Many African asylum seekers enter the United States at the Mexican border. Their journey to the U.S. is long and circuitous. In East Africa (where some of my clients come from), people travel from Ethiopia, Eritrea or Somalia to Kenya. From there, they go to South Africa and Brazil using false passports, and then through South America (sometimes by boat up the Amazon River!), to Central America, and then Mexico and the U.S. Along the route, they are passed from one smuggler to the next. Its big business for the smugglers: I’ve heard the trip costs between $10,000.00 and $15,000.00, and sometimes more.
A smuggler guides a couple illegal aliens across the border.
Last year, Abrahaley Fessahazion, an Eritrean based in Guatemala pleaded guilty to helping smuggle illegal aliens to the United States for financial gain. Mr. Fessahazion was caught after he came to the U.S. and filed a false claim for political asylum. He faces up to 10 years in prison.
Now, if the rumor mill is to be believed, DHS and at least one Latin American government are planning to arrest some additional smugglers in Central America. DHS investigators have been interviewing smuggled aliens in the United States. They have asked the aliens to identify photos of several smugglers based in Central American. While most of the smugglers are from Latin America, at least one is African.
It seems that DHS’s central concern involves the Somalis, who have long been viewed as a potential threat to national security (I’ve blogged about this issue here), and apparently DHS’s interrogation of the smuggled aliens has focused on Somali migrants.
If the rumors are true, and certain Latin American governments are cooperating in the crackdown, life might be about to become difficult for the smugglers.
For many immigration attorneys, the people we can’t help are the ones we remember the best. I received a sad call last week and there was little I could do to assist.
Apparently, the caller’s husband had applied for asylum prior to the marriage. He was denied and then failed to leave. Later, he met the caller, they fell in love, and married. Whether she knew about his immigration problems prior to the marriage, I do not know. In any case, she got pregnant.
Two months into the pregnancy, the husband was detained by ICE (Immigration and Customs Enforcement), and quickly returned to his home country in West Africa, leaving his wife alone in the United States.
The wife called me to ask about the possibilities for him to return, based on the marriage. She told me that she was working seven days a week to support herself. She felt that without her husband’s help, she was incapable of taking care of a child. She told me that since she was separated from her husband, she would probably not keep the baby.
I advised her of the legal consequences of the husband’s overstay and removal (he is barred from returning for 10 years), and discussed the possibility of him returning based on the marriage. Although the couple could apply for a waiver to allow the husband to return to the U.S. in less than 10 years, I doubt he will return quickly–certainly not in time for the baby.
I understand that the husband is likely to blame for his family’s predicament, and I am not sure what, if anything, “the system” did wrong. Maybe I am also being sensitive, having recently become a father myself. Nevertheless, the caller’s story is a sad example of an unintended consequence of the immigration system.
In a strongly-worded dissenting opinion, Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit Court wrote that an immigration attorney provided ineffective assistance of counsel for failing to ask her client about whether the client had been subject to female genital mutilation (“FGM”).
An attorney representing an asylum seeker has a duty to investigate all grounds upon which an applicant may be entitled to relief… [and must] inquire as to whether her female client has suffered female genital mutilation when (1) nearly 90 percent of women in the client’s home country endure such a brutal procedure, and (2) it is well-settled that female genital mutilation constitutes persecution sufficient to warrant a grant of asylum.
The Judge concludes by rejecting the majority’s reasoning that an attorney should not be required to inquire about something as personal as FGM:
The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief. The panel majority’s decision allowing attorneys to forego investigating intensely personal facts in an asylum claim diminishes the attorney’s role in the asylum process. Our precedent tells us that competent attorney performance requires more. I believe that our court should instill a greater sense of professional responsibility in attorneys who represent asylum seekers.
It’s a powerful argument–and a cautionary tale for those of us who represent women from countries where FGM is widespread. If Judge Pregerson’s position were adopted, attorneys would be required to ask about FGM not just in asylum cases, but also for clients seeking other forms of relief. And we would–I suppose–be required to file FGM-based asylum applications for all clients who have been victims of the practice. I have mixed feelings about this.
An anti-FGM poster in Kenya.
One problem is that it takes considerable time to develop an asylum case; particularly a case based on FGM. For private attorneys, we would need to charge money for this time. For non-profit attorneys, more time on one case means taking fewer cases overall. Thus, fewer asylum seekers would be represented.
Another problem is that adding an additional claim for relief may weaken the overall case. It’s a question of strategy, but generally, if I have a strong basis for relief, I would rather not include a second, weaker claim for relief. The weaker application tends to distract from the stronger, and increase the odds that both applications will fail. Under the regime outlined by Judge Pregerson, I might feel obliged to include the FGM claim, even if I felt it would distract from the main focus of the case (if only for CYA–cover your ass–purposes).
