weighted toward male workers because it rewards applicants who are better educated and have more technical skills.”

You're in
You’re in

While I agree that the immigration system has been skewed in favor of male immigrants, I am not sure that this is the best way to help female immigrants. Either we need high skilled workers in our economy or we don’t; either we need more nannies in our economy or we don’t. Why not set the number of visas for each category based on the needs of our economy, and then reserve a certain percentage (say 50%) of visas for women. Is this discriminatory? Yes, but Congress has the power to discriminate when it comes to immigration law, and if the idea is to help women and aid our economy, then this would be one way to achieve that goal.

If members of the Senate are inclined to help women immigrants, I have another idea: Do something to rectify the male-centric asylum law.

Modern U.S. asylum law is based on a definition of “refugee” that was codified in the 1950’s. The types of people seeking asylum in those days were mostly men–political activists fleeing persecution, for example–and this is what the law reflects. Gender violence was not part of the equation, and the statute (INA § 101(a)(42)) did not (and does not) protect victims of domestic violence, female genital mutilation, forced marriage or sexual assault. 

The last legislative change to the definition of refugee occurred in 1996 when Congress made forced abortion and forced family planning a basis for refugee status. My impression is that this amendment had more to do with domestic politics (showing fealty to pro-life voters and sticking it to the Chinese Communists) than to helping women, but nevertheless, many women (and men) have benefited from the change.

You're out
You’re out

Other pro-women changes to the law in recent decades have been driven by lawyer advocates. As a result of these changes, it is now possible for victims of FGM and forced marriage to receive asylum. Victims of domestic violence can also sometimes receive asylum. But if Congress is planning to amend the immigration law, and if the Senate wants to help women, why not do something to codify and protect these advances? 

In addition, I would hope that the pro-women Senators would support the elimination of the one-year asylum filing deadline (aliens who fail to file for asylum within one year of arrival in the United States are ineligible for asylum). A study from Temple University and Georgetown (my two alma maters!) has shown that female asylum seekers are 50% more likely to file for asylum three years or more after arrival. In an excellent piece on this point, Elisa Massimino of Human Rights First explains that one reason for the delay is the shame many women feel when they have to publicly describe their persecution. This jibes with my experience–many of my female clients filed late because of shame, depression, ignorance about the asylum system (and whether the persecution they face would qualify them for protection), and what might be called “conditioned subservience.”

I agree with the Senators who believe that something needs to be done to help female immigrants. Helping women who face persecution–and who are currently falling through the cracks of our asylum system–would be an excellent place to begin.

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When Clients Lie

by Jason Dzubow

I once represented a Russian woman who paid a notario (or whatever you call the Russian equivalent of a notario) $10,000.00 to concoct a phony story about how the woman was a lesbian who faced persecution in her home country. The application was denied, in part because the notario failed to inform the asylum seeker about the contents of her application, and the woman was referred to Immigration Court.

Admit your mistakes and you may get asylum... or even a seat in Congress.
Admit your mistakes and you may get asylum… or even a seat in Congress.

By the time I got the case, the woman had married a United States citizen (a man) and was facing deportation. We had to decide how best to approach the case, given the client’s previous lies. What we did is the same approach I have used many times since, because it tends to work. We admitted that she lied, explained how the lie happened (basically, a naive young woman following the advice of a high-paid crook), accepted responsibility for what she did wrong, and apologized.

In the end, the client received her green card based on the marriage. My favorite part of the case was when I informed the Immigration Judge that I would have an expert at trial to testify concerning country conditions in Russia: The husband was African American, and if his wife was deported, he planned to follow her to Russia, where he would likely face problems with skinheads and other racists. The Judge, who was also black, told me, “I don’t need an expert to tell me that there is racism in Russia.” We skipped the expert and won the case.

This basic formula–admit the lie, take responsibility, and apologize–is one that has worked for my clients on numerous occasions.

Just last month, for example, we completed the case of an asylee who had been convicted of stealing money from his employer. The crime was an aggravated felony under the Immigration and Nationality Act (because he was sentenced to more than one year in prison). The refuge waiver, under section 209(c) of the INA, is one of the rare waivers that allows an aggravated felon to adjust status from asylum or refugee to lawful permanent resident. It’s not an easy waiver to get, and really isn’t that common (which–I hope–means that asylees rarely commit aggravated felonies).

In that case we used the same formula.  The client took responsibility for his crime, apologized, and promised that he would not engage in such behavior again. We also submitted evidence of rehabilitation. The waiver was granted, the client was released from detention (after a good eight months in jail), and he received his green card.

This same strategy can be used for clients who lied to obtain a visa or who entered the country illegally. The fact finders want to hear that the alien accepts responsibility for what she did. And in asylum cases, there really is little to gain from covering up such lies, as people who falsely obtain a visa (or enter the U.S. illegally) in order to escape persecution are not ineligible for asylum.

The point of all this is not that the client can say the magic words and win permission to remain in the United States. Rather, the alien who accepts responsibility for what he did (and tries to turn his life around) is much more likely to receive relief than the alien who tries to cover it up or blame someone else.

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