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

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?

The Asylum Affidavit, Part 2: Details, Details…

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.

Olympic Athlete Seeks Asylum Prior to Opening Ceremony

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.

When Service Centers Attack

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.  

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

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.”

North Koreans Find Refuge in the United States

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.

Asylum and Shari’ah Law

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. 

To Brief or Not to Brief

It seems that every lawyer who represents asylum seekers has their own style of preparing cases.  Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).

One big divide I’ve noticed is between lawyers who submit legal briefs with their cases and those who don’t.  Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.

When I first started doing asylum cases, I submitted briefs.  I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum.  As time went on, I ended that practice.  Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.

The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.

One advantage is that a brief helps the lawyer organize her thoughts.  It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case.  Briefs are also helpful for cases involving “particular social groups,” where the brief can clearly define the social group.  Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal.  When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief.  In addition, for new lawyers or lawyers who don’t normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.

There are also disadvantages to writing briefs.  The main disadvantage is that writing a brief is time consuming.  Lawyers have limited time to prepare cases and we need to be efficient.  Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial.  My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them.  They already know the law, and they will gain a better understanding of the facts by reading the applicant’s story and reviewing the evidence.  Again, it is a question of efficiency–Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.

Also, for normal cases, where the law is not in dispute, a brief can be a distraction.  Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application.  A brief that spends three pages “educating” the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.

Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim.  If there is a particular social group, I define what that is.  I also include a detailed summary of the client’s affidavit and each piece of evidence.  To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.

All that said, there of course is no “right way” to present an asylum case.  Each lawyer must decide what is best for herself and her client.

Wikileaks’ Julian Assange Might Qualify for Asylum

Some time ago, I wrote about Wikileaks founder Julian Assange and concluded that he does not qualify for political asylum under international law.

To win asylum, Mr. Assange would need to demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group.  Although Mr. Assange’s political activities might be protected under international law, he also would have to show that he faces persecution–as opposed to prosecution–in his home country (or possibly in a third country–see below).  Given Australia’s positive human rights record, I felt that Mr. Assange could not show that he would be persecuted in Aussie-land.  Nevertheless, I conclude:

While Mr. Assange probably does not meet the international law standard for asylum, his notoriety gives him opportunities not available to other asylum seekers.  Already, Ecuador has (informally) offered him residency.  Other countries might well follow suit, either because they think it is the right thing to do, or because they want to aggravate the United States and the West.  But if they do grant asylum to Mr. Assange, it won’t be because he meets the requirement for asylum under international law.

Ecuador seems a lot nicer than a U.S. prison.

I agree with what I wrote back then, but there is a new development.  Mr. Assange fears that if he is extradited to Sweden, he would ultimately be sent to the United States, where he has allegedly been indicted.  From the Huffington Post:

Assange fears that once extradited to Sweden the local authorities would later hand him over to the U.S. government. Washington in turn could deal harshly with the WikiLeaks fugitive for leaking classified American diplomatic correspondence. The native Australian says that the Obama administration has a secret indictment against him and fears that if he is extradited to the U.S. he could face the death penalty for espionage and sedition.

First, a person normally would not receive asylum when he fears persecution in a country other than his home country.  Why?  Because he can presumably receive protection from his home government.  In this case, however, it is unclear whether the government of Australia will intervene to protect Mr. Assange. 

Assuming that Mr. Assange would be extradited to the U.S. and that he would face the death penalty here (and assuming that Australia would do nothing to protect him), he might have a case for asylum under international law.  Asylum is sometimes granted for prosecution where the punishment is extremely severe or amounts to torture.  For instance, as a judicial law clerk, I worked on the case of an Afghan man who committed a petty offense in his country (during the time of the Taliban).  The penalty for the crime was to cut off his hand and his foot.  He received asylum in the U.S.  In the same way, Mr. Assange might qualify for asylum if the penalty for his actions is death.

However, my guess is that if Mr. Assange is extradited to the U.S., it will be with assurances that he will not face the death penalty (and even Bradley Manning, the United States soldier who supplied Wikileaks with much of its information, is not facing the death penalty).  In that case, he will have a hard time demonstrating any potential punishment amounts to persecution, and he will not qualify for asylum under international law.  But as I wrote previously, Mr. Assange is a special case, and so will have to wait and see what the government of Ecuador is willing to do for him. 

