To the Security Officers of the World: Thank You

by Jason Dzubow

In light of the terrorist attack in Boston earlier this week, I wanted to write about security at Immigration Courts, USCIS, and the Asylum Offices.

As of this writing, we don’t know who perpetrated the attack on the Boston Marathon. But we do know that as residents of a free society, we are vulnerable. We also know that people who would harm others have all too easy access to powerful weapons: guns, explosives, you name it.

Bull
Don’t forget to thank the people who keep us safe.

In the context of immigration, there are those in our society who not only oppose immigration and immigrants, but who hate foreigners and would do them—and the Americans who work with them—harm. Behind such people are others—people who would not engage in physical violence themselves, but who encourage such behavior in others with their racism and xenophobia. For these people, their hate is matched only by their dishonesty. Because if a person is honest, and considers perspectives other than his own, it is hard to hate. I am thinking about people like Pam Geller, who says that all Muslims are terrorists and “savages,” Lou Dobbs, who claims that illegal immigrants bring bubonic plague, and Pat Buchanan who is fighting to preserve white America (ok, I admit to a soft spot for Pat Buchanan; at least he is entertaining). But I digress.

For the small number of people who might consider attacking immigrants and “the system,” Immigration Courts, USCIS, and the Asylum Offices are potential targets.

Of course, such offices are part of the federal government, protected by armed guards and metal detectors. Before this week, I hadn’t given it much thought. Mostly, I assumed that the security officers were there in case an immigrant becomes violent (or, perhaps more likely, a lawyer becomes violent and decides to clobber his client). But in the aftermath of the Boston attack, I am reminded that the officers are there to protect the immigrants, their advocates, and government employees from harm.

I suppose it is an obvious point, but for busy people (like me) who view the security checks as a nuisance, it is important to remember how essential they are. Also, lest anyone thinks security officers at the Immigration Courts (and elsewhere) don’t put their lives on the line, check out this virtual tribute to private security officers killed in the line of duty.

Today, I passed through three different security check points—at my son’s day care (he’s in a federal building), the Asylum Office, and the Immigration Court. I try to be friendly to the officers whenever I see them and to thank them, but it’s not always easy when I am rushing from one place to the next. Today, I tried to make a special effort to express my thanks, and going forward, I will try to be better about that. So, to the extent that anyone pays attention to what I write here, I’d like to say to the security officers who protect us: Thank you.

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Attention Glenn Beck – Please Hire Me!

by Jason Dzubow

It seems that Glenn Beck is hiring immigration lawyers, and I want in.  First, some background:

I’ve written before (here and here) about the Romeike family, a German Evangelical homeschooling family. They were granted political asylum in the United States after the German government tried to force them to send their children to public school. DHS appealed the ruling, and the Board of Immigration Appeals reversed the Immigration Judge’s decision. The case is currently before the U.S. Court of Appeals for the Sixth Circuit.  Oral argument is scheduled for later this month.

The Romeikes have a tough case. They have to demonstrate that they face persecution in Germany. They face fines and possible jail time, and they might even lose custody of their children. Such punishments are harsh, but I doubt a court would find that they rise to the level of persecution (though maybe the loss of the children would qualify).

This would be me if I worked for Glenn Beck (except I am not black) (and I normally do not wear a tie).
This would be me if I worked for Glenn Beck (except I am not black) (and I normally do not wear a tie).

Further, and this may be the most controversial aspect of the case, the Department of Justice is supposedly taking the position that the Romeikes do not have a “right to home school anywhere.”  At least this is how the Home School Legal Defense Association characterizes the DOJ’s position. Frankly, I am a bit skeptical that this is actually DOJ’s position (their brief is not public, so I have not seen it), given that they can probably win their case without stirring up this type of controversy (see previous paragraph). But I suppose if DOJ wanted to make all possible arguments against asylum, this would be one.

So how does Glenn Beck tie into all this?

Earlier this week, Mr. Beck discussed the Romeike family on his show:

“They [Romeikes] did it the right way,” said Beck. “They had their visas. They came here and asked for political asylum. Because if they return to Germany the state will take their children unless they dump them into the system that [goes against their Evangelical values].”

Beck said that the idea of deporting the Romeikes flies in the face of everything that the U.S. stands for. “There is nothing more un-American than this.”

Mr. Beck compared the family with our country’s earliest settlers, who were seeking religious liberty.

The Romeike’s have become a bit of a cause célèbre among American homeschoolers and religious conservatives. A petition to the White House supporting them has received over 100,000 signatures, and–this is the part that caught my attention–Glenn Beck has pledged $50,000 to pay for their legal fees.

As a side note, I do these cases for far less than $50,000 (for affirmative asylum cases, I charge $2,400, which makes me think I need to raise my rates). Mr. Beck, if you feel inclined to help out others seeking asylum based on religious persecution (and I represent many, including people from Iran, Iraq, China, Afghanistan, and Eritrea), please give me a call.

So is it hypocritical for conservatives who normally oppose immigration to support the Romeikes? Writing for Salon, Sally Kohn theorizes that Mr. Beck and his fellow conservatives are supporting the Romeikes because they are white. While I am no fan of Glenn Beck, I am willing to give him the benefit of the doubt on this one (though it seems reasonable to ask why he isn’t funding asylum seekers from countries like Iran and Eritrea, which harshly punish–and kill–religious dissidents). So what’s going on here?

My guess is that Mr. Beck is confusing American values–such as allowing parents to home school their children–with asylum law, which protects people from persecution on account of religion. Just because we in the U.S. enjoy a particular right–like the right to school our children at home–does not mean that an alien can get asylum when his country refuses to allow him the same right. We have a right to abortion in the U.S. and a right to own a gun, but I doubt an alien who was denied one of these rights in another country would qualify for asylum in the U.S.

Also, I wonder whether Mr. Beck has thought about the dreaded “slippery slope” argument. Would he support this family if they were members of a Christian Identity (i.e., Neo-Nazi) Church? What if they were (gasp!) Muslims?

The Romeikes, like any other asylum seeker, need to show that they face persecution, as that term has been defined by case law. Otherwise, they simply do not qualify for asylum. I wish the Romeikes well in their case. But if it doesn’t work out for them, and if Glenn Beck wants to fund some other worthy asylum seekers who are fleeing religious persecution, I have a few cases he might be interested in…

I corrected an error in an earlier version of this post (see comments).

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Fox News Goes After Syrian Asylee – By Any Means Necessary

by Jason Dzubow

On Fox News, the ends always seem to justify the means. It’s acceptable to smear a perceived political opponent based on the most tenuous of evidence. For this reason, even when Fox News raises a legitimate concern, it’s hard to separate truth from half-truth (which reminds me of the old Yiddish proverb: “A halber emes iz a gantse lign” or “A half-truth is a whole lie”). So I am not exactly sure what to make of Fox’s latest campaign to “expose” Syrian asylee Daoud Chehazeh.

