Paralympic Athletes Seek Asylum

by Jason Dzubow

The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home. 

Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom.  Ms. Kimbata seems to be the more well-known of the two.  She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old.  “I thought my life was over,” she said.  “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not?  Even if I accept this new life I do not have legs.'”  After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross. 

Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

Ms. Kimbata is now a wheelchair racer.  She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair.  She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.

In the United Kingdom, she decided to seek asylum.  Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila.  While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country.  For these reasons, she likely has a good chance for success in her asylum claim.

It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK.  As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.

Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land.  It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support.  She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.

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The Party Platforms and Refugees

by Jason Dzubow

The platforms of the various political parties are basically statements about what those parties believe and what they intend to do if elected.  Since it is now election season (the joy), I thought it might be interesting to see what the party platforms have to say about refugees, so here we go:

Republicans

The Republican Party Platform is the only platform that directly references our country’s commitment to refugees.  The Platform states:

We affirm our country’s historic tradition of welcoming refugees from troubled lands.  In some cases, they are people who stood with us during dangerous times, and they have first call on our hospitality.

“My wife owns a couple of refugees.”

This is a positive statement, and it is encouraging.  As an asylum attorney, I particularly like the second sentence, which acknowledges that some refugees are people who stood with the United States and now face persecution in their homelands.  I represent many people from Iraq, Afghanistan, and elsewhere who assisted the U.S., often at great risk to themselves.  My clients include law enforcement officers, journalists, interpreters, human rights workers, and others.  Given that they risked their lives to help us in our mission, we should offer them refuge when needed.

Unfortunately, of late, we have heard many anti-Muslim statements from prominent members of the Republican party.  It seems that such bigotry is inapposite to the Party Platform, which recognizes people like my Muslim clients who “stood with us during dangerous times.”  I hope that the spirit of the Platform–rather than the hatefulness of some Republican officials–will prevail in the Grand Old Party.

Democrats

The Democratic Party Platform does not specifically mention refugees.  It does discuss immigration, and endorses comprehensive immigration reform, the DREAM Act, and the new Deferred Action program.  However, it is disappointing that the Platform is silent on refugee issues.

“If you’re a refugee and you live in a tent, you didn’t build that.”

Since President Obama has been in office for several years, we can safely assume that his policy on refugees and asylees will continue forward if he is re-elected.  The Obama Administration has capped the number of refugees admitted into the U.S. at 80,000 per year.  However, we have never reached the cap.  In 2009, we admitted 74,602 refugees; in 2010, we admitted 73,293; and in 2011, we admitted 56,384 refugees.  As for asylees, we admitted 22,219 in 2009; in 2010, we admitted 21,056; and in 2011, we admitted 24,988 (all of this is courtesy of the DHS Yearbook of Immigration Statistics).

President Obama’s policies have been comparable with his predecessors, and I think we can expect similar policies if he has a second term.

Libertarian Party

Since I have an affinity for third parties, I thought I would mention two.  The first is the Libertarian Party.  The party’s Platform is silent on refugee issues.  The only mention of human rights is in the context of property law: “Property rights are entitled to the same protection as all other human rights.”  The Platforms mentions immigration and states:

Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws.

Given the general Libertarian philosophy (“We would end the current U.S. government policy of foreign intervention, including military and economic aid”), I’d imagine that they would leave refugee assistance up to private individuals and agencies, such as churches or humanitarian NGOs.  Like much of Libertarianism, this is nice in theory, but has problems in practice.  For various reasons, refugees impact national security and relationships between nations.  For this reason, governments cannot always leave refugee policy in the hands of private organizations.

Green Party

Finally, the Green Party Platform mentions refugees several times, but always in the context of the Israeli-Palestinian conflict: “We reaffirm the right and feasibility of Palestinian refugees to return to their homes in Israel.”

While I support the rights of Palestinian refugees, this is pretty ridiculous.  Why single out Palestinians among all the world’s refugees while at the same time completely ignoring refugees from other countries, including many who are living (and dying) under worse conditions than the Palestinians?  It seems to me that this is not a serious party platform, which is unfortunate, as we could certainly use a strong, articulate liberal voice on this and other issues.

OK, so there you have it.  To judge solely by party platform, I’d say that the Republicans win on the refugee issue, though I suppose the win is mostly by default.

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BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

by Jason Dzubow

Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here).  The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges).  Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

A BIA Board Member addresses the Ninth Circuit.

First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue.  The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit.  Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).

In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances.  However, these are two independent tracks.  According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.

The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).”  The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS).  The BIA concludes that

[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status.  The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).

What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge.  The IJ does not have to accept the determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.

The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.”  Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.

Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA).  Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important.  I expect we will see much litigation about these issues over the next few years.