UN Report: 4.3 Million Newly Displaced People in 2011

According to a new United Nations report, 2011 was the worst year for refugees since 2000: 4.3 million people were newly displaced; 800,000 of them fled their countries and became refugees (the remaining people were displaced but did not leave their countries, so they do not meet the definition of “refugee;” rather, they are considered IDPs – internally displaced persons). 

At the end of 2011, there were 42.5 million displaced people worldwide.  That is more than the entire population of Canada.  The numbers break down as follows: 15.2 million refugees; 26.4 million IDPs; and 895,000 people in the process of seeking asylum. According to the UN:

“2011 saw suffering on an epic scale. For so many lives to have been thrown into turmoil over so short a space of time means enormous personal cost for all who were affected,” said the UN High Commissioner for Refugees António Guterres. “We can be grateful only that the international system for protecting such people held firm for the most part and that borders stayed open. These are testing times.”

There are more displaced people in the world than the entire population of Canada, though the Canadians probably make more noise.

The UN reports that Afghanistan remains the biggest producer of refugees (2.7 million) followed by Iraq (1.4 million), Somalia (1.1 million), Sudan (500,000) and the Democratic Republic of the Congo (491,000).  This is particularly sad given that the top two countries producing refugees are places where we went to war.  Obviously, our efforts have not made Iraq and Afghanistan safe, at least not in the minds of the millions of people who have decided that they cannot return home. 

Viewed on a 10-year basis, the UN report shows several worrying trends: “One is that forced displacement is affecting larger numbers of people globally, with the annual level exceeding 42 million people for each of the last five years.”  “Another is that a person who becomes a refugee is likely to remain as one for many years – often stuck in a camp or living precariously in an urban location.”  “Of the 10.4 million refugees under UNHCR’s mandate, almost three quarters (7.1 million) have been in exile for at least five years awaiting a solution.”

The news was not all bad:

Despite the high number of new refugees, the overall figure was lower than the 2010 total of 43.7 million [displaced] people, due mainly to the offsetting effect of large numbers of IDPs returning home: 3.2 million, the highest rate of returns of IDPs in more than a decade.

However, among refugees, “2011 was the third lowest year for returns (532,000) in a decade.”

Despite the high number of refugees, the U.S. resettled less refugees in 2011 than in any year since 2007.  In 2011, we resettled 56,419 refugees, which is far less than the proposed ceiling of 80,000 people.  For the years before 2011, the figures are as follows: 2010 – 73,311; 2009 – 74,656; 2008 – 60,193; and 2007 – 48,281.  According to the Obama Administration:

[The admissions total for FY 2011 were] lower, however, due largely to the introduction of additional security checks during the year, including pre-departure checks shortly before refugees travel to the U.S., instituted mid-year, that enhance the vetting of applicants against intelligence and law enforcement information.

The proposed ceiling for FY 2012 is 76,000 refugees.  We will see how many people are actually resettled in the U.S.  Given the high number of displaced people worldwide–and considering how many of them are displaced directly as a result of our wars in Afghanistan and Iraq–it seems to me that this is the least we can do to assist such people.

Lawyers Can Help, Even When They Can’t Help

It happens two or three times each week.  Someone contacts me for help with an immigration issue and after talking to the person for a few minutes, it becomes obvious that there is nothing to be done.  The person does not qualify for adjustment of status, Cancellation of Removal, asylum, VAWA or any other form of relief.  Besides commiserating, what’s a lawyer to do in this situation?  I suppose you could sing them a verse of Shana na na, na na na na, hey hey, goodbye and show them the door.  But probably the more responsible course is to give the person some advice about where they stand.  Here are some issues I usually discuss with these unfortunate souls:

If nothing else, you can help your clients buy an airplane ticket.

