UK Scraps DNA Testing for Asylum Seekers

by Jason Dzubow

A short-lived attempt by Great Britain to determine the nationality of asylum seekers was unceremoniously dumped after it became clear that the testing was of no scientific value. 

In 2009, the Brits started a (supposedly) voluntary program to test the DNA of asylum seekers from certain African countries.  The idea was to reduce fraudulent applications where the asylum seeker claimed to be from a country other than his own (for example, a Kenyan might claim to be from Somalia in order to increase the likelihood that he would receive asylum).  From the beginning, scientists such as University of Leicester’s Alec Jeffreys expressed serious doubts about whether DNA could really determine a person’s country of origin.  Said Mr. Jeffreys:

The [British] Borders Agency is clearly making huge and unwarranted assumptions about population structure in Africa; the extensive research needed to determine population structure and the ability or otherwise of DNA to pinpoint ethnic origin in this region simply has not been done. Even if it did work (which I doubt), assigning a person to a population does not establish nationality – people move! The whole proposal is naive and scientifically flawed.

Now it seems the government has ended the program and even shelved its plans to complete an internal review of the program’s efficacy. 

A second aspect of the program–isotope analysis–has also been canned.  Under this program, the government would analyze hair and nail samples to determine what chemical isotopes they contained.  The government could then (supposedly) determine where the person had recently been.  So for example, if a Somali woman had been living in Italy for the last five years, and then traveled to England to claim asylum, the government could use isotope analysis to show that the woman had not recently been to Somalia.  It is unclear how accurate this analysis is, or how many asylum seekers lie about their country of origin. 

While isotope analysis might provide limited assistance in this regard, it seems to me an easier and cheaper approach is to determine whether the person is fluent in a language from the claimed country of origin.  Of course, like isotopes and DNA, language fluency does not necessarily conform to national borders, but it is probably about as reliable–and much less expensive.

So what, then, is the lesson for us on this side of the Atlantic?  I have not heard about proposals here to use DNA testing or isotope analysis.  Given the lack of success in Great Britain, I imagine that we will not be adopting these methods anytime soon.

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Asylum for Mexican HR Activist Spotlights Problems in Mexico and the US

by Jason Dzubow
Last week, the U.S. government granted asylum to Cipriana Jurado, a Mexican human rights activist who feared persecution by the Mexican army.  According to the Associated Press, Ms. Jurado’s “friend and long-time human rights colleague Josefina Reyes was gunned down in Juarez in January.”  Like Ms. Jurado, Ms. Reyes had campaigned against government and gang violence.  Not only was Ms. Reyes murdered–killed by unidentified gunmen–several members of her family were abducted.  Given the danger, it is not surprising that Ms. Jurado received asylum (not to minimize this accomplishment–only about 2% of asylum cases from Mexico are granted).  Ms. Jurado’s case, I think, highlights problems in the United States and Mexico caused by the escalating violence across our border. 
                                                                                                                                                                                                                 
To paraphrase Mr. Franklin: "An ounce of prevention is worth a pound of cocaine."
First in Mexico: The blatant attacks against human rights workers points to a general disregard for the rule of law.  Has the army become just another gang in the on-going turf war?  Tens of thousands of people have died as a result of drug and gang violence.  The U.S. certainly bears some of the blame, since we are the main consumers of the drugs passing through Mexico and we are the source of most of the guns used in the violence across our Southern border.  Mexico needs to get control of the situation and we need to help.  We need to do more to prevent weapons from crossing the border.  Also, it wouldn’t hurt to try something new in the “war on drugs.”  Perhaps legalizing certain drugs would help reduce the involvement of criminal gangs, and consequently reduce violence.  The website Law Enforcement Against Prohibition has some good information on the potential benefits of legalizing some controlled substances.
                                                                                                              
As for the U.S., if Northern Mexico becomes a failed state, the implications for us are pretty severe.  One fear is that increasing numbers of people will seek asylum in the United States.  The low grant rate for Mexican cases might change if–as in Ms. Jurado’s case–the persecutor is the Mexican government (as opposed to criminal gangs, who currently do most of the persecuting across the border).  This fear may be mitigated by the fact that–unlike Ms. Jurado–most people persecuted by the Mexican government will likely be involved in criminal activities and thus ineligible for asylum (though still eligible for relief under the UN Convention Against Torture). 
                                                                                                                                                                                                                                                                           
It seems to me that a border enforcement-only policy would betray our ideals of protecting bona fide refugees like Ms. Jurado.  We can’t live up to our ideals simply by trying to keep people out who are fleeing persecution.  We need to work more on the prevention side of the equation.  If we succeed, we can help reduce the flow of refugees and improve the situation for our Southern neighbor. 