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Asylum Seekers as Law Breakers

by Jason Dzubow

I recently litigated an Eritrean asylum case where my client traveled through various countries to reach the United States.  He passed through each country illegally—sometimes with a false South African passport; other times, he just crossed the borders without inspection.  From the beginning to the end of his journey, smugglers assisted him (for a price—the average cost for such a trip is around $15,000.00).  My client did not ask for asylum in any of the countries he passed through, even though he remained in some countries for several months and even though such countries (theoretically at least) offer asylum to refugees.

Asylum seekers or asylum sneakers?

From my client’s perspective, he was fleeing an extremely repressive regime, and he dreamed of starting a new life in the U.S., where he would be safe and enjoy freedom.  (It’s said that in art, imitation is the highest form of flattery; I’d say that in international affairs, immigration is the highest form of flattery).

The Immigration Judge was not pleased with my client’s illegal journey or with his failure to seek asylum in any country along the route, and he had some strong words for the client at the end of the hearing.  While I don’t agree with all that the Judge had to say, I think his words are important, and I wanted to share them here:

First, the Judge told my client that asylum exists to help people who are fleeing persecution.  It is not an alternative for those without a better immigration option.  When a person flees her country, she should seek asylum in the first country of safety; she should not shop around for the country where she would prefer to live.  To use asylum as an alternative to immigration is an abuse of the system, and takes advantage of our country’s generosity.  If enough people abuse the system, we might change the law to make asylum more restrictive.

Second, smuggling is a criminal activity and when an asylum seeker pays a smuggler, he is complicit in that activity; he is not an innocent bystander.  Each smuggled person pays thousands of dollars to smugglers.  Collectively, this is big—and illegal—business.  It violates the sovereignty of nations and possibly supports a network that might be used for more nefarious purposes, like facilitating the transport of terrorists, criminals, and drugs.

Third, each asylum seeker who enters the U.S. in the manner of my client makes it more difficult for legitimate asylum seekers who follow him.  As more people enter the U.S. this way, a reaction becomes more likely.  Maybe the law will be changed to deny asylum claims where the applicant passed through other countries without seeking asylum.  Maybe other restrictions will be put into place.  In any case, if there are new restrictions, legitimate refugees will suffer.

Finally, the Judge warned my client against encouraging his fellow countrymen by his example.  He noted that such encouragement might violate criminal and immigration laws, and this could cause problems for my client.  It could also be dangerous for any future asylum seekers, as people have been harmed and killed on the journey to the U.S.

I think the Judge said all this to try, in a small way, to stem the flow of asylum seekers across the Southern border.  I am not sure whether his words will have any effect, but I believe they are worth hearing.  And while his points are legitimate and important, there are convincing (to me at least) counterpoints to each.  But I will leave those for another time. 

Under the current asylum law, illegal travel through various countries is a discretionary factor, but without more, it is generally not a basis for denying an asylum claim.  Despite his concerns, the IJ granted my client’s application (and DHS did not appeal).  How many more people will follow him and receive asylum in the United States remains to be seen.

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Bill Linking Palestinian and Jewish Refugees Sets a Dangerous Precedent

by Jason Dzubow

A new bill in the House of Representatives seeks to link resolution of the Palestinian refugee situation with the plight of Jews (and Christians) expelled from Arab lands.  Both Palestinians and Jews suffered as a result of expulsions from their home countries during and after the creation of the State of Israel.  Palestinians left and were forced to leave Israel (and the West Bank and Gaza).  And most Jews living in Muslim countries left or were forced to leave their homes as well.  The bill is designed to ensure that these Jews are not forgotten by linking resolution of their issues with resolution of the on-going Palestinian refugee crisis.  The bill’s supporters state:

Any comprehensive Middle East peace agreement can only be credible and enduring if it resolves all issues related to the rights of all refugees in the Arab world and Iran, including Jews, Christians and others.

In the chess game of life, Palestinians are everyone’s favorite pawn.

The legislation has bipartisan support in the House and calls on the Obama administration to pair any reference to Palestinian refugees with a similar reference to Jewish and other refugees.

While I agree that it is important to remember and address the grievances of Jews and others expelled from Arab lands (I recently wrote about this issue), linking the resolution of that problem with the issue of Palestinian refugees sets a dangerous precedent and undermines international law related to the protection of refugees.

The United Nations Convention Relating to the Status of Refugees (1951) defines a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The majority of Palestinians who fled Israel and now live in various Arab countries are “refugees” according to this definition.  They do “not [have] a nationality and [are] outside the country of [their] former habitual residence as a result of such events.”  Of course one reason they remain refugees is because the different Arab governments have refused to grant them citizenship.  The other reason is that Israel does not permit them to return home.