– I often tell them that since (contrary to popular belief) I am not infallible, they might want to speak to other lawyers.  However, I caution them that some lawyers will take advantage of people in their situation and charge money when there is no way to help.  I suggest that if another lawyer offers to help them, they can ask what the lawyer will do, and then call me and tell me.  I won’t charge them anything, but I will tell them whether I think the lawyer is trying to rip them off.  I figure this is a win-win.  Either the person will avoid a potential scam, or I will learn about a new form of relief.

– Recently, I have been discussing the new rule on waivers.  In case you did not hear about this rule, starting in January 2013, instead of leaving the county to apply for a waiver, eligible aliens will be able to apply for a waiver in the U.S. and, if it is approved, leave the United States, process their case at the consulate, and quickly return to the U.S.  This new rule will potentially save people years of separation from their families (unless it is blocked by Congressional Republicans).

– I also advise people about the consequences of remaining in the U.S. illegally.  Such people face detention and deportation.  I tell them that a traffic stop or any type of criminal arrest can result in an ICE detainer.  Once detained, it is very unlikely that the person will be released before being deported, so it is important to have someone to look out for family members and property in case of an arrest.

– If the person is already in proceedings, I discuss Prosecutorial Discretion and Deferred Action.  PD is where DHS agrees to terminate proceedings, leaving the alien in limbo.  At least the government will end its efforts to deport the person–for the time being.  Deferred Action may be requested before a person has been placed into removal proceedings or once they have been ordered removed.  It is simply a request that DHS not deport the alien.  People granted Deferred Action can apply for a work permit. 

– Finally, I often have to explain away false rumors.  It seems that every time there is a policy change, desperate people are led to believe that it is some type of amnesty.  Those responsible for these rumors include unscrupulous lawyers and notarios, who want to make money, and the conservative press, which interprets anything the Obama Administration does as an “amnesty.”  I explain that there has been no major change in the law and that there is no amnesty.

Although we can’t always help our clients resolve their immigration problems, at least we can educate them about their situation and help them avoid scams.  This is an important service, and your clients will (hopefully) thank you for it.

Florida Congressman Moves to Limit the Cuban Adjustment Act

Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:

The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.

Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

Reforming the CAA is like upgrading your 8-track.

It is interesting that a politician from Florida–particularly one with the anti-Castro bona fides of Mr. Rivera–would have the chutzpa to challenge the Cuban American community on this issue.  It doesn’t strike me as a particularly wise move politically, even if it makes sense from a policy point of view.

Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera’s proposed reform–which is ostensibly to help preserve the CAA–seems pointless given that the law is simply not worth preserving.

Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don’t see what this propaganda victory has achieved.  The CAA was passed in 1966 and–45 years later–the Castro brothers are still in charge.

Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:

“No matter what the reason for stepping foot in Cuba, you lose your status,” Lofgren said. “If you go to visit family members you haven’t seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status.”

Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee’s immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.

In any case, it seems Mr. Rivera’s proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.

Want to Help Gay Couples with Immigration? Give Them Asylum

I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.  The two men started a successful business and are pillars of their community.  But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.  This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act: DOMAnd Dumber.

Last week, a federal appeals court struck a blow against DOMA.  The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.  However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter.  Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.  We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner. 

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions.  When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move.  For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.  Also, people who fear coercive family planning in China are eligible for asylum.  For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief. 

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.  In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).  More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.  Witness the new regulations on waivers.  Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.  This often meant a long separation from family members while the waiver was processed.  Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.  So why not do something for the thousands of same-sex couples faced with forced separation?  Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.  If DOMA is repealed or overturned, the government could re-visit this definition of persecution.  But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.  We should grant asylum to gay and lesbian spouses of U.S. citizens.

Guatemala Massacre Survivors Reunited After 30 Years

In 1982, during the Guatemala civil war, a squad of soldiers led by Lt. Oscar Ramírez Ramos attacked the town of Dos Erres.  They killed over 250 people, mostly women and children.  

Lt. Ramírez Ramos spared a 3-year-old boy named Oscar, and brought the child home to live with him (the phenomena of persecutors adopting the children of their victims is not as uncommon as you might think–the New Yorker recently had an interesting article about how this played out during Argentina’s Dirty War).  After Lt. Ramírez Ramos died in an accident, his family continued to raise Oscar as their own.  The family never told him about his past, and he grew up idolizing his “father,” the man who killed his mother and eight siblings.