According to Fox News:

Daoud Chehazeh is a known associate of the 9/11 hijackers.  The government has spent more than half a million dollars trying to deport him, but has had no success.

Like a Swedish gymnast, Fox News is both fair and balanced.
Like a Swedish gymnast, Fox News is both fair and balanced.

Another (of many) reports by Fox News states:

With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time after a series of bureaucratic screw ups at the federal level….

It’s a slap in the face to Americans, especially the victims of 9/11 and the families,” said Jim Bush, who as a New Jersey state criminal investigator was part of the 9/11 investigation code-named PENTTBOMB. His partner in the investigation was Bob Bukowski, a now-retired FBI special agent.

“Three thousand people were murdered,” Bukowski said. “(Chehazeh) was definitely part of that conspiracy…. He facilitated the moves and protection up to the whole flight, basically, of Flight 77. Could we prove that in a court of law? No. But there are other remedies. Deport him. That’s what should have been done in this case.”

Before I get to Mr. Chehazeh’s case, I want to break down some of the Fox commentary. First, it’s true that “Daoud Chehazeh is a known associate of the 9/11 hijackers.” According to a published federal court decision, he met two of the hijackers at a mosque in Northern Virginia. After the September 11th attack, Mr. Chehazeh contacted the FBI and reported whatever information he had on the two men. So to claim that he was a known associate of the hijackers, without mentioning that he went to the FBI to report what he knew about the men, is kind of like calling Woodward and Bernstein “known associates” of Richard Nixon because they reported the Watergate cover-up. At best, it’s a half-truth.

Second, Fox News claims that the “government has spent more than half a million dollars trying to deport” Mr. Chehazeh. How they could possibly know the amount that the U.S. government spent on Mr. Chehazeh’s case is beyond me. Unless they actually know how many hours each government employee worked on the case, it seems impossible that they could know the amount. Here, I suspect that Fox News just guesstimated (which is a polite way of saying that they made it up).

Next, Fox News says that “With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time….” I am not sure who these 400,000 people are, or how Fox arrived at this figure. I also am not sure what they have to do with anyone’s asylum case. I do know that Mr. Chehazeh did not receive asylum “for a third time.” He received asylum once (in 2002). The government appealed and later filed a motion to reopen, but he was only ever granted asylum one time.

Finally, the retired FBI agent Bob Bukowski says that Mr. Chehazeh was “definitely part of [the 9/11] conspiracy…. Could we prove that in a court of law? No.” It seems to me, if Mr. Chehazeh was “definitely” part of the conspiracy, Mr. Bukowski could prove it in a court of law. In fact, claiming that someone was “definitely” responsible for murdering nearly 3,000 people when there is little or no evidence to support such a claim, would likely form a strong basis for a libel lawsuit.

Despite the problems in Fox’s reporting, Mr. Chehazeh’s case raises some serous issues.

For one thing, the IJ’s behavior during the case was–to say the least–unusual. According to the government’s brief (as set forth in the Third Circuit’s decision):

[The IJ’s] behavior in this matter… included… ordering the Service… to personally travel to Respondent’s place of detention to assist him in preparing his I-589 [application for asylum and withholding of removal]. When the Service declined, the [I]mmigration Judge advised that she would assume Respondent had a meritorious claim and grant him asylum. Ultimately, the Immigration Judge personally reviewed and completed Respondent’s I-589. At the time of the individual hearing prior to obtaining any testimony from Respondent, the Immigration Judge advised that she was ready to render a decision

The IJ’s actions are strange, and might very well have been reversed on appeal, but the government attorney failed (forgot?) to file a brief, and so the government’s appeal was dismissed.

Another odd aspect of the IJ’s decision is that she found an exception to the one-year filing requirement based on changed circumstances, to wit: the fact that Mr. Chehazeh had recently spoken to the FBI. However, she granted asylum based on Mr. Chehazeh’s particular social group–“hopeless debtors.” It’s questionable whether this is a cognizable social group. Also, if the IJ found an exception to the one year-rule based on Mr. Chehazeh’s cooperation with the FBI, she should have granted asylum on a related ground (such as imputed political opinion since anti-American extremists might view Mr. Chehazeh as pro-American). Instead, the IJ granted asylum on a totally different basis: The fact that Mr. Chehazeh owed a substantial debt to someone in Syria. Since he owed this debt at the time he arrived in the U.S., more than one year before filing for asylum, it is unclear why he would qualify for an exception to the one-year rule.

Despite the difficulties with the case, it appears that the matter is now settled, and–unless new evidence is unearthed–Mr. Chehazeh will be able to remain in the United States as an asylee.

So in the end, Fox News has a point: There are real problems with Mr. Chehazeh’s case, both procedurally and substantively. However, since Fox’s coverage of the case is so distorted and inaccurate, it leaves more questions than answers.

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Pity the Persecutors

by Jason Dzubow

Passover is the holiday where we remember the Jews’ exodus from slavery in Egypt. As we all know, it didn’t end well for the Egyptians, what with the 10 plagues (including death of the first born – oy vey!), and then the business about drowning in the Red Sea.

The Passover Seder is the meal where we re-tell the story of the Exodus. At the Seder, we dip our finger (or a spoon for the germ-o-phobes among us) into  our wine 10 times, and remove one drop each time. This reminds us that the joy of our liberation is diminished by the suffering of the Egyptians.  

Don't you Jews eat any other part of the Matzah?
Don’t you Jews eat any other part of the Matzah?

I often think about how the source countries for my clients are affected by my clients’ departure. Many of my clients are well educated and talented people. They are exactly the type of people the source countries need in order to improve. The only problem is that such people are often targeted by fascist regimes (like the Syrian government) or extremists movements (like the Taliban).

Some would argue that people like my clients should stay in their countries and work (or fight) for change. That is easy to say for people who do not live in such places, and who do not face threats to themselves and their family members. Many of my clients did, in fact, work for change in their countries before they left. For example, I am about to file the case of an Afghan man who worked for various NGOs helping children and women. After receiving many threats, he was brutally attacked with a knife (necessitating numerous surgeries), and finally fled for his life. His case is in some ways typical of my clients. They continue their good work in the face of death threats, but at some point, they feel compelled to leave. International humanitarian law exists to help such people, and my feeling is that each person needs to make his own decision about whether to stay or go (the Washington Post recently ran a depressing photo essay about this choice in the context of Syria).

One thing that seems obvious is that when such people leave, their home countries are diminished. While I can’t say I pity the persecutors, I do feel bad that good people–people who could make a difference in their home countries–are forced to leave. This harms the people who are left behind and helps create a vicious cycle: Conditions are bad, so good people leave, and then conditions get worse, so more good people leave.

My one hope, which I see with my clients, is that they often remain engaged trying to help their homelands. Many of my clients are journalists and human rights activists. They can continue to support change in their home countries (by working for the media, for human rights organizations or for the U.S. government), while living safely in the United States. 

