Paralympic Athletes Seek Asylum

by Jason Dzubow

The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home. 

Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom.  Ms. Kimbata seems to be the more well-known of the two.  She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old.  “I thought my life was over,” she said.  “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not?  Even if I accept this new life I do not have legs.'”  After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross. 

Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

Ms. Kimbata is now a wheelchair racer.  She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair.  She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.

In the United Kingdom, she decided to seek asylum.  Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila.  While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country.  For these reasons, she likely has a good chance for success in her asylum claim.

It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK.  As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.

Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land.  It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support.  She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.

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Asylum Seekers as Law Breakers

by Jason Dzubow

I recently litigated an Eritrean asylum case where my client traveled through various countries to reach the United States.  He passed through each country illegally—sometimes with a false South African passport; other times, he just crossed the borders without inspection.  From the beginning to the end of his journey, smugglers assisted him (for a price—the average cost for such a trip is around $15,000.00).  My client did not ask for asylum in any of the countries he passed through, even though he remained in some countries for several months and even though such countries (theoretically at least) offer asylum to refugees.

Asylum seekers or asylum sneakers?

From my client’s perspective, he was fleeing an extremely repressive regime, and he dreamed of starting a new life in the U.S., where he would be safe and enjoy freedom.  (It’s said that in art, imitation is the highest form of flattery; I’d say that in international affairs, immigration is the highest form of flattery).

The Immigration Judge was not pleased with my client’s illegal journey or with his failure to seek asylum in any country along the route, and he had some strong words for the client at the end of the hearing.  While I don’t agree with all that the Judge had to say, I think his words are important, and I wanted to share them here:

First, the Judge told my client that asylum exists to help people who are fleeing persecution.  It is not an alternative for those without a better immigration option.  When a person flees her country, she should seek asylum in the first country of safety; she should not shop around for the country where she would prefer to live.  To use asylum as an alternative to immigration is an abuse of the system, and takes advantage of our country’s generosity.  If enough people abuse the system, we might change the law to make asylum more restrictive.

Second, smuggling is a criminal activity and when an asylum seeker pays a smuggler, he is complicit in that activity; he is not an innocent bystander.  Each smuggled person pays thousands of dollars to smugglers.  Collectively, this is big—and illegal—business.  It violates the sovereignty of nations and possibly supports a network that might be used for more nefarious purposes, like facilitating the transport of terrorists, criminals, and drugs.

Third, each asylum seeker who enters the U.S. in the manner of my client makes it more difficult for legitimate asylum seekers who follow him.  As more people enter the U.S. this way, a reaction becomes more likely.  Maybe the law will be changed to deny asylum claims where the applicant passed through other countries without seeking asylum.  Maybe other restrictions will be put into place.  In any case, if there are new restrictions, legitimate refugees will suffer.

Finally, the Judge warned my client against encouraging his fellow countrymen by his example.  He noted that such encouragement might violate criminal and immigration laws, and this could cause problems for my client.  It could also be dangerous for any future asylum seekers, as people have been harmed and killed on the journey to the U.S.

I think the Judge said all this to try, in a small way, to stem the flow of asylum seekers across the Southern border.  I am not sure whether his words will have any effect, but I believe they are worth hearing.  And while his points are legitimate and important, there are convincing (to me at least) counterpoints to each.  But I will leave those for another time. 

Under the current asylum law, illegal travel through various countries is a discretionary factor, but without more, it is generally not a basis for denying an asylum claim.  Despite his concerns, the IJ granted my client’s application (and DHS did not appeal).  How many more people will follow him and receive asylum in the United States remains to be seen.

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Letters from Witnesses

by Jason Dzubow

One key piece of evidence in most asylum cases is the witness letter.  Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available.  Often times, the only evidence that is reasonably available is a letter from a witness.  So what makes a good witness letter?

First, the witness needs to identify herself and state how she knows the applicant.  While this may seem like a no-brainer, you’d be surprised how many witnesses don’t include this information.  I prefer that the witness states her name, address, phone number, and email address.  Then she should describe how she knows the applicant (for example, “Mr. X and I met in the church choir in 2003.”).

There’s no excuse for failing to get witness letters.

