EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

by Jason Dzubow

The New York Times recently reported on a new policy at the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) designed to prioritize the removal of criminal aliens.  Under the policy, DHS will review cases and terminate proceedings for aliens deemed a low priority for removal.  At the same time, EOIR (the Immigration Courts) will re-arrange its dockets to expedite priority cases.  From December 4, 2011 to January 13, 2012, EOIR will be implementing the Prosecutorial Discretion Pilot Project in Baltimore and Denver.  The results for aliens seeking asylum are already pretty devastating, and if the program goes national in its present form, we can expect serious problems for many asylum seekers.

Some experiments have unintended consequences.

My first experience with the program came last week when we received notice that my client’s Individual Hearing was re-scheduled from this December to May 2014 (yes, that is 2014, almost 2.5 years from now).  The man is an Eritrean national who fled persecution in his homeland.  He has a decent case and he had been hoping for a resolution later this month.  Now he must wait until 2014.  He has no work permit and the Asylum Clock is stopped in his case.

According to EOIR, the goal of the Pilot Program is “to ensure that [limited] resources are focused on the Administration’s highest immigration enforcement priorities.”  Unfortunately, in this case, the Administration’s “enforcement priorities” (i.e., removal of aliens) comes at the expense of our country’s humanitarian obligations.

Part of the problem, I think, is the government’s attitude, articulated by the Supreme Court in INS v. Doherty, 502 U.S. 314, 323 (1992), that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”  I have always felt that this statement reflects an insensitivity and ignorance about many aliens who are in the U.S.  While some aliens do merely hope to delay their removal, asylum seekers wish to see their cases resolved as quickly as possible.  There are a number of reasons for this: Asylum seekers are hoping to petition for their family members, some of whom face threats in the home country; asylum seekers fear return to their country, and waiting for years to learn their fate is extremely stressful; many asylum seekers are young and hope to study in university, which is difficult without lawful status; many asylum seekers are well educated and hope to find professional jobs, which is also difficult without status.

For all these reasons, delaying asylum hearings for 2+ years is devastating to many asylum seekers.

The Pilot Program is going forward, and I imagine that the same or similar policies will be adopted throughout the U.S.  Given this new reality, here are a couple suggestions about how EOIR can mitigate the difficulty to asylum seekers and other aliens who are hoping for a resolution of their cases:

– When an asylum case is postponed, the Asylum Clock should start automatically, so that the asylum seeker can obtain her work permit.

– EOIR should reserve some time slots in the (relatively) near future for asylum seekers and others whose cases have been postponed.  Aliens that wish to have a sooner resolution of their cases can file motions to expedite.  Thus, for example, if EOIR reserved some time slots in 2012, my 2014 client could file a motion requesting one of those dates.

Finally, while it might be futile to argue that we should not be prioritizing removals over protecting people fleeing persecution, I want to give it a try.  Statistically, most removals involve people with no criminal histories.  Even many “criminal aliens” are convicted of very minor violations (driving without a license, using a false ID, and drunk in public are three common violations).  The benefit to the U.S. of removing these people quickly–and often separating them from their family members–is pretty minimal.  On the other hand, as discussed above, the harm of leaving legitimate asylum seekers in limbo for long periods is severe.  If these competing interests are balanced, it seems unjust that asylum seekers should never receive priority over the removal of “criminal aliens.”  EOIR should re-think its policy to account for the needs of legitimate asylum seekers.

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Most Canadian Refugee Judges Fail Re-Appointment Test

by Jason Dzubow

As Canada implements changes to its asylum program under the Balanced Refugee Reform Act, its refugee judges are required to apply for new positions that will commence in June 2012.  The refugee judges are currently political appointees.  To qualify for the new positions, applicants must take a multiple choice and written exam, and pass an interview.

Canadian judges spent too much time partying in high school.

According to the Canadian Star, out of 63 refugee judges, “only 10 have passed the exams and screening process, while nine are awaiting final interviews.”  Of the remaining 44 judges, “[o]ne was screened out immediately, 24 failed the multiple-choice and written exams, six did not show for the exams, seven were eliminated at interviews, and six withdrew from the process.”  Forgetting judges that decided not to re-apply, this means that over 50% of politically appointed refugee judges in Canada failed the exams or the interview. 

The Star notes that the “refugee judges’ poor performance has raised concerns about the quality of decisions they have made.”  No kidding.

