BIA Expands the Definition of Firm Resettlement

by Jason Dzubow

A recent BIA decision addresses the issue of firm resettlement. See Matter D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012).  If an alien is firmly resettled in a third country, she is not eligible for political asylum in the United States. 

Last year, in a case called Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011), the Board set forth a framework for determining whether an alien is firmly resettled and thus barred from obtaining asylum.  First, DHS bears the burden of presenting prima facie evidence, such as a passport or other travel document, of an offer of firm resettlement.  The asylum applicant can then rebut DHS’s prima facie evidence by showing that the offer has not, in fact, been made, that he would not qualify for it or that an exception to firm resettlement applies.  One exception is that the applicant’s entry into the country “was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country.” See 8 C.F.R. § 1208.15(a).

A frequent diner card from the Belize City Johnny Rockets may constitute prima facia evidence of firm resettlement.

In Matter of D-X- & Y-Z-, a Chinese asylum seeker went to Belize where she fraudulently obtained a residence permit.  She then continued her journey to the United States and filed for asylum.  Despite the Belize residency permit, the Immigration Judge found that the alien was not firmly resettled because she remained in Belize “only as long as was necessary to arrange onward travel” and she “did not establish significant ties in that country.”  The IJ granted asylum.

The BIA reversed, holding that, “Even if the respondents used some form of fraud or bribery through a middleman to obtain [the residency permit], there has been no showing that they were not issued by the Belize Government.”  The Board also noted, “aliens who have obtained an immigration status by fraud should not be permitted to disavow that status in order to establish eligibility for another type of relief.”  The BIA concluded that the alien’s “claim of fraud in obtaining permits to reside in Belize does not rebut the DHS’s prima facie evidence of firm resettlement in that country [i.e., the fact that she held a Belize residency permit].”

This decision is problematic because it is common for aliens to obtain false documents from countries that will not protect them while they are en route to the United States.  For example, I have represented a number of East African clients who fraudulently obtained South African passports.  These people have no permission to remain in South Africa, and if that government discovered their fraud, they would be deported to the country where they face persecution.   Thus, any “status” they may have in South Africa is tenuous at best.

Perhaps the alien in Matter of D-X- & Y-Z-, should have done a better job obtaining evidence to rebut the presumption of firm resettlement in Belize.  For the rest of us, the case is a cautionary tale–if a client has used a fraudulently obtained documents from a third country, she had better obtain evidence demonstrating that she is not firmly resettled in that country.

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New Government Training Manuel for Lesbian, Gay, Bisexual, Transgender, and Intersex Asylum Claims

by Jason Dzubow

USCIS and Immigration Equality have joined forces to create a new training module for asylum adjudicators called “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims.”  According to Immigration Equality, the new module “instructs asylum officers on substantive aspects of the law and highlights the unique difficulties that LGBTI claimants may experience in articulating their claims for asylum.”  A few highlights from the module:

  • My favorite LGBTI asylum seeker.
    Helpful definitions, and appropriately sensitive questions, for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices;
  • LGBTI-specific examples of harm that may constitute persecution, including: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to “cure” an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse;
  • Instructions for analyzing complex issues, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBTI applicants are not required to meet pre-conceived stereotypes or “look gay;” and that cultural norms within the LGBTI community in an applicant’s home country may differ from those in the U.S.; and
  • A non-exhaustive list of possible one-year filing deadline exceptions (which make it difficult to pursue asylum after one year of presence in the United States), including: recently “coming out” as LGBTI; recent steps to transition from birth gender to corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.

I am particularly happy to see some (though, in my opinion, not enough) guidance about the one-year filing deadline (see page 47 of the module).  Most likely, the reason for the sparse guidance is that there is not much BIA case law on this issue (note to BIA–publish more cases!).  In my experience–and I am not alone–the one year deadline is a particular problem in LGBTI cases.

Overall, the module seems like a valuable resource for adjudicators and advocates.  Congratulations to Immigration Equality and USCIS on a job well done.