So as we celebrate Passover, I am thankful for freedom and safety. But I will also try to remain cognizant of those who are left behind.

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Immigration Reform for Asylum Seekers, Part One

by Jason Dzubow

Now that Comprehensive Immigration Reform is finally on the table, I thought I would discuss my own “wish list” for reforming the asylum and humanitarian relief system. Human Rights First is in the forefront of the effort to include asylum reform in any CIR package, and they–along with scores of other organizations and law professors–have submitted recommendations to Congress and the President. Below is my own take on asylum reform, including some thoughts on Withholding of Removal and relief under the United Nations Convention Against Torture:

– One Year Filing Deadline: The current law requires aliens to file for asylum within one year of their arrival in the United States. There are two exceptions to this rule: (1) changed circumstances (i.e., it was safe to return home when the alien arrived here, but something changed, and it is no longer safe to return home); and (2) extraordinary circumstances (i.e., something prevented the alien from filing for asylum–maybe she was a child and did not have the capacity to file, or maybe she was suffering from post traumatic stress disorder). Aliens who cannot demonstrate an exception to the rule will be denied asylum if they file more than one year after they arrive in the U.S.

Also on my wish list: My Little Pony (with brush).
Also on my wish list: My Little Pony (with brush).

Supposedly the original purpose of the one-year rule was to prevent fraud. However, the real-life effect of the rule is to block legitimate refugees from obtaining asylum. One group in particular that has been negatively affected are LGBT asylum seekers. In many cases such people are not “out” when they arrive in the U.S., and it takes them time–often more than one year–to understand their sexual orientation and then decide to seek asylum. Other people harmed by the one-year rule include those who are emotionally unable to prepare their cases due to the severe traumas they suffered, people who do not know about the one-year requirement, and people who wait to seek asylum in the hope that country conditions back home will improve.

Having litigated dozens of cases where the one-year rule was a factor, I don’t see how it ever prevented fraud. It is an arbitrary rule, which does nothing except block legitimate asylum seekers from obtaining relief. My number one hope for asylum reform is that the one-year rule will be eliminated.

– Asylum Clock: I have written previously about the Asylum Clock. When an alien files for asylum, DHS starts a “clock.” When the clock reaches 150 days, the applicant can file for a work permit. If the applicant does anything to delay her case, the clock stops. Theoretically, when the delay ends, the clock should re-start. But thanks to ambiguous rules governing the Asylum Clock, that does not always happen.

Although I really can’t stand the Asylum Clock, I suppose I recognize that it is a necessary evil. Prior to the clock, it was common for aliens to file frivolous asylum applications in order to obtain a work permit. In those days, cases took years to adjudicate, so anyone claiming asylum could work lawfully in the U.S. for years before their case was denied. The Asylum Clock, combined with the fact that asylum cases–at least at the Asylum Offices–are usually decided in a matter of months, have greatly reduced frivolous applications. Although it has helped to reduce fraud, the Asylum Clock is incredibly annoying.

The bottom line for me is that the presumption of the Asylum Clock should be in favor of keeping the clock moving. If an Asylum Officer or an Immigration Judge finds that the alien is purposefully delaying his case or that the case is frivolous, they should stop the clock. But the clock should not be stopped for legitimate delays (For example, sometimes an attorney must refuse an appointment date due to a conflict. When this happens, the clock stops. But why should the alien be penalized because the attorney is unavailable on a particular date?). My “wish” here is that the Asylum Clock rules will be re-written to make it easier and faster for asylum seekers to get their work permits.

– Withholding of Removal and Convention Against Torture (“CAT”): There are two distinct categories of people who receive Withholding or CAT instead of asylum. One group are people who are ineligible for asylum because they are criminals or human rights abusers. The other group are people who missed the one-year filing deadline for asylum (and receive Withholding) and people who face torture in their countries, but not on account of one of the protected grounds for asylum (they receive CAT). Aliens who receive Withholding or CAT receive a work permit, which must be renewed every year, but they can never become residents. Unlike asylees, they cannot petition to bring immediate family members to the U.S. and if they leave the U.S., they cannot return. Finally, because few people have these statuses, people with CAT or Withholding often have trouble obtaining a driver’s license and convincing employers that they are lawfully present in the United States.

Frankly, I am not in favor of giving more benefits to criminals or human rights abusers who receive Withholding or CAT. Some immigration rights advocates would disagree with this (and there are legitimate reasons to disagree), but I feel that there should be consequences for our bad actions, and people who do not qualify for asylum due to their own bad conduct should suffer those consequences.

On the other hand, it is unfair to penalize people who receive Withholding or CAT because they missed a filing deadline, or because they face torture for some reason other than race, religion, nationality, particular social group or political opinion. My “wish” here is that such people receive some or all of the benefits normally given to asylum seekers. These people have done nothing wrong, and often they have suffered serious abuse in their homelands.

Well, that’s enough for now. I have a few more wishes, but I will cover those in a future post. 

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CIVIC Works to Visit and Protect Detained Immigrants

by Jason Dzubow

CIVIC–Community Initiatives for Visiting Immigrants in Confinement–is an organization that works to “end the isolation and abuse of men and women in U.S. immigration detention by building and strengthening volunteer-run community visitation programs.” The idea is that if ordinary people visit detained immigrants, the immigrants will feel more connected and more hopeful, and the detention facilities (many of which are run by private, for-profit corporations) will not be able to get away with abusing detainees. 

The protection aspect of CIVIC’s mission reminds me of Amnesty International, which calls attention to individuals at risk of abuse through letter writing campaigns. The hope is that if the abuser knows he is being watched, he is less likely to harm the victim. 

"Remember... Hope is a good thing, maybe the best of things, and no good thing ever dies."
“Remember… Hope is a good thing, maybe the best of things, and no good thing ever dies.”

Based on my experience with detained clients, it seems to me that CIVIC’s goals of offering hope and protection to detained immigrants are (unfortunately) very necessary. Many people in immigration detention have no criminal record and are not dangerous to the community. Some are minors. Others are asylum seekers who suffered persecution and torture in their home countries. These people remain detained for months and sometimes years. The emotional (and physical) toll of such detention can be quite devastating.

CIVIC is currently working to expand its visitation program, in accordance with ICE’s Visitation Directive, which was designed to help facilitate visits to detention facilities. In furtherance of this goal, CIVIC has released the following statement:

Every day, immigrants disappear and are detained by the U.S. government. For example, Ana is a human trafficking victim who was detained for over a year, locked in solitary confinement, and forced by a guard to sleep on the cement floor of her cell until CIVIC ended this isolation and abuse. Over 32,000 immigrants like Ana remain isolated in remote detention facilities today because no law protects a right to visitation, phone calls cost up to $5.00 per minute, and 46% of detained migrants are transferred at least twice during their detention–often out of state and away from their families.