Next, the witness should list what they know about the applicant’s claim–here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts.  Extraneous material is a distraction.  I can’t tell you how many witness letters I’ve seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant.  Who cares?  Instead, the witness should mention what he or she knows about the case.  One way to start this section of the letter is like this: “Mr. X asked me to write what I know about his problems in Cameroon.  Here is what I know…”

Also, I prefer that the witness write about what she has seen with her own eyes.  Did the witness see the applicant engage in political activity?  Did she see the applicant get arrested?  Did she see the applicant’s injuries after he was released from detention?  The witness should write what she saw (and the date that she saw it).  Secondhand information is admissible, but most fact finders will give such information little weight.

I also hate when witnesses give me general statements, like “Please don’t return to Ethiopia, it is dangerous here.”  Not helpful.  We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing.  A better letter might say, “Please don’t return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you.”

My clients often ask about how long the letter should be.  My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information.  I prefer that the witness gets to the point and doesn’t waste time with irrelevant information, so hopefully that leads to shorter letters.  Also, the longer the letter, the greater the possibility for inconsistencies.

Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.).  Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript).  Of course, this assumes that the applicant has also included evidence that he attended that school.  

One final note about witness letters.  Unless they are consistent with the applicant’s affidavit, they will harm the case.  I would rather submit no letter than an inconsistent letter.  For this reason, it is important to compare the witness letters with the applicant’s affidavit (and his other evidence) to ensure consistency.  While people often have different recollections of events–even dramatic events–the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.

Witness letters are often crucial to a successful asylum application.  A well-crafted letter will help your client’s case and could make the difference between a grant and a denial.

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The Asylum Affidavit, Part 2: Details, Details…

by Jason Dzubow

This is the second part in a short series about helping asylum seekers prepare good affidavits.  The first posting dealt with the overuse of the passive voice.  Today, I want to discuss the appropriate level of detail that should be included in the affidavit.

One problem that I’ve encountered in many affidavits is that they contain too little detail for important topics and too much detail for irrelevant topics.  One reason for this is that victims of persecution often avoid focusing on the painful or depressing aspects of their cases–they do not want to re-live difficult memories.  Another reason is that the asylum seekers do not always understand what information is legally relevant.

An IJ enjoys another exciting asylum affidavit.

When preparing an affidavit, it is important to keep in mind the requirements for asylum–the applicant must demonstrate a well-founded fear of persecution based on a protected ground.  Often, the applicant has suffered past persecution, and this creates a presumption of future persecution.  In some cases, there are other legal issues: Did the applicant file within one year of her arrival in the U.S.?  Is there a material support issue?  Are there changed country conditions in the home country so that it is now safe to return there?  Once you know the legal issues in the case, you can focus on developing the factual record related to those issues.

The easiest example of this is past persecution.  In most cases, if an asylum applicant demonstrates past persecution based on race, religion, nationality, particular social group or political opinion, he will receive asylum.  To prove past persecution, the affidavit needs to provide sufficient detail about the claimed persecution so that the fact finder can evaluate whether the applicant was, in fact, persecuted.  If the affidavit merely says, “I was tortured” or “I was beaten,” that is insufficient. 

Various courts have defined the term “persecution,” and that definition includes “the infliction of suffering or harm.”  To demonstrate suffering or harm, the applicant must explain in detail what happened.  For example, instead of “I was beaten,” give some detail:

As soon as I left the opposition political party meeting, three policemen stopped me on the street.  They accused me of supporting the opposition party.  One of the men punched me in the stomach.  The blow was very painful and I could not breath for a few moments.  I fell onto the ground and I was in too much pain to stand up.  When I saw the armed policemen above me, I was afraid they might kill me.  While I was on the ground, another officer kicked me with his military boot in my back.  It felt like he broke my ribs and I cried out.  Afterwards, there was a large bruise on my back.

The affidavit here emphasizes why the police attacked (political opinion) and describes the details of the beating.  It also mentions that the physical assault was painful (since we are trying to demonstrate suffering).  It is questionable whether one punch and one kick would qualify as “past persecution,” but when you provide more details about the event, and explain how painful and frightening it was, you make it more likely that the fact finder will conclude that there was past persecution.

