Lawyers Gone Wild

by Jason Dzubow

The New York Times reports a major bust involving lawyers, paralegals, and even a church official who were allegedly helping Chinese nationals file fraudulent asylum cases.

The Times reports that 26 people, including six attorneys, were arrested in Chinatown and Flushing, Queens. They are accused of an elaborate scheme to help Chinese immigrants invent stories about persecution and dupe immigration officials into granting asylum. Some false stories describe persecution based on China’s one-child policy, including forced abortion. Others set forth claims based on religious persecution. Apparently, the asylum seekers aroused suspicion when Asylum Officers noticed that many of the stories were very similar.

Some people probably should not be allowed to practice law.
Some people probably should not be allowed to practice law.

In all, the conspiracy involves 10 law firms and as many as 1,900 asylum seekers. The conspiracy also allegedly involved at least one church official, Liying (pronounced “Lying”?) Lin. According to the Times, Ms. Lin, 29, trained asylum seekers in the basic tenets of Christianity. According to the indictment against her, Ms. Lin also helped her “clients” trick the immigration authorities and “trained asylum applicants on what questions about religious belief would be asked during an asylum interview and coached the clients on how to answer.”

This is not the first time that I’ve written about Lawyers and paralegals helping to create false cases, but it is the largest such bust that I’ve heard about.  One question is, how pervasive is this type of fraud? 

A professor of Asian-American studies and urban affairs at Hunter College in New York, Peter Kwong, told the Times that he believes most Chinese asylum cases in New York City were fraudulent. “This is an industry,” said Prof. Kwong, who has written widely on Chinese immigration. “Everybody knows about it, and these violations go on all the time.” While I would not be surprised if Prof. Kwong is correct, I would also not be surprised if he is over-estimating the number of fraudulent asylum claims. 

The reason for the difficulty is that there is no data on false asylum claims. There is plenty of anecdotal evidence about false claims, but this is really not reliable. For one thing, some people with real asylum claims are duped by unscrupulous lawyers and paralegals into making false applications. For instance, I was recently consulted in a case where a Russian paralegal and attorney created a false claim for the asylum seeker even though he had a perfectly legitimate reason for seeking asylum. I suspect they created the false case because that was easier than preparing the actual case. So while the man’s case was false, he had a real claim for asylum (he lost his case and spent many thousands of dollars in the process).

Another reason why I don’t trust the anecdotal evidence on fraud is because cases are sometimes fraudulent in non-material ways. What I mean is, sometimes people lie about things that do not affect their cases. For example, I worked on a case where the applicant did not mention her husband on her I-589 form (which she completed and filed before she had a lawyer). She felt that she did not need to list him, as they were separated. The DHS attorney brought this up when he argued that the applicant was not credible, so it might have impacted the case (in the end, the IJ found her credible). The marriage did not relate to the primary basis for the application, and it was based on my client’s misunderstanding of the form. So, should this be considered a “fraudulent” case?  I suppose it depends who you ask. The point being: When it is difficult to define fraud, it is difficult to characterize asylum cases as either fraudulent or non-fraudulent.

Although it is difficult to know the magnitude of the problem, it’s pretty clear that many asylum cases are fraudulent. The situation in New York is only the most recent illustration of the problem. So what’s the solution? I strongly believe that the government can do more to stop these fraudsters. I have seen enough of their work to know that they are not so smart and often not very careful (witness the Chinese case in NY where Asylum Officers detected the fraud when they noticed that many of the applications were suspiciously similar–in other words, the lawyers were too lazy and too cocky to bother making up unique stories for each asylum seeker).

Since many of these fake cases seem to originate with a (hopefully) small number of lawyers, paralegals, and translators, I believe the most effective solution is to investigate such people. DHS could send undercover “clients” to suspect attorneys to determine whether the attorneys are helping to concoct false cases. The “clients” could also visit paralegals and translators, who often work independent of attorneys, to see whether they are practicing law without a license. People who help create false cases should be prosecuted and jailed.  Lawyers who engage in such behavior should be disbarred.  

If DHS can bring more cases like the one in New York, it will help deter the paid “professionals” who create false asylum claims. It will also help preserve the integrity of the asylum system for those who need it. 

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When Bar Counsel Comes Calling

by Jason Dzubow

Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.  In short, Lozada states that to reopen an immigration case where the previous attorney was constitutionally ineffective, the alien must file a bar complaint against that attorney.  Despite some intervening decisions, Lozada is still the controlling law.  As a result, many immigration lawyers will face a bar complaint at some point in their career.

It starts with Lozada, and ends like this.

In that happy spirit, I am re-posting an excellent article by Dolores Dorsainvil, a Senior Staff Attorney with the D.C. Office of Bar Counsel (the article is written with the DC Rules of Professional Conduct in mind, but it really applies to all jurisdictions). Ms. Dorsainvil investigates and, where necessary, prosecutes allegations of ethical misconduct of District of Columbia attorneys.  She is also an adjunct professor at the American University’s Washington College of Law where she teaches Legal Ethics.  She has an ethics blog, The Gavel, which can be found here.  Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

For many attorneys, coming across an envelope with the return address marked “Office of Bar Counsel” undoubtedly brings a sinking feeling. After reading the Bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel as a personal attack on their credibility and professionalism. Whatever the feeling, and however the complaint arose, with hundreds of Bar Counsel complaints lodged every year, attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are seven simple tips to guide attorneys in responding to a Bar Counsel inquiry should one ever become subject to such a complaint:

1. Think. Before penning an emotional response to Bar Counsel, take time to think about the legal matter, the history of the case, and the client who filed the complaint. This will aid an attorney in focusing on the issues involved in the complaint and may give him or her time to provide a response based on facts rather than emotions. An attorney may even want to review the file in its entirety to make sure he or she is able to recall every detail about the underlying legal matter.