CIVIC is changing this reality by building and strengthening community visitation programs that are dedicated to ending the isolation and abuse of men and women in immigration detention.  Visitation programs connect persons in civil immigration detention with community members. These volunteer visitors provide immigrants in detention with a link to the outside world, while also preventing human rights abuses by creating a community presence in otherwise invisible detention facilities.

CIVIC recently released A Guide to Touring U.S. Immigration Detention Facilities & Building Alliances, designed for communities across the country hoping to start a visitation program using ICE’s new Visitation Directive.  The benefit of this resource is that the general guidelines are tailored to the unique request of using the Visitation Directive as a tool to establish contact and set up a permanent visitation program. In addition, this manual provides an overview of some of the successes and roadblocks visitation programs have encountered in the first year of the Visitation Directive’s existence.

CIVIC is setting in motion a national movement to combat the isolating experience of immigration detention.  To get involved or for more information, please visit their website at www.endisolation.org.

In some parts of the country–like the DC metro area–we have a well established visitation program (thank you CAIR Coalition). But in many areas, detained immigrants are much more isolated. For people looking for an interesting and rewarding volunteer experience, CIVIC’s program offers an excellent way to get involved and to help people who are in great need.

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Russia Angered by UK Asylum Grant

by Jason Dzubow

Recently, I wrote about people from friendly countries receiving asylum in the United States. There are few such cases, and they generally seem to be aberrations.  For these reasons, the source countries are not particularly concerned that we are granting asylum to their nationals.  That is not always the case, however. 

Russia called. They want their Baryshnikov back.
Russia called. They want their Baryshnikov back.

Earlier this month, the United Kingdom granted asylum to Andrey Borodin, a 45-year-old Russian banking tycoon, who owns Britain’s most expensive private house (it’s quite nice, as you can see here). Russian authorities accuse Mr. Borodin of bank fraud.  But Mr. Borodin claims that the charges were trumped up after he accused a key ally of President Vladimir Putin of corruption. The case became public after Mr. Borodin and his lawyer spoke to the press about receiving refuge in the UK (Britain, like the U.S., keeps such claims confidential).

Moscow was not pleased by the Brit’s offer of asylum:

The Russian premier’s press secretary Natalya Timakova said that the accusations against Mr. Borodin—who fled to London in April 2011—are of “pure criminal character” involving the Bank of Moscow, which he formerly owned. “There [is] now a practice of seeking political asylum, especially in England, whereby it doesn’t matter what the seeker has done,” she said. “What matters is how loudly he shouts about political persecution—and this will become a guarantee that the asylum will be granted.” Ms. Timakova accused Britain of ignoring that Interpol “is after him.” Moscow also insists that it would continue to demand Mr. Borodin’s extradition from Britain.

Mr. Borodin counters (probably correctly) that, “Any political asylum seeker must submit the application together with… proof showing the political character of the persecution in his native country.” “My lawyers submitted all necessary proof,” added Mr. Borodin. 

This case reminds me of one I worked on as a wee law clerk at the Arlington Immigration Court. Alexander Konanykhin was a Russian businessman in the roaring 90’s who made hundreds of millions of dollars. The Russian government eventually seized most of his assets and forced him to flee for his life. He made his way to the United States, but the Russians wanted him back and INS tried to deport him. After an epic trial in 1999, he received asylum. The asylum grant was overturned, but later (in 2007) re-instated, and Mr. Konanykhin is now a successful businessman in the United States. Although Mr. Konanykhin always seemed a bit shady to me, it was quite clear that the Russian government was up to no good. Mr. Konanykhin called the government a “Mafiocracy.” 

Between the UK and Russia, I will choose the UK, and–Gerard Depardieu notwithstanding–my bet is that there was ample evidence that Mr. Borodin faced persecution on account of his political activities. He would certainly not be the first Putin opponent to end up in jail (Mikhail Khodorkovsky) or dead (Anna Politkovskaya).

Russia can complain about Britain (or the U.S.) granting asylum to its nationals. But so long as those countries follow international human rights law, and so long as the Russian government continues to persecute its opponents, Russians will be able to obtain asylum in the West. To (badly) paraphrase The Bard: The fault, dear Putin, lies not in the asylum process, but in yourself.

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The Needs of the Many Do Not Outweigh the Needs of the Few or the One

by Jason Dzubow

One of my clients was recently referred from the Asylum Office to Immigration Court due to his failure to file for asylum within one year of arrival in the United States. The client was not thrilled with the referral (as you can imagine) and with some other aspects of the interview, and so he filed a complaint with the Asylum Office. He did not tell me about the complaint until after he filed it. He said that he thought it would be better if I did not know, as it might jeopardize my other clients’ cases or my relationship with the Asylum Office.

In fact, there are times when advocating for one client might cause problems for future clients or relations with different government agencies. However, in immigration law, as in other areas of the law, the needs of the many do not outweigh the needs of the few or the one (i.e., the client).

Lawyers of course must be zealous advocates for our clients. But what do we do when advocacy for one client might result in problems for future clients?

If Spock had been an immigration lawyer, things would not have ended well for the Enterprise.
If Mr. Spock had been an immigration lawyer, things would not have ended well for the Enterprise.

Another way this question comes up at the Asylum Office is at the interviews themselves. I tend to take a less confrontational approach, as that is what works for me. A lawyer friend of mine takes the opposite approach. He is always complaining to supervisors and threatening to sue. I don’t know which of us has a higher approval rate, but his method works for him. Nevertheless, you can imagine how a lawyer who is confrontational in one case might receive a less-than-warm reception when he appears before the officer in the next case. But does that mean he should tone it down in case A in order to benefit the client in case B?

The question can also arise in Immigration Court. I once appealed an Immigration Judge’s decision to the Board of Immigration Appeals and won. When I was before the IJ in an unrelated case, he called me to the bench and spoke to me about the appeal. He did not seem particularly pleased to have been reversed. It so happens that I have a lot of respect for this Judge, and I do not think the appeal impacted his view of me or my other cases. Nevertheless, when he mentioned the appeal to me that day, it raised those concerns in my mind.

As to whether lawyers should hold back in one case in order to avoid possible harm in future cases, I think the answer is clearly “no.” We are obligated to zealously advocate for each client without regard for how it might affect future case. Of course, “zealous advocacy” does not mean being disrespectful or behaving inappropriately. But zealous advocacy might involve making complaints. Or filing lawsuits.

When I think about the question of the needs of the current client versus the needs of a future client, I think about Paul Farmer. He is the doctor, described in Tracy Kidder’s Mountains Beyond Mountains, who has done tremendous work in Haiti (and elsewhere) helping care for the sick and establishing community health clinics. Dr. Farmer was often faced with patients whose treatment would be expensive and risky. Other health professionals felt that the (limited) money available to treat people might be better spent on helping more people who had a greater chance for a successful outcome. But Dr. Farmer seemed always to help the person in front of him, regardless of the cost. When he came to the next patient, he would gather the resources he needed and treat that person as well. From an ethical point of view, this comports with the idea that life is sacred, and that each human life is infinitely valuable.