So what are the implications for us, down here on the civilized side of the border?

First, it is pretty clear that we have problems of our own.  The important article Refugee Roulette: Disparities in Asylum Adjudication makes clear that decisions by Immigration Judges (and other adjudicators) often depend on who is making the decision rather than the facts of the case.  The authors found statistically significant evidence that an IJ’s work experience prior to appointment affects his or her decision-making in a particular case.  The obvious implication is that the system can easily–and subtle–be manipulated through political appointments.

This is not merely an academic point.  Just last week EOIR swore in three new judges.  Two of the three have experience with DHS or INS and all three have experience as administrative adjudicators.  From their bios, it appears that only one of the three has ever had any experience representing immigrants, and that was almost 20 years ago.  While these new IJs all seem like well-qualified individuals, their selection from within the government raises concerns, particularly in light of the biases revealed in the Refugee Roulette article.

So what is to be done? 

The authors of Refugee Roulette basically recommend more and better training.  That certainly makes sense.  Here are a few other ideas:

– The BIA should publish more decisions, to provide more guidance to Immigration Judges.

– The selection process should be broadened and more effort should be made to hire judges from the private and non-profit sectors.

– IJs whose grant or denial rate is out of whack with the mainstream should receive additional training and additional scrutiny to ensure that their decisions are complying with the law.

Maybe the lesson from Canada is that, with judges who are essentially political appointees, we need to be extra careful–and take the necessary extra steps–to ensure that they are qualified and able to properly adjudicate immigration cases and interpret the immigration law.

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Who Was Emma Lazarus?

by Jason Dzubow

Everyone knows her words:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door.

But if you are like me, you probably don’t know much about the woman who wrote these lines in 1883.  A new exhibit at the New York Museum of Jewish Heritage explores the life and times of Emma Lazarus. 

The words of Emma Lazarus continue to inspire.

The exhibit, Emma Lazarus: Poet of Exiles, marks the 125th anniversary of the dedication of the Statue of Liberty, and is the first major museum exhibition about Ms. Lazarus.  The exhibit includes rare artifacts that explore her unique story and message.  Emma Lazarus was a poet, playwrite, and novelist.  She also translated many works from Jewish poets into English.  She was a decendant of Portugese Sephardic Jews, who settled in the U.S. prior to the Revolutionary War.  Her family includes several prominent Americans, including Benjamin Cardozo, an Associate Justice on the U.S. Supreme Court. 

Ms. Lazarus was also an activist.  She taught Russian Jewish immigrants in New York and helped them become self supporting.  She also traveled twice to Europe.  When she returned from her second trip, she was very ill (probably with cancer), and she died two months later, in November 1887.  She was 38 years old.

The exhibit opened last month and runs until the summer of 2012.  To learn more, check out the museum’s website, here.  Also, if you would like to read more about Emma Lazarus, check this post in the Jewish Women’s Archive.

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New Rules for the Asylum Clock

by Jason Dzubow

Nobody makes simple things complex better than the government.  The new 16-page, single-spaced memorandum on the Asylum Clock is a perfect example.  As far as I can tell, there are no major changes to how the Clock works, but there is some new “guidance.” 

I should say at the outset that I think the Asylum Clock is one of the stupidest ideas to be put into law since Prohibition (I’m a big drinker), so my comments here should be taken with a grain of salt (also, I’m drunk).  With that in mind, here are some observations on the new memo:

"The Persistence of Memorandum" by Salvador Dali.

The memo clarifies that cases referred to the IJ from the Asylum Office with less than 75 days on the clock are “expedited cases,” meaning that the IJ “should” complete them within 180 days from the date that the application was filed.  To comply with this rule, IJs sometimes bump non-expedited cases, thus causing major delays for other respondents.  This seems like a lot of trouble just to prevent an asylum applicant from getting her EAD.  Given the massive delays in all Immigration Courts, why not simply make all cases non-expedited?

The memo does not change the requirement that to start the clock in a defensive case, the I-589 must be filed with the Immigration Judge in open court.  This means that if the hearing is scheduled for next year, the Clock will not start until the application is filed in court next year.  The easy solution here would be to allow applicants to file their I-589 forms with the clerk (this would have the added advantage of avoiding problems with the ever-annoying one-year asylum bar).  Clerks are competent to determine whether an application is substantially complete and, if so, they could start the Clock.