As opposed to the Palestinians, the large majority of Jews who fled Arab countries are not “refugees” as that term is defined in international law.  Most (if not all) such Jews have been granted citizenship in their new country of residence (be it Israel, the U.S., France or some other country).  Also, for the most part, Jews expelled from Arab lands do not wish to return to their home countries.  This does not mean that these Jews do not have legitimate claims for compensation for lost land, property, and the lives of loved ones.  They most certainly do.  But this is not the same as being a refugee.  Thus, the new bill is factually incorrect when it refers to such Jews as refugees.

Far worse than the semantics of “who is a refugee” is the problem of politicizing a humanitarian benefit.  Anyone who meets the definition of “refugee” is a refugee.  Period.  Such people are entitled to protection in the host country because they are refugees.  There are no other requirements (though obviously there are exceptions for persecutors, criminals, and terrorists). 

By linking the fate of one refugee population to another, the bill adds an external contingency to international refugee law.  We no longer protect refugees because they are refugees.  Now, we only protect them if some other conditions are met.  Does this mean that we should deport legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa’s 1916 invasion?  Can Great Britain deny asylum to all Egyptians unless Egypt returns the Suez Canal?  Is Japan permitted to reject all Chinese asylum seekers until China returns “Manchukuo?”

This is not how international refugee law works.  We do not blame the victims and hold them hostage until some outside contingency–in this case a contingency not of their own making–is satisfied.  In other words, it is not the fault of Palestinian refugees that Jews were expelled from Arab lands.  So why should the Palestinians’ fate be tied to compensation for the Jewish “refugees” (something over which they have no control)?

I think the real motivation for this bill is not to help Jews from Arab lands.  Rather, it is to justify Israel’s refusal to allow Palestinians to return to their homeland by demonstrating that there was suffering and loss “on both sides.”  This seems to me a cynical and sinister use of international refugee law.  I hope the bill will be soundly rejected. 

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Julian Assange: Legitimate Asylee or Propaganda Pawn?

by Jason Dzubow

Ecuador has granted asylum to Wikileaks founder Julian Assange.  Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial.  “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital.  “Ecuador is convinced that his procedural rights have been violated.”  Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.  Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

Could this be Julian Assange escaping from the Embassy?

I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.”  While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.  For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.  Such people now face increased danger in their home country.  Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.  Exposure damaged our international relationships and did nothing to further the cause of freedom.  Our diplomats and our military officials need to communicate frankly with each other.  This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).  I suppose overall, I believe that Mr. Assange did more harm than good.  But I also suppose that my opinion in this regard is not all that important.  What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.

It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.  First of all, Mr. Assange is a citizen of Australia.  He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.  If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.  Normally, a person receives asylum from his home country; not from a third country.  As a citizen of Australia, he should receive protection from his own government.  There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).  Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.  Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.  

Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden.  He claims that the charges have been contrived to punish him for exposing state secrets.  That may well be true, but there is no indication that Sweden would deny him a fair and public trial.  Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.  All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.

Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.  So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).  That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?   

Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States.  As far as I know, exposing government secrets is illegal in every country.  People who violate this law may be punished according to the law.  Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.”  In Mr. Assange’s case, there is no reason to believe that he would face the death penalty.  Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.  Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.  It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.  As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.

For all these reasons, Mr. Assange would not qualify for asylum under international law.  Ecuador has its own reasons for granting Mr. Assange asylum.  Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.  Maybe they just want to annoy the the U.S. and the West.  Maybe they see it as a way to score propaganda points.  Who knows?  What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.

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Letters from Witnesses

by Jason Dzubow

One key piece of evidence in most asylum cases is the witness letter.  Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available.  Often times, the only evidence that is reasonably available is a letter from a witness.  So what makes a good witness letter?

First, the witness needs to identify herself and state how she knows the applicant.  While this may seem like a no-brainer, you’d be surprised how many witnesses don’t include this information.  I prefer that the witness states her name, address, phone number, and email address.  Then she should describe how she knows the applicant (for example, “Mr. X and I met in the church choir in 2003.”).

There’s no excuse for failing to get witness letters.

Next, the witness should list what they know about the applicant’s claim–here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts.  Extraneous material is a distraction.  I can’t tell you how many witness letters I’ve seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant.  Who cares?  Instead, the witness should mention what he or she knows about the case.  One way to start this section of the letter is like this: “Mr. X asked me to write what I know about his problems in Cameroon.  Here is what I know…”

Also, I prefer that the witness write about what she has seen with her own eyes.  Did the witness see the applicant engage in political activity?  Did she see the applicant get arrested?  Did she see the applicant’s injuries after he was released from detention?  The witness should write what she saw (and the date that she saw it).  Secondhand information is admissible, but most fact finders will give such information little weight.

I also hate when witnesses give me general statements, like “Please don’t return to Ethiopia, it is dangerous here.”  Not helpful.  We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing.  A better letter might say, “Please don’t return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you.”

My clients often ask about how long the letter should be.  My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information.  I prefer that the witness gets to the point and doesn’t waste time with irrelevant information, so hopefully that leads to shorter letters.  Also, the longer the letter, the greater the possibility for inconsistencies.

Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.).  Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript).  Of course, this assumes that the applicant has also included evidence that he attended that school.  

One final note about witness letters.  Unless they are consistent with the applicant’s affidavit, they will harm the case.  I would rather submit no letter than an inconsistent letter.  For this reason, it is important to compare the witness letters with the applicant’s affidavit (and his other evidence) to ensure consistency.  While people often have different recollections of events–even dramatic events–the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.

Witness letters are often crucial to a successful asylum application.  A well-crafted letter will help your client’s case and could make the difference between a grant and a denial.

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Sudanese Lost Boy Will Run for Gold with Team USA

by Jason Dzubow

A dozen years ago it seemed impossible that Lopez Lomong would be running as a member of the United States Olympic team.  In 2000, he was 15 years old and living in Kenya.  Most of his life had been spent in refugee camps.

Lopez Lomong: Living the Dream.

Mr. Lomong grew up in rural Sudan, without running water or electricity.  When he was still a boy, rebel soldiers kidnapped him and other children, intending to turn them into soldiers.  The rebels drove the children to their camp in a truck–it was the first time Mr. Lomong had ridden in a vehicle.  He escaped from the camp with other boys and ultimately arrived in Kenya, where border guards sent them to a refugee camp.

Life in the camp was difficult–there was not enough food and nothing to do.  Mr. Lomong began running as a form of escape: “When I ran, I was in control of my life,” he writes. “I ran for me.”  He got into the habit of running the perimeter of the camp–18 miles–in bare feet.

In 2000, he walked five miles with some friends to watch the Olympics on a small black and white television.  Inspired by American runner Michael Johnson, his dream was born: To run in the Olympics for the United States of America.

In 2001, the U.S. brought 3,800 “lost boys” to the United States for resettlement.  Among them was Lopez Lomong.  In the U.S., he continued running–it was something familiar to him in his new country.

In 2007, Mr. Lomong became a United States citizen.  “Now I’m not just one of the ‘Lost Boys,'” he told reporters. “I’m an American.”  He went to Beijing with the U.S. Olympic team in 2008, but he did not qualify for the final round due to an injury.

Since he has been in the U.S., Mr. Lomong wrote a book about his experience, Running for My Life, and established a foundation to help people in his native South Sudan.

Now, he is again competing with Team USA.  (As a side note, more than 40 athletes on our national team are foreign-born.)

This time around, Mr. Lomong has a chance for gold.  He has qualified for the finals of the men’s 5,000 meter race, which is scheduled for tomorrow.  Hopefully, we’ll see him on the podium.  It would be another remarkable achievement in an extraordinary life.

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Citing the Beatles, Ninth Circuit Determines that Only the Attorney General Can Terminate Asylum

by Jason Dzubow

A few days before Yesterday, the Ninth Circuit ruled that only the Attorney General–not DHS–can terminate asylum.  In Nijjar v. Holder, No. 07-74054 (9th Cir. 2012), the Department of Homeland Security, through the Asylum Office, terminated Gurjeet Singh Nijjar’s asylum approval In Spite of All the Danger in his country. 

Mr. Nijjar received asylum in 1995, based on political persecution he claimed to have suffered in India.  Before he left India, he was advised to Run for Your Life.

The Beatles: Great music AND binding precedent.

In 2003, DHS notified Mr. Nijjar that it intended to terminate his asylum status for fraud and order him to Get Back to India.  DHS wrote that it had information indicating that Mr. Nijjar was in the United States at the time he claimed to have been Across the Universe being persecuted in India and that Every Little Thing about his case was false.  The DHS letter instructed Mr. Nijjar to Come Together for a termination interview with an asylum officer to see whether We Can Work It Out or whether they would tell him, Hello, Goodbye.  However, Mr. Nijjar was a Nowhere Man and failed to appear.  After he failed to Help himself, DHS terminated his asylum status and referred his case to Immigration Court.

After a Long and Winding Road, the IJ (a Woman) concluded that she did not have jurisdiction to review the termination and gave Mr. Nijjar a Ticket to Ride to India.  After She Said She Said he is deported, the BIA Let It Be.  Mr. Nijjar then filed a petition for review with the Ninth Circuit Like Dreamers Do.  There, he asked the Court to Please Please Me.

On review, three Ninth Circuit judges noted All Together Now that the regulations, 8 C.F.R. § 208, provide as follows–

[An] asylum officer [of the DHS] may terminate a grant of asylum . . . if following an interview, the asylum officer determines that… There is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.

The problem, however, is that the statute (the INA) does not give DHS the authority to issue such regulations–

Congress [a/k/a The Fools on the Hill] did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.