2. Be timely. Request an extension, if needed. In its cover letter accompanying the complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason an attorney is not able to submit a timely response, he or she may wish to request an extension. Our office usually will grant an initial reasonable request for an extension. The attorney should confirm such a courtesy in writing. If a circumstance exists that requires a lengthy response period—as we all know, illnesses, deaths, vacations, business or personal matters happen—it is prudent for an attorney to explain that in writing to Bar Counsel and provide corroborating documents explaining the lengthy extension request.

3. Respond. This may seem like an obvious step, but there are attorneys who, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1(b). So, even if Bar Counsel is not able to make any findings of a violation of the D.C. Rules of Professional Conduct in the initial complaint, our office may pursue and prosecute an attorney for violating Rule 8.1(b). No matter how distasteful the prospect is of being subject to a complaint, every attorney has an affirmative duty under the rules to respond to requests for information from Bar Counsel authorities.

4. Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel in rendering a disposition; however, an attorney should be judicious. Providing a 30–page response while failing to actually address the allegations of misconduct may raise concerns.

5. Provide documents, and then some. An attorney should provide the documents our office requests, but he or she also should provide relevant documents as exhibits to the response if those documents corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that already has been addressed by a tribunal is extremely helpful. Taking this proactive step saves time in the investigation process.

6. Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as they relate to the underlying legal matter. It is important for an attorney not to assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied upon in the underlying matter is invaluable and can assist our office in determining the validity of the complaint.

7. Hire counsel, if necessary. This is a determination that can only be made by an attorney, but there are benefits to hiring representation. Respondent’s counsels usually are more familiar with the attorney disciplinary process and can help to navigate the system.

Overall, an attorney’s cooperation with a Bar Counsel investigation will contribute to a resolution in a manner that safeguards the rights of the public and protects attorneys from unfounded complaints.

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American Software Mogul Denied Asylum in Guatemala

by Jason Dzubow

If you’re reading this on a PC, there’s a good chance that your anti-virus protection is based on a program designed by John McAfee.  Mr. McAfee, 67, was a pioneer of anti-virus software, and the company that bears his name is today one of the largest anti-virus companies in the world.  At one time, his net worth exceeded $100 million, but his fortune dwindled and in 2008, he moved from the U.S. to Belize.

There, Mr. McAfee apparently led an increasingly extreme lifestyle, which included drugs, prostitutes, and feuds with his neighbors.

An American seeking asylum in Guatemala is kind of like a child giving presents to Santa Claus.

It’s seems Mr. McAfee also had an uneasy relationship with the authorities in his new country.  In April of this year, the Belize Gang Suppression Unit raided his house looking for a Meth lab.  Mr. McAfee was briefly detained and then released.

His current odyssey began on November 12, 2012 when police started searching for him as a “person of interest” in connection to the murder of his neighbor in Belize, another expatriate American, who was shot to death.

Mr. McAfee fled to Guatemala and–like any respectable computer guy–started a blog to chronicle his ordeal.

After almost a month on the lam, the Guatemalan authorities apprehended Mr. McAfee for entering the country illegally, and prepared to deport him to Belize.  Mr. McAfee promptly requested asylum.  Just as promptly it seems, the Guatemalan authorities denied his request.  According to the Washington Post:

McAfee’s legal team said they were preparing to appeal the denial of asylum to the country’s constitutional court, a process that could give McAfee perhaps another day or two in Guatemala.  The court would have to issue a decision within 48 hours.

For his part, Mr. McAfee appealed for his blog readers to please “email the President of Guatemala and beg him to allow the court system to proceed, to determine my status in Guatemala, and please support the political asylum that I am asking for.”  He adds, “Please PLEASE be very POLITE in your communications, and I thank you.”  (Mr. McAfee is blogging from jail in Guatemala, which he called a “groundbreaking activity”).

As of this writing, Mr. McAfee’s asylum case is still on appeal.  But it seems to me that under the international law definition of asylum, Mr. McAfee simply does not qualify.  First, to receive asylum, a person must demonstrate that he has a well founded fear of persecution (as opposed to prosecution).  “Persecution” is (usually) some type of severe physical harm. There is no indication that Mr. McAfee will be prosecuted in Belize, let alone persecuted. He is currently a person of interest in a criminal investigation. This is a far cry from being detained and/or physically harmed.

Possibly, the murder investigation is a pretext for persecuting Mr. McAfee.  Indeed, he claims that there is a “political vendetta” against him because he did not “donate enough money to the government.”  Even if this is the case, he must show that the persecution is “on account of” his race, religion, nationality, particular social group or political opinion.  Unless there is more to the story, failure to “donate” money to the government would not fall into one of these protected categories.

Finally, even if Mr. McAfee faces persecution in Belize on account of a protected ground, he is still not eligible for asylum.  The reason is that he is a citizen of the United States.  Asylum is available to people who face persecution from their home country; not from a third country. To avoid persecution, Mr. McAfee could (theoretically at least) receive protection from the U.S. government. In his blog, Mr. McAfee states that he asked the United States Embassy for help, but they told him that there was nothing they could do.

While I think that Mr. McAfee cannot qualify for asylum, I certainly believe that the government of Guatemala should not return him to Belize if there is reason to believe that he will be persecuted or tortured in that country. The UN Convention Against Torture (which Guatemala ratified) would prevent Mr. McAfee from being sent to Belize if he would be tortured there.

While his claims seem far-fetched (the president of Belize called them “bonkers“), Mr. McAfee, like everyone else who fears harm if he is deported, should not be removed without due process of law.  Obviously, asylum law and the UN Convention Against Torture cannot be used to subvert the criminal law.  But if someone fears harm in a country, he should not be sent to that country until his claim is reviewed on the merits.  In this case, before he is sent anywhere, Guatemala and the United States (through its embassy) should ensure that Mr. McAfee does not face persecution or torture if he is returned to Belize.