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Senator Paul Seeks Hearing on Refugees Accused in Terror Plot

by Jason Dzubow

Last week, two Iraqi men were arrested in Kentucky and charged with (among other things) “conspiring to kill U.S. nationals abroad, conspiring to use explosives against U.S. nationals abroad, distributing information on the manufacture and use of IEDs, attempting to provide material support to terrorists and to al-Qaida in Iraq, and conspiring to transfer, possess and export Stinger missiles.”  According to the criminal complaints (available here and here), both men entered the United States as refugees in 2009, and have been living here ever since. 

Most refugees are not all that scary.

Given the obvious breach of security, Senator Rand Paul of Kentucky has called for hearings to determine “how the heck” these alleged terrorists got into our country.  Senator Paul also asked, “How do you get asylum when you come from a friendly government?”  The Center for Immigration Studies echoes this sentiment:

The bigger question is why are we taking refugees from Iraq at all? Resettlement to the United States should be used only as the absolute last resort for people who will surely be killed if they stay where they are and who have nowhere else — nowhere whatsoever — to go.

CIS complains that as conditions in Iraq have improved, the number of Iraqi refugees coming to the U.S. has ballooned–from 200 in the early years of our “Mesopotamian adventure” (as CIS calls it) to 18,000/year in recent years.

As to the first point, I agree that refugees coming to the U.S. pose a security challenge.  It’s possible to search a person’s criminal background in the United States and in most developed countries.  But refugees rarely come from developed countries.  DHS supposedly has ways to check a person’s background against certain databases, but again, it is not clear how these databases are created or how accurate they are.  Of course, we face these same challenges for anyone coming to the United States.  The question is, what do we do about it?

Some commentators, like Mark Krikorian at CIS, believe we should simply stop admitting refugees from Iraq (and possibly from everywhere else as well).   I suppose that would close the door to terrorists who might take advantage of our generous refugee program, but it seems like throwing out the baby with the bath water.  The fact is, there are very few examples of refugees who have committed (or been accused) of terrorism.  The idea that we should forsake all refugees (and our humanitarian obligations/ideals) because of a few bad actors is a short-sighted and cowardly response to the problem.  As a nation, we are a world leader in many areas, including the humanitarian area.  We have greatly benefited from our leadership role, and from the many refugees, asylees, and immigrants who have made our country their new home.  We should not give up our leadership or the benefits that accrue to us because we fear terrorism.  We should not let the terrorists win.

I also want to briefly address Senator Paul’s second point–that people should not receive asylum when they come from a country with a “friendly government,” like Iraq.  The law of asylum states that a person may receive asylum if he has a well-founded fear of persecution in his country.  Whether that country is friend or foe is not relevant to the law.  The law also states that a person may receive asylum if he fears persecution by a non-governmental actor, and the government is unable or unwilling to protect him.  Sometimes, governments friendly to us persecute their citizens (for example, we had a good relationship with General Pinochet, but he killed thousands of his people).  Other times, friendly governments are unable to protect their citizens, as is the case for many people fleeing the Taliban in Afghanistan or insurgents in Iraq.  Since asylum is a humanitarian relief, it should not be contingent on political alliances.  If a person meets the standards for relief, that should be enough.  

All that said, Senate hearings on security and refugees is a worthy topic.  In examining security, I hope Senator Paul keeps in mind the humanitarian nature of the refugee program, the benefits that program brings us, and the ideals that the program represents. 

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Afghan Asylum Seekers in Limbo

by Jason Dzubow
"I'm still waiting for a decision in my asylum case."

As conditions in Afghanistan have deteriorated, I find myself representing increasing numbers of Afghan asylum seekers. Many are young men who have worked with the United States military. Others are journalists or other media types who have appeared on television in Afghanistan. Still others worked for human rights groups and women’s rights groups.