I think it is the same in asylum law. We have to do our best with the case before us, regardless of whether it might jeopardize relations with an Asylum Officer or a Judge. In my experience, though, when we make arguments respectfully, and when those arguments are legally supportable, the adjudicators do not hold such behavior against us. So while the needs of a future client do not outweigh the needs of the current client, we usually do not have to choose between the two.

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Seeking Asylum from Friendly Countries

by Jason Dzubow

A couple of recent articles got me thinking about how the U.S. handles asylum seekers coming from countries that we view as friends–Western-style democracies that generally respect human rights.

The first is an article from the Jewish Daily Forward (featuring a quote from my esteemed law partner, Todd Pilcher) about asylum seekers from Israel. The article found that 18 Israeli nationals sought asylum in Fiscal Year 2011. The article found that the asylees were a “strange and quirky mix:”

One, an Arab citizen of Israel, is a gay man who convinced authorities he would face violence from his own family and tribe if forced to return to Israel. Lack of adequate action by Israeli police played a role in the approval of the request, his attorney said. Another is an Israeli woman who suffered domestic abuse. She also received asylum after making the case that Israeli authorities were not protecting her. Yet a third is the son of a founder of Hamas who, after spying on the terrorist-designated group for Israeli authorities, felt unsafe under Israeli protection and fled to the United States in fear for his life [I wrote about this case here].

German citizens react to the news that one of their own has received asylum in the U.S.
German citizens react to the news that one of their own has received asylum in the U.S.

The second article is a follow-up on a homeschooler family that received asylum from Germany.  In that case, an Immigration Judge found that the family faced persecution in Germany after they refused for religious reasons to send their children to public school, as required by German law. The Board of Immigration Appeals reversed the IJ’s decision last May, and the homeschoolers filed a petition for review and a brief with the Sixth Circuit. The case is currently pending.

Other “Western” countries listed as source countries for asylum seekers in the U.S. include Argentina (9 people granted asylum in FY 2011), Brazil (20 people), Germany (4), Latvia (6), New Zealand (5), Poland (6), and the United Kingdom (8). These numbers are pretty small given the total of 24,988 people granted asylum in FY 2011, but such cases raise some interesting questions.

First, how do the source countries feel about a decision from the U.S. government that they are persecuting (or, at best, failing to protect from persecution) their own citizens? When asked by the Forward, an Israeli diplomat said that the scarcity of asylum cases in the United States did not require the Israeli government to bring up the issue with Washington. The official added that the few cases in which Israelis were granted asylum in America represented “unusual circumstances” and did not reflect on Israel’s democracy. I’d bet that like the Israelis, most Western democracies see these asylum cases as aberrations and aren’t particularly bothered by them. One country that is annoyed by our State Department’s practice of evaluating the human rights situation in other countries is China. In “retaliation” for our report, China issues its own report, which describes a litany of human rights abuses in the United States.

A related issue is whether–if the number of asylum cases form a particular allied country increased–that country could raise the issue diplomatically in order to curtail asylum grants. Theoretically, asylum should be independent of politics, but the Forward article raises the example of Israeli conscientious objectors who received asylum in Canada. Apparently, “Canada has approved dozens of asylum requests from individuals claiming political persecution by Israel since 2000.” According to the Forward, in 2006, the Israeli government protested Canada’s asylum policies. And in the past two years the number of Israelis receiving asylum in Canada has declined. If this is correct, and the decline in asylum grants is related to the Israeli protest, it raises serious concerns about the integrity of the Canadian asylum system.

Another question raised by these asylum cases is, how the heck do you get granted asylum from a country like New Zealand or the UK? My guess is that these cases involve very special circumstances, like victims of human trafficking who have not received adequate protection, or maybe sexual orientation cases where the person was subject to severe abuse. Another possibility is that the Immigration Judge and the DHS attorney agreed to grant asylum in order to address an otherwise inequitable situation. For example, I once had a case where my client was convicted of an aggravated felony. She had been here for many years, had a family with a special needs child, and it was obvious that the only reason for her conviction was the incompetence of her criminal lawyer (her crime was very minor). Although it was pretty clear that she did not qualify for withholding of removal, the IJ would have granted relief to resolve the situation. Unfortunately, the DHS attorney did not agree. Had the attorney agreed, the client would have received relief, even though she really did not qualify. Maybe something similar is happening in some of the asylum cases at issue here.

Asylum cases from Western democracies are relatively rare. But there are enough such cases to help prove the adage, no country is safe for everyone all the time.

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One Hell of a Monday

by Jason Dzubow

Last Monday was a busy day for my family and me. Originally, I planned to attend an asylum hearing for a Burmese client in Virginia and to send another attorney (Ruth Dickey) to cover an Eritrean asylum case in Baltimore. At the same time, my wife and I were expecting our second child on Tuesday. Since our first born arrived late, and since the doctor seemed to think Number Two would follow a similar pattern, I hoped to complete both cases and then focus on the family.  Of course, nature takes its own course, and things did not work out as I planned.

When a new baby arrives, hijinks are sure to ensue.
When a new baby arrives, hijinks are sure to ensue.

Early Monday, my wife’s water broke, and we were off to the hospital. I figured the Eritrean client was in good hands, and I left a message at 2:00 AM for the court clerk in the Burmese case stating that I would not be able to attend the hearing that day. I figured the Immigration Judge would understand, and I already gave the client a letter to present to the IJ in case the baby arrived early.

Labor progressed through the morning, and at some point I learned that the Eritrean client received asylum. The DHS attorney was fairly satisfied with the case we presented, and only asked to hear about the client’s journey to the U.S. So after a short direct and cross, focusing basically on the client’s travel, DHS agreed to a grant (and so did the IJ). (Congratulations to Ruth on a job well done).

More surprising news came later. I managed to reach my Burmese client, and I told her that I would not make it to court after all. I assumed that we would receive a new court date, and I would try the case at that time. I must admit that I wasn’t thrilled with this option. Country conditions in Burma have been improving, which is great for Burma, but not so great for Burmese asylum cases. A delay might result in a weaker case. Also, delays can be very long, and this client had already been waiting for almost two years for her day in court. But clients, like new babies, have minds of their own. My client did not want to wait for another court date, and so (unbeknownst to me) she told the IJ that she wanted to proceed with her case without me. Like the Eritrean case, the Burmese case was fairly strong, and DHS was mostly convinced that asylum should be granted. So the DHS attorney cross examined the client about her case, and in the end, agreed to a grant.