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The Seven Habits of Highly Annoying Clients

by Jason Dzubow

I’ve spent some time in this blog dissing immigration lawyers, so I thought it only fair to discuss some of things that immigration lawyers don’t like about their asylum-seeker clients.  Of course, none of these bad habits applies to any of my clients (so please don’t fire me).  With that important caveat, here are the seven habits of highly annoying clients:

7 – Negotiate the Price: Yes, I understand that many people come from countries where it is standard procedure to negotiate the price of something you buy.  But we are not now in that place.  In the U.S., negotiating the price is not the norm, and we lawyers really don’t like doing it.  Most of us charge a very fair price, and some of us charge too little (I sometimes hear complaints about this from my wife and kid, who keep bugging me to buy them things like food and clothing – the nerve).  While lawyers who specialize in asylum don’t expect to get rich, we don’t want to feel that we are being taken advantage of either.  It’s difficult to do your best work when your client is not fairly compensating you for your time.  On this point, lawyers also don’t like it when clients fail to pay or pay late.  To do an asylum case correctly requires a lot of time and hard work.  When a client pays too little or doesn’t pay at all, it becomes much more difficult to make the effort to help the client.    

Some former Immigration Attorneys reminisce about their clients.

6 – Change Phone Numbers Without Telling the Lawyer: It’s understandable that clients who are new and relatively unsettled in the U.S. would move and would change their phone numbers.  What’s frustrating is when they change their contact information but don’t tell their lawyer.  I always ask my clients for an “emergency contact;” not so much for emergencies (We need to file your form I-730 – Stat!), but to have someone else to contact if my client disappears.  Remember – if your lawyer can’t find you, she can’t help you with your case.

5 – Failure to Cooperate: I tend to give my clients a lot of homework.  I want them to get their work and school records, police reports, letters from friends and family, etc., etc.  Most clients do their best to get these documents, as they understand that it will greatly help their cases.  But some clients just can’t be bothered.  Not only does this make it more difficult to win the case, it makes it more difficult to represent the client with any enthusiasm–if you don’t care about your case, why should your attorney?

4 – Bringing Documents Late: I suppose this is a sub-category of “Failure to Cooperate,” but it deserves its own mention.  Immigration Courts and the Asylum Offices have deadlines for submitting documents.  If you give a document to your lawyer at the last minute, he may not have time to properly review that document–to ensure that it is consistent with the rest of your case, for example–before submitting it.  Submitting an inconsistent document could jeopardize your case.  Also, for a lawyer to organize and submit documents in a professional manner takes time.  If we receive documents late, it is more difficult for us to do our jobs.  Ultimately, of course, this is bad for the client.

3 – “No Shows” and “Dropping By:” You should be able to contact your lawyer when you need him.  But you do not have a right to stop by any time you want without an appointment.  Lawyers have busy schedules and multiple deadlines.  The more we can organize our days, the better.  When a client shows up without an appointment, it interrupts our schedules and potentially disrupts our day.  If you want to see your lawyer, please call in advance and make an appointment.  The flip side of this is when clients make an appointment and then don’t show up without calling.  It’s common courtesy to call if you can’t attend an appointment, and it makes sense to treat your attorney–the person who is working on a case that might profoundly affect your life–with respect.  

2 – Late to Court or Late to an Interview: Even worse than missing appointments with your lawyer is missing your appointment with the Immigration Judge or the Asylum Officer.  This will potentially cause you to lose your case and be deported.  It is also a problem for the lawyer, who often has to cover for you or appear at a second hearing (if you are lucky enough to be rescheduled and not simply denied).  

1 – Don’t Keep Asking, “Is My Case Done Yet:” Once an asylum case is filed, lawyers can only do so much to make it go faster – and by “so much,” I mean basically nothing.  Bugging your lawyer about whether there is a decision yet in your case is like asking him whether the Messiah is coming soon: We can pray for it, but that’s about all.  So please be patient.  If lawyers could issue green cards, we would work a lot less and make a lot more.  

And there you have it.  If you are a person seeking asylum and you have a lawyer, try to avoid these bad habits.  Remember – a happy lawyer will do better work, and you will have a better chance to win your case.  And, to all those clients who don’t have any bad habits, from all us lawyers – Thank you!  

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Afghan Woman Who Feared Deportation Found Dead

by Jason Dzubow

An Afghan woman who was under investigation for filing a false asylum claim was found dead last month in an apparent suicide.  Gulalay Bahawdory, 60, grew up in Afghanistan and lived in Europe before coming to the United States and applying for asylum in 2000.

In her asylum application, Ms. Bahawdory apparently used a fake name.  Her husband, Bashir Bahawdory, also a former refugee from Afghanistan, states that she left the United States before receiving a decision in her case.  But ICE says that her case was denied and she was ordered removed from the U.S. in April 2001.  Both the husband and ICE could be correct: Perhaps she left before a decision was reached, and then an IJ ordered her removed in absentia.

In 2004, Ms. Bahawdory returned to the United States based on a marriage petition filed by her husband.  She became a U.S. citizen in 2009.

According to the Taliban, these girls are committing a serious crime.

Ms. Bahawdory lived in Raleigh, North Carolina.  It sounds like she had a good life there with her husband and her adult step children, who thought of her as a best friend.

For some reason, ICE began investigating her case earlier this year.  After the investigation began, Ms. Bahawdory thought of little else, her husband said.  She feared that if she were deported to Afghanistan, she would be harmed or killed by the Taliban or other extremists.

According to an ICE spokesperson, “Mrs. Bahawdory’s prior removal from the United States was discovered when ICE ran the fingerprints she provided for the spousal petition.”  ICE did not say when or why they checked the fingerprints or why it only began investigating her citizenship this year.  Also, no word on why this discrepancy was not discovered earlier.  (After all, what’s the point of taking fingerprints if they don’t reveal issues like this at the time of the application?)