One bit of clarification that seems helpful is that the Clock will restart at the next hearing after a delay caused by the applicant.  Where I practice, different IJs have different policies on the Clock, and this will hopefully resolve the issue of restarting the Clock after the applicant causes a delay.

For a more detailed discussion of the new memo, see the American Immigration Counsel’s statement released on Monday, which offers some helpful criticism.

The bottom line for me is that the Asylum Clock should be completely re-done.  The Clock should run from the date that the application is filed.  It should only be stopped if the IJ (or the Asylum Officer) determines that the applicant is purposely causing a delay in order to abuse the system and obtain an EAD.  I understand the need for the Clock: To prevent aliens from filing for asylum solely to obtain an EAD, and so I do not support returning to the old days when asylum applicants got an EAD immediately after filing (and many people abused the system).  However, the pendulum has swung way too far, and we waste way too much time and energy on this issue.  There are far fewer frivolous cases today, and the Asylum Clock mainly serves to make life more difficult for legitimate asylum seekers.  By shifting the presumption in favor of asylum seekers, we can restore some of the balance and help–rather than harm–people fleeing persecution.

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The Forgotten Path to Asylum: “Other Serious Harm”

by Jason Dzubow

In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  But there are a couple of exceptions: “Humanitarian Asylum” and “Other Serious Harm.”

Humanitarian asylum allows an applicant to receive asylum if she “demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(1)(iii)(A).  In other words, we don’t send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today.  I had a case a few years ago that illustrates this type of relief–My client was a 10-year-old Tutsi girl in Rwanda in 1994.  When the genocide began, she went with her mother and two siblings to hide in a church.  The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die.  The little girl fainted (mercifully) before she could see her mother and one sibling murdered.  Years later, she was in the U.S. seeking asylum.  For some reason, the Asylum Office referred her case to the Immigration Court and she hired me.  We were able to get humanitarian asylum based on the severity of her past persecution.  In a sense (the legal sense), this was an easy case.  Humanitarian asylum is well-known and relatively common.

Kids, eating your vegetables is not "other serious harm."

A less well known form of relief is asylum based on other serious harm.  To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish[] that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(B).  Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer “other serious harm” in his country.  “Other serious harm” does not have to be based on a protected ground, and it does not have to be related to the original persecution. 

I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?).  My case involved a guard who worked for the Special Court for Sierra Leone–the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation.  In 1991, rebels killed his parents in order to retaliate against him for his political activity.  My client was working for the Special Court more recently, and he was assigned to protect an important witness.  Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money.  He refused, and reported the incident to his superiors.  After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him.  He ran from the house and fled the country.

My client satisfied the first prong for “other serious harm” relief–He was persecuted on account of his political opinion during the time of the civil war.  He also satisfied the second prong–He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness.  Unfortunately, at the time, I did not know about relief based on “other serious harm.” 

Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted.  However, the more appropriate form of relief was asylum based on “other serious harm.”  I learned about this avenue of relief at the First Annual USCIS Ombudsman’s Conference, which took place about a week after my case.  Aside from the bad timing, it was a great conference.  Anyway, now that I know, I thought I would share some information about “other serious harm,” as it might be helpful to others in their cases.

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Pleading the Fifth

by Jason Dzubow

It’s rare that one of my clients or witnesses needs to assert the protection of the Fifth Amendment, but it happened the other day in court.

The case involved an Eritrean who fled persecution in his country and made his way to the U.S. with the help of smugglers.  His journey cost more than $10,000.00, paid for by various relatives.  One of the relatives came to court as a witness.  During cross examination of this witness, the trial attorney asked about sending money to my client to pay the smugglers.  Not only is this a crime, but it is also a deportable offense (the witness is a lawful permanent resident). 

The Fifth Amendment: It's not just for baseball players, Solyndra executives, and comedians.

I objected to the question on the basis that the witness was unrepresented, and if he testified about paying for a smuggler, his testimony could be used against him in a criminal prosecution (not to mention a removal proceeding).  After my objection, the IJ instructed the witness about his rights under the Fifth Amendment and the witness chose to invoke his right against self incrimination.  Probably a smart move.