On the other hand, if asylum might be available to a client based on FGM, the lawyer has a duty to at least explore that option. I think it goes too far to label an attorney “ineffective” for failing to file an FGM asylum claim, especially where the attorney determines that such a claim is not the best strategy for the case. However, where the attorney fails to ask about FGM when the client hales from a country where that practice is prevalent, there is a good argument that the attorney has provided ineffective assistance of counsel.
I wonder if this refugee family - reunited with help from HIAS - thinks the organization has outlived its purpose.
A prime example of a refugee resettlement organization whose raison d’etre has become self-perpetuation is the Hebrew Immigrant Aid Society (HIAS). The venerable organization that has helped Jews fleeing pogroms, the Holocaust and, more recently, oppression in the Soviet Union, has been confronted with a situation that might otherwise be considered a positive development: There [are] remarkably few Jewish refugees in need of resettlement. Without a real mission, HIAS has resorted to inventing one rather than declaring its mission accomplished and closing its doors. By its own admission, only a small percentage of the people resettled by HIAS are the people whom the organization ostensibly exists to serve.
This statement is pretty ridiculous. Today, there are over 14 million refugees in the world. HIAS was created to help Jewish refugees. Now that (thankfully) there are few Jewish refugees, HIAS uses its expertise to assist other people in need. To anyone concerned about helping others, this seems like a no-brainer. Apparently, though, FAIR doesn’t get it.
Particular Social Group
FAIR complains that the definition of “particular social group” has been expanded too far. Specifically, the report mentions homosexuals, and argues that most cases of persecution based on sexual orientation involve persecution by private individuals where the government cannot or will not protect the individual from harm. FAIR objects to this in principle:
In essence, decisions of this type put the United States in the position of a safety valve whenever foreign governments fail to exercise their responsibilities to protect their own citizens. That may be a noble objective, but it is an unreasonable burden.
First, while some cases of persecution of gays involve non-state actors, a number of countries persecute homosexuals, including Iran and Saudi Arabia, where the “offense” of homosexuality is punishable by death. Second, protecting individuals who face harm or death is not an “unreasonable burden” (when is saving someone’s life ever really an unreasonable burden?). There are no statistics about the number of people granted asylum based on “particular social group,” but my guess is that only a small percentage of asylum seekers fear persecution on account of their particular social group. So even if we are concerned with the number of people winning asylum based on this protected ground, that number is fairly small. Finally, the asylum law does not require state action–people who face persecution from non-state actors are eligible for asylum if their government cannot or will not protect them. To the person who is persecuted or killed, it may not matter much whether he is killed due to government action or government inaction. Dead, as they say, is dead.
Asylum Should Be Temporary
FAIR also believes that a grant of asylum should generally be temporary:
Asylum protection should be temporary, maintaining the focus of the individual on the need to return to the home country to work for positive change.
By this logic, we should have sent Einstein back to Nazi Germany to work for “positive change.”
The hope, of course, is that asylum seekers will return to their country if conditions improve, but the reality is that most will not–even if it becomes safe to go back. For one thing, it usually takes a long time for country conditions to change. I represent many asylum seekers from Ethiopia. That country has had the same repressive government for almost 20 years, and it does not look to improve anytime soon. Also, people need to feel that they are safe. To grant someone asylum, only to deport her later, leaves her in a frightful limbo, unable to move forward with her life or to feel secure. Finally, when helping another person, it is important to respect that person. We should respect asylees enough to allow them to make their own decision about whether it is safe to return.
So I suppose that concludes my comments on FAIR’s report. While I disagree with many of the recommendations, the report raises points that are worth discussing, and I hope the conversation will continue.
I may belong to the last generation of Americans who make analogies to Eddie Haskell, Wally Cleaver’s two-faced friend from Leave It to Beaver who used to give Beaver “the business” and then turn around and feign sweetness towards his mother. Mrs. Cleaver never bought Eddie’s act, but she was always too polite to say anything. In the current scenario, the House Republicans are Eddie Haskell and the American People are June Cleaver.
Golly Gee Willikers! What's wrong with reading the Constitution?
The House Republicans read the Constitution at the start of the new Congress, and then dared anyone to object: What red-blooded American could oppose reading the Constitution, they ask with feigned incredulity. I object, and I think all Americans should too.