I like to think about the affidavit in terms of time.  For less important events, time moves quickly and one paragraph of the affidavit may cover days, months or years.  But for legally relevant events, such as a police beating, time slows down.  So one paragraph about a beating might cover only a few seconds.  Remember–the fact finder is not interested in reading a novel.  She just wants to know whether the applicant meets the requirements for asylum.  When the affidavit focuses on the legally relevant facts, it makes the job of the IJ or the Asylum Officer easier.  And a happy fact finder is more likely to grant relief.

One final point about adding more details to the affidavit.  I find that such details are quite helpful in the event of an appeal to the BIA.  In many cases, there is limited time for testimony, and applicants sometimes gloss over details of the story.  When that happens, the transcript on appeal may be somewhat lacking.  If so, you can use details from the affidavit to supplement the transcript and make a more compelling appeal brief.

While obtaining legally relevant details can be time consuming, it greatly increases the chance for a successful outcome and is well worth the trouble.

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Olympic Athlete Seeks Asylum Prior to Opening Ceremony

by Jason Dzubow

The torch has not yet been lit, but the first Olympic athlete has already requested asylum in Great Britain.  CBS News reports that a Sudanese runner scheduled to compete in the 800-meter race has appeared at a police station in Leeds and asked for political asylum. 

If Omar Al Bashir is your “president,” you better be able to run fast.

It is not surprising that a Sudanese man would seek asylum–his country is run by an indicted war criminal, Omar Al Bashir, who is responsible for many thousands of deaths.  As the games continue, it will be interesting to see how many more Sudanese (and athletes from other countries) seek protection in Great Britain.  The New York Times has listed several noteworthy instances of athletes seeking asylum at previous Games:

In August 1948, London was the scene of one of the earliest reported asylum requests by someone associated with the Olympic Games. Marie Provaznikova, 57, the leader of the Czechoslovakian women’s gymnastics team and one of the most popular women in her country, sought asylum in the United States rather than support a purge in the Sokol national fitness organization, of which she was a leader.

At the 1996 Atlanta Olympics, an Iraqi weight lifter, Raed Ahmed, ran from the athletes’ village into a waiting car and sought asylum from Saddam Hussein’s government. He was allowed to stay in the United States after he cited a fear of execution upon his return. Persistent rumors from Iraq suggested that Mr. Hussein’s son Uday used beatings and other torture to punish those who did not perform to his liking at international sporting events.

Before the 2008 Olympics, seven members of the Cuban soccer team sought asylum after a qualifying game against the United States in Florida. At the time, one of them, Yenier Bermudez, told The Miami Herald that the players were “feeling hopeful about our new lives.”

The entire Eritrean national soccer team fled during a 2009 competition in Kenya. Only a coach and an official emerged from the team’s plane when it returned home. It was the third time that players had failed to return, soccer officials said. Eritrean athletes are now asked to pay a bond before leaving the country for sporting events, the BBC reported.

Frankly, I think it is wonderful when high-profile athletes defect from repressive regimes.  It serves as a visible repudiation of those regimes and perhaps provides some succor to the regimes’ opponents. 

While one athlete defecting from Sudan will probably not bring down the government, it does serve as a powerful reminder that the government of that country represses and murders its own people.  And sometimes the actions of one person capture the moment and cause great change.  Witness Mohamed Bouazizi, the fruit vendor whose suicide launched the Arab Spring.  I do not know whether the Sudanese athlete’s defection will have any larger effect on his country, but we can always hope.

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When Service Centers Attack

by Jason Dzubow

Asylum applications are initially submitted to one of the USCIS Service Centers.  After an initial review, the Service Center forwards the application to the appropriate Asylum Office for an interview.  Unfortunately, the Service Centers reject a fair number of applications and mail them back to the applicants (or their lawyers).  Based on my own experience, it seems that many of these rejections are frivolous or at least unwarranted, and this raises concerns about access to justice for asylum seekers.