The situation raises a few issues.  For one, what is the attorney’s obligation to protect the witness?  I certainly could have allowed the witness to answer DHS’s question.  The witness did not know that he might face prosecution for helping his friend enter the U.S. illegally; nor did he know about his Fifth Amendment right.  In this case, there was no conflict between my client’s interests and the witness’s, and so objecting was clearly the right thing to do.  But what if the witness’s testimony would have helped my client, but harmed the witness? Perhaps I would be obliged to allow the witness to testify in order to help my client (I have a duty to my client, but not to the witness).  I suppose this points to the need for witnesses to have their own attorneys in court, but as a practical matter, I imagine that is pretty unlikely.  

Another issue is the Immigration Judge’s obligation in this situation.  A quick review of the Immigration Judge Benchbook does not reveal any helpful guidance.  The Ethics  and Professional Guidelines are little better, though they do advise the IJ to “act in a professional manner towards all… witnesses.”  Based on this, one could argue that the IJ should inform a witness when he is entering dangerous territory.  To the extent that IJs are not obligated to notify witnesses of potentially self incriminating testimony, it seems to me that EOIR should create some guidance on this point to protect witnesses in Immigration Court.     

Finally, does the DHS attorney have any obligation to the alien?  The only other time a Fifth Amendment issue came up in one of my cases, I was questioning a witness and the DHS attorney pointed out that the witness’s answer might incriminate him (and no, I was not purposely out to get the witness; I didn’t realize that my question had potentially dangerous consequences).  DHS attorneys represent the government and should act justly.  However, sometimes there are good reasons to question a witness about issues that might incriminate him.  DHS attorneys need to balance their obligation to do justice with the need for information in the case.  I would argue that DHS attorneys should warn witnesses when they are asking questions that might incriminate them, but my guess is, most DHS attorneys would disagree with me.

As for my case, the Respondent was granted relief under the Torture Convention (a result we were not thrilled with, but it beats a denial) and the witness did not incriminate himself.  I guess that is mostly a happy ending.

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Gay Saudi Diplomat Denied Asylum

by Jason Dzubow

About a year ago, I wrote about Ali Ahmad Asseri, the first secretary of the Saudi Arabian consulate in Los Angeles, who applied for asylum based on his sexual orientation.  Now, the Jerusalem Post reports that his claim for asylum has been denied (the article also demonstrates the Post’s shoddy journalism, but more on that below).

This photo probably was not taken in Saudi Arabia (and not just because of the snowy mountains in the background).

According to the Post, Mr. Asseri’s supporters believe that the decision to deny asylum was politically motivated: “This was a political decision by the Obama administration, who are afraid of upsetting the Saudis,” one Saudi dissident said.  The Post also hints at another issue in the case:

[Mr. Asseri’s] initial interview with Homeland Security was very positive, but then they came back and grilled him for two days after they found out that he had worked in the public prosecutor’s office in Saudi Arabia….  He had been an inspector to make sure that judicial punishments, such as lashings, were carried out within the law – not more, not less.  They then accused him of participating in a form of torture.

Anyone familiar with U.S. asylum law will immediately see the problem–people who persecute others are barred by statute from obtaining asylum.  Mr. Asseri apparently participated in punishments “such as lashings” (and who knows what else?), and so he is barred from asylum as a persecutor.  There is nothing political about this, and it has nothing to do with the Obama Administration somehow trying to appease the Saudis. 

Despite his bar against asylum, Mr. Asseri is possibly eligible for Withholding of Removal and he is certainly eligible for relief under the UN Convention Against Torture (Saudi Arabia is known to torture and kill gay people).  The Asylum Office does not have the legal authority to grant these forms of relief; only an Immigration Judge has the power to do so.  From the Post’s article, it is unclear who (Asylum Officer or IJ) denied Mr. Asseri’s claim, but my guess is that he was denied by the Asylum Office.  If so, his case will be referred to an Immigration Court, where–as a high-profile gay man–he probably has a good chance of being granted Withholding of Removal or relief under the Torture Convention.

And now a word about the Jerusalem Post’s–and correspondent Benjamin Weinthal’s–sloppy reporting.  The Post is a right-wing newspaper that does not like President Obama.  From what I see on-line, Mr. Weinthal is a right-wing journalist who also is no fan of the President.  It is not surprising that those who dislike President Obama would make negative assumptions about him.  What is surprising is that supposedly legitimate news organizations/reporters would fail to actually research the asylum law, which clearly indicates that a persecutor is not entitled to asylum.  Instead, they assume that a lower-level decision-maker (an Asylum Officer or IJ) is ignoring the law and implementing Administration policy to appease Saudi Arabia.  The assumption is not only ridiculous, but intellectually dishonest.  Further, it is made in support of an ideological position.  The Post and Mr. Weinthal should be ashamed of themselves for their shoddy “journalism” and allowing their dislike for the President to trump their responsibility to tell the truth. 