Congress expressly provided that “the Secretary of Homeland Security or the Attorney General may grant asylum . . . .” But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The “termination of asylum” subsection of the statute says that asylum “may be terminated if the Attorney General determines” that any of several conditions are met.

The Government attorney countered that Because the Asylum Office had the power to grant asylum, it must also have the power to take asylum away Any Time at All.  The Court called this argument “euphonious but not logical,” and held that popular songs are full of euphonious lyrics that make false statements, such as the Beatles’ lyrics:

There’s nothing you can know that isn’t known,
Nothing you can see that isn’t shown,
Nowhere you can be that isn’t where you’re meant
to be…

In other words, don’t Ask Me Why, but “there is no general principle that what one can do, one can undo.”  Because the statute specifically gives DHS and DOJ the power to grant asylum, but only DOJ the power to terminate asylum, the Court concluded that only the Attorney General can terminate asylum.  The regulations allowing DHS (through the Asylum Office) to terminate asylum are invalid.

I Want to Tell You, the Ninth Circuit’s logic seems sound.  I Imagine that unless Congress changes Something in the statute, future asylum terminations by the Asylum Office will face strong challenges from asylees Here, There and Everywhere.  Rather than waste resources litigating this issue Helter Skelter every time the government seeks to terminate, I’m Down with the regulations being amended to reflect the statute–only DOJ has the power to terminate an asylum grant.  In the future, when DHS wants to declare The End of an alien’s asylum status, it will need to issue a Notice to Appear, and then allow the IJ to make the initial decision concerning termination.  Dig It?

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The Asylum Affidavit, Part 2: Details, Details…

by Jason Dzubow

This is the second part in a short series about helping asylum seekers prepare good affidavits.  The first posting dealt with the overuse of the passive voice.  Today, I want to discuss the appropriate level of detail that should be included in the affidavit.

One problem that I’ve encountered in many affidavits is that they contain too little detail for important topics and too much detail for irrelevant topics.  One reason for this is that victims of persecution often avoid focusing on the painful or depressing aspects of their cases–they do not want to re-live difficult memories.  Another reason is that the asylum seekers do not always understand what information is legally relevant.

An IJ enjoys another exciting asylum affidavit.

When preparing an affidavit, it is important to keep in mind the requirements for asylum–the applicant must demonstrate a well-founded fear of persecution based on a protected ground.  Often, the applicant has suffered past persecution, and this creates a presumption of future persecution.  In some cases, there are other legal issues: Did the applicant file within one year of her arrival in the U.S.?  Is there a material support issue?  Are there changed country conditions in the home country so that it is now safe to return there?  Once you know the legal issues in the case, you can focus on developing the factual record related to those issues.

The easiest example of this is past persecution.  In most cases, if an asylum applicant demonstrates past persecution based on race, religion, nationality, particular social group or political opinion, he will receive asylum.  To prove past persecution, the affidavit needs to provide sufficient detail about the claimed persecution so that the fact finder can evaluate whether the applicant was, in fact, persecuted.  If the affidavit merely says, “I was tortured” or “I was beaten,” that is insufficient. 

Various courts have defined the term “persecution,” and that definition includes “the infliction of suffering or harm.”  To demonstrate suffering or harm, the applicant must explain in detail what happened.  For example, instead of “I was beaten,” give some detail:

As soon as I left the opposition political party meeting, three policemen stopped me on the street.  They accused me of supporting the opposition party.  One of the men punched me in the stomach.  The blow was very painful and I could not breath for a few moments.  I fell onto the ground and I was in too much pain to stand up.  When I saw the armed policemen above me, I was afraid they might kill me.  While I was on the ground, another officer kicked me with his military boot in my back.  It felt like he broke my ribs and I cried out.  Afterwards, there was a large bruise on my back.

The affidavit here emphasizes why the police attacked (political opinion) and describes the details of the beating.  It also mentions that the physical assault was painful (since we are trying to demonstrate suffering).  It is questionable whether one punch and one kick would qualify as “past persecution,” but when you provide more details about the event, and explain how painful and frightening it was, you make it more likely that the fact finder will conclude that there was past persecution.

I like to think about the affidavit in terms of time.  For less important events, time moves quickly and one paragraph of the affidavit may cover days, months or years.  But for legally relevant events, such as a police beating, time slows down.  So one paragraph about a beating might cover only a few seconds.  Remember–the fact finder is not interested in reading a novel.  She just wants to know whether the applicant meets the requirements for asylum.  When the affidavit focuses on the legally relevant facts, it makes the job of the IJ or the Asylum Officer easier.  And a happy fact finder is more likely to grant relief.

One final point about adding more details to the affidavit.  I find that such details are quite helpful in the event of an appeal to the BIA.  In many cases, there is limited time for testimony, and applicants sometimes gloss over details of the story.  When that happens, the transcript on appeal may be somewhat lacking.  If so, you can use details from the affidavit to supplement the transcript and make a more compelling appeal brief.