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Dead Honduran Seeks Asylum in the U.S.

by Jason Dzubow

Four years ago, Josue Rafael Orellana Garcia fled Honduras to escape persecution by a criminal gang.  It seems the gang originally targeted him due to a handicap–he lost an eye and much of his hearing when he was struck by a tree during Hurricane Mitch.  Mr. Orellana arrived illegally in the United States at age 17 and requested political asylum.  His case was ultimately denied, and he was deported to Honduras in 2010.  

Mr. Orellana's mother with a photo of her deceased son.

Back in Honduras, Mr. Orellana disappeared while running an errand.  His body was found in July of last year.  Presumably, Mr. Orellana was murdered by the same gang members that had been persecuting him all along. 

Now, the Wall Street Journal reports that Mr. Orellana’s attorney has brought a posthumous asylum case before the Board of Immigration Appeals.  The purpose of the case is to highlight our country’s failure to protect people fleeing gang violence in Central America.  Mr. Orellana’s attorney, Joshua Bardavid, states, “I think it’s something that needs to be acknowledged: that we failed him; that he came here seeking safety, and the entire system let him down.”

The problem of gang violence is certainly endemic in several Central American countries.  Honduras, El Salvador, and Guatemala have some of the highest murder rates in the world (several times higher than Mexico, which has received much attention of late).  And the asylum grant rate from those countries is quite low.  According to statistics from the Department of Justice, in FY 2009 (the latest year I see data available) the asylum grant rate was as follows: Honduras: 5.5%, El Salvador: 2.9%, Guatemala: 4.3%.

As far as I know, there is no provision in the INA to grant asylum to someone who is deceased (unlike naturalization, which can be granted posthumously).  However, Mr. Orellana’s case is a sobering reminder that when we return Central American asylum seekers to their countries, we sometimes condemn them to death.  Hopefully, his case will help bring attention to this serious and difficult issue. 

For those attorneys and advocates working on gang-based asylum cases, the U.S. Committee for Refugees and Immigrants has some good resources that might prove useful.

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Credibility Determinations Are Not Credible, Part Three

by Jason Dzubow

In this series, I have been writing about methods for determining whether an alien is telling the truth.  So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable.  Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility.  I am speaking about plausibility.

First, what do we mean by plausibility?  When a fact finder determines that an event is not believable, it is implausible.  For example, I worked on a case where the Immigration Judge found my client’s testimony implausible.  The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest.  The IJ did not believe that a person wanted by the government could pass through airport security.

Unless your name is Big Daddy, you probably can't smell the mendacity.

The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible.  In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport.  In my case, we presented this evidence and my client received asylum.

As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way.  The IJ was concerned about a legitimate plausibility issue.  We presented evidence to satisfy that concern.  The case was granted. 

The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.”  Mr. Sagan’s axiom can be applied in the asylum context.  Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible.  The more implausible the claim, the better evidence the alien will need to demonstrate plausibility.  This seems like a reasonable method for assessing credibility.

If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable.  This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony.  The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness.  In the end, the fact finder must reach a conclusion using the imperfect tools that are available.  Given all that rides on these decisions, it’s not a task I envy them.

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The Problem With Immigration Lawyers and How to Fix It, Part 3: Notarios

by Jason Dzubow

The now-defunct Syms clothing store had a slogan, “An educated consumer is our best customer.”  Unfortunately, many asylum seekers and immigrants are not well educated about the immigration system or the attorneys and notarios who represent them (a notario, in the parlance of our times, is a non-lawyer who purportedly assists aliens with their immigration paperwork). 

If your lawyer also sells fried chicken, it might be a bad sign.

Some notarios are honest and do excellent work; some are crooks who exploit an alien’s naivete about the immigration system and steal their money.  Although it is somewhat self-serving for an immigration lawyer (like me) to condemn notarios, I have seen many instances where a notario caused an alien to lose his case or where the notario took the alien’s money and disappeared.  Also, I am certainly not alone in my opinion: AILA has an over-the-top website called Stop Notario Fraud, and USCIS has a campaign explaining that the wrong help can hurt.  Not to mention that it is illegal to provide legal representation unless you are an attorney or an authorized representative.