Last month, Ms. Bahawdory’s body was found in a lake in north Raleigh.  Police found her car nearby.  In the car, there were three notes.  One was to her husband, stating that she loved him and knew what she had done was wrong.  She wrote a second note to her attorney, thanking her for doing what she could to help.  The third letter was left for the Raleigh police.  “I love the United States,” Ms. Bahawdory wrote.  “God bless the United States.”

Whatever the cause of death, this is clearly a tragic case.  If, as it appears, Ms. Bahawdory committed suicide for fear of deportation to Afghanistan, her death is doubly tragic.  For one thing, having already attained U.S. citizenship, it is not easy for the U.S. government to revoke that citizenship.  Remember John Demjanjuk?  He was a naturalized U.S. citizen who was convicted of accessory to murder of 27,900 Jews during World War II.  Despite his horrific crimes, it took over 30 years to finally de-naturalize and deport him.  If it took 30 years for a criminal like Mr. Demjanjuk, how long would it have taken for Ms. Bahawdory?

Also, even if her citizenship were revoked, Ms. Bahawdory had several defenses to removal: She could have sought asylum (or lesser forms of humanitarian relief like Withholding of Removal or Torture Convention relief); She might have been eligible for a waiver for the immigration fraud; She might have been eligible for Cancellation of Removal.  In addition, even if she were denied all relief, she could have asked for deferral of removal based on humanitarian grounds.  She certainly would have presented a sympathetic case given her age, her home country, her family ties to the U.S., and (as far as I know) her otherwise clean record.

I can certainly understand why someone–especially a woman from a country like Afghanistan–would feel tremendous stress if she felt she would be deported to her homeland.  But Ms. Bahawdory was a long way from being deported.  If she really did commit suicide because she feared deportation, this is a tragedy that should never have happened.

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Thanksgiving: The Anti-Immigration Holiday

by Jason Dzubow

Last week, I posted about how Thanksgiving is the quintessential refugee holiday.  I didn’t want to say anything negative about Thanksgiving before the holiday, as that would be a bit of a humbug.  But now, enough time has passed that most of the leftover Turkey is gone, and now I want to write about the more challenging side of the holiday for immigration advocates.  Of course, I speak about the fact that the immigrants in the Thanksgiving scenario (the Europeans) essentially eradicated the original inhabitants of their new country (the Native Americans). 

Europeans were generally not known for being cordial to the Native Americans.

It has always surprised me that more anti-immigration folks don’t use Thanksgiving as an example of what happens when immigration runs amok.  Fifty years after the first Thanksgiving, most of the Wampanoag tribe (the Native Americans who dined with the Pilgrims in 1621) were either dead or sold into slavery.  From an estimated population of 6,600 in 1610, the Wampanoag were reduced to only about 400 individuals by 1677 (they have since recovered somewhat – in 2000, the estimated population was 2,336).  In short, while the first Thanksgiving was lovey-dovey, things didn’t end too well for the native peoples who received the new immigrants.  But this is something we rarely hear about from immigration restrictionists.

I suppose one reason that Thanksgiving is not used by immigration opponents is that it’s not easy to be anti-Thanksgiving.  Thanksgiving is probably the most popular non-religious holiday in the U.S., and to oppose Thanksgiving might seem un-American (in fact, to oppose Thanksgiving is un-American).  Since immigration opponents always seem to be uber patriots, I guess they do not want to be seen opposing the holiday.

Another reason that the holiday is not used against immigrants is that the analogy between European settlers/colonialists and modern-day immigrants really does not stand up.  The settlers of old were not trying to integrate into the indigenous culture; they were trying to conquer it.  Even if–as some restrictionists might argue–modern day immigrants do not integrate into mainstream society, they are clearly not in the same position to conquer our country as the settlers who conquered the New World.  We are much larger and more unified than the pre-Colombian indigenous peoples.  The number of immigrants coming to the U.S. these days is much smaller proportionately than the number of Europeans coming here in the colonial period.  Finally, most Native Americans died from diseases, and–Lou Dobbs notwithstanding–that is not a real threat to us today (at least not because of immigration).  So even if restrictionists wanted to use Thanksgiving as a cautionary tale about too much immigration, the analogy is weak.

Thanksgiving is frequently cited by pro-immigration types (and pro-asylum types like me).  I do think the holiday could be used to raise questions about immigration: How much immigration is good for our country, whether immigrants appropriately integrate into our society, how best to handle people who are here illegally.  But for restrictionists, maybe it is safer and more effective to raise those issues separately from the Thanksgiving holiday.  That’s fine with me, as I am a fan of Thanksgiving.  Now if you’ll excuse me, I know we have some leftover cranberry sauce around here somewhere…

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Thanksgiving: The Refugee Holiday

by Jason Dzubow

They say that if you have a hammer, every problem is a nail.  In the same way, if you have an asylum blog, every holiday involves asylum.  Last Christmas, I wrote about how Jesus, Mary and Joseph were asylum seekers.  Today, I thought I’d discuss Thanksgiving and refugees.  Maybe next time, I will explain why Arbor Day is an asylum holiday. 

The connection between refugees and Thanksgiving is probably pretty obvious. 

Starting in the late 16th century, a group of Separatists who objected to certain practices of the Church of England faced persecution from ecclesiastic and state authorities.  These people were later called Pilgrims.  As a result of their tenuous situation in England, they migrated to the Netherlands in the first decade of the 17th century.

The Pilgrims were not thrilled with the libertine atmosphere on the Continent, and so they returned to England and then sailed to North America in 1620.  If they were seeking refuge today, the Pilgrim’s return to England (re-availing themselves of the protection of the English government) might very well disqualify them for asylum.  Also, the fact that they were firmly resettled in the Netherlands, and then chose to up and move to America might also disqualify them for asylum.

In any case, after a difficult 65-day journey on the Mayflower, the Pilgrims arrived at Plymouth Rock in November 1620.  That winter was particularly hard, and about 50% of the new settlers died.