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Asylum Applications Up in 2011; Arab Spring Has Modest Impact

by Jason Dzubow

Asylum claims in “industrialized” countries were up 17% during the first half of 2011, according to the United Nations:

An estimated 198,300 asylum applications were recorded during the first six months of 2011 in the 44 countries included in this report.  This is 17 per cent more than during the same period 2010 (169,300), and is nearly identical to the number of applications recorded during the second half of 2010 (197,600).

Coincidentally, asylum lawyers received a 17% raise in the first half of 2011.

Applications in North America were up 25% and the U.S. received more asylum seekers than any other country (36,400).  The second most popular receiving country was France (26,100), followed by Germany (20,100), Sweden (12,600), and the United Kingdom (12,200).

The top five “source” countries for asylum seekers for the first half of 2011 were: Afghanistan (15,300), China (11,700), Serbia and Kosovo (10,300), Iraq (10,100), and Iran (7,600).

Asylum seekers from countries experiencing the Arab Spring are up, but not as significantly as European leaders had feared.  According to the UN:

The high­est relative increase was recorded for Tunisian citizens whose asylum claims increased from 410 to more than 4,600, primarily in the number of arrivals in Italy by boat.  The first half of 2011 saw more Tunisians lodging asylum claims than during the entire period from 2004 to 2010 put together.  Similarly, there was a major increase in asylum applications lodged by Libyan citizens, with 2,000 claims during the first half of 2011 compared to only 800 during the whole of 2010.

While these increases are large in percentage terms (according to my–probably questionable–math, Tunisian claims are up by more than 1,100%), the relative numbers are not all that dramatic.  Perhaps this demonstrates that when people have an outlet for their political aspirations, they tend to remain in their home countries.  As the Arab Spring grinds along in countries like Syria and Yemen, we can expect those countries to produce greater numbers of asylum seekers–When people have no hope and when governments murder their citizens instead of listen to them, people have no choice but to flee to safer lands.

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Appointing Attorneys May Be Cheaper Than Detaining Disabled Aliens

by Jason Dzubow

The recent case of a Jamaican asylum seeker who was held in detention for over a year prior to trial because he was unable to communicate with the Immigration Judge illustrates why appointing attorneys to aliens may be more cost-effective in certain cases.

Derrick Cotterel came to the U.S. 10 years ago.  After being arrested for robbery, he landed in removal proceedings.  Mr. Cotterel requested asylum because he fears returning to Jamaica, where police allegedly failed to investigate his brother’s murder because of the brother’s political activity.

Mr. Cotterel has a severe stutter, which prevented him from communicating with the Immigration Judge.  He is also illiterate, so he could not communicate in writing.  As a result, he sat in the York County, PA detention facility for 10 months before an  IJ was able to decide his case (his application was denied).

Paying for attorneys may be cheaper than paying for fancy prison cells.

At about $96.00 per day, the cost to tax payers for Mr. Cotterel’s incarceration was approximately $28,800.00.  This seems like a big waste of money, especially considering that if we had paid a few thousand dollars for a lawyer, the case would likely have been resolved much more quickly, saving money for Mr. Cotterel’s detention, and helping to ensure a fair hearing.

One possible solution is to assign a public defender-type attorney to each major immigration detention facility.  These attorneys would be paid for by the government, and would represent detained aliens who could not represent themselves (for example, children or disabled people).  With attorneys representing the most problematic detained cases, the cases would move along more quickly and this would save money.  It would also help to protect the rights of the most vulnerable aliens in the system.

Another possibility would be to pass the Refugee Protection Act of 2010, which requires that detention facilities be located near cities with lawyers who can represent aliens pro bono.  In this case, perhaps the government could subsidize the pro bono attorney’s expenses in order to encourage more lawyer to help detained aliens.

It is in the best interest of everyone to find lawyers for detained aliens who are incapable of assisting themselves.  It will help protect immigrants’ rights, ensure that we fulfill our humanitarian obligations, and save money.