While obtaining legally relevant details can be time consuming, it greatly increases the chance for a successful outcome and is well worth the trouble.

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Olympic Athlete Seeks Asylum Prior to Opening Ceremony

by Jason Dzubow

The torch has not yet been lit, but the first Olympic athlete has already requested asylum in Great Britain.  CBS News reports that a Sudanese runner scheduled to compete in the 800-meter race has appeared at a police station in Leeds and asked for political asylum. 

If Omar Al Bashir is your “president,” you better be able to run fast.

It is not surprising that a Sudanese man would seek asylum–his country is run by an indicted war criminal, Omar Al Bashir, who is responsible for many thousands of deaths.  As the games continue, it will be interesting to see how many more Sudanese (and athletes from other countries) seek protection in Great Britain.  The New York Times has listed several noteworthy instances of athletes seeking asylum at previous Games:

In August 1948, London was the scene of one of the earliest reported asylum requests by someone associated with the Olympic Games. Marie Provaznikova, 57, the leader of the Czechoslovakian women’s gymnastics team and one of the most popular women in her country, sought asylum in the United States rather than support a purge in the Sokol national fitness organization, of which she was a leader.

At the 1996 Atlanta Olympics, an Iraqi weight lifter, Raed Ahmed, ran from the athletes’ village into a waiting car and sought asylum from Saddam Hussein’s government. He was allowed to stay in the United States after he cited a fear of execution upon his return. Persistent rumors from Iraq suggested that Mr. Hussein’s son Uday used beatings and other torture to punish those who did not perform to his liking at international sporting events.

Before the 2008 Olympics, seven members of the Cuban soccer team sought asylum after a qualifying game against the United States in Florida. At the time, one of them, Yenier Bermudez, told The Miami Herald that the players were “feeling hopeful about our new lives.”

The entire Eritrean national soccer team fled during a 2009 competition in Kenya. Only a coach and an official emerged from the team’s plane when it returned home. It was the third time that players had failed to return, soccer officials said. Eritrean athletes are now asked to pay a bond before leaving the country for sporting events, the BBC reported.

Frankly, I think it is wonderful when high-profile athletes defect from repressive regimes.  It serves as a visible repudiation of those regimes and perhaps provides some succor to the regimes’ opponents. 

While one athlete defecting from Sudan will probably not bring down the government, it does serve as a powerful reminder that the government of that country represses and murders its own people.  And sometimes the actions of one person capture the moment and cause great change.  Witness Mohamed Bouazizi, the fruit vendor whose suicide launched the Arab Spring.  I do not know whether the Sudanese athlete’s defection will have any larger effect on his country, but we can always hope.

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When Service Centers Attack

by Jason Dzubow

Asylum applications are initially submitted to one of the USCIS Service Centers.  After an initial review, the Service Center forwards the application to the appropriate Asylum Office for an interview.  Unfortunately, the Service Centers reject a fair number of applications and mail them back to the applicants (or their lawyers).  Based on my own experience, it seems that many of these rejections are frivolous or at least unwarranted, and this raises concerns about access to justice for asylum seekers.

Where I live (in the civilized part of the country), we submit our asylum applications to the Texas Service Center.  Maybe I’ve just been on a losing streak, but in recent months, I have had three applications rejected and returned to me by the TSC.  Each one was rejected for an illegitimate reason (at least as far as I am concerned).  The first application was rejected because we failed to list the applicant’s siblings on the form.  But the applicant has no siblings, so there was nothing for us to list.  After this rejection, I have taken to writing “n/a” in any space on the form that would otherwise be left blank.  The second rejection occurred because USCIS wanted additional information that the Alien number we listed belonged to the applicant.  However, the applicant’s Alien number had been assigned to him by USCIS.  Why they simply couldn’t look up the number that they previously assigned to the applicant is beyond me.  The most recent rejection was because the applicant purportedly failed to include an additional copy of the I-589 for her dependent child, whose application was attached to her’s.  Also, supposedly, we did not include evidence (like a birth certificate) establishing the relationship between the parent and the child.  The only problem here is that we did include an extra copy of the I-589 form and a copy of a document showing that the applicant was the parent (there are no birth certificates in the applicant’s country).  I even clearly listed these documents on the cover page.  For this one, I have no idea why the application was rejected.  Before mailing it back, I highlighted some documents in bright pink and attached some sticky notes.  I’ll hope for the best.

If only the Service Centers were this helpful.

I imagine that if the Service Centers regularly reject applications prepared by someone familiar with the process, they must reject a good portion of the applications they receive.  For pro se asylum seekers, this creates a barrier that might prevent them from presenting their cases.  So what’s to be done?