One thing that my clients have in common is that they are all trying to bring about peaceful, democratic changes to their country.  As a result of their activities, my clients faced threats from the Taliban.  A number of my clients were attacked, and some had close relatives killed by the Taliban.  Because the Afghan government cannot (and in some cases will not) protect them, my clients are seeking asylum in the U.S.

Another thing my Afghan clients have in common is that their cases are being held up for “security” checks.  I’ll explain below why I put the word security in quotation marks.

But first, a bit of background: The majority of aliens who file affirmative asylum cases receive a decision two weeks after their interview.  Apparently, cases with Afghan asylum seekers are reviewed by headquarters.  This takes a lot longer than two weeks.  So far this year, I have been to 11 asylum interviews: five from Afghanistan, six from other countries (five from Ethiopia and one from Iran).  All five of the Afghan cases are still pending.  Of the other six, we have decisions in all cases except one (the Iranian case).  In my longest-pending Afghan asylum case, the applicant was interviewed more than seven months ago; we are still waiting for a decision.

According to an Asylum Officer I spoke to, the reason for the delay has to do with “security.”  Obviously, there are legitimate concerns about people coming from Afghanistan and seeking asylum in the U.S.  But there are several reasons why I am skeptical about these “security” checks.  For one, many of my Afghan clients worked closely with the U.S. military, and they have letters, certificates, and photos (often with high-ranking military and civilian officials, including some who were photographed with President Bush) to prove it.  Such individuals have already been subject to some pretty serious scrutiny, so it is not clear what additional checks are necessary.  Second, all the Afghan asylum seekers were screened for security issues in Afghanistan before they received their U.S. visas.  Since nothing suspicious was found in Afghanistan, it seems unlikely (at best) that anything would turn up during an additional security background check in the United States.  Finally, my clients are currently in the United States.  If they are dangerous, they should not be walking freely around our country for six months (or more) while USCIS checks to see whether they pose a security risk.  If USCIS believed that a particular asylum seeker presented a threat, I image (and I hope) that they would detain the person immediately.

A number of my clients have family members in Afghanistan who are hoping to join their relative in the United States if asylum is approved.  Some of these people are living in precarious circumstances and face threats from the Taliban.  It is frustrating and frightening for my clients and their family members when they have no idea how long until they will receive a decision.  It is not fair to keep people waiting in limbo.  I hope that USCIS will consider improving the processing time for Afghan cases.  If they cannot do that, I hope they will at least provide an estimate to the asylum seekers about how long a decision will take.  Treating asylum seekers with respect and dignity means processing cases as quickly as possible and being as open about the waiting time as circumstances allow.

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Refugee Admissions Down as a Result of New Security Checks

by Jason Dzubow

The Catholic News Service (“CNS”) reports that refugee admissions for FY 2011 have slowed dramatically due to new security measures put into place by the Department of Homeland Security.  The slow down effects not just the refugees–often times waiting in camps where they face disease and other dangers–but also the capacity of the resettlement agencies, which receive funding based on the number of people resettled.

Each refugee will receive a free copy of Andy Warhol's famous poster.

For Fiscal Year 2011, President Obama has authorized the admission of up to 80,000 refugees.  However, according to CNS, as of mid-May (7 1/2 months into the fiscal year), only 38% of the 80,000 have been admitted.  This puts us on track to admit only about 49,000 refugees for the current fiscal year.  CNS reports:

Delays in the refugee resettlement process are being caused by a backlog of security clearances and additional security “holds,” according to Larry Bartlett, acting director of the Office of Refugee Admissions for the State Department. The additional security measures are part of a larger series of security enhancements by the Homeland Security Department.

These delays have several effects.  For one, refugees are forced to endure longer waits in camps, and families remain separated for longer periods.  Further, some refugees who have already been screened and cleared are now stuck waiting for the new security checks.  During this waiting period, certain of the clearances may expire, and the refugees will need to be cleared again–resulting in even more delays.  

In addition, the receiving agencies in the U.S. receive $700.00 for each refugee resettled.  The agencies are paid only when they actually receive the refugee.  This means that agencies’ revenues are down, and this could affect their capacity (for example, if an agency is forced to lay off workers, it may not be prepared if additional refugees arrive).   