In the asylum context, many applicants use notarios to help prepare their affirmative cases (the name for these “helpers” varies depending on the country of origin; for example, an Ethiopian notario is called an “asterguami” or translator).  The notarios are known to embellish cases or to simply make up stories.  There is no regulatory authority (like a bar association) to police the notarios, and though their activity is illegal, they are rarely caught.  They also spread misinformation in their communities about how the asylum process works.  For example, there are persistent (and contradictory) rumors in the Ethiopian community that well-educated asylum seekers are granted asylum because the U.S. needs talented people and also that the outcome of an asylum interview is random, so a well-prepared application is superfluous. 

So what does all this have to do with immigration lawyers?

For one thing, when applicants have been educated by notarios in their communities to believe that the outcome of a case is random, or dependent on factors other than the fear of persecution, there is no incentive to hire a competent attorney.  Indeed, the incentive is to hire the least expensive attorney available.  Except in the case of non-profits or pro bono counsel, such attorneys are not likely to provide the highest quality service.  Since many aliens do not understand that a decent attorney can improve the chances for success in a case, incompetent attorneys are able to continue attracting clients despite a poor track record.  In this case, a mis-educated consumer is their best customer.

In addition, notarios can–to a large degree–control which attorneys their clients will hire after the notario loses the initial case and it is referred to an Immigration Judge.  The notarios (who are not lawyers and cannot go to court) refer their unsuccessful clients to certain attorneys.  As you might imagine, unscrupulous notarios refer their clients to unscrupulous attorneys.

The current efforts to crack down on notario fraud are a good start, but those efforts largely ignore non-Spanish speaking populations in general, and asylum seekers in particular.  Advocacy organizations and the government should do more to address this problem.  Stopping unscrupulous notarios will reduce asylum fraud and, indirectly, improve the quality of lawyers practicing immigration law.

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Credibility Determinations Are Not Credible, Part Two

by Jason Dzubow

I previously wrote about how credibility determinations based on inconsistencies are not reliable.  Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods.  First, two methods that don’t work well:

Demean girl.

– Demeanor.  Fact finders often judge credibility based on the alien’s demeanor during testimony.  Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.”  Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts.  The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor.  This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal.  These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.

– Lack of Detail.  This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court.  My initial reaction when I see this is to blame the Asylum Officer.  If the Officer wanted more detail, she should have asked more questions.  But I know this is not exactly what is meant by “lack of detail.” 

Demeanor girl.

An example will illustrate the point.  An asylum seeker (represented by my friend) was asked to describe the conditions of her detention.  She responded: “I was locked up and I was interrogated.”  The Officer repeated the question and received a similar answer.  As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated.  Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it.  In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc.  If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.

The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.

Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible.  However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth.  In a future post, I will discuss some methods of judging credibility that might be more effective. 

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Credibility Determinations Are Not Credible

by Jason Dzubow

In an asylum case, one of the most difficult determinations for the fact finder is the alien’s credibility: Is the alien telling the truth about his claim?

Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says “Circuit Credibility Outline”). 

One of the main methods used to determine credibility is to to look for inconsistent statements in an alien’s testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

Someone named Mr. Incredible would probably not do well in Immigration Court.

A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 

For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client’s affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.

This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien’s memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates–except in the most egregious circumstances–should not be used to support a negative credibility finding. 

Another technique to evaluate credibility is to look for inconsistencies between an alien’s testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.

Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent’s and a witness’s testimony.

In a future posting, I will discuss other methods of determining credibility.

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The Problem With Immigration Lawyers and How to Fix It, Part 2: Bar Associations

by Jason Dzubow

This is part two in a series of posts about the poor quality of immigration lawyers.  A recent survey of judges’ opinions found that 33% of immigrants had “inadequate” counsel and 14% had “grossly inadequate” counsel.  I previous wrote about how Immigration Judges could improve the situation by reporting incompetent and dishonest attorneys.  Indeed, according to Justice Department rules, IJs are required to report such attorneys.

Most bar complaints end up here (but at least they recycle).

Of course, reporting incompetent attorneys accomplishes little unless the disciplinary authorities–i.e., the state bar associations–actually impose sanctions where such punishment is appropriate.  Although a large number of practitioners have been disciplined, given the current state of affairs, the bar associations are not doing enough to protect immigrants.  Here are some thoughts on what bar associations could do to improve the situation:

– Bar associations should reach out to immigrant communities to help inform aliens about their right to competent counsel.  This means providing information–including information about how to report dishonest attorneys–to various immigrant advocacy groups and encouraging those groups to translate and disseminate the information.