The basic problem, I think, is that the criteria for rejecting asylum applications is too stringent.  Forget to check the box indicating whether you received a list of attorneys who can represent you at low or no cost?  Rejected.  Fail to indicate whether you are fluent in English?  Rejected.  Forget an extra copy of the I-589 for the dependent?  Rejected.

I recognize that the Service Centers are bureaucracies with limited resources.  However, in some cases, it would seem easier to either contact the applicant and ask for an explanation of the problem or let the Asylum Officer deal with the problem at the interview.  In cases of minor errors, these solutions would be easier and less expensive than reviewing the application, deciding to reject it, addressing the return envelope, paying for the return envelope, and repeating the process once the application is re-submitted.  It would also be less frustrating for attorneys (i.e., me) and it would better ensure access to justice for pro se applicants.

On September 13, 2012, two Service Centers will hold their Fall Asylum and Refugee Conference to discuss issues related to asylum:

The TSC is partnering with the Nebraska Service Center (NSC) to provide an opportunity to meet staff and share information on asylum- and refugee-related topics through presentation and open dialogue. The conference will include a panel discussion with representatives from the Refugee, Asylum and International Operations (RAIO) and Service Center Operations (SCOPS) directorates, the director of the National Visa Center (tentative), as well as TSC and NSC employees. Immigration Services Officers will also be available in the afternoon to answer your case-specific questions.

I certainly hope that one topic of conversation will be how to reduce the rejection rate for asylum applications.  

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The Asylum Affidavit, Part 1: The Passive Tense Should Not Be Used

by Jason Dzubow

The heart of an asylum case is the applicant’s affidavit.  There, she tells her story and explains why she needs the protection of asylum.  Because affidavits are so important, I thought it might be helpful to do a short series about preparing a decent affidavit.

One of the most common problems in affidavits is the overuse of the passive voice.  Not to be all English teacher-y, but I’ve seen too many affidavits where I have no idea who is doing what to whom, and one reason for this confusion is the use of passive voice.  I imagine that if an affidavit is confusing for me as an attorney reviewing the case, it is quite possibly fatal to the applicant’s chances for success with an Asylum Officer or an Immigration Judge.

Of course, most asylum seekers are not native English speakers, and the overuse of passive voice stems as much from linguistic and cultural differences as it does from poor English grammar.  The problem is not confined to pro se applicants, however, but extends to cases prepared by notarios and attorneys as well—people who should know better.

Here is a made-up, but close-to-real-life example of an affidavit written in the passive voice:

On June 10, 2005, I was arrested at my house.  I was taken to the police detention center.  There, I was interrogated and beaten.

For her opposition to passive voice, Dorothy Parker was honored by the Postal Service.

If I have inherited this case (perhaps because the applicant was referred to Court by the Asylum Office), each of these sentences is more annoying than the last.  I want to know who arrested the applicant and whether anyone witnessed the arrest.  Also, who took the applicant to the detention center?  How did he get there? Who interrogated the applicant?  How many times was he interrogated?  Who beat him?  How many times was the applicant beaten?  What injuries did he sustain?  Did he say anything during the beating?  Did the interrogator(s) say anything?  Here is an (abbreviated) example of how the above statement might be re-written:

On June 10, 2005, three soldiers came to my house.  My father answered the door.  The leader of the group ordered my father to bring me to the door.  When I came to the door, the soldiers handcuffed me and drove me to the Central Police Station.  At the station, they put me in a holding cell with ten other prisoners.  After an hour, a guard brought me to a small office.  There were two soldiers standing in the room and a security agent sitting at a desk.  The agent ordered me to sit down.  He asked me why I participated in an opposition demonstration.  When I denied that I participated in any demonstration, he slapped me hard across my face.  My nose was bleeding.

You get the idea.  By reducing or eliminating passive voice from the passage, we have a much better idea about what happened.  I also added more detail, something that I will discuss in a future post.

The problem with passive voice is that it makes it more difficult to understand what is happening in the story.  If the fact finder cannot understand what is happening, he cannot compare the applicant’s testimony to her written affidavit.  Comparing the written and oral statements is one method for determining credibility.  Therefore, overuse of passive voice makes credibility determinations more difficult, and makes it more likely your client’s case will be denied.  Thus, in the words of Dorothy Parker, “The passive tense should not be used.”

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North Koreans Find Refuge in the United States

by Jason Dzubow

The United States accepted five North Korean refugees in June, bringing the total for FY 2012 to 11, and the total since 2006 to 135, according to Yonhap News Agency.

The refugees entered the country under the North Korean Human Rights Act, which Congress passed in 2004.  The Act calls for the provision of financial aid to help improve North Korea’s human rights situation and acceptance of North Korean defectors into the United States.  According to DHS (see Table 14), 2006 was the first year we accepted North Korean refugees, and we have accepted between eight and 37 refugees from North Korea each year since then.

Kim Jong Un: If Adolf Hitler and the Pillsbury Doughboy had a child.