Things improved the following year with a good harvest (and with the help of local Indians), and the Pilgrims decided to celebrate–this would be the first Thanksgiving dinner.  Attending the dinner were 53 Pilgrims and 90 Native Americans from the Wampanoag tribe.  The celebration lasted for three days.

After the first Thanksgiving, various public leaders and church officials would declare thanksgiving holidays, but there was no set date for the festival.  Finally in 1789, George Washington proclaimed the first nation-wide thanksgiving celebration, but the holiday was still not regularized. 

In 1863, during the height of the Civil War, President Lincoln declared that Thanksgiving would be celebrated on the last Thursday in November (and here I must mention Sarah Joseph Hale, a tireless crusader who helped make Thanksgiving a national holiday (and who wrote the nursery rhyme Mary Had a Little Lamb)).

In 1941, Franklin Roosevelt signed a bill making Thanksgiving the fourth Thursday in November.  Thus, the holiday achieved its present form.

I’ve noticed that many new immigrants to the U.S. celebrate Thanksgiving.  Because it is a holiday for giving thanks and for success in the New World, it is perhaps the quintessential immigrant holiday.  And while some have criticized the holiday as glossing over the effect of colonialism on native peoples (including the Wampanoag), the first Thanksgiving was a moment when two very different cultures encountered each other and dined together in peace.  This, to me, is the true spirit of the holiday.  Happy Thanksgiving. 

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Gay Rights and the UN: One Step Back, One Step Forward

by Jason Dzubow

Sexual orientation is all about identity: Are you gay or straight or bi or trans or questioning or something else?  It seems that the United Nations has some identity issues of its own when it comes to LGBT rights.    

This past September, a “traditional values” resolution sponsored by Russia passed in the UN Human Rights Counsel, 25-15, with seven abstentions (the U.S. voted against).  The text of the resolution and a list of countries and their votes can be found here.  The resolution reaffirms that “everyone is entitled to the rights and freedoms… without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  The basic problem is that this list purposefully omits the reference to sexual orientation.  Thus (as usual), the term “traditional values” is code for “anti-gay.”  

The UN has a split personality when it comes to gay rights.

While this particular resolution will probably have little effect, I fear it is an unfortunate bellwether of member states’ positions on LGBT rights and protecting LGBT refugees.  As an aside, my first job as a practicing lawyer was at Catholic Community Services in New Jersey.  I remember being surprised that the Catholic Church–which generally opposes gay rights–was assisting gay asylum seekers.  When you think about it, this is not entirely inconsistent: While the Church opposes gay rights, it also opposes persecution of gay people.  My concern with the UN resolution is that it might be a harbinger of something more sinister–the contraction of protection for people facing persecution on account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention).  

But as you might have guessed from the title of this piece, the news from the UN is not all bad. 

Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity.  The guidelines state:

A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that.  As affirmed by the position adopted in a number of jurisdictions, sexual orientation and/or gender identity are fundamental aspects of human identity that are either innate or immutable, or that a person should not be required to give up or conceal.

The guidelines recognize persecution by governments, society, and family members, and also note that laws criminalizing homosexuality can rise to the level of persecution.

The guidelines also make recommendations concerning refugee status determinations for LGBT applicants.  Most of the recommendations seem like common sense, but I think they are helpful and–given the sentiments of many UN member states concerning LGBT people–worth repeating.  The recommendations include:

– An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant
– Interviewers and decision makers need to maintain an objective approach so that they do not reach conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI individuals
– The interviewer and the interpreter must avoid expressing, whether verbally or through body language, any judgement about the applicant’s sexual orientation, gender identity, sexual behavior or relationship pattern
– Specialized training on the particular aspects of LGBTI refugee claims for decision makers, interviewers, interpreters, advocates and legal representatives is crucial
– Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably
– Questioning about incidents of sexual violence needs to be conducted with the same sensitivity as in the case of any other sexual assault victims

The U.S. government is ahead of the game in this matter.  In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.

So it seems that the UN is of two minds about LGBT rights.  There is no doubt that many countries and societies violently oppress and murder people just because of their sexual orientation.  For their sake, I hope the progressive states continue to pressure the UN to move forward on LGBT issues.

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DOJ Inspector General Cares About Quantity, Not Quality, of Immigration Court Decisions

by Jason Dzubow

A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR’s work.  The 74-page report by DOJ Inspector General Michael Horowitz finds that data from Immigration Courts overstates case completion rates and that the Courts are too slow.  The report also makes recommendations, such as developing guidelines for when Immigration Judges should grant continuances.

Mr. V demonstrates why quality is more important than quantity.

I’ve reviewed the report, and I can safely say that it was a complete waste of time (both my time and the time of the poor sod who prepared it) and tax payer money (both mine and yours).  For that reason, I won’t waste additional time discussing what’s in the report (and if you want to see a substantive critique of the report, check out TRAC Immigration).  However, I want to discuss what’s not in the report.

Actually, before I get to that, I want to further trash this report.  It is frankly offensive that the Office of Inspector General (“OIG”) would issue a report about quantity without discussing quality.  If the OIG’s only concern is completing cases quickly, why not just deny all the cases now and be done with it?  Why bother with due process or equal protection?  Why bother to have a Department of Justice at all?  We can simply rename it the Department of “Just ICE” and then deport everyone.  Done and done.

And now, for what’s not in the report.

First, you would think that anyone preparing a report about IJs or BIA Board Members would have sought input from people who practice before the Immigration Courts and the BIA.  Bar associations regularly survey their members about the quality of judges, so why can’t the OIG (or EOIR) survey private attorneys, non-profit organizations, and DHS attorneys about their experience with IJs and the BIA?  Such information would be very helpful in assessing both the quality and the quantity of EOIR’s work product.