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EOIR to Stop Wasting DOS’s Time

by Jason Dzubow

The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State.  Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department.  The Immigration Judge would forward the application to the State Department, which could comment on the application.

Secretary of State Hillary Clinton reviewing asylum applications for EOIR.

The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole.  Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations).  I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.

I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).

Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.”  Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.

The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker.  It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful.  Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary.  She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker. 

In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system.  The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.

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What Does “Persecution” Really Mean?

by Jason Dzubow

There is no uniform definition for the term “persecution.”  While different courts have attempted to define the term, its meaning has remained frustratingly elusive.  A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering.  About his article, Prof. Rempell writes:

Most people, even those with no immigration background, have some idea about what persecution means.  They know to equate persecution with inflicted suffering.  But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.

There are many definitions of persecution.

During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts.  Does the harm have to be severe or will any harm suffice?  Will one instance of harm be sufficient or must the harm be systematic?  Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient?  Courts have come out on both sides of each of these questions, and many other questions as well.  It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.

After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution.  In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.”  If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN.  Here is a copy of the abstract:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Prof. Rempell welcomes feedback at srempell@stcl.edu.

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The BIA’s Ridiculous Deadline

by Jason Dzubow

beeI once heard about an Admiral during WWII who described carrier warfare as hours of boredom punctuated by moments of terror.  That is a bit like how I think of appeals to the Board of Immigration Appeals.

First, you file your appeal.  Nothing happens for a couple months.

Then, the transcript arrives.  You theoretically have 21 days to write the brief.  However, by the time you receive the transcript, a few days have passed.  Plus, you have to make sure that the appeal brief is received by the Board no later than day 21, so you have to mail it early.  Thus, you actually have about 15 or 16 days to write the brief.  Of course, the transcript always arrives when you are about to leave for vacation or when you have three individual hearings to prepare for, so the 15 or 16 days is not enough.  You can ask for one extension (which seems to be granted as a matter of course), so you can realistically gain a total of about 36 or 37 days to prepare the brief.

After the brief is filed, you will then wait one to two years for a decision.

So my question is: Since these appeals take so long anyway, why are we given such little time to prepare a brief?  

Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date.  But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?

There is, of course, a downside to limiting the time for the brief: Given most attorneys’ busy schedules, it is difficult to do our best work when we have insufficient time to write the brief, particularly if we are unlucky enough to have the transcript and briefing schedule arrive at a bad time (which always seems to happen).

The obvious solution is to extend the time for filing the brief.  Federal appeals courts (at least where I practice) generally give about 45 days to file the brief.  Lower courts usually give at least 30 days.  All these courts grant extensions where warranted.  At a minimum, the BIA should initially grant six weeks to file the brief; at least this would save lawyers the time and uncertainty of having to ask for a three-week extension.

With more time, we can expect better briefs–not only from the private bar, but also from DHS.  I imagine this would result in better BIA decisions.  There is really no good reason for such short deadlines with the BIA.  The Board should consider extending the time for filing briefs.

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Afghan Asylee Murdered in San Diego

by Jason Dzubow

Mir Najibullah Sadat Sahou was an economist and the governor of the Afghan Central Bank before he fled Afghanistan in 1992. Like many refugees and asylees, Mr. Sahou could not find work in his field.  Instead, he drove a taxi, supported his family, and continued his political activity by appearing regularly on a talk show on Ariana Afghanistan International TV. 

Mir Najibullah Sadat Sahou

Mr. Sahou, age 68, was gunned down on September 28, 2011.  According to CBS News, the police have identified a suspect and issued an arrest warrant.  It appears that the motive was robbery, but given Mr. Sahou’s political activism and his prior high-profile job, other motives cannot yet be ruled out.

The story of a prominent person who flees his country and starts over in the U.S. is fairly common among refugees.  When I worked in refugee resettlement in the early 1990’s, I knew a Russian man who had designed the radar system for the Backfire Bomber (the Soviet Union’s main long-range bomber).  In the U.S., he worked as a mechanic in a machine shop.  I also met the former Minister of Finance for the Ethiopian army.  He worked in a parking garage.  It takes a certain strength of character to go from a prominent station in life to one that is more humble.  But like many refugees, Mr. Sahou appears to have carried on for the sake of his children (one of whom is a pre-med student).