– Given that immigrants are particularly vulnerable to unscrupulous lawyers, bar associations should pay close attention to complaints filed in immigration cases.  My sense is that the bar associations tend to protect lawyers, and that it is not easy to get disbarred (I hope I am not jinxing myself!).  Bar associations need to take complaints seriously and, in the case of vulnerable populations (minors, immigrants, etc.), need to thoroughly investigate allegations of bad conduct.

– Another issue is that certain bars–most notably New York and California–allow people with a foreign law degree to sit for the bar after they receive an LLM.  The requirements for admission to LLM programs are much less rigorous than for admission to JD programs, and thus graduates of these programs are not as familiar with the U.S. legal system as people who receive a JD degree at an accredited law school.  New York, at least, has taken some modest steps to improve this situation.

– A final–and more sweeping–idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies.  Volunteer immigration lawyers, who are knowledgeable about immigration law and who speak different languages, could serve on the disciplinary committee.  This way, aliens could file complaints directly to the immigration bar association, and those complaints would be reviewed by people familiar with the system and who (probably) speak the alien’s native language.  Also, an immigration bar association could require legal education and ethics training.

I don’t think we’ll see a mandatory immigration bar association any time soon, but I believe such an association would improve the quality of immigration attorneys.  For now, we will have to rely on state bar associations–however imperfect–to protect immigrants.

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The Problem With Immigration Lawyers and How to Fix It, Part 1: Immigration Judges

by Jason Dzubow

The poor quality of the immigration bar is a much discussed topic in certain circles (I wrote about it here).  A recent study in the Cardozo Law Review that was featured last month in the New York Times provides an opportunity to discuss the situation, and give my two cents about how to improve representation for immigrants.  According to the Times, “The study was conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City.”  “Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation.”

Judges to Immigration Lawyers: You stink!

The Times reports that Immigration Judges in the New York City area were surveyed, and they were less than pleased with the quality of the attorneys practicing in their courts.  The judges said that 33% of immigrants have “inadequate counsel” and 14% have “grossly inadequate” counsel.  The judges “gave private lawyers the lowest grades, while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics.”

I believe that Immigration Judges bear some blame for the lawyers’ poor performance.  Aside from the fact that I’m a vindictive so-and-so who doesn’t like judges dissing attorneys, why would I blame judges for attorney behavior?  Let me explain.

Immigration Judges are bound by certain ethical rules, which are set forth in the Ethics and Professionalism Guide.  The Guide states that Immigration Judges–like all DOJ attorneys–have a duty to report allegations of misconduct by other Justice Department attorneys and “a duty to report allegations of misconduct by non-Department attorneys.” See United States Attorneys’ Manual (“USAM”), Chapters 1-4.100 & 1-4.150 (“Allegations of misconduct by non-DOJ attorneys or judges shall be reported to OPR [Office of Professional Responsibility] for a determination of whether to report the allegation to appropriate disciplinary officials.” (emphasis added)).  Thus, it is mandatory for IJs to report misconduct.

According to IJs in New York, 14% of attorneys are “grossly inadequate,” meaning:

They are often poorly prepared or make incoherent arguments in court.  Some fail to present key evidence or witnesses.  Others simply do not show up.

Under the rules of the Guide and the USAM, it seems pretty clear that Immigration Judges are duty-bound to report attorneys who engage in at least some of these bad practices.  To the extent that IJs do not report such behavior, they are encouraging and enabling incompetent and/or dishonest attorneys to continue preying upon naive aliens.

Based on my experience working at an Immigration Court and as a practitioner, everyone–including the IJs–knows who the bad actors are.  I am not talking about attorneys of good will who periodically screw up.  We all make mistakes.  I am talking about attorneys who routinely fail to provide minimally competent work and who regularly destroy their clients’ chances to remain in the U.S.  Given many foreigners’ inexperience with our system and their fear of the authorities, it is critical that Immigration Judges report incompetent and dishonest lawyers to the appropriate disciplinary committees.  When they fail to fulfill this duty, they allow the harmful conduct to continue.