A State Department spokesman stated that refugee admissions would increase during the remainder of the fiscal year, and that DOS expected to resettle between 63,000 and 74,000 refugees in FY 2011.

Of course, it is difficult to argue against additional security background checks, especially when it is unclear what those checks entail or why they have been put into place.  Further, for agencies in the business of resettlement, it seems only fair that they must adjust to the policy changes of the U.S. government.  That said, it is difficult for me not to be a bit skeptical about the new background checks.  Hopefully, though, once the new system is up and running, refugee admissions will return to normal levels, so we can fulfill our commitment to assisting people in dire need and keep our country safe. 

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Battle Hymn of the Tiger Lawyer

by Jason Dzubow

In her memoir, Battle Hymn of the Tiger Mother, law professor Amy Chua compares the strict “Chinese” parenting style with the more permissive parenting style popular in the West.  The book (or at least the out-of-context ideas in the book) shook the parenting word: Are Western parents focused so much on building their children’s self esteem that they’re raising self-indulgent, spoiled kids?  Are traditional Chinese parents raising children who will be smarter and more successful than their peers in the West?

Tiger Lawyers win more cases.

I am not sure which parenting style works better, but in the context of immigration law, it makes sense that the “Chinese” style will result in better outcomes for our clients. 

It might seem like a no brainer to treat our clients strictly–if we need a document in time to meet a deadline, the client better get us that document on time.  The problem is, immigration lawyers, and more particularly asylum lawyers, are generally big softies.  We may talk tough, but our sympathies are with the little guy.  For the most part, we are nice people trying to help out those in need.  We’re not really the type to crack the whip.    

I can think of plenty of occasions where clients brought me documents on deadline day, after I finished preparing their cases.  I may have grumbled (a lot), but I dutifully pulled apart the documents, re-did the index of exhibits, and submitted a complete package with the new evidence.  Other times, I receive documents after the deadline.  I submit them late and make some excuse to the judge, often times taking the blame myself.  A Tiger Lawyer would not do these things.  He would tell the client that it was too late, and let the chips fall where they may–if the client loses her case, she has only herself to blame.

Of course, clients don’t care much about deadlines or documents; they just want to win their cases.  If lawyers didn’t submit the documents late or take the blame for our clients’ failures, we would lose more cases.  Perhaps it would be better if our clients suffered the consequences of their shortcomings.  But I suspect a lawyer who follows that approach won’t be in business for very long.   

To be successful, we have to be tough on our clients so that they gather the evidence and do what is needed to win their cases.  But in the end, we have to put our clients’ interests first, and when they fail to do their part, we have to make up for it.  So maybe the best approach is to be a nice guy in a Tiger Lawyer’s clothing.

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Ecuador Cracks Down on Alien Smuggling to the U.S.

by Jason Dzubow

Not long ago, the Washington Post reported on one of my clients from Eritrea, who was smuggled through a dozen countries before entering the U.S. and gaining asylum.  The article states that my client’s “epic trip underscores the challenge of protecting U.S. borders in the face of agile networks of smugglers, corrupt officials who arrange travel documents and desperate immigrants willing to pay thousands of dollars for the journey.”  These networks worry U.S. officials:

“While the majority of aliens smuggled into the U.S. probably do not pose a risk to national security, the problem is terrorists could exploit these smuggling travel networks,” said James C. Spero, deputy assistant director of the Immigration and Customs Enforcement agency, which enforces immigration laws. “It is a major concern for us.”

Recently, there seems to have been some progress in combating the smuggling networks.  The Ecuadoran newspaper El Universo reports that on March 10, a joint Ecuadoran and Columbian raid captured Yaee Dawit Tadese, a/k/a Jack Flora, an Eritrean smuggler, and 66 other individuals from Asia, Africa, and the Middle East.  Mr. Tadese managed a network that trafficked migrants from Africa to the United States, using two routes running through either Ecuador or Venezuela.  According to the website InSightCrime.org, Mr. Tadese was deported to the U.S. on March 12, where he faces terrorism, and drug and human trafficking charges (the article also reports on a rumor that Mr. Tadese is Osama bin Laden’s cousin, but that seems a bit far fetched).

Yaee Dawit Tadese: Osama bin Laden's long lost cousin?

It remains to be seen how much these arrests will impact the flow of illegal migrants to the U.S., but I imagine it will have an effect–at least for a while.