I suppose the lesson is that most asylum cases are won or lost prior to court. If the DHS Trial Attorney is presented with a strong case and is convinced that the respondent qualifies for relief, odds are good that they will agree to a grant of asylum. And when DHS agrees, the IJ will almost certainly follow suit.

So, the final results for Monday: Two asylum grants and one new baby girl (who is hanging out with me as I type this). Not a bad day’s work, if I may say so myself (and yes, I suppose some credit goes to my wife for the baby and to Ruth for litigating the case in Baltimore).

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Don’t, Until You Do!

by Jason Dzubow

DD is a former client who is now my intern. She was granted Withholding of Removal about a year ago. The Immigration Judge in her case denied asylum because DD had failed to file her application within one year of arriving in the U.S. For many reasons, Withholding is not as good as asylum–you never get a green card or become a U.S. citizen; you cannot travel outside the country; you need to renew your work permit every year; some aliens with Withholding are required to report again and again to DHS to be “monitored.” While my client was grateful that she was not deported, she was not (and is not) thrilled with the restrictions of Withholding of Removal. She wrote a poem about her impression of the asylum experience in the United States–

Don’t talk to me about immigration until you have walked a mile in my shoes on the long road in search of freedom in a foreign land, leaving everything behind to start from the beginning. 

Don’t declare to know what is best for immigrants (legal or illegal) until you have fought this web of a system.

Don’t tell me I stole your job, for you will never agree to clean toilets for $5.00 an hour in order to feed your family.  Besides, how can I steal the job you have hired me to do?  Are you not my employer, taking advantage of my desperate situation for your own gain?

Don’t tell me I am stealing your child’s right to good education; for knowledge can never be taken from an individual who has acquired it.

Don’t force me to learn English, because unlike you, English will be my 4th language. 

Don’t immigrant hate until you can prove your ancestors originated from this land like the Native Americans (Remember them?  The non-immigrants and the one true Americans).

If you ask me to go back to the land from whence I came, I will ask you to find your way first. 

If you tell me that this land is your land, I will ask you how did you acquire it… with blood or gold?

And finally, don’t tell me I broke the law, when instead it’s the law that has broken me.

Originally from Liberia, DD grew up on three continents in five different countries (Liberia, Egypt, Syria, Ghana, and the United States). She speaks English and is proficient in American Sign Language and French. In 2004, she obtained her BA Degree in Criminal Justice, French, and Psychology. She has worked in the field of mental health and career counseling since graduating from college.

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Amerasian Homecoming Act – 25 Years Later

by Jason Dzubow

The Amerasian Homecoming Act, which passed into law in December 1987 and went into effect a few months later, began with a photojournalist, a homeless boy in Vietnam, and four high school students in Long Island, New York. Twenty five years later, almost 100,000 people have immigrated from Vietnam to the U.S. as a result of the AHA.

First, a bit of background. One of the great tragedies of the Vietnam War is the story of the Amerasians–children of U.S. servicemen and Vietnamese women. There are tens of thousands of such children. In Vietnam, they were known as “children of the dust” because they were considered as insignificant as specks of dust, and many (if not most) suffered discrimination, abuse, poverty, and homelessness. Although the fathers of these children were United States citizens, the children did not qualify to immigrate to the U.S. The situation was complicated by the absence of diplomatic relations between the government of the United States and the government of Vietnam. Ten years after the war, the situationo for the Amerasians seemed hopeless. A 2009 article from Smithsonian Magazine describes what happened next:

In October 1985, Newsday photographer Audrey Tiernan, age 30, on assignment in Ho Chi Minh City, felt a tug on her pant leg. “I thought it was a dog or a cat,” she recalled. “I looked down and there was [Le Van] Minh. It broke my heart.” Minh, with long lashes, hazel eyes, a few freckles and a handsome Caucasian face, moved like a crab on all four limbs, likely the result of polio. Minh’s mother had thrown him out of the house at the age of 10, and at the end of each day his friend, Thi, would carry the stricken boy on his back to an alleyway where they slept. On that day in 1985, Minh looked up at Tiernan with a hint of a wistful smile and held out a flower he had fashioned from the aluminum wrapper in a pack of cigarettes. The photograph Tiernan snapped of him was printed in newspapers around the world. The next year, four students from Huntington High School in Long Island saw the picture and decided to do something. They collected 27,000 signatures on a petition to bring Minh to the United States for medical attention.They asked Tiernan and their congressman, Robert Mrazek, for help.

Mrazek began making phone calls and writing letters. Several months later, in May 1987, he flew to Ho Chi Minh City. Mrazek had found a senior Vietnamese official who thought that helping Minh might lead to improved relations with the United States, and the congressman had persuaded a majority of his colleagues in the House of Representatives to press for help with Minh’s visa.

Minh came to the U.S., where he still lives. but once he got to Vietnam, the Congressman realized that many thousands of Amerasian children were living in Vietnam, often in terrible conditions. Congressman Mrazek resolved to help these children. The result was the Amerasian Homecoming Act, which went into effect in early 1988.

The AHA allowed Amerasians to come to the United States as lawful permanent residents. They are not considered refugees, but they do receive benefits (such as financial assistance and housing) normally reserved for refugees. In an important way, the law was quite succcesful–as a result of the AHA, approximately 25,000 Amerasians and about 70,000 of their family members immigrated to the United States.

However, the law was not a success by all measures. For one thing, not all Amerasians in Vietnam learned about the AHA, and so many people who might have qualified to leave Vietnam were unable to do so.

Another problem was fraud. One type of fraud involved people who claimed to be Amerasian, but who were not (there was no easy way to tell who was an Amerasian, and many decisions were made based on the person’s physical appearance). However, the more pervasive problem of fraud involved “fake families.” These were people who attached themselves to the Amerasian immigrants’ cases in order to come with them to the U.S. In many cases, the Amerasians agreed to this fraud because the fake families would pay the Amerasians’ expenses. Without this assistance, the Amerasians could not have afforded to immigrate. The extent of the fraud is unknown, but a November 1992 GAO report found that in 1991, about 20% of applicants were rejected for fraud. By 1992, 80% of applicants were rejected for fraud.

A final problem–though perhaps this is not a problem with the AHA itself–is that many Amerasians had a tough time adjusting to life in the United States. A 1991-92 survey of 170 Vietnamese Amerasians found that some 14 percent had attempted suicide; 76 percent wanted, at least occasionally, to return to Vietnam. As one advocate put it, “Amerasians had 30 years of trauma, and you can’t just turn that around in a short period of time.”

Of course, Amerasians did far better here than they could have in Vietnam, but given their difficult lives back home, the adjustment was often not easy. According to the Encyclopedia of Immigration:

In general, the Amerasians who came to the United States with their mothers did the best in assimilating to American society. Many faced great hardships, but most proved resilient and successful. However, only 3 percent of them managed to contact their American fathers after arriving in the United States. By 2009, about 50 percent of all the immigrants who arrived under the law had become U.S. citizens.