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Hungarian Roma (Gypsies) Seeking Asylum in Canada

by Jason Dzubow

I was surprised to learn that the largest source country for asylum seekers in Canada is Hungary.  Embassy Magazine reports that 2,297 Hungarians–mostly Roma–filed for asylum in Canada in 2010.  During the first nine months of 2011, figures show that 2,545 Hungarians applied for asylum in Canada, 1,000 more than the next highest source country, China.  Presumably most of these asylum seekers were also Roma (Roma are pejoratively known as Gypsies). 

There’s a different story in the United States.  According to the DHS Yearbook of Immigration Statistics, only a nominal number of people from Hungary sought asylum in the U.S.  Indeed, the Yearbook does not even list Hungary as a source country, and in FY 2010, only 730 people from all of Europe applied for asylum here.

So why the difference between us and (as Herman Cain would call it) Cana-an-an-anada?

My first thought was that the difference must be related to visa requirements, but this appears not to be the case.  Embassy Magazine reports that, “Canada lifted visa requirements for Hungarian nationals in 2008,” but the same is true for the U.S.  As of November 2008, Hungarians are eligible to enter the United States on the Visa Waiver Program.

Maybe Bela Lugosi is scaring away his fellow Hungarians.

Another explanation may be that Canada already has a sizable Hungarian population, including many people who fled Hungary after the 1956 Revolution.  Immigrants tend to go where they feel more comfortable, in terms of culture, language, etc., and so the new immigrants might be joining their countrymen in Canada.  But it turns out that the U.S. has more Hungarians than Canada (including Drew Barrymore and–my personal favorite–Bela Lugosi) .  

A final reason might be that it is easier to win asylum in Canada than in the U.S.  But I don’t think that is the case either.  According to Embassy Magazine, Canada “accepted less than 10 per cent of the Hungarian refugee claims since 2009.” 

In the end, it is a mystery to me why Canada is receiving so many more Hungarian asylum seekers than the U.S.  What seems pretty clear, though, is that the situation for Roma people in Hungary is dangerous.  Many Roma have been murdered and right wing extremism is on the rise.  The main reason for the low asylum grant rate is not that Roma people are safe in Hungary.  Rather, the Canadian government believes the Roma can resettle in other EU countries where they can live safely (whether the Roma agree with this is a separate question).

There is talk in Canada of making it more difficult for Hungarians to obtain visas.  Even if visas are not restricted, if the grant rate remains low, the flow of Hungarians may slow down.  But if the situation for the Roma in Hungary is as bad as it seems, a 10% chance of gaining a better life in Canada might be enough to keep people coming. 

And yes, I know Herman Cain jokes are so last month, but I thought that was a good one.

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Jesus, Mary, and Joseph – Asylum Seekers

by Jason Dzubow

When Jesus was born, three wise men came to worship him.  According to Mathew, the men came from the East, and before they met Jesus, they went to King Herod and asked him, “Where is he that is born King of the Jews?”  When Herod heard their question, he was “troubled,” as he viewed himself as the Jews’ king. 

A 900-year-old depiction of the flilght into Egypt. From St. Catherine's Monestary in the Sinai.

Herod directed the wise men to Bethlehem, where the king’s prophets predicted the baby would be found.  He also ordered the wise men to inform him when they found Jesus, so Herod could come “worship” the new King.  Of course, this was a ploy–Herod wanted to find Jesus so he could kill him and eliminate the threat to his throne.  The wise men (being wise) understood Herod’s plan and failed to return with Jesus’s whereabouts.

Herod was not pleased that the wise men betrayed him, so he decided to kill all the babies born in the Bethlehem metro area, an event that became known as the Massacre of the Innocents.  Luckily for Jesus and his family, an angel came to Joseph and warned him about the impending danger.  Joseph gathered up his family and fled to Egypt, where they received asylum.  The family remained in Egypt until Herod died a few years later.  They then moved to Nazareth, to avoid living under the rule of Herod’s son, who was by all accounts worse than his father. 

There is nothing in Mathew about the family’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt).  These include a story about a tree that was worshiped by the locals as a god.  In fact, the tree was possessed by an evil spirit.  When Jesus approached, the evil spirit fled.  The tree then bent down to worship Jesus.  From then on, the tree was venerated by the people and possessed healing powers. 