In related news, a change in the visa requirements in Ecuador might also reduce the number of migrants passing through that country en route to the United States.  In 2008, Ecuador eliminated visa requirements for most countries.  Since that time, according to InSightCrime.org, the country has “seen the growth of Colombian, Russian, and Chinese organized crime groups operating within its borders.”  Ecuador’s “lax visa policies may have also increased the smuggling of Asian and African migrants from the Andean nation to the U.S.”

Late last year, “Ecuador created visa requirements for nine countries: Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia.”  This change may also reduce the number of migrants passing through Ecuador on their way to the U.S. 

Given that it takes several months for people to travel from Ecuador through Central America and Mexico to the U.S., I suspect we will begin to see the effects of Mr. Tadese’s arrest and the new visa requirements in the near future.  Will these developments reduce the number of people arriving illegally at the U.S.-Mexican border, or will they simply cause the migrants to seek out alternative routes?  We will know soon enough.

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Negative Judicial Metaphors Harm Immigrants

by Jason Dzubow

A recent article in the Fordham Law Review posits that negative metaphors used by judges to describe immigrants contribute to negative public perceptions of immigrants and lead to adverse judicial decisions. 

Before now, I never metaphor that I didn't like.

In Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, Keith Cunningham-Parmeter discusses different metaphors used in judicial decisions related to immigration.  The most common metaphors can be classified into three categories: (1) Immigrants are aliens; (2) Immigrants are a flood; and (3) Immigrants are invaders.  Each of these metaphors carries negative associations–for example, floods cause us to drown; invaders try to kill us.  Employing these metaphors, writes Mr. Cunningham-Parmeter, affects how we think about immigrants, which in turn affects judicial decisions.

One set of figures cited in the article struck me as particularly noteworthy—In examining 4,200 federal cases related to immigration, Mr. Cunningham-Parmeter found that the phrase most commonly used to describe immigrants was “illegal alien:”

“[I]llegal alien” was “by far the most common term, appearing in 69% of opinions (2905 cases).  No other term appeared in more than 10% of opinions, except “undocumented alien,” which accounted for 16% of the results in 670 cases.  

It seems likely that the overwhelming use of negative metaphors for immigrants would impact how judges think about people who are in the U.S. illegally.  This, of course, could result in more adverse decisions.  

To counter these negative metaphors, Mr. Cunningham-Parmeter proposes some positive metaphors; words that connote entrepreneurial economic migrants (i.e., people with the get-up-and-go necessary to cross borders and start new, productive lives):

[M]igrants are neither criminals nor invaders, but instead people who cross international borders in order to survive.  As such, the economic sanctuary metaphor brings focus to the human consequence of globalization.

I certainly appreciate the effort to de-stigmatize immigrants (and in writing this blog post, I find myself avoiding the term “alien,” a term of art defined in the INA, but also a metaphor with negative connotations).  In the end, though, I am skeptical that we can replace existing metaphors with something more benign.  There is a tribal aspect to these metaphors that is deeply ingrained.  We do tend to view outsiders as “invaders” and as a threat.  Maybe that is just the way of human nature.  Or, hopefully, I am wrong, and Mr. Cunningham-Parmeter’s article will help plant a seed that will lead to a more positive—and constructive—view of people who immigrate to the United States.

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The BIA on Firm Resettlement

by Jason Dzubow

Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.

If Angelina Jolie shows up, it probably means you are not firmly resettled.

It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S.  In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.

The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country.  When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.  An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement.  Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.

It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country.  In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years.  He married a Senegalese citizen.  The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal.  A-G-G- then had an opportunity to rebut that evidence.  The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar.  However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.

Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.



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Doctors, Detention, and Dual Loyalty

by Jason Dzubow

A recent report by Physicians for Human Rights (“PHR”) articulates the difficult dilemma faced by physicians who serve detained immigrants.  Such physicians have a “dual loyalty” problem:

Health professionals working in detention facilities run directly under DHS oversight, report to the federal agency charged with managing health care for detainees, the ICE Health Service Corps (HSC).  Like ICE, HSC is a division of DHS, and therefore, has objectives that tend to focus on deportation and security, rather than on providing comprehensive health care to immigrants in detention.  Review of the HSC mission statement clearly demonstrates that its mandate is prone to conflict with health professionals’ obligation to provide their patients with the best possible care.  The HSC website proudly proclaims: “We protect America by providing health care and public health services in support of immigration law enforcement.”