Tranquilino Castañeda reunited with his son and grandchildren.

Oscar’s real father, Tranquilino Castañeda, was away from home during the attack, and for 30 years, he mourned the death of his wife and children, including Oscar.  But last year, an investigation by Guatemalan prosecutors revealed that one son–Oscar–had survived.  A DNA test last August confirmed that the two men were father and son, and they were reunited via Skype.

Oscar had come to the United States in 1998, and has been living here illegally since that time.  After they learned about each other, Oscar’s father came to the U.S., and the pair reunited after 30 years apart:

“Yesterday I had the chance to see him in person. It is quite different from seeing him on the computer or on pictures,” Tranquilino said. The Guatemalan farmer has green eyes and the leathery skin of someone who has worked in the fields all his life. He is a man of few words.  Tranquilino and Oscar, who is 33, met for the first time at a New Jersey airport, just a few hours after Castaneda landed there from Guatemala. [Oscar], his son, traveled to New Jersey from Framingham, Mass., a blue-collar suburb of Boston where he lives with his wife and four children.

After he learned the truth about his family, Oscar decided to seek asylum in the U.S. based on his fear that he would be a target in Guatemala.  “The military retains great power in his native land and most atrocities from the 36-year civil war, which ended in 1996, have gone unpunished.”  He has a pro bono attorney, R. Scott Greathead, and his asylum interview is set for June 21, 2012. 

Given that his case is so high profile, he probably has a good chance for success.  But one issue will be that his father has been living in Guatemala for all these years and has testified against the soldiers responsible for the Dos Erres massacre (one of the soldiers was sentenced to 6,060 years in prison).  If the father lives in Guatemala in relative safety, it may be difficult for Oscar to demonstrate that he will face harm.

It seems to me that another basis for him to remain in the U.S. is humanitarian asylum (I imagine he is also eligible for Cancellation of Removal if his case ends up before an Immigration Judge).  Under humanitarian asylum, Oscar could remain in the United States if he demonstrates “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”  It may be a bit novel, but the facts of the case–his family’s massacre, his abduction by the man (at least partly) responsible for their deaths, and growing up with that man’s family–may constitute compelling reasons why Oscar cannot return to Guatemala. 

With humanitarian asylum, even if it is now safe for Oscar to return to Guatemala, he can obtain asylum based on the severity of the persecution he previously suffered.  What is interesting here is that Oscar did not know until recently that he had been persecuted.  Generally, asylum seekers are entitled to the benefit of the doubt, and here–where the harm was so severe–humanitarian asylum seems appropriate.

Remembering Algeria’s Jewish Refugees – 50 Years Later

This June marks the 50th anniversary of the Evian Accord, the agreement recognizing Algeria’s independence from France.  Since Roman times, Algeria was home to a large Jewish community.  During the French colonial period, Jews were granted French citizenship.  After independence, however, Algeria denied citizenship to its Jewish population and most of the country’s 140,000 Jews left for France. By 2004, there were less than 100 Jews remaining in Algeria, and most of those fled during the civil war (1991-2002) when the Armed Islamic Group threatened to exterminate them.

Ghardaia

I had an opportunity to visit Algeria in 2001.  I traveled with an Ibadite Muslim friend who is from the M’Zab Valley, an oasis in the Sahara, about 500 km south of Algiers.  The principal city of the M’Zab Valley is Ghardaia, which a French philosopher described as a “Cubist painting beautifully constructed” (maybe I am a bit more pedantic, but to me it looks like the video game Q*bert).  There, I visited an old abandoned synagogue and the Jewish graveyard.  As we are approaching the 50th anniversary of the Evian Accord, I thought I would share some photos and facts about the Jewish community of Ghardaia.

As best as we know, Jews arrived in Ghardaia in two waves.  The city’s original Jews arrived in the 13th or 14th century, a few hundred years after the town was founded.  The Jews were invited to the M’Zab to work as jewelers and smiths, professions traditionally avoided by the local Muslims.  Legend tells of four families who came to the desert town from Djerba, an island off the coast of Tunisia.  The Jews of Djerba trace their lineage back to Biblical times.