Despite its extreme insularity, it is quite clear that the human rights situation in North Korea is an utter disaster.  The recent book Escape from Camp 14 by Blaine Harden tells the story of one man’s escape from the most notorious prison in the enormous gulag that is North Korea’s political prison system.  The Washington Post review describes the prison:

In Camp 14, children are punished for the political sins of their fathers. Hunger is so omnipotent that every prisoner behaves like “a panicked animal” at mealtimes. Teachers at the camp school beat students to death for minor infractions. Medieval torture devices are employed in dungeon-like underground cells. And human relationships are so degraded that prisoners inform on family members.

Also, according to the Post: “The U.S. government and human rights groups estimate that 150,000 to 200,000 people are now being held in the North’s prison camps.”  “Many of the camps can be seen in satellite images, but North Korea denies their existence.”

Most North Korean refugees go to China, where, until recently, they faced repatriation and (probable) torture or execution.  However, according to the Shanghaiist website, a few months ago, China announced that it would stop returning North Korean refugees to their country.  Assuming this information is correct, it represents a significant step forward for human rights in China and it is obviously good news for the refugees themselves.  Between 20,000 and 30,000 North Korean refugees live in China.

The North Korean Human Rights Act was reauthorized in 2008 for four years, and will again need to be reauthorized this fall.  Despite all the partisan nonsense on Capitol Hill these days, I suspect that the Act will have support from both parties.  Given the mass torture and mass murder perpetrated by the regime in Pyongyang, we should continue to do everything we can to aid those who escape from North Korea.

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Asylum and Shari’ah Law

by Jason Dzubow

I recently finished a book about the Quran, and it got me wondering about what Islamic Law (or Shari’ah) has to say about asylum. 

Forget the Asylum Primer…

With the help of the mighty Google, I found an interesting paper on the subject from 2009: The Right to Asylum between Islamic Shari’ah and International Refugee Law: A Comparative Study.  The study is by Prof. Ahmed Abou-El-Wafa, chief of the department of public international law at Cairo University, and was written for the United Nations.  The study was meant to begin a conversation and get feedback from various experts in preparation for publishing the second edition of the study.  This conversation is apparently on-going.

Obviously, I am no expert in Shari’ah law, but I reviewed the initial study and I thought I would mention a few highlights.  The document begins with a quote from the Quran:

Those who believed and emigrated, and strove in the cause of God, as well as those who hosted them and gave them refuge, and supported them, these are the true believers.  They have deserved forgiveness and a generous recompense. (Quranic Surat al-Anfal, “The Spoils of War” [Chapter 8 verse 74]).

Try the Quran instead.

From there, the study sets forth the conditions for granting asylum under Islamic law.  For one thing, refugees should be “warmly welcomed… and well treated.”  “This is clear from the divine phrase [in the Quran that] those who ‘show their affection to such as came to them for refuge…’ and consequently [they] should not be expelled to the borders (refouled) or denied admission.”  Indeed, asylum seekers “should not be rejected , even if the inhabitants of the territory of asylum are in dire poverty… as the [Quran] says, ‘… even though poverty was their (own lot).'”  The study further states that “Islam categorically disallows that a refugee be returned to a place where there are fears for his basic freedoms and rights (such as being subjected to persecution, torture, degrading or other treatment).” 

Most of the examples in the study involve granting asylum to Muslims, but the law of asylum also extends to non-Muslims who are seeking protection.  This is based on a “well-known Islamic principle, i.e. ‘Before the world’s calamities, all sons of Adam (human beings) are equal.'”

The study also discusses the case of a person who enters Muslim territory without permission for the purpose of seeking asylum.  While non-Muslims are generally not permitted to enter Muslim lands without permission (and may be severely punished if they do), people who enter for the purpose of seeking asylum are not subject to penalties and should be offered protection. 

Interestingly, as in international law, Islamic law lists certain people who are ineligible for asylum.  One group that is not eligible are criminals, “particularly those who have committed acts warranting prescribed penalties (hodoud, e.g. willful murder).”  Also, people who have committed “grievances” in their home country are ineligible.  Here, Islamic law distinguishes between offering asylum and sheltering offenders.  The latter is not allowed.  Further, a grant of asylum to a specific person “may be coupled with an agreement concluded with him.”  Failure to abide by the agreement can have “grave consequences.”

The report concludes that “Observance of this right [to asylum] as enshrined by Islam is a duty for every zealous Muslim.”

While the concept of asylum exists under Shari’ah law, many Islamic countries, including the wealthy Gulf states, have not signed on to international treaties concerning refugees and do not offer asylum to people fleeing persecution.  I hope Professor Ahmed’s study reaches those Islamic governments that do not offer protection to refugees.  Not only do such governments fail to fulfill the duties incumbent upon all nations; it seems they also fail to fulfill their obligations under Islamic law. 

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