Perhaps Janus, not Asclepius, is an appropriate patron deity for DHS Doctors.

A doctor’s first loyalty should be to her patient.  However, there are many examples of third parties infringing on the doctor-patient relationship: insurance companies and hospital administrators being two of the most common.  In the case of detained immigrants, a doctor’s loyalty to her patient may be compromised by her loyalty to her employer–in this case, the Department of Homeland Security.  The PHR report points out that this should not happen:

While the term “dual loyalty” may imply equivalence between a medical professional’s loyalty to the patient and loyalty to third party interests [such as DHS], no such equivalence exists.  Ethically, with very rare and well-circumscribed exceptions, a health professional is obligated to act in the interest of the patient above all other concerns.

Great in theory, but not always easy to implement in reality.  The report offers several recommendations, including the following:

  • Require that health care professionals working in detention centers report to health organizations, such as the Department of Health and Human Services, so that they may maintain clinical independence.  They should not report to the Department of Homeland Security or to for-profit private contractors.
  • Create an independent oversight organization to monitor provision of health care in all facilities that house immigration detainees.
  • Create an ombudsman office to which detainees may easily report grievances regarding access to medical care.
  • Make the Performance Based National Detentions Standards (PBNDS) legally enforceable in all facilities that house immigration detainees.  Failure to adhere should result in contract cancellation.

DHS detains about 400,000 people each year.  The recommendations in the PHR report would help to improve medical care for these people and would also help to mitigate the “dual loyalty” problem faced by physicians in the system.  Further, PHR’s recommendations do not seem particularly costly.  Indeed, the primary recommendation–that physicians working with detained immigrants report to HHS instead of DHS–should cost next to nothing.  The recommendations are worthy of consideration by DHS.

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BIA Makes It Easier to Deport 14 Year Olds

by Jason Dzubow

In a recent decision, the Board of Immigration Appeals held that service of a Notice to Appear (“NTA”) on an alien is effective, so long as the alien is at least 14 years old. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA April 29, 2011).  

Another child served with a Notice to Appear.

It may seem idiotic to expect a child still in the throws of puberty to respond to an NTA, but to be fair, the BIA was just following orders:

Section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2006), provides that the Notice to Appear is properly served if it is “given in person to the alien (or if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” See also 8 C.F.R. § 103.5a(c)(1) (2010) (providing for personal service of notice).  However, the regulations state that if the alien is a minor under 14 years of age, “service shall be made upon the person with whom the . . . minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see also 8 C.F.R. § 236.2(a) (2010).

So I suppose it really isn’t the BIA’s fault that the regulations allow for service of an NTA on a middle school student.  There are a few things that bother me about this decision.

For one, the regulation is ridiculous.  How can a 14 year old be expected to understand and respond to an NTA?  This is another example highlighting the need for court-appointed advocates in cases involving minors or people who are incapable of representing themselves.   

Second, why did the Board bother to publish this decision?  It does nothing except re-state the regulation.  Given that the BIA publishes decisions so rarely (only about 1 case in 1,000 is published), it is disappointing that they would “waste” a published decision on a case that does nothing to clarify the law or set a precedent.

Finally, why didn’t the Board take this opportunity to criticize the regulation and/or call for court appointed advocates in cases involving minor children?  The BIA likes to tell us that it has no authority to rule on the validity of the regulations that govern it.  Maybe so, but it does have the expertise and the moral authority to criticize those regulations where they are unfair.  There is a long tradition in the American legal system of courts criticizing laws, even when they cannot invalidate those laws.  Sometimes, a well-written criticism helps change an unjust law.  Also, there is a tradition of courts asserting their authority even when the other branches of government question that authority (think Justice Marshall in Marbury v. Madison). 

In Matter of Cubor-Cruz, the BIA missed an opportunity to criticize an unjust regulation.  It also missed a chance to assert its (moral) authority in order to bring about a positive change in the law. 

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Cuban “Asylum Seeker” to Play for Major League Baseball

by Jason Dzubow
Leonys Martin: A uniform this ugly might form the basis for an asylum claim.