Second, the report does not tell us whether IJs or the BIA are doing a good job deciding cases.  This seems to me the single most important part of the Judges’ and Board Members’ jobs.  One way to measure the quality of IJ and BIA decisions is to look at the reversal rates for those decisions.  To me–and this is an issue I’ve harped on before–one relatively easy way to reduce reversal rates is to provide more guidance to decision-makers.  The BIA can do this by publishing more decisions.

Finally, the report fails to acknowledge the connection between quantity and quality.  Immigration cases are often complex.  Aliens (and DHS attorneys) seek continuances for valid reasons.  In order to reach a just result in many cases, continuances are needed.  In the asylum context, for example, continuances are sometimes necessary to allow the alien more time to find a lawyer (the success rate for unrepresented aliens is much lower than for represented aliens).  Thus, in Immigration Court, justice delayed is not always justice denied.  Sometimes, it is simply justice.

Perhaps I am being a bit too hard on the OIG.  It is certainly possible to help improve EOIR by examining the quantity of its decisions and the accuracy of its reporting.  But when the OIG has failed to address the quality of EOIR’s work and instead issues a comprehensive report basically telling EOIR to hurry up, it seems to me that the OIG’s priorities are not where they should be.

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Russian Artist Exposes Gay Asylum Seekers

by Jason Dzubow

In his native Russia, artist and filmmaker Alexander Kargaltsev was beaten by police at a gay pride event and detained after he left a gay club.  He came to the U.S. in 2010 and received asylum in 2011.  Last week, Mr. Kargaltsev held his first solo exhibit at a new gallery, called 287 Spring, in downtown Manhattan (which hopefully is not now under water).

The exhibit is entitled “Asylum” and consists of large photos, each depicting a nude gay or bisexual Russian man, with New York City shown in the background.  The men have stern expressions, and many were photographed provocatively in public areas, such as Central Park.  Under each photo is a caption: “Granted Asylum” or “Asylum Pending.”

The artist, strategically placed in front of one of his photos.

According to curator Ivan Savvine, “The models’ nakedness is a powerful visual statement imbued with symbolism.  They are not nude but naked, for they had courage to shed the many layers of fear and come out to the world uncovered, vulnerable, yet proud.”  He continues, “Their naked bodies thus also reveal their experience as refugees, for every person seeking refuge rebuilds his or her life completely ‘naked,’ starting from scratch with no family or friends and often without the language they can speak or understand.”

As a humble immigration lawyer who received most of his artistic training from Bill Alexander, I can’t help but find this type of artist speak a bit pretentious.  Also, I really can’t imagine many of my clients posing nude in public (and–no offense to my clients–I don’t want to imagine it).  But I suppose Mr. Kargaltsev’s exhibit raises some interesting points.

I agree with the idea that refugees start their lives over “naked.”  But to me, the more interesting analogy between asylum seekers and nakedness is the idea of exposing one’s past history to the scrutiny of an Asylum Officer or an Immigration Judge (not to mention to the asylum seeker’s own lawyer).  Depending on the person, and on the problems he faced in the home country, relating the story of past persecution can be humiliating and traumatic.

I have represented rape victims and torture victims.  When such people apply for asylum, they need to tell these stories.  Sometimes, people do not behave honorably under the threat of persecution.  They need to relate those stories as well.  I remember one client who fled his home when government soldiers broke in to look for him.  He left his wife and children behind.  My client had to explain this to the Immigration Judge, which was extremely difficult for him to do.  This is the type of “exposure” I think about when I think of refugees.  And in some ways, it is similar to exposing oneself naked before the camera, flaws and all.

Mr. Kargaltsev’s photos are of gay asylum seekers from Russia.  The photos I’ve seen depict good-looking young men whose nudity is nothing to be ashamed of.  In my experience, the exposure endured by asylum seekers is a lot less attractive than Mr. Kargaltsev’s images.  While Mr. Kargaltsev’s photos certainly add to the dialogue about issues faced by asylum seekers, in my opinion they gloss over the ugly truths about refugees and the pain that they have endured.  A more realistic and challenging exhibit in this vein would be less pleasant to look at, but more useful to understanding the real lives of refugees.

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How to Hire an Immigration Lawyer Who Won’t Rip You Off

by Jason Dzubow

I’ve written previously about the poor state of the immigration bar.  And while there are–unfortunately–too many bad lawyers, there are many excellent ones.  The question is, for an immigrant unfamiliar with the American legal system, how can you distinguish between the good and bad?  In other words, how do you find a lawyer who will assist you, and not just take your money?  Below are some hints that might be helpful:

If your lawyer wears a cape, that is probably a good sign.

– Bar complaints: Complaints against lawyers are often a matter of public record.  So you can contact the local bar association (a mandatory organization for all lawyers) to ask whether a potential attorney is a member of the bar and whether she has any disciplinary actions.  You can also look on the list of disciplined attorneys provided by the Executive Office for Immigration Review (“EOIR”).  Sometimes, good attorneys are disciplined, but if an attorney has gotten into trouble withe the Bar, it would be helpful to know why.

– Referral from non-profits: Most areas of the country have non-profit organizations that help immigrants (EOIR provides lists of such organizations here).  While these organizations are often unable to take cases (due to limited capacity), they usually have referral lists of attorneys.  I would generally trust the local non-profits for recommendations, as they know the lawyers and know their reputations. 

– Referrals from friends: Most people who hire me were referred by an existing or former client.  However, from the immigrant’s point of view, I do not think that this is the best way to find a lawyer.  They say that a million monkeys with a million typewriters, typing for a million years will eventually write a novel.  It is the same with bad immigration lawyers.  Once in a while, they actually win a case (usually through no fault of their own).  The lucky client then refers other people.  I suppose a recommendation from a friend is better than nothing, but it would not be my preferred way to find a lawyer.