The second group arrived in the late 15th century.  At the time, an extremist Muslim movement (possibly fueled by the failure of Islam in Spain) attacked and expelled Jewish communities in Morocco.  Some Jews fled to Ghardaia.  They joined the existing community, and over time, the two groups merged together.

Abandoned Synagogue in Ghardaia

The Jews of Ghardaia lived in relative harmony with their neighbors until the mid-20th century.  By then, Algeria was controlled by France, and the population of Ghardaia was divided between Ibadite Muslims (who originally settled the M’Zab Valley), Jews, and Sunni Muslims.  When the war of independence began in 1954, the situation for the Jews of Algeria deteriorated, and by June 1962, all the Jews of Ghardaia had been forced to seek refuge abroad.

Just as this 800-year chapter of Jewish history was drawing to a close, two anthropologists arrived on the scene, hoping to study genetic traits of the Jewish people there.  Instead, they documented the final years and days of Ghardaia’s Jews.  The anthropologists, Lloyd Cabot Briggs and Norina Lami Guede, wrote up their observations in an amazing (and obscure) paper called “No More Forever: A Saharan Jewish Town.”  The paper begins: “This book is the record of a people who are gone.”  Recalling their own departure, through newly established rebel checkpoints in the now independent Algeria, Briggs and Guede write:

The notebooks and pictures that we carried with us were the only coherent record that remained of a curiously distinctive way of life which had gone on for centuries and came suddenly to an end, leaving behind it only empty houses and an abandoned cemetery in the desert.

The same synagogue, circa 1958

It so happened that I was visiting Algeria during Passover, and so I was particularly keen to find other Jews, or at least visit Jewish sites.  With the help of several friends, I was able to visit the old synagogue of Ghardaia and the Jewish graveyard.

The synagogue had been empty for almost 40 years when I visited, and it was in bad shape.  A man lived there, and he allowed us to visit for a few minutes.  I took some pictures, which you can see here, and I said a prayer.  It was quite moving to pray in that abandoned temple, where (I assume) no Jew had prayed for almost 40 years.

The synagogue was a typical Sephardic design, with blue and white walls, and numerous thick columns.  A wooden bimah (stage) would have formed the center piece of the room, but it was gone.  Parts of the domed roof had collapsed, covering the floor with piles of stone and mortar.  The ceiling above the women’s section had fallen in, filling the balcony with rubble.  A few chains hung from the ceiling.  At one time they held lamps with an eternal flame, long since extinguished.  Two Stars of David were all that remained to confirm that we were in a synagogue.

Another view of the synagogue.

After visiting the synagogue, we walked to the Jewish cemetery, which is a mile or two outside the town.  It’s difficult to get a sense for the size of the graveyard, as it blends perfectly with the rocky surroundings.  It was here, in 1962, that the last Jews of Ghardaia buried their old prayer books, before departing their oasis homes forever (in Jewish tradition, books containing the name of G-d are buried, not thrown away).  The oldest dated grave is from 1749 (5509 in the Jewish calendar), but some graves are probably centuries older.  Members of the community used to come to a small grotto here to light candles and pray for assistance from their ancestors.  Women who reached menopause came here to pray for one more male child.  I also said a prayer at the graveyard and I placed stones on some of the graves (it is a Jewish tradition to place stones on the graves).

The Jewish cemetery near Ghardaia

The last Jews of Ghardaia left Algeria in 1962.  They fled to France and most of them are still there.  All in all, over 800,000 Middle Eastern Jews were forced to flee their homes between 1948 (the founding of the state of Israel) and the 1970’s.  Like the Jews of Ghardaia, they came from communities that had existed for centuries (and in some cases millennium).  Also like the Jews of  Ghardaia, they lost most of their property and were lucky to escape with their lives.  Having seen a bit of this history makes me lament the loss of these ancient and diverse communities, but it also reminds me of the importance of offering refuge to those fleeing persecution.

For more information about the Jews of Ghardaia, take a look at Jews of the Sahara by Ronald L. Nagel.