Where I live (in the civilized part of the country), we submit our asylum applications to the Texas Service Center.  Maybe I’ve just been on a losing streak, but in recent months, I have had three applications rejected and returned to me by the TSC.  Each one was rejected for an illegitimate reason (at least as far as I am concerned).  The first application was rejected because we failed to list the applicant’s siblings on the form.  But the applicant has no siblings, so there was nothing for us to list.  After this rejection, I have taken to writing “n/a” in any space on the form that would otherwise be left blank.  The second rejection occurred because USCIS wanted additional information that the Alien number we listed belonged to the applicant.  However, the applicant’s Alien number had been assigned to him by USCIS.  Why they simply couldn’t look up the number that they previously assigned to the applicant is beyond me.  The most recent rejection was because the applicant purportedly failed to include an additional copy of the I-589 for her dependent child, whose application was attached to her’s.  Also, supposedly, we did not include evidence (like a birth certificate) establishing the relationship between the parent and the child.  The only problem here is that we did include an extra copy of the I-589 form and a copy of a document showing that the applicant was the parent (there are no birth certificates in the applicant’s country).  I even clearly listed these documents on the cover page.  For this one, I have no idea why the application was rejected.  Before mailing it back, I highlighted some documents in bright pink and attached some sticky notes.  I’ll hope for the best.

If only the Service Centers were this helpful.

I imagine that if the Service Centers regularly reject applications prepared by someone familiar with the process, they must reject a good portion of the applications they receive.  For pro se asylum seekers, this creates a barrier that might prevent them from presenting their cases.  So what’s to be done?

The basic problem, I think, is that the criteria for rejecting asylum applications is too stringent.  Forget to check the box indicating whether you received a list of attorneys who can represent you at low or no cost?  Rejected.  Fail to indicate whether you are fluent in English?  Rejected.  Forget an extra copy of the I-589 for the dependent?  Rejected.

I recognize that the Service Centers are bureaucracies with limited resources.  However, in some cases, it would seem easier to either contact the applicant and ask for an explanation of the problem or let the Asylum Officer deal with the problem at the interview.  In cases of minor errors, these solutions would be easier and less expensive than reviewing the application, deciding to reject it, addressing the return envelope, paying for the return envelope, and repeating the process once the application is re-submitted.  It would also be less frustrating for attorneys (i.e., me) and it would better ensure access to justice for pro se applicants.

On September 13, 2012, two Service Centers will hold their Fall Asylum and Refugee Conference to discuss issues related to asylum:

The TSC is partnering with the Nebraska Service Center (NSC) to provide an opportunity to meet staff and share information on asylum- and refugee-related topics through presentation and open dialogue. The conference will include a panel discussion with representatives from the Refugee, Asylum and International Operations (RAIO) and Service Center Operations (SCOPS) directorates, the director of the National Visa Center (tentative), as well as TSC and NSC employees. Immigration Services Officers will also be available in the afternoon to answer your case-specific questions.

I certainly hope that one topic of conversation will be how to reduce the rejection rate for asylum applications.  

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

by Jason Dzubow

The heart of an asylum case is the applicant’s affidavit.  There, she tells her story and explains why she needs the protection of asylum.  Because affidavits are so important, I thought it might be helpful to do a short series about preparing a decent affidavit.

One of the most common problems in affidavits is the overuse of the passive voice.  Not to be all English teacher-y, but I’ve seen too many affidavits where I have no idea who is doing what to whom, and one reason for this confusion is the use of passive voice.  I imagine that if an affidavit is confusing for me as an attorney reviewing the case, it is quite possibly fatal to the applicant’s chances for success with an Asylum Officer or an Immigration Judge.

Of course, most asylum seekers are not native English speakers, and the overuse of passive voice stems as much from linguistic and cultural differences as it does from poor English grammar.  The problem is not confined to pro se applicants, however, but extends to cases prepared by notarios and attorneys as well—people who should know better.

Here is a made-up, but close-to-real-life example of an affidavit written in the passive voice:

On June 10, 2005, I was arrested at my house.  I was taken to the police detention center.  There, I was interrogated and beaten.

For her opposition to passive voice, Dorothy Parker was honored by the Postal Service.