So what’s wrong with reading the Constitution? The problem, of course, is not the Constitution itself, but the underlying message, delivered with a wink: We Republicans and Tea Partiers–not you–own this document. It is ours to interpret. We–not you–know what it means. We’ll explain it to you in our folksy, no nonsense, commonsensical style. We’ll use words like “originalism,” “Judeo-Christian,” and “American exceptionalism.” No reasonable person—no real American—could possibly hold any other view of our founding document. It’s so simple, the Republicans tell us, even a liberal could understand.
But the Constitution does not belong to the Republicans, or the Tea Partiers. It belongs to all Americans. To everyone. The triumph and the tragedy of the Constitution is that it is subject to different interpretations. The search for certainty in the document is a red herring. In the 1920s and 30s, the search for certainty led many countries to turn to the Übermensch, the strong father figure who promised security in a dangerous and uncertain world. We all know how that turned out. As adults, we must accept that certainty is an illusion.
And while the lack of certainty might be discomfiting, this is also the brilliance of our founding document. It requires vigorous debate. It requires engagement on substantive issues. Without the uncertainty of the Constitution, we would not have had the great or the terrible decisions that shaped our nation: Dred Scott, Brown v. Board of Education, Roe v. Wade, Bush v. Gore. The Constitution’s ambiguity led us to debate the important issues of our time, but the document has also given us an historic framework and a legal process for those debates.
They say, we are who we are because of, and in spite of our parents. We as a nation are what we are because of and in spite of the Constitution. By attempting to seize exclusive control of this document through a seemingly innocent, Eddie Haskell-like reading, Conservatives want to force their interpretation upon us and to cut off debate. They did the same thing with the American flag, turning it into a symbol for the Right, worn on every “real American’s” lapel. Co-opting jingoistic symbols of patriotism is one thing, but when they try to make us swallow their version of the Constitution and no other, we need to stand up and say no. That is why the Republican’s reading of the Constitution in the House was so offensive.
The below post was prepared by a friend who is a keen observer of the immigration system, and who has seen many cases in immigration court, at the asylum office, and with USCIS. My friend wishes to remain anonymous:
Refugees and asylum seekers more often than not arrive in the United States after having endured difficult conditions and traumatic experiences. As a consequence, many are affected by stress and trauma-related mental health issues, such as PTSD (Post-Traumatic Stress Disorder).
Newly arrived asylum seekers often have difficulty finding mental health assistance, especially when many are unlikely to venture beyond their close family and friends, and there are stigmas attached to seeking such assistance. Fortunately across the country, there are many organizations that provide low-cost or free mental healthcare.
According to the Transactional Record Access Clearing House (“TRAC”), the bulk of asylum cases (six out of ten) are decided in four of the fifty-two immigration courts across the country: New York City, Miami, San Francisco, and Los Angeles. Finding assistance in one of those four cities is probably easier than in other places, since immigrant communities are more established.
Regardless of location, the links below should provide a good starting place to find the help needed. The below list is far from comprehensive, so please feel free to share any other sources in the comments section.
And of course, inclusion on this list does not constitute an endorsement. Rather, the organization listed below should provide a starting point for people in need of assistance:
Mental Health Association of California: www.mhac.org (California Only)
Florida Mental Health Counselors Association: www.floridamhca.org (Florida Only)
Another good place to seek out assistance is any local teaching hospital. Hopefully this list will provide a starting point for those seeking assistance.
Recently, the Federation for American Immigration Reform (FAIR) released a report called Refugee and Asylum Policy Reform. Last week, I wrote about some problems with the report’s methodology. Since it’s a new year, I wanted to do something more positive, so for today’s post, I will discuss some recommendations in the report that I agree with.
The Cuban Adjustment Act
The report recommends that the Cuban Adjustment Act be scrapped as a Cold War anachronism:
The exemption of Cubans in the United States from being required to justify a well-founded fear of persecution if sent back to Cuba is a political rather than humanitarian provision that encourages illegal immigration from Cuba. The Cuban Adjustment Act should be repealed and the “wet-foot-dry-foot” policy that paroles Cubans into the country should be rescinded by the president.
While I oppose the Cuban Adjustment Act, Cuba's loss has been our gain: Rapper Cuban Link
This policy has never made much sense to me, especially since the end of the Cold War. I’ve represented Cubans who gained their residency in the U.S. through the Cuban Adjustment Act, and they have all been very nice people. But they were not political dissidents or people who faced persecution in Cuba. Maybe the original idea behind the Act was to score a propaganda victory against Cuba, but after 50 years of the “Revolution,” I don’t know that it’s done much good (on the other hand, all those Cubans coming to the U.S. have greatly enhanced our country). Rather than allow any Cuban who reaches the U.S. to remain here, we would do better to require each person to prove that he has a well-founded fear of persecution in Cuba, just like asylum seekers from other countries.