Now, Amerasians host black tie galas to celebrate their success as a unique immigrant community. And even in Vietnam, where they were vilified for many years, negative feelings towards Amerasians have faded.

Finally, on a personal note, my first job out of college was for a social service agency that did refugee resettlement, and so I worked with Amerasians (and others) for a few years in the early 1990s. Of the populations we served, it seemed to me that the Amerasians had been the most severely mistreated. Many were illiterate in Vietnamese and spoke no English. They were physically unhealthy, and they had a hard time adjusting. Twenty five years after the AHA, it seems that Amerasians are finally achieving a measure of success in the United States. Their long journey serves as a reminder that persecuted people need time to become self sufficient. But the Amerasians–like other refugee groups–are well on their way to fully integrating into American society.

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The Seven Habits of Highly Annoying Immigration Judges

by Jason Dzubow

Well, I’ve dissed immigration lawyers, asylum-seeker clients, and the BIA, so I might as well offer my criticism of Immigration Judges. Of course, this comes with the usual disclaimer: None of the IJs that I appear before have any of these annoying habits. But I have heard speak of such problems from other lawyers (terrible, terrible people), so please blame them for this list. If you need names and addresses, email me offline. With the shifting-of-the-blame thing out of the way, here is the list:

7 – Changing Court Dates: I suspect that most immigration attorneys have a schedule best explained by Chaos Theory – Make a small change to the delicate balance in our calendars and things fall apart. Obviously, IJs sometimes need to postpone (or advance) hearings. The problem comes when hearing dates are changed without checking with the attorney first. This potentially creates scheduling conflicts for the lawyer, who must then file a motion to change the court date. This can be stressful and time consuming (and it might add to the client’s expenses). The better approach is for the clerk to contact the attorney prior to changing the court date. In my experience, when this happens (rarely), it is done by phone. Perhaps it would be easier for the clerk to contact the attorney using a new technology called email. This would be more efficient for all involved, as attorneys could avoid motions to re-schedule and IJs would not have to deal with such motions. 

Mocking litigants is generally considered an annoying habit (even if they deserve it).
Mocking litigants is generally considered an annoying habit (even if they deserve it).

6 – Double Booking: This issue is less of a problem these days, at least in my home courts. But there was a time when my Individual Hearings were commonly double booked. This meant that we prepared for the hearing, went to court, waited (sometimes for hours), and were then told to go home. Given client stress and attorney time wasted, I am glad that double bookings have become more rare.

5 – Denying Cases: OK, I really shouldn’t complain about this, as it is part of an IJ’s job. But it is kind of annoying.

4 – Failing to Rule on Motions: I understand that IJs are busy people. But if IJs could rule on motions in a timely manner, it might increase overall efficiency. Pleadings can be done by motion, thus reducing crowds at Master Calendar Hearings. Issues for trial can be narrowed, making trials less time consuming. Some cases can be resolved completely by motion. You get the idea. The problem, however, is that since IJs cannot be relied upon to rule on motions in advance of the hearing, it is not really worth the attorney’s time to write the motion (and then spend more time repeatedly calling the court to ask whether the motion has been granted). If IJs consistently responded to motions in a more timely way, lawyers would file more motions, and cases might be resolved in a more efficient manner.

3 – Stopping the Asylum Clock: As I have written previously, the rules governing the Asylum Clock are–to put it diplomatically–ridiculous. Different IJs interpret the rules differently. Some IJs interpret the rules restrictively and some even appear to make an effort to prevent the respondent from obtaining a work permit. Given the long waiting periods for these cases, aliens suffer great hardship when they do not receive a work permit. Unless the alien is engaged in egregious and purposeful delay, IJs should err on the side of keeping the Clock moving and of allowing asylum seekers to obtain their work permits.

2 – “Egalitarian” Master Calendar Hearings: Most IJs give priority to aliens who appear with an attorney at the Master Calendar Hearing. Of course, I am an attorney, and a somewhat impatient one at that, and so I do not like waiting around during a MCH. But there are more legitimate reasons for prioritizing represented respondents. First, respondents who are represented usually take less time during the MCH than unrepresented respondents. So more people will get done more quickly if represented aliens go first. Second, while most immigration lawyers do not charge by the hour, some do. Therefore, it is more expensive for some respondents to have their attorneys wait around for their turn at the MCH. Third, even those lawyers (like me) who do not charge by the hour might charge an extra fee for MCHs before IJs who are known to be slow (I have not done this, but I have considered it). If lawyers are more expensive, it is more difficult for aliens to retain us. Thus, when IJs do not have efficient MCHs, it potentially creates an access to justice issue for aliens.

1 – Showing the Proper Level of Respect: Notice, I did not say, “Showing Respect.” Sometimes IJs are not respectful enough to immigration lawyers; other times, they are too respectful to us lawyers. While I certainly believe that IJs should err on the side of being respectful to everyone in the courtroom, they do sometimes allow lawyers to get away with a bit too much. Oft times, alien respondents are not aware that their lawyers are unprepared or incompetent. When such behavior is egregious, IJs should point out the problem to the alien (and potentially to the bar association). Further, unprepared attorneys waste time at Master Calendar Hearings and cause delay for everyone else. There is no need for IJs to respect such behavior. On the other hand, some IJs run their courtrooms by bullying and demeaning attorneys (DHS attorneys and respondents’ attorneys). Obviously, this is inappropriate and, for the most part, ineffective. Good attorneys are sometimes unprepared, and sometimes make mistakes. It is harder for lawyers to do our best work when we face disrespectful comments at the slightest misstep. That said, while disrespectful IJ behavior can be a problem, it seems to me that such behavior is (fortunately) pretty rare.

Well, there you have it. While some IJs have bad habits (or so those nasty lawyers tell me), most IJs that I have encountered are hardworking, diligent, and fair. As we (hopefully) prepare for a major immigration reform, it is important to appreciate the positives about our immigration system and the legal protections we offer non-citizens. It is also important to appreciate the Judges and others who make that system work.

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New Novel Explores the Lives of Asylum Seekers

by Jason Dzubow

They say that truth is stranger than fiction because fiction has to be believable. That is basically the premise that got Scott Rempell thinking about the lives and stories of asylum seekers, and which led to his new novel, Five Grounds:

The idea to write an immigration novel that delves into the asylum process first hit me when I was working at the Office of Immigration Litigation in the Department of Justice. I was sitting in my office reviewing a Department of State report on a humanitarian crisis engulfing a particular country. I remember sitting back and thinking to myself that some of what I’m reading is stranger than fiction. It’s the type of information that people might read about in a novel and say, “no way that would happen!” But it does. It happens all the time in countries around the world and very few people know about it. I wanted to write a story that would educate readers about these countries, explain how the asylum process works, and highlight the tensions in the immigration debate.

Five Grounds is great reading material while waiting for your asylum interview.
Five Grounds is great reading material while waiting for your asylum interview.