Interestingly, the Coptic view holds that the people of Egypt–who offered refuge to Jesus and his family–were “richly blessed” for their good deed.  To me, this is a reminder that the helper often receives as much (or more) of a benefit than the person he is helping.

Merry Christmas and Happy Holidays. 

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The Little Things Mean a Lot

by Jason Dzubow

Over the years, I’ve attended many asylum interviews.  I notice that different Asylum Officers conduct the interviews in different ways.  While much of this is personal style, some of the differences strike me as something more.  I wonder whether these different interview techniques have any effect on the decision.  Below are some of the differences I’ve noticed, and some thoughts about them:

– Some officers type their notes; others write the notes by hand.  Also, some officers seemingly write down every word the applicant says, while others do not.  These differences are pretty substantive, and they speak to the need to record asylum interviews.   Asylum Officer notes are not only used to make decisions; they are sometimes used for impeachment purposes in Immigration Court.  Notes that are vague or illegible may not be admissible in court.  Also, if different officers are preparing their notes in different ways, it impacts the supervisor’s ability to review the Asylum Officer’s decision.  If interviews were recorded, the officers could take whatever notes they needed to make their decision, and we would still have an accurate record of the interview available to the supervisors and the Immigration Court. 

Some interview styles work better than others.

– Some officers make photocopies of original documents, even when we have submitted copies of those documents already.  Other officers rely on the copies we have submitted.  I don’t think this makes much difference in the case, but it is a bit odd.  Why does one officer trust the copies that we’ve submitted while another officer wants to make her own copies? 

– Some officers copy the lawyer’s ID, others do not.  Again, I don’t see how this makes any substantive difference, but I have no idea why one officer wants a copy of my photo ID while another has no need for it.

– Most Asylum Officers review the form I-589 with the applicant at the beginning of the interview and allow the applicant to make any needed corrections.  A few officers do not review the form and instead make corrections as needed throughout the interview.  This difference strikes me as substantive because it may affect how an officer views the applicant’s credibility.  If the officer reviews the form at the beginning, and then the applicant’s story is not consistent with the form, the officer can find him not credible.  However, if the officer does not review the form at the beginning of the interview, it is a bit unfair to base an adverse credibility finding on a statement that is not consistent with the form, since the applicant did not have an opportunity to correct any errors.

Well, those are a few differences I’ve noticed.  Whether they have any effect on decisions, I don’t know.  But it seems to me that whenever decision makers use different techniques in their interviews, it is worth noting.

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UFO Cult Leader from Iran Granted Asylum in the U.S.

by Jason Dzubow

According to Raelia News, Negar Azizmoradi, a leader of the Iranian branch of the International Raelian Movement has been granted asylum in the United States.  Ms. Azizmoradi faced a possible death sentence in Iran because of her leadership role in the Raelian movement and because she is an atheist who renounced Islam (apostasy is punishable by death in Iran).  She fled to Turkey, where the government jailed her and threatened to return her to Iran.  After Raelians and others from different countries protested, the Turkish government released her and allowed her to come to the United States.  Last week, she received asylum (given the timing of events, it might be that she came here as a refugee, rather than claiming asylum after she arrived).

For those of you not familiar with Rael (a/k/a Claude Vorilhon) and his followers (called Raelians), here’s a bit of background.  Mr. Vorilhon was born in France.  He has been a race car driver, a singer, and a journalist.  In 1973, he encountered extraterrestrials, who gave him a message to pass on to other humans.  The message involved the secret history of the world and the return of the extraterrestrials.  Since then, Rael (as he is now known), has been spreading his news around the globe.  It’s not surprising that some countries, including Iran, have been less than receptive to his message.

For me as an attorney, Ms. Azizmoradi’s asylum application would have been a dream case.  Not that I’m a great fan of Rael, who supported Muammar Gaddafi and seems to have no love for the Jews.  However, I am a big fan of UFOs, lost civilization, and all things Fortean, and a Raelian asylum case certainly fits that bill. And asylum seems necessary here, where Ms. Azizmoradi faced persecution (or worse) in Iran.

Barney Hill: Immigrant and Abductee.