Coercive Family Planning
Congress has defined the term “refugee” to include victims of China’s coercive family planning policies. The FAIR report recommends that the “expansion of the definition of a refugee to include coercive family planning policies should be reversed.” “It deviates from international practice and encourages illegal immigration from China.”
I have always felt that it is unfair to condemn China for its one-child policy. That country faces a very real and very dangerous population crisis, and the government instituted a policy (however unpalatable) to avoid disaster. The law that FAIR opposes is more narrowly written than the report indicates, but it is still over-broad. INA § 101(a)(42)(B) defines “refugee” as follows:
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
The law appropriately defines “refugees” to include past victims and possible future victims of forced abortion and forced sterilization. However, those who “resist” the family planning policy are also covered. I would limit the definition of “refugee” to include only those who suffer from the coercive policies, not those who merely oppose such policies (though in my understanding, asylum is not given willy-nilly to anyone who expresses opposition to the one-child policy, and in this respect, I think FAIR’s concern is a bit over-blown).
Asylum Fraud
The FAIR report is concerned with “combating the documented fraud in the asylum system.” Fraud is a problem in the asylum system, and it is one I have written about before in a post creatively titled Fraud and Asylum. I believe the most effective method to combat fraud–and I did not see this mentioned in the FAIR report–is to aggressively go after attorneys and notarios who engage in fraudulent practices. To quote my own blog on this point:
Another option is to identify attorneys and notarios who prepare claims deemed suspicious. Such people should be investigated and, if evidence of fraud is uncovered, prosecuted. This, to me, is the easiest and most effective solution. The DHS attorneys generally know who is producing and/or facilitating fraudulent claims. Why not send an undercover investigator posing as a client to the suspected attorney? If the attorney suggests that the “client” engage in fraud, the attorney could be charged with a crime…. Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.
So, I am pleased to have found a few points of agreement with the FAIR report. In a future post, I will discuss some areas of disagreement. Happy New Year.
The Federation for American Immigration Reform (FAIR) recently released a report calling for reform of our country’s refugee and asylum policies. The report, titled Refugee and Asylum Policy Reform, was authored by FAIR’s Director of Special Projects, Jack Martin. The report covers a wide range of topics, from refugee admissions, to Temporary Protected States (TPS), to Chinese family planning asylum. In general–and as expected–it calls for restricting humanitarian benefits for people seeking protection in the United States. Concerning asylum, the report states:
Our country’s asylum law has been expanded by legislation and by court decisions to the extent that it has grown from a small program intended for unusual situations, where the return to a home country would constitute exposure to persecution, to become a major component of immigrant admissions. It too, by the absence of evidentiary standards, is open to fraud by persons who have no other basis for entry as immigrants.
Having reviewed the report, there are some points I agree with, more points that I disagree with, and a few questions I have about the report’s methodology. The report is fairly long (36 pages), and there are a number of points worth discussing, so I will devote a couple blog posts to my response. For today’s post, I want to raise a few questions about the report’s methodology.
The report, p. 5, states that “combined refugee and asylee admissions have hit new levels in recent years, exceeding 200,000 in 2006,” but it is not clear where FAIR gets its numbers. According to the Department of Homeland Security, in 2006, 41,150 people were admitted into the United States as refugees, 12,873 were granted asylum affirmatively, and 13,240 were granted asylum defensively. By my calculation, the total number of refugee and asylee admissions for 2006 was 67,263 people. The figure of 200,000 likely refers to the number of asylees and refugees who adjusted status to lawful permanent residents in 2006. These are not new admissions. Rather, these are people who have been in the United States–in some cases for many years–who were able to adjust status after the cap on refugee adjustments was lifted in 2005.
Does anyone really trust statistics?
Also on page 5 of the report, there is a chart showing how many refugees and asylees were admitted into the U.S. from 1990 to 2009. The data on the chart purportedly comes from the Yearbook of Immigration Statistics. But even a casual comparison of the Yearbook to FAIR’s chart reveals major discrepancies. For example, FAIR’s chart shows that over 100,000 refugees were admitted into the United States in 2009. However, the Yearbook of Immigration Statistics (Table 13) states that 74,602 refugees were admitted in 2009. The chart also shows over 100,000 refugee admissions in 2002, but the Yearbook (Table 13) indicates that only 26,765 refugees were admitted in 2002. Again, FAIR’s numbers appear to be the number of refugees who adjusted status (i.e., obtained their green card) in a given year, not the number of refugees who actually entered the United States in the specified year.