If I have inherited this case (perhaps because the applicant was referred to Court by the Asylum Office), each of these sentences is more annoying than the last.  I want to know who arrested the applicant and whether anyone witnessed the arrest.  Also, who took the applicant to the detention center?  How did he get there? Who interrogated the applicant?  How many times was he interrogated?  Who beat him?  How many times was the applicant beaten?  What injuries did he sustain?  Did he say anything during the beating?  Did the interrogator(s) say anything?  Here is an (abbreviated) example of how the above statement might be re-written:

On June 10, 2005, three soldiers came to my house.  My father answered the door.  The leader of the group ordered my father to bring me to the door.  When I came to the door, the soldiers handcuffed me and drove me to the Central Police Station.  At the station, they put me in a holding cell with ten other prisoners.  After an hour, a guard brought me to a small office.  There were two soldiers standing in the room and a security agent sitting at a desk.  The agent ordered me to sit down.  He asked me why I participated in an opposition demonstration.  When I denied that I participated in any demonstration, he slapped me hard across my face.  My nose was bleeding.

You get the idea.  By reducing or eliminating passive voice from the passage, we have a much better idea about what happened.  I also added more detail, something that I will discuss in a future post.

The problem with passive voice is that it makes it more difficult to understand what is happening in the story.  If the fact finder cannot understand what is happening, he cannot compare the applicant’s testimony to her written affidavit.  Comparing the written and oral statements is one method for determining credibility.  Therefore, overuse of passive voice makes credibility determinations more difficult, and makes it more likely your client’s case will be denied.  Thus, in the words of Dorothy Parker, “The passive tense should not be used.”

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Wikileaks’ Julian Assange Might Qualify for Asylum

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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Guatemala Massacre Survivors Reunited After 30 Years

by Jason Dzubow

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

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

Tranquilino Castañeda reunited with his son and grandchildren.

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

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

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

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

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

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

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

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India Needs an Asylum Policy

by Jason Dzubow

India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention).  This means that India has no regular procedure for granting asylum to people fleeing persecution.  Nevertheless, according to UNHCR:

[The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation.  India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.

While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.

Even Bollywood endorses helping refugees (at least the good looking ones).

In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy.  Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan.  Earlier this year, a group of Muslim men broke into Rinkle’s home, kidnapped her, and forced her to convert to Islam and marry her neighbor.  The group of men was connected with a local Pakistani politician and the government failed to intervene.  After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents.  She decided to remain with her husband.  Most observers believe that her decision was based on coercion–she feared that her family would be harmed if she returned home.

Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India.  Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:

Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.

Ms. Calamur makes the case for India to adopt an asylum system:

To be considered a world power, you don’t just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.

Well said, Ms. Calamur.  I hope those in the West who question the need for an asylum system hear your words.

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Albanian Informant and His Family Granted Asylum – Finally

by Jason Dzubow

A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling.  He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe.  The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony.  He was deported to Albania.

The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.

In Albania, Mr. Bedini was waiting.  He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S.  This time, he was granted Withholding of Removal.

Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported.  The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy.  The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family.  The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.

While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family.  Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:

The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj—that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession.  Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.

Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court.  They were supported by a number of amicus briefs, including one by former law enforcement officials.  That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family.  Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.”  The Fifth Circuit’s decision would obviously discourage such cooperation.

In the end, the petition for certiorari was withdrawn.  DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family.  The result is certainly a relief to the Demiraj family.  But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books. 

Congratulations to Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, LLP, who represented the Demiraj family.

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Congress Considers Waiving the One-Year Asylum Deadline for Indonesian Christians

by Jason Dzubow

Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims.  That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990’s. 

The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here).  The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.

People of all faiths will celebrate if the one-year deadline is repealed.

First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990’s and early 2000’s (I have represented several such people myself). 

My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement.  Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians.  In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone?  I previously discussed this idea here.

The reason–I believe–that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen.  This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo.  It is also the same type of reasoning that gave us the Cuban Adjustment Act–a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places.  In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.

I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way.  This point deserves further attention, and I will come back to it in a future posting.  For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.

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Seeking Asylum at the U.S. Embassy in China

by Jason Dzubow

When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis.  A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.

You known you're a dissident when you've been Shepard Fairey-ized.

In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum.  Technically, though, an embassy cannot offer asylum to someone in his or her home country.  Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).

Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy.  This does not mean that our government was powerless to help him after he arrived at the embassy.  United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.

A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square.  Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.