– Instinct: If you think your attorney is not doing a good job, he probably isn’t.  Attorneys are busy people, and they may not be as responsive as you might like, but if your attorney never returns calls and is never available to meet with you, that is a problem.  Also, if your attorney seems unprepared in court, that is obviously a bad sign.  If you are having doubts about your attorney, nothing prevents you from consulting with a different lawyer for a second opinion.

Hiring a lawyer can be tricky, especially for someone who is unfamiliar with the American legal system.  Given that the quality of lawyers varies so much, it is worth while to spend some time investigating a lawyer before you hire him.  That is the best way to protect yourself and (hopefully) ensure that you receive the legal assistance that you need.

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New Canadian Law Attempts to Block Bogus Refugees

by Jason Dzubow

Canada is preparing to implement the Protecting Canada’s Immigration System Act later this year.  The law is ostensibly designed to protect Canada’s refugee law by weeding out false asylum claimants.  The provisions of the new law include the following:

– The immigration minister would have the power to designate which countries are safe without a committee including human rights experts.

– Rejected refugee claimants from “safe” countries would no longer be able to appeal the decision to the Immigration and Refugee Board (the administrative body that reviews asylum claims).

– Claimants from countries on the safe country list would have limited appeals rights and limited ability to apply for compassionate or humanitarian relief.

The law seems primarily targeted at the Roma (a/k/a Gypsies) who have been coming to Canada from Hungary in large numbers and requesting asylum.  According to the Canadian Immigration Minister, “almost 95 percent of Hungarian asylum claims [are] abandoned, withdrawn or rejected.”  The Minister states that “Countries whose nationals have an acceptance rate of 25% or less, or where 60% or more of claimants from a country have abandoned or withdrawn their claims … would be subject to designation” as a safe country, thus making it more difficult for them to successfully claim asylum.

Under the new Canadian law, Mexico is “safe.”

My first question about this new law is whether it is necessary.  Under the current system, people who can return safely will presumably have their cases denied anyway.  The new law is designed to streamline the system to allow people from certain countries to be deported more quickly.  Also, if people from “safe” countries know that their claims will likely be denied, they may decide not to seek asylum in Canada in the first place.  Proponents of the law claim that all this will save government resources.  But I wonder how many people will actually be dissuaded from coming and–for those who do seek asylum–how much money the government will actually save under the new, streamlined system.  Currently, 95% of asylum claimants from Hungary are unsuccessful, yet Hungarians keep coming to Canada.  If the current (very high) denial rate does not dissuade people from coming, how will the new law?  Further, those who seek asylum from “safe” countries are still entitled to certain procedures and benefits.  It is unclear how much the Canadian government will save by marginally reducing the protections available to such asylum seekers.

Assuming the law is needed, how effective will it be?  The idea of determining in advance whether a country is safe seems antithetical to international refugee law.  Someone once said that no country is safe for everyone all the time.  If 95% of Roma claims are denied, what type of harm do the remaining 5% face?  Also, just because a country has a low overall denial rate for asylum claims does not mean that it is safe.  To cite an example from our side of the border, the denial rate for Mexicans is quite high (about 98%), but certain people from Mexico–journalists and human rights activists–face real danger there.  Another example–while the overall asylum grant rate for Jamaicans is low, the grant for Jamaicans claiming asylum based on sexual orientation is relatively high.  My point is that designating a country “safe” just because the overall grant rate is low will likely result in legitimate asylum seekers being rejected and returned to face persecution. 

Despite these (and other) doubts, the Protecting Canada’s Immigration System Act will go into effect shortly.  We will then start to get a clearer idea of whether the law will save resources and how it will affect asylum seekers.

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Failed Asylum Seeker Stuck in Samoa

by Jason Dzubow

Mikhail Sebastian is an Armenian from Azerbaijan who came to the United States on a Soviet passport in 1995.  After the break-up of the U.S.S.R., neither Armenia nor Azerbaijan would take him, and Mr. Sebastian ended up stateless. 

While in Samoa, beware the Wild Samoans (shown here with the late, great Cap’t Lou)!

He filed for asylum in the U.S., but his claim was ultimately denied (in 2002) and he was ordered removed.  The U.S. immigration authorities took Mr. Sebastian into custody, but after six months, he was released because there was no country that would accept him.  As with other people who cannot be deported, DHS issued Mr. Sebastian a work permit.  He was allowed to remain in the United States, but he did not have permission to travel abroad and then return.

According to a recent article in Salon, Mr. Sebastian has attempted to satisfy his urge to travel by visiting the most exotic American destinations he can find, including Guam, Puerto Rico, and Hawaii.  To facilitate his travels, he has a  “World Passport” from the World Service Authority, which purports to be a global-governmental organization.  A World Passport is a document that is supposed to confer world citizenship and allow travel.  I have some limited experience with the World Passport, and while I think it’s a nice idea, I would not feel confident to use it as a travel document.  Worse, I think their website is a bit misleading.  They claim that many countries accept the World Passport.  While many countries may have accepted the passport once or twice (possibly by mistake), most countries do not generally accept the passport for immigration purposes.

In any case, as part of his overseas travel in U.S. territory, Mr. Sebastian took a vacation to American Samoa, an unincorporated territory (whatever that means) of the United States.  His big mistake seems to have been flying over to plain old Samoa, which is an independent country.  Even if he had not traveled to Samoa, the trip to American Samoa required passing through customs, and when immigration authorities checked him before allowing him to return to the mainland (and saw the World Passport), they found that he had an old removal order.  As a result, he was not permitted to board the return flight, and he has been stranded in American Samoa ever since.

The Department of Homeland Security issued a statement about Mr. Sebastian:

In 2002, an immigration judge with the Executive Office for Immigration Review (EOIR) ordered Sebastian to depart the United States. At that time, he was not in ICE custody as the agency had deferred action on his removal. In the meantime, he had been granted employment authorization. In December 2011 when Mr. Sebastian traveled to American Samoa and Samoa, he was prohibited from returning to the United States due to the immigration judge’s order.