Page 6 of the report refers to refugees from the Soviet Block. The report notes that the number of refugees has “nosedived” since the collapse of the Soviet Union, but states: “It is significant, however, that the admission of refugees from Russia and the Ukraine has not ended.” Next to this statement is a chart, purportedly showing the number of refugees from the “Soviet Union/Ukraine.” The chart shows that about 4,000 refugees came from the “Soviet Union/Ukraine” in 2009. A review of the Yearbook of Immigration Statistics (Table 14) shows that in 2009, 495 refugees came from Russia and 601 came from the Ukraine, for a total of 1,096, far short of the 4,000 refugees listed on FAIR’s chart. Again, FAIR seems to be listing the number of refugees from the former Soviet Union who are adjusting status, not the number of new admissions. Some of these refugees may have lived in the U.S. for decades before adjusting status.
Page 14 of the report unfairly represents the proportion of refugees accepted by the United States. The report states:
[The] United Nations High Commission on Refugees (UNHCR)… states that the United States accepted of 62,000 refugees out of 84,000 who were identified as needing permanent resettlement by that agency in 2009 — nearly three-fourths of the total.
In fact, footnote 23 of the FAIR report states that: “In 2009, UNHCR submitted 129,000 refugees for resettlement…. 84,000 refugees were actually resettled last year.” So it seems to me a bit misleading to say that the U.S. accepted “62,000 refugees out of 84,000 who were identified as needing permanent resettlement,” when, in reality, the UN identified 129,000 refugees in need of permanent resettlement (and when there are about 15 million refugees worldwide). This means that the U.S. accepted less than half of the refugees identified for resettlement, not three-fourths as stated in FAIR’s report.
In sum, FAIR’s report gives a distorted impression of the number of refugees and asylees coming to the U.S. The report should have relied on the number of new arrivals–not the number of refugees and asylees who are already here and who are applying for residency–to make its points. Perhaps this would have made FAIR’s points somewhat less compelling, since the number of refugees and asylees arriving in the U.S. is less than what the report represents, but it would have had the virtue of being less misleading.
In future posts, I will discuss some points of agreement and disagreement with FAIR’s policy recommendations.
A recent article in the Baptist Press illustrates just how diverse the refugee advocacy community really is–and now, some pro-immigrant organizations have joined forces with an anti-Moslem, anti-gay hate group. The issue that has brought together this “coalition of religious, conservative, and human rights leaders” is the material support bar and the Obama Administration’s failure to adopt reforms to prevent innocent refugees from being classified as terrorists (I touched on this problem in a previous post).
Among the groups that joined together to call for reform are the Southern Baptist Ethics & Religious Liberty Commission, the Hebrew Immigrant Aid Society (HIAS), Human Rights First, Concerned Women for America, the National Association of Evangelicals, and the U.S. Conference of Catholic Bishops.
The group that really stands out to me is Concerned Women for America. Here are some quotes from their website:
In a time when families are struggling to pay their mortgages and utility bills, much less buy Christmas presents for their loved ones, the Smithsonian Institution, which is partly funded by American taxpayers, is promoting an exhibit that degrades Christianity and exalts homosexuality…. I urge Congress to swiftly take steps to defund the Smithsonian Institution for their reckless and inexcusable judgment in funding such a project.
On September 15, 2011, CWA will present an in-depth discussion with experts on America’s most important policy issue. This issue affects foreign policy, human rights and perhaps even our own system of law in the future. Come join us and our panel as we expose underlying tenets of Sharia Law and how it threatens our nation and your family.
Another measure that failed during the lame duck session was the DREAM Act, a back door amnesty bill that would grant automatic citizenship to the children of illegal immigrants, with “children” defined as anyone up to the age of 35.
So, CWA hates Moslems and DREAM Act children. They also hate gay people: the Southern Poverty Law Center notes that the organization’s founder “has blamed gay people for a ‘radical leftist crusade’ in America and, over the years, has occasionally equated homosexuality with pedophilia.” But the CWA supports reforming the material support bar for refugees, and is thus part of the broader coalition.
What’s surprising to me is that mainstream groups such as HIAS and Human Rights First–groups that I strongly support–would join together with a group like CWA. Maybe I am naive to think that reform can occur without a broad coalition, but it seems to me that some groups are simply beyond the pale. Don’t get me wrong–I greatly respect most of the groups that have joined together to call for reforming the material support bar. But I respectfully suggest that they should be more careful about who they partner with in the future. To me at least, the ends simply do not justify the means.
The Senate’s recent decision to fund the government through a continuing resolution instead of an omnibus appropriations bill will have major implications for refugee resettlement agencies in the United States, reports the Huffington Post.
Maybe the Spirits of Christmas will convince the Senate to save the "surplus population."