It looks like the Texas Rangers’ newest teammate will be Cuban defector Leonys Martin, a 23-year old centerfielder who formerly played for the Cuban National Team.  Mr. Martin defected while his team was in Taiwan playing in the FISU World University Championships.  How he made his way to the U.S. is not clear. 

According to the Rangers’ website, Mr. Martin is currently training in Arizona.  He will receive a $15 million signing bonus and will likely begin his pro career on a Double-A team, though he is expected to move to the majors by year’s end.  According to the Dallas Morning News, Mr. Martin’s immigration status caused a bit of delay when it came time for the Rangers to sign him:

Because of the complications of dealing with a player seeking political asylum, the signing has been held up while the sides await proper approval from the U.S. Department of State.

My guess is that Mr. Martin is not an asylum seeker, but rather (like many Cubans) he is a beneficiary of the Cuban Adjustment Act, a law that basically allows Cubans in the United States to obtain their lawful permanent residency after one year in our country.  Since Mr. Martin has been here for less than one year, the problem with signing him may be because he has not yet adjusted status under the Act. 

I’ve never been a huge fan of the Cuban Adjustment Act.  It seems unfair to me to allow Cubans this humanitarian benefit when we deny the benefit to people who come from more dangerous places (like Haiti, for example).  Although many Cubans face persecution in their homeland, I see no reason why they should not file for asylum like everyone else. 

On the other hand, our country has been greatly enriched by Cubans like Mr. Martin coming to our shores.  It’s just too bad that he’s not playing for the Phillies.

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DHS Protects Women and Girls, but More Can Be Done

by Jason Dzubow

In a recent posting on the Department of Homeland Security blog, January Contreras, the DHS Ombudsman, describes the Department’s efforts to help protect women and girls.  Some highlights:

In 2010, U.S. Citizenship and Immigration Services (USCIS) administered the full statutory allotment of 10,000 visas for victims of domestic crimes who participated in the investigation and prosecution of their perpetrators – for the first time.

Through U.S. Immigration and Customs Enforcement (ICE)’s Victim Assistance Program, 18 new full-time victim assistance specialists have been deployed to 17 ICE offices, in addition to 250 collateral duty Victim Assistance Coordinators, to provide continued guidance and support for victims of violent crimes.

The Federal Law Enforcement Training Center has deployed programs that train officers on protecting women and girls, including a web-based human trafficking training course and training on violence against women.

January Contreras: DHS Ombudsman

Ms. Contreras concludes, “While we are extremely proud of our accomplishments in the protection of women and girls, we know there is always the opportunity to do more.”  “As a Department, we are committed to dedicating even more of our efforts to the security of women and girls in the years to come.”

DHS should be commended for its efforts and accomplishments to protect women and girls.  As Ms. Contreras notes, there is more to be done.  Some suggestions:

DHS recently expanded the unit that adjudicates VAWA, T and U visas (victims of domestic violence, victims of human trafficking and victims of certain crimes, respectively) to approximately 100 officers.  Previously, officers elected to join the “VAWA unit,” but it seems this practice has changed and officers are often rotated through the unit.  The results of this change have been mixed.  On the one hand, processing times have been reduced, which is certainly good news.  But on the other hand, expertise has gone down and the number of RFEs (Requests for Evidence) issued by the unit has increased as new officers learn the new areas of law.  These superfluous RFEs cause delay and reflect the lack of specialization of officers rotated through the unit.  One solution would be to go back to the previous model where the staff of the VAWA unit were permanent, chose to be in the unit, and were well-trained prior to starting in domestic violence and VAWA.  Such officers would be more specialized and would increase the quality of the work product.  

The Victims Assistance Program is an excellent program that assists victims, including victims of human trafficking many of whom are eligible for T and/or U visas.  However, very few U visas certifications seem to be signed by ICE agents.  DHS needs to do a better job of informing ICE agents about their ability to sign U visa certifications and the process for doing so.  DHS should do more to help ICE agents understand their role in the certification process.

Also, on the subject of U visas and certification, many local law enforcement officers do not understand the visa and how it was designed to help them investigate crimes.  DHS should do more to inform local law enforcement about U visa certifications and how to assist crime victims with their U visa applications.