The title refers to the five protected grounds that can form the basis for an asylum claim–race, religion, nationality, membership in a particular social group or political opinion. The novel follows three asylum seekers as they flee their home countries and make their way to the United States:

In Ethiopia, Tesfaye abandons his post at the Ministry of Defense and attempts to escape the country while a crazed rebel commander hunts him down for reasons he will spend years trying to fully understand. Lin’s mother forces her to leave China to protect her from the same fate that led to her father’s disappearance. In Mexico, Sofia’s health rapidly deteriorates, so she leaves behind her two young children and the memory of a murdered husband.

The three arrive in the United States where they must confront the American asylum system. A brief excerpt captures the flavor of the book:

Tesfaye placed a hand on each of his daughters’ cheeks. “I have some business to take care of, but I will come soon. I promise.”

Unconvinced, Yenee opened the door and grabbed hold of Tesfaye’s leg. “No, you need to come with us now, please come with us.” 

Tesfaye picked up Yenee and tried to comfort her. He could feel the tears on his shoulder, seeping through his shirt. “Look at me, Yenee.” Tesfaye gently pushed up on Yenee’s chin so that her eyes met his. “Look at me,” he repeated. “I have always tried to teach you the importance of responsibility. Our country has put its trust in me and I have a responsibility to help protect it.”

“But . . .”

“You remember the importance of honoring one’s obligations?”

“Yes, it’s just . . .”

“Now I need you to be strong.” Yenee loosened her arms, which had been clenched around Tesfaye. Her body slowly slid down until her feet touched the cobblestone walkway below. After she reluctantly got back into the car, Tesfaye stuck his head inside the open window and kissed Yenee on her forehead. He walked over to the front passenger seat, reached in the car, and gently rubbed his wife’s neck, massaging her earlobe with his thumb.

“We will see you soon,” Ayana sighed, forcing herself to smile.

Tesfaye smacked the roof of the car twice with his hand and Negasi shifted into gear. The Mercedes sped down the long dirt driveway toward the front gates, dust spewing into the air. Tesfaye stood at the edge of the driveway until the dust had again settled into the bone-dry ground.

I will see them soon. I just need some time to think.

Tesfaye could not have foreseen the consequences of his decision that morning, but the circumstances of his past were already conspiring. A chain of events set in motion nearly two decades ago was about to catch up to him. Soon, the conspiracy would reveal itself, and he would spend years desperately trying to unravel it.

The author was an attorney for OIL–the Office of Immigration Litigation, which defends BIA decisions in the U.S. federal courts. Now Mr. Rempell is a professor at South Texas College of Law in Houston.

What has drawn me (and other attorneys) to the practice of asylum law is the stories of our clients: What they did in their home countries, how they survived, their journeys to the U.S., and their experience in the U.S. immigration system. Prof. Rempell writes, “my goal in writing Five Grounds is to educate and inform against the backdrop of a gripping, fast-paced story.” If you would like to learn more about Five Grounds–or buy the book, visit Prof. Rempell’s website, here.

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There Is No Such Thing as a Tough Immigration Judge

by Jason Dzubow

A recent article in the Sun Sentinel (Broward County, Florida) got me thinking about what it means to be a “tough” Immigration Judge.

Judge Ford, pictured here at his Senior Prom.
Judge Ford, pictured here at his Senior Prom.

The article discusses Judge Rex. J. Ford, who will be celebrating (if that is the right word) 20 years on the bench this April. According to the Sun Sentinel, “In 96 percent of the 2,057 proceedings Ford completed in fiscal 2011, he ordered the person removed from the country.” Judge Ford told the paper: “I follow the book and I don’t get reversed.” The article also notes that Judge Ford is a registered Republican who “garnered attention in 2008 with the release of a U.S. Justice Department report that named him as playing a role in recommending the appointment of immigration judges based on their political leanings.” Judge Ford denied that he considered party affiliation in advocating for specific job candidates.

First, I suppose the Sun Sentinel mentions that Judge Ford is a Republican because Republicans are considered “tougher” on immigration than Democrats (this, despite the fact that President Obama has deported record numbers of illegal immigrants during each year of his Administration). I can’t help but think that this is an unfortunate stereotype–at least to some extent. Maybe I will write a post about that subject in the future, but for now, I will just note that Judge Ford was appointed during the Clinton Administration. In this post, I am more interested in how we decide which IJs are “tough.”

The most objective measure of an IJ’s “toughness” is his asylum denial rate, which can be found at TRAC Immigration, a website affiliated with Syracuse University. The toughest Judges are the ones with the highest denial rates. By this measure, Judge Ford is pretty tough. Of the 256 IJs examined by TRAC, only three deported people at a higher rate than Judge Ford. Does this mean that he is tough? Or does it mean that he doesn’t know what he is doing? Or something else?

Whenever a judge’s denial rate deviates significantly from the mean, it raises a red flag. In Judge Ford’s case, his denial rate of 93.3% is much higher than the national average of 53.2%. But I think it is more important to compare his denial rate with the local average. Why? Because local factors significantly impact denial rates. In Judge Ford’s case, the aliens he sees are all detained. Denial rates for detained asylum seekers are much higher than rates for non-detained aliens. In part because such aliens are less likely to be represented by attorneys and have a more difficult time gathering evidence, but mostly (I think) because such aliens often have no valid defense to removal, and so they tend to file weak (or frivolous) asylum claims as a last-ditch attempt to remain in the United States. Also, many detained aliens are ineligible for asylum due to criminal convictions or the one-year asylum bar. Comparing Judge Ford to his local colleagues, his denial rate does not seem particularly unusual. The denial rate for other IJs at Miami’s Krome Detention Facility (where Judge Ford is listed on the TRAC website) is 89.8%. So while Judge Ford is probably not an “easy” judge, if he were relocated to a different court, with a non-detained docket, I bet that he would grant a lot more cases.

Speaking more generally, where an IJ with a non-detained docket denies asylum cases at a significantly higher level than his local colleagues, I don’t see that as a sign of “toughness.” I see it as a failure to properly apply the law. The INA, the CFR, and various precedent decision from the BIA and the federal courts provide guidance to IJs about how to make decisions. They set forth how to determine if an alien is credible (consistent testimony and submission of reasonably available evidence). They define “persecution,” nexus, and the different protected grounds. In reaching a decision, an IJ is obliged to follow these laws; he is not permitted to “go with his gut.” In my experience, most IJs do their best to follow the law. Therefore, if one IJ stands out in terms of her denial rate (whether it is too high or too low), something is wrong.

In deciding an asylum case, it is not the IJ’s job to be tough or easy; it is her job to analyze the facts in the context of the law. Where an IJ’s denial rate differs significantly from the local average, it may be a sign that the IJ is not following the law. In such a case, the IJ’s supervisors should determine what is happening and whether additional training or some other corrective action is necessary.

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