The President’s proposed budget for FY 2011 had included an 18.5% increase in funding for refugee programs, an increase that is desperately needed. However, the continuing resolution keeps funding at FY 2010 levels. This means that refugee resettlement agencies do not have the resources to do their jobs, and that refugees are unable to meet short term needs–such as grocery bills and rent, and long term needs–such as moving towards self sufficiency.
There is some bipartisan support for increasing funding for resettlement. The Huffington Post reports:
Sen. Richard Lugar (R-Ind.), ranking member on the Senate Foreign Relations Committee, issued a report in July stating that funding for refugee programs is too low, and that that, in turn, puts strain on local communities stepping in to fill the void. Lugar argued the government should either accept fewer refugees, or give more funding to programs designed to help those that are allowed into the country.
In tough economic times, there is a temptation to reduce the number of refugees we admit into the United States (the admissions ceiling for FY 2011 is 80,000 refugees, which is similar to previous years). However, if the U.S. reduces its refugee numbers, other countries will likely follow suit. This means that thousands of refugees will be left to linger, and sometimes die, in refugee camps. The U.S. has been–and should continue to be–the leader in assisting refugees. Further, we bear a particular responsibility since many of the refugees come from Iraq and Afghanistan, collateral damage from our efforts to fight terrorism and extremism.
Protecting and resettling refugees helps the United States maintain its moral leadership in the world. As they say, the U.S. is great when it is good. We should fully fund our refugee resettlement programs to ensure that some of the most vulnerable people in our community get the assistance they need.
I finished my last asylum trial of the year earlier this month, and I almost lost the case, thanks to a witness who had flown in from Cameroon especially for the occasion.
I felt that our case was pretty strong–my client was a political activist who had been arrested several times in his country. The case was well documented, and my client seemed credible. Even the government attorney indicated that we should get it over with quickly–a sure sign that she anticipated a grant. Then, basically out of nowhere, the witness starts babbling about the time he and my client were arrested together in Cameroon. My client had never mentioned this arrest to me, nor had the witness told me about it during our preparation session. In Immigration Court, attorneys are not permitted to strangle their own witnesses, so there was nothing I could do but watch my case go down the drain. Fortunately, during re-direct, I was able to elicit some explanation from the witness. Then we had my client return to the stand to further clarify. In the end, the Judge granted relief, but a strong case was nearly sunk by a witness with a big mouth.
The Rules of Professional Conduct do not allow an attorney to strangle a witness, even when it seems justified.
All this raises the question: Do the benefits of witnesses outweigh the risks? It’s a question I have thought a lot about. On the one hand, the REAL ID Act requires us to submit reasonably available evidence, so if a witness is available and we do not bring her to Court, the IJ could use that to support a denial. On the other hand, it is difficult to hold the respondent responsible for a witness who fails to appear, and a well-supported case will likely be granted even when there is no witness.
Nevertheless, I tend to bring witnesses to Court if I have them. For one thing (and perhaps this is naive), I feel a certain duty to present my case, for better or worse. If the IJ sees that we are presenting everything we have, and being as open as possible, I believe that we are more likely to win the case. Also, I feel it makes me a more credible lawyer, and thus helps my clients over the long run. In addition (and again, possibly naively), I believe I can usually prepare the witness for cross examination and anticipate questions that the DHS attorney might ask. When the respondent and her witness testify consistently about details of an event (especially when those details have not been presented previously in the written statements), it is strong evidence of their veracity. Finally, I tend to believe (maybe yet again naively) that my clients are telling me the truth when they describe the basis for their asylum claim. If the client is telling the truth, a well-prepared witness should only help the case. If the client is lying about his claim, and inconsistent testimony exposes the lie, the client really only has himself to blame.
Of course, even in a completely bona fide case, an ill-prepared or foolish witness can tank an asylum claim. That is why I am very wary of witnesses who can corroborate large tracts of a respondent’s story. The more the witness knows about a respondent’s story, the more opportunities exist for the DHS attorney (or the IJ) to ask detailed question about information not in the written statement and that we did not discuss during trial preparation (the idea is to ask questions that the witnesses are not prepared for, and then compare the answers to make sure the testimony is consistent). Such questions can be confusing to witnesses who–despite repeated reminders not to do so–sometimes guess at the answers. A better witness is a person with first-hand knowledge of one small part of the case. Such a person is less likely to face a broad range of questions from the DHS attorney.
Despite the risks, I feel that a well-prepared witness can go a long way towards winning an asylum case. I can think of several cases that were won by credible witnesses. Each case is different, and there are good arguments for avoiding the risks inherent in using a witness. Despite the risks, I will continue to favor the use of witnesses in my cases.