So for the last 10 months, Mr. Sebastian has been stuck waiting for DHS to allow him to return to the mainland, and there is no end to his ordeal in sight.  Mr. Sebastian has been writing about his predicament, and you can read more about him in his own words here.  It seems he spends most of his time at the local McDonald’s, which has air conditioning and internet access.

His case is particularly strange in that he is actually in U.S.-controlled territory, but he is not allowed to return to the mainland.  If nothing else, Mr. Sebastian’s story serves as a cautionary tale.  If you have some type of deferred action, withholding of removal or Torture Convention relief, you are better off not pushing the limits by traveling to American “territories.”  It seems that Mr. Sebastian’s case is receiving some high-level attention, so likely it will be resolved at some point.  But I am quite certain that after 10 months in Samoa, he wishes he had never taken his vacation in the first place.

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The Asylum Affidavit, Part 3: TMI

by Jason Dzubow

This is the final (and much delayed)  installment in a series about preparing a client’s asylum affidavit.  I previously wrote about the importance of including enough detail to support a claim.  Today I want to discuss how to provide details about sensitive topics, like rape or the murder of a loved one.

Immigration Judges love reading well crafted affidavits.

For obvious reasons, most asylum applications involving discussing unpleasant events.  However, some events are more unpleasant than others.  For example, I worked on a case where my client witnessed the murder of her mother and siblings during a genocide in her country.  At the time of these murders, my client was just 11 years old.  In another case, a client was arrested while returning from a political rally.  While she was in custody, two policemen raped her.  In a third case, my client quit his political party and, in a revenge attack, he was shot six times and left for dead.

This is pretty horrific stuff, so how do you present these event in a credible manner without forcing the clients to re-live their trauma?

First, I think it is helpful if the client understands why he needs to explain the painful aspects of his case.  I am no expert, but I believe that when a client is educated about the requirements for asylum, he feels more in control of his case and this might make it easier for him to talk about past trauma. 

Second, it is important to establish a rapport with the client so she feels comfortable and safe discussing difficult issues.  While this may seem like a no-brainer, it is often difficult for busy attorneys to spend the extra time our clients need to make sure they are comfortable.

Third, it is often not necessary to provide a lot of detail about a traumatic event in order to establish past persecution.  For example, in my case–where the political activist was raped by the police while returning from a demonstration–we provided details about her political involvement, the demonstration, and her detention.  When it came to the actual rape, we stated that the police raped her, but we provided no further details about the incident.  If she has established her credibility and the fact finder believes that she has been raped, that is enough to prove past persecution.  USCIS has some good training materials for Asylum Officers, which discuss this point:

The asylum officer can elicit sufficient detail to establish credibility and gain an understanding of the basis of the claim without probing too deeply into all the details of a painful experience.

This is a key point–it is not necessary to provide all the details about an event like a rape.  The fact that the person was raped is, in-and-of-itself, sufficient to show past persecution.

Finally, and to their credit, Asylum Officers, DHS Trial Attorneys, and Immigration Judges tend to be very sensitive to an alien’s trauma.  I tell my clients about this, as I believe it helps reduce the level of intimidation and makes it easier for them to discuss their history.

While it is probably not possible to prepare a case without discussing traumatic events to some extent, it is possible–and important–to minimize the secondary trauma our clients suffer while preparing their asylum applications.

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Former U.S. Marine Seeks Asylum in Russia

by Jason Dzubow

A former Marine who claims to have exposed clandestine U.S. support for the Republic of Georgia in its 2008 war with Russia has requested political asylum in Russia.  U.S. citizen Patrick Downey first sought asylum in Ireland, where his case was denied–as he puts it–by Ireland’s first ever Jewish Minister for Justice, Equality and Defense.  He then “fled” to Russia (after visiting the U.S. for his brother’s wedding), where his asylum case is currently pending.

Patrick Downey (right) is seeking asylum in Russia.

Pravda reports that while living in Georgia in 2007 and teaching English to Georgian billionaire Bidzina Ivanishvili, Mr. Downey “obtained documents” indicating that a U.S.-controlled bank transferred $12 million to Mr. Ivanishvili.  Mr. Ivanishvili, in turn, used the money to fund “anti-Russian activities” prior to and during the Russian-Georgian war.  Mr. Downey tried to publicize this “sensational material” in the U.S., but no one was interested.  However, his activities supposedly brought him to the attention of the U.S. government, which gave him the code name “Trouble Man” and tried to “neutralize” him.  Mr. Downey told Pravda, “I began to feel that it was simply dangerous for me to be in the U.S.”

Hence, he fled to Ireland and now Russia.

While I must admit that I am skeptical of Mr. Downey’s claims (and I am not thrilled by his antisemitism), the fact that he is currently receiving publicity from a Russian newspaper is significant.  On October 1st, Mr. Ivanishvili’s political party won parliamentary elections in Georgia, and he is likely to become the country’s new Prime Minister.  As such, the timing of the article about Mr. Downey–and his claims of a secret anti-Russian alliance between the U.S. and Georgia–has broader implications. 

Is Russia trying to intimidate Georgia?  Is it trying to send a signal to the United States to keep away?  Is Pravda simply writing an interesting story about an American seeking asylum in Russia?  I have no idea.  But it seems to me, if the Russian government is trying to send some type of message by publicizing Mr. Downey’s case, the message is not a friendly one.  

It will be interesting to see what the Russian government does with Mr. Downey.  Russia grants less than 5% of asylum cases, so if his case is approved, it might indicate more trouble ahead for Russian-Georgian and Russian-U.S. relations.  As for Mr. Downey, if his case is granted, his hopes are the same as those of other asylum seekers around the world: “I will live!  I will get married.  I do not want to fight, do not want to constantly be afraid.  I want a family and a home.  I hope that this is what I will get.”

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