Another aspect of Mr. Sahou’s story that strikes me is his on-going concern  for his home country.  Although he did not have a professional position in his field, he continued to work for the betterment of Afghanistan by educating the public through his television show. 

Finally, although the motive for the attack seems to have been robbery, there have been many instances of foreign agents operating clandestinely in the United States and attacking political opponents.  The most famous example is probably the 1976 assassination in Washington, DC of Chilean activist Orlando Letelier, who was murdered by agents of the Pinochet government, but many foreign government have engaged in violent acts against their nationals in the United States, including China (against the Falun Gong), Cuba (against anti-Castro Cubans), and Iraq (under Saddam Hussein).  Just last week, the Justice Department announced it had uncovered an Iranian plot to kill the Saudi Ambassador in the United States (a claim disputed by Iran).  Given the frequency of such activity, it would be wise to look closely at Mr. Sahou’s case to be sure that no foreign government or agency is behind the attack.

Of course, whatever the motive, the murder of a family man who worked hard, served his home country, and loved his adopted country is a terrible tragedy.  May he rest in peace.

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Jewish Lawyers; Muslim Immigrants

by Jason Dzubow

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, “when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

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Fear and Loathing in the Asylum System, Part III: A “Solo” Visa for Refugees

by Jason Dzubow

For those who seek to limit immigration to the U.S., one area of concern is so-called “chain immigration,” where one immigrant brings multiple family members to the United States. 

This applies to asylees and refugees as follows: Such people can immediately bring their spouses and under-21, unmarried children to the United States (the term “immediately” here means that there is no backlog – processing the family member takes anywhere from six months to several years).  Asylees and refugees are eligible for their green card after one year, and then their citizenship four years later.  Once they have their green card, they can file for their over-21 children (including the child’s spouse and under-21 children), and once they become citizens, they can file for their parents, siblings (including the sibling’s spouse and under-21 children), and married children (including the spouse and under-21 children).  In short, after the asylee or refugee becomes a U.S. citizen, she is eligible to bring multiple family members to the United States–“chain migration.”

In a recent blog post on the Center for Immigration Studies website, David North argues that we could limit chain immigration by prohibiting asylees and refugees  from filing for family members other than spouses and under-21 children.  Before responding to Mr. North’s proposal, I want to mention a few points.  First, I disagree with the presumption behind the proposal–the idea that immigration has a negative effect on our society and should be more limited than it already is.  Of course, too many immigrants could not be absorbed and integrated, but I am not convinced we have reached that level.  Second (and maybe this is a contradictory point), I believe we should eliminate the “siblings” category of immigrants.  There are large backlogs for many categories of immigrant.  I think we would be better off eliminating the siblings category and using those slots for children and spouses of lawful permanent residents.  It never made sense to me that we allow the principal immigrant to come here with a green card, but we make his family members wait for years to join him.  This greatly delays the family members’ integration into our society, keeps family members unnecessarily separated, and causes the principal to send his earnings out of the U.S. to support his family.  We’d be better off bringing the family members here sooner, and one way to do that is to use the visa numbers that are currently given to siblings.

Reunited and it feels so good...

All that said, I must respectfully disagree with Mr. North’s proposal for several reasons.  For one thing, allowing asylees and refugees to bring their family members here does not greatly increase the overall number of people immigrating to our country.  For most categories of family immigrants, there are numerical limits on the number of people who can immigrate to the U.S. each year.  Thus, at worst, the relatives of the asylees and refugees will displace the relatives of other people who are waiting to immigrate.  There will be very little increase in the overall numbers.

Second, I disagree with the idea of making asylees and refugees “different” from others who come to the U.S.  It seems to me, if we are bringing such people to the U.S., we ought to treat them the same as every other immigrant once they become lawful permanent residents or U.S. citizens.  It is better to integrate these people into our community, rather than erect barriers that make them feel excluded. 

Finally, many asylees and refugees will never return to their home countries.  For some, the only hope of seeing their family members is that they can file petitions for them to come to the U.S.  Given the very long waiting times for an immigrant visa, and depending on which relatives are petitioned, such people can expect to wait anywhere from five to 20 years (or more) to see their family members.  Thus, while many asylees and refugees have only a slim hope of seeing their family members again, I suppose this is better than no hope at all. 

In the end, Mr. North’s proposal is quite modest.  I just believe that the “benefits” (i.e., a small reduction in the number of people coming to the U.S.) are not worth the costs.

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