The Washington Post recently reported on a sharp spike in asylum seekers coming from Afghanistan. The increase corresponds with the U.S. troop surge, and a feeling in the country that a peaceful future is no longer possible.
Sometimes "flight" is wiser than "fight."
The number of Afghan asylum seekers has surpassed the number of people fleeing Iraq and Somalia, making Afghanistan the leading producer of asylum seekers in the world. In 2009, 27,057 Afghans sought official protection in foreign nations. The numbers are expected to be somewhat lower for 2010, but Afghanistan will remain the largest source of asylum seekers in the world. According to the Washington Post:
The vast majority of the refugees are young men in their teens, 20s and 30s, often well educated and with the financial means to pay $20,000 or more to human smugglers for passports and visas to Pakistan or Iran, then on to Europe, Australia, Canada or the United States.
Because of the difficulty in coming here, the United States received only about 113 Afghan asylum seekers in FY 2010.
In my own practice (in Washington, DC), during the last two years, I have seen an increase in asylum cases from Afghanistan. My firm filed 12 or 13 Afghan asylum cases in 2010 (so I suppose I represented about 10% of all Afghan asylum applicants in the United States for the year). About 2/3 of my clients were men, and most of them were young, fluent in English, and very well educated. Most of my male clients were journalists or somehow involved with the media. Others were working closely with the U.S. military. My female clients were women’s rights activists or “Westernized” students (or both). All the cases that I worked on so far have been successful, which reflects the Asylum Office’s view that the situation in Afghanistan is dangerous (and hopefully also that we are doing a good job).
I feel that my clients face a dangerous–and often life threatening–situation in Afghanistan. Several of them have had relatives murdered by the Taliban. However, I can’t help but think that Afghanistan is worse off without these well-educated and committed men and women. Before they left, they were contributing in important ways to the development of the country, and they were working against extremism. Unfortunately, it is just such people who are targeted by the Taliban. Indeed, these are the types of people that every repressive regime targets (the most well-known examples are the scientists, academics, and artists who fled from the Nazis).
Like many refugees before them, the Afghanis I represent have made a decision to leave families, friends, and promising careers to seek safety in the West. While I feel sad that Afghanistan is losing so many talented individuals, I respect their choice to leave. And while I hope the situation in their country improves, I am proud that our country offers protection to those Afghanis who need our assistance.
According to a report from Pink News, Europe’s Largest Gay News Service, the Czech Republic uses a test to determine whether asylum seekers are really gay. The test involves a cleverly-named device known as a “phallometer,” which measures arousal. The theory is that if a man (the test only works for people with phalluses) who claims to be gay becomes aroused while watching heterosexual pornography, then he is not really gay. Yes, this is about as dumb as it sounds.
Although testing erections seems ridiculous, the problem of asylum seekers lying to obtain status is well known. Certainly some asylum seekers falsely claim to be gay in order to win their cases. I had a case once of a Russian woman who falsely claimed to be a lesbian. Her case was denied by the Asylum Office, and she hired me to represent her in Immigration Court, where she was filing for adjustment of status based on her marriage (to a man). We admitted that she lied on her asylum application and she applied for a waiver, which was granted.
It is not easy to detect false asylum claims, particularly when the claim involves delving into personal details, such as sexual orientation. In cases I have worked on involving persecution based on sexual orientation, we submitted letters from friends and family attesting to the alien’s sexuality. This has generally been sufficient for DHS, and they normally stipulate that the alien is gay. Such an approach saves the alien (and everyone involved) the need to delve into personal details that can be embarrassing and humiliating for the asylum seeker, and is more consistent with international human rights law, which prohibits inhuman or degrading treatment.
The mood ring--less intrusive and more accurate than the phallometer
Cases where the asylum seeker does not have anyone to attest to his orientation are more problematic. An alien’s credible testimony alone could be sufficient to support a finding that the alien is gay. Perhaps if the alien seeks counseling for past persecution or discrimination, the care-giver could attest to his sexual orientation. In some cases, courts might accept a lie detector test–at least it is less intrusive than a phallometer.
As for the Czech Republic, the European Union Agency for Fundamental Rights states that phallometric testing violates international human rights laws, which prohibit torture and inhumane or degrading treatment, and is particularly inappropriate for asylum seekers because they “might have suffered abuse due to their sexual orientation and are thus specifically constrained by this kind of exposure.”
Such a test seems degrading and insulting, not to mention completely useless for revealing a person’s sexual orientation. Hopefully, now that the practice has come to light, it will be discontinued.
Special thanks to David Cleveland for alerting us to this issue.