Finally, with the rise of ICE detention in the United States, it is important that DHS put in place a framework to identify victims of domestic violence, sexual assault, human trafficking, and other violent crimes who may be eligible for immigration relief.  A system should exist so that such people can be connected with appropriate resources.  Ideally, this screening would occur prior to the issuance of an ICE detainer

While DHS’s efforts to assist women and girls has been laudable, there are estimated to be about 100,000 children (under age 18) in the sex trade each year in the United States (it is not known how many are immigrants and how many are U.S. citizens).  In addition, there are likely several hundred thousand adults.  All of these people may not be victims of human trafficking, but many are.  Others may be victims of domestic violence, sexual assault, and other violent crimes for which there may be immigration relief available.  Given the large numbers of victims, DHS and Congress should devote more resources to helping those in need.

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Are Well-Fed Judges More Likely to Grant Asylum?

by Jason Dzubow

A recent study of parole judges in Israel demonstrates that the judges tend to issue more favorable decisions on a full stomach.  The study, by Shai Danzuger of Ben Gurion University, examines 1,112 parole board hearings in Israeli prisons.  In the chart below, the vertical axis represents the proportion of cases where the judges granted parole.  The horizontal axis shows the order that cases were heard throughout the day.  The dotted lines represent the points where the judges went away for a morning snack and a lunch break.

The study controls for various factors, such as gender, ethnicity, and type of crime, and its conclusion–that the judges’ decisions are strongly influenced by whether they’ve eaten–seems pretty convincing.  My question is: Does this study have any applicability to Immigration Judges or Asylum Officers?

One reason to think that the study is not applicable to IJ’s and Asylum Officers is that the Israeli judges ruled on 14 to 35 parole cases per day.  While IJs in Master Calendar Hearings often rule on more than 35 cases per day, such cases are rarely final decision where the alien is contesting removal.  Most final decisions occur during Individual Hearings, and IJs generally do not adjudicate more than four or five individual hearings per day (especially when those hearings involve asylum applications, which tend to take more time than other types of immigration cases).  Asylum Officers also have a much lower daily caseload than the Israeli judges.  Thus, the challenges faced by the Israeli parole judges are quite different from those faced by Asylum Officers and IJs in the United States.

On the other hand, the study does point to the problem of fatigue as a factor in decision-making, and it makes sense that fatigue would affect IJs and Asylum Officers, all of whom are overworked and under pressure.  How–or whether–that fatigue affects asylum cases is not known.      

Studies of asylum cases have shown that the results can be arbitrary (see, for example, this posting about the article Refugee Roulette) and that “unobservable factors,” such as gender and education, may affect asylum decisions.  However, as far as I know, there has not been a study of how fatigue affects decision-making.  There is, however, significant evidence that IJs (and presumably Asylum Officers) are stressed out by the heavy case load and the difficult types of cases. 

What, then, is the solution?  I suppose the easy answer is to hire more IJs and more Asylum Officers.  EOIR has been expanding the number of judges, but given our current budgetary woes and the vast number of cases, it is doubtful that a handful of new IJs will make a great difference in the overall stress level.  Another solution (which I don’t love) is to simplify the system and eliminate some layers of review (for example, combine the Immigration Courts and the Asylum Offices into one body, which would handle all cases at the trial level).  A final thought is to encourage the BIA to issue more decisions (I have written about this before in the cleverly titled (if I do say so myself) blog post–The Unbearable Lightness of BIA-ing).  This would create more certainty and regularity in the system.  It certainly won’t solve the problem, but it does seem like a reasonably easy way to improve efficiency.

Fatigue, stress, and overwork are all factors that negatively affect decion-makers in the asylum system.  The more we can do to alleviate those problems, the better decisions we can expect.  In the mean time, I recommend that you bring the IJ a nice sandwich before your trial.  It couldn’t hurt.

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Virginia Denies Driver’s Licenses to Refugees

by Jason Dzubow

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV.  As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal. 

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum.  In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country).  Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum. 

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum.  This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia.  An asylum seeker need only show a 10% chance of persecution to obtain asylum. 

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.”  I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not.  She has been granted Withholding of Removal.  That order has not been appealed, and it is final.  There is nothing more to review.  It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license.  Her legal status is Withholding of Removal.  It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele.  It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs.  My guess is that the lawsuits are coming.  Let’s hope so.

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