While we are on the subject of UFOs and immigrants, here’s an interesting tidbit.  The most famous UFO abduction case involved a couple, Betty and Barney Hill.  In September 1961, the Hills were driving through New Hampshire when they spotted a flying saucer (as UFOs were called back then).  They could see humanoids observing them from inside the saucer.  After their encounter, they realized that they “lost” three hours of their lives.  The case was investigated by the U.S. military and others, and has been the subject of several books and TV movies.  It also marked the beginning of an abduction craze, and many people claimed experiences similar to the Hill’s.

While people familiar with Hill’s case know that the couple was of mixed race (which was very unusual for 1961 America), what is not widely known is that Barney Hill was either an immigrant from Ethiopia or a descendent of Ethiopian immigrants.  I have never been able to find much information about this aspect of the case, but it strikes me as quite interesting.  When and why did he come here?  What was his birth name (I’ve met a lot of Ethiopians, but never any named Barney or Hill)?  How did he meet his wife?  Much has been made of Barney’s race in analyzing the case, including a recent scholarly article, but I have never seen anything specifically addressing his status as an immigrant.  I suppose there are many questions, but no answers.  So, as the ufologists say: Keep watching the skies!

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Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

by Jason Dzubow

Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.”  And who has the informant been ordered to turn over this information to?  The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.  If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.

First, a bit of background.  Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.  I’ve written about him before, here and here  (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.  The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.  The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.”  Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks. 

I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas.  But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.  It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.  Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.  Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.  While discovery in civil cases is quite broad, it is not unlimited.  Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.  Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.  If  this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.  For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant. 

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The Tyranny of Unreturned Phone Calls

by Jason Dzubow

Aliens have a due process right to a fair hearing in Immigration Court.  At what point is that due process right violated when the alien (or her attorney) is unable to communicate with the Court or the DHS attorney?

It is a common scenario for the attorney to contact DHS counsel for a pre-trial conference.  The purpose of this communication is to narrow the issues and learn about DHS’s position in the case.  More often than not, messages left for DHS counsel are not returned.  The DHS attorneys usually have an explanation for failing to return calls—they are too busy or they are not responsible for that particular case.  But the inability to speak with government counsel prior to trial often has real-life consequences for aliens in Immigration Court.

This guy had an easier time making a phone call than most immigration attorneys.

For example, I recently had a Nepalese asylum case remanded by the BIA.  The Board found that my client had suffered past persecution based on a protected ground, and remanded the case to determine whether DHS had any evidence to rebut the presumption that my client faces a well-founded fear of future persecution.  It was pretty obvious that DHS would not rebut the presumption, and the IJ could grant asylum (the IJ said as much himself in court).  Unfortunately, several calls to DHS went unreturned, and when we got to Court, the DHS attorney was unable to state the government’s position.  The result: The case is delayed for several months so DHS can decide what to do.

We face similar problems when attempting to communicate with the Immigration Court.  A recent example of this for me was when the Court rescheduled one of my cases to a date when I was unavailable.  I promptly filed a motion to reschedule, but there was no response.  I called the Court numerous times.  Sometimes, the phone just rang with no answer.  Other times, I left messages that were not returned.  A few times, I actually spoke to someone, but those people were unable to help (they told me that the Judge had the motion but had not yet made a decision).  In the end, I had to send the client to Court without me.  The Judge was angry and blamed me.  He threatened that if I was not in Court the next time, the case would go forward without me.  In the end, he rescheduled the case.  But my inability to communicate with the Court almost caused my client to lose her right to an attorney.

The obvious solution is for DHS attorneys and court employees to return our phone calls.  But I know it is not that simple.  Case loads are oppressive, and I imagine the government workers receive many phone calls and messages.  There is very little time to return calls.  (Not to let government workers off too easy—I also receive many phone calls and have a busy schedule, but I return all my calls).

Aside from hiring more employees (not gonna happen), I am not sure how to make this better.  Perhaps there could be a dedicated email address, which we could use to communicate with the Court or DHS.  The email could be screened by an employee and priority issues could be forwarded to the appropriate party.  Or maybe there could be AILA/immigration lawyer volunteers who act as liaisons to DHS or the Court.  For the time being, though, we are left to call repeatedly and hope we reach someone.

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