I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions.  Also, it seems, Mr. Chen had not yet made up his mind to leave the country.

As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics).  If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States.  He obviously has a strong case for receiving protection.  But until he actually departs from China, Mr. Chen’s situation remains precarious.

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Beautiful People Seeking Asylum

by Jason Dzubow

Two Cuban actors who star in an award winning movie, Una Noche, have defected and will be seeking political asylum in the United States.  Coincidentally, the movie tells the story of three Cuban teenagers who try to escape Cuba on a raft in order to start a new life in America. 

America's newest asylum seekers are also some of its most glamorous.

Una Noche was a low budget film directed by Lucy Mulloy, a 32-year-old Brit who shot the movie in Havana.  She says that she was inspired by a tale she heard on a trip to the island nation 10 years ago.

The film achieved unexpected success, and the three stars of the movie–all of whom are non-professional actors–traveled to Germany and later to the U.S. for film festivals.  In the U.S., the trio was scheduled to attend the Tribeca Film Festival in New York, where Una Noche won multiple awards.  However, two of the actors, Analin de la Rua and Javier Nuñez Florian, disappeared after they arrived in the United States and missed the festival (where Mr. Nuñez Florian shared an award for Best Actor in a Narrative Feature Film with the third co-star, Dariel Arrechada).

Ms. de la Rua and Mr. Nuñez Florian played brother and sister in the movie, and (in a Brady Bunch-esque twist) fell in love in real life and decided to defect together.  They recently re-appeared in Miami, represented by attorney Wilfredo Allen, who indicated that they would file for political asylum “based on possible persecution if they return to Cuba.”

Although the couple seems not to have had problems in Cuba prior to their trip to the U.S. (and indeed, they returned to Cuba after a trip to Germany), the public nature of their defection possibly puts them in danger if they return and likely qualifies them for asylum.  Of course, under the Cuban Adjustment Act, even if they do not receive asylum, they would be eligible to apply for residency after one year of physical presence in the United States.  So either way, the couple should be able to remain in the United States.  We will be looking for them in Hollywood.

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Asylum Seeker Commits Suicide to Help His Children

by Jason Dzubow

In the last few years, we’ve seen a rash of politically motivated suicides.  The most well-known case is that of Mohamed Bouazizi, whose suicide to protest mistreatment by a Tunisian government official began the Arab Spring.  There have also been a number of incidents where Tibetan Buddhist monks set themselves on fire to draw attention to the brutal Chinese occupation of their homeland.  Most recently, a Moroccan woman trapped in a forced marriage killed herself with rat poison.  The incident sparked protests against Islamic marriage laws in Morocco.

Van Gogh's painting anticipates the pain of many asylum seekers.

Now, the Irish Times is reporting the suicide of an asylum seeker from Burundi.  The incident occurred in the Netherlands, and supposedly the man killed himself in an effort to increase the chances that his children would be permitted to stay:

Alain Hatungimana lost his wife during the Burundian civil war, in which 300,000 people were killed between 1993 and 2005. Then, five years ago, he managed to escape to the Netherlands with his son, Abdillah, and daughter, Maimuna – hoping, given the political circumstances, to be granted asylum and allowed to start anew.

Unfortunately for Mr. Hatungimana, the government rejected his claim and was planning to deport the family to Burundi.  This despite strong support for the family from local government officials. 

Mr. Hatungimana became depressed and, the day before he and his children were scheduled to be deported, he took his own life.  “Those who treated him [for depression] say they have no doubt the act was a final desperate attempt to prevent his children from being sent back to Burundi – though it remains uncertain whether he’s achieved even that.”

The government has a somewhat different take on the incident: “The immigration ministry in The Hague said it ‘regretted’ the suicide, noting Mr. Hatungimana had had ‘psychiatric problems.'”  The government also claimed that Mr. Hatungimana’s deportation was not imminent.

Whether the motivation was depression or a selfless (if misconceived) desire to help his children, Mr. Hatungimana’s story serves as a cautionary tale.  While I would not advocate changing law or policy based on the fear that an asylum seeker might commit suicide, Mr. Hatungimana’s example reminds us how serious these cases are.  We must do our best to ensure that legitimate asylum seekers receive the protection to which they are entitled under international law.

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