WikiLeaks’s Founder Julian Assange has been much in the news lately, having revealed all sorts of U.S. state secrets related to war and diplomacy. The United States is exploring whether the Australian-born computer hacker can be prosecuted criminally under the espionage act, and Sweden has issued an international arrest warrant, stating that Mr. Assange is “suspected of rape, sexual molestation and unlawful coercion.” Australia is also threatening to arrest him on unspecified charges if he returns.
As a result, Mr. Assange–who denies the charges–has been hiding somewhere in London, and is considering seeking asylum in Switzerland or Ecuador. But does Mr. Assange qualify for political asylum under international law?
To obtain asylum, an individual must demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group.
Thus, the first question is whether a nexus exists between any potential persecution and one of the protected grounds, in this case political opinion. Under U.S. law, whistle blowing can be a form of political activity that forms the basis for an asylum claim. So assuming Mr. Assange’s activities constitute whistle blowing (which seems an open question), he has expressed a political opinion, which could form the basis for an asylum claim.
Another question is whether Mr. Assange has a well-founded fear of persecution in Australia. The Australian government has threatened to arrest him, though for what crime remains a mystery. Even if he were arrested in Australia, I know of no evidence supporting the conclusion that Australia persecutes its criminals. His detention alone–even if it were for an illegitimate reason–would only constitute persecution if the conditions of that detention were dangerous and life-threatening, a situation that does not exist in Australia.
A more interesting question is whether Mr. Assange could obtain asylum from Australia if the Australian government would extradite him to a third country where he faces persecution. Currently, Mr. Assange could be extradited to Sweden, where he faces sexual assault charges, or the U.S., which is considering charges of espionage. Although the United States’s human rights record has been tainted of late, I doubt Mr. Assange could demonstrate a well-founded fear of persecution in either the U.S. or Sweden. But what if Australia planned to extradite Mr. Assange to another country that does persecute its citizens? I know of no case law or precedent that would allow Mr. Assange to obtain asylum from Australia on the basis that Australia planned to extradite him to a third country where he would be persecuted.
So even if Mr. Assange could show that he faces prosecution in Australia or that the Australian government would turn him over to Sweden or the U.S., he would have a hard time showing that he has a well-founded fear of persecution in any of those countries.While Mr. Assange probably does not meet the international law standard for asylum, his notoriety gives him opportunities not available to other asylum seekers. Already, Ecuador has (informally) offered him residency. Other countries might well follow suit, either because they think it is the right thing to do, or because they want to aggravate the United States and the West. But if they do grant asylum to Mr. Assange, it won’t be because he meets the requirement for asylum under international law.
According to El Universal, Guillermo Zuloaga, the main owner of Venezuela’s news network Globovisión, has filed for asylum in the United States. He claims that he is a victim of “political persecution” by the Hugo Chavez government. President Chavez counters that Mr. Zuloaga is not a victim of political persecution but a “bandit.”
This man likes red hats and hates a free press.
The dispute centers on charges brought against Mr. Zuloaga by the Venezuelan government. Voice of America reports that the government issued a warrant for Mr. Zuloaga’s arrest based on fraud charges relating to an auto dealership that he owns. The government also accused him of involvement in a $100-million scheme to assassinate the Venezuelan president.
Mr. Zuloaga denies the charges and states that President Chavez ordered his arrest in order to stifle his pro-opposition news channel. President Chavez has waged a long-running campaign against Globovision, including arresting Mr. Zuloaga in March 2010 for criticizing the government’s crackdown on the media. Mr. Zuloaga was released the day after his arrest, but was charged with “insulting the president” and “inciting collective panic by means of false information through the press,” charges that could result in more than seven years in prison.
This man just likes red hats.
The Inter-American Commission on Human Rights earlier this year expressed its concern about the use of the punitive power of the state to silence opponents in Venezuela. The IACHR also condemned the March 2010 arrest of Mr. Zuloaga:
The IACHR and its Office of the Special Rapporteur for Freedom of Expression express their deep concern over Zuloaga’s arrest, which evidences the lack of independence of the judiciary and the utilization of the criminal justice system to punish criticism, producing an intimidating effect that extends to all of society.
A high profile case such as Mr. Zuloaga’s has the potential to further erode relations between the U.S. and Venezuela. Nevertheless, if Mr. Zuloaga meets the criteria for asylum–and the IAHCR report makes me think that he will–he should receive protection in our country.
For many immigration attorneys, the people we can’t help are the ones we remember the best. I received a sad call last week and there was little I could do to assist.
Newly arrived asylum seekers often have difficulty finding mental health assistance, especially when many are unlikely to venture beyond their close family and friends, and there are stigmas attached to seeking such assistance. Fortunately across the country, there are many organizations that provide low-cost or free mental healthcare.
