UNHCR: Number of Asylum Applications Up Sharply in 2011

by Jason Dzubow

A new report from the United Nations High Commissioner for Refugees (“UNHCR”) shows that asylum claims in industrialized countries have increased 20% from 2010 to 2011.  The United States continued to receive the most asylum seekers among the countries surveyed: approximately 74,000 asylum seekers in 2011.  This compares to approximately 55,500 asylum seekers for 2010, a 33% increase (among all countries, South Africa received the most asylum seekers).

The increase in asylum seekers to the U.S. is due largely to higher numbers from three countries: China (+20%), Mexico (+94%), and India (+241%).

With all the new refugees, we should at least get some interesting food joints.

The U.S. receives more asylum seekers from China than from any other country.  In 2010, we received 12,850 asylum seekers from China.  In 2011, we received 15,450 asylum seekers from China, an increase of 2,600 people or about 20%.  The large numbers are probably due to special provisions in the Immigration and Nationality Act that provide for asylum for victims of forced family planning–these provisions were created specifically to assist people from China, and they certainly seem to have encouraged Chinese nationals to seek asylum here.  Indeed, of the 24,400 Chinese asylum seekers worldwide, the U.S. received about 63% of all cases.  This is a very high number, given our physical distance from China.   If these numbers continue to rise, I wonder whether it will cause us to re-think our decision to grant asylum to victims of forced family planning.

The biggest numerical increase was among Mexicans seeking asylum in the U.S.  In 2010, there were 4,225 asylum seekers from Mexico.  In 2011, we received 8,186 asylum seekers from Mexico.  I recently wrote a post where I expressed doubt about the reported increase in Mexican asylum claims.  If the UNHCR report is correct, I was wrong and the number of asylum seekers has increased dramatically in the last year.  We will see whether the grant rate for Mexicans–which has been about 2%–will increase with the new crop of asylum seekers.  If this trend continues, it will certainly place a burden on our asylum system, and we might need to re-evaluate how we deal with the new influx.

In terms of relative increases, India had the largest increase: Up 241% from last year (the U.S. received 720 Indian asylum seekers in 2010 and 2,457 in 2011).  As far as I can tell, Indian cases are very diverse: political persecution, religious persecution, and sexual orientation, among other basis.  Why the dramatic increase in India asylum seekers?  I have no idea.  One “push factor” that seems inapplicable to Indian cases is the economy–India has one of the fastest growing economies in the world.  One year does not make a trend, so we will have to wait and see how many Indian nationals seek asylum in the U.S. in 2012.

Aside from the “big three,” there were major increases from El Salvador (2010–2,703; 2011–4,011) and Guatemala (2010–2,235; 2011–3,363), and smaller increases from Honduras, Haiti, and Nepal.  Rounding out the top 10 source countries for asylum seekers in the U.S. were Ethiopia (which saw a small drop in numbers) and Egypt, which appeared on the U.S. top ten list for the first time, perhaps as a result of difficulties related to the Arab Spring.

Worldwide, the top source countries for asylum seekers were Afghanistan (approximately 35,700 asylum seekers, up 34% from 2010), China (24,400; up 13% from 2010), Iraq (23,500; up 14% from 2010, but significantly down from 2008 when there were 40,400 claims), Serbia (21,200; down 28% from 2010), and Pakistan (18,100; up 66% from last year).

Given world population growth (there are a lot more people than there used to be), general economic malaise, and the dismal state of human rights in many countries, it is not surprising that the number of asylum seekers is increasing.  How we address these problems and how we treat people who come to us for help are some of the defining issues of our time.

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Section 13: An Asylum Alternative for Diplomats

by Jason Dzubow

Diplomats who cannot return to their countries can claim asylum, like anyone else.  But an alternative form of relief is available: Section 13 of the Immigration and Nationality Act allows individuals who entered the United States under diplomatic status to obtain a green card.  To be eligible for residency under Section 13, you must demonstrate that:

  • You entered the United States as an A-1, A-2, G-1, or G-2 nonimmigrant
  • You failed to maintain your A-1, A-2, G-1, or G-2 nonimmigrant status 
  • Your duties were diplomatic or semi-diplomatic
  • There is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat
  • You are a person of good moral character
  • You are admissible to the United States for permanent residence
  • Granting you a green card would be in the national interest of the United States

Several of these requirements are a bit tricky.  First, you must show that your duties were diplomatic or semi-diplomatic.  “Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13.” See Matter of —, Administrative Appeals Office, July 23, 2007.  Second, you must show a compelling reason why you cannot return to the country that accredited you.  Fear of persecution would qualify as a “compelling reason,” but the law does not seem limited to such claims. Id. (however, the inability to support oneself in the home country is not a “compelling reason”).  Finally, you would need to show that granting residency is in the “national interest” of the United States.  The only information I could find about this requirement is in the AAO decision, mentioned above, which notes that being a healthy, hard working man who can contribute to society is not the type of advantage to our national interest envisaged by the Act. Id.

Diplomats get all the perks.

To apply for section 13 relief, a diplomat must file an I-485 form with supporting documents.  More information about the requirements is available here.  The diplomat may also apply for a work permit (I-765) while the application for permanent residency is pending.

So what is the advantage of section 13 adjustment over asylum?  For one thing, it appears that section 13 adjustment does not require any nexus between the feared harm and a protected ground (race, religion, nationality, particular social group or political opinion).  Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency.  One disadvantage to section 13 is that the diplomat would not be eligible for some of the special benefits available to asylees (like housing assistance and job placement).  Another disadvantage is that diplomats must show granting them residency is in the U.S. “national interest.” 

I imagine section 13 would come in handy for diplomats from a country like Syria.  Although I have not heard about mass defections from that embassy, one can only hope that professional diplomats would have the courage to abandon a regime that is murdering thousands of people.  Section 13 allows such people to take a stand against their government and remain safely in the United States.

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New Handbook on Best Asylum Practices in the US and UK

by Jason Dzubow

A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.

In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged–an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.

The U.S. and Britain agree: We don't like the asylum system or the French.

The report found many similarities between the U.S. and Great Britain, which led to the conclusion that “there are merits to dialogue and exchange… across these distinct country contexts.”  Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.

The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain.  The report also recommends sharing ideas and policy objectives between organizations in different countries.

One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries.  Despite the relatively small amount of international cooperation between asylum support groups, survey respondents “felt that there was much potential for co-ordinated international approaches to the issues they face,” particularly issues that could draw on international experience, like alternatives to detention.  While this is true in theory, I am not exactly sure how it would work in practice.

For me–and I think for most immigration lawyers and advocates–the local connections are the most important.  I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments.  While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients’ claims, I can find this information on the internet without much trouble.  I certainly like the idea of connecting with asylum advocates in other countries.  It’s just that with limited time, it is difficult to establish and maintain such connections. 

In the report, the authors indicate that they are attempting to start a conversation.  I hope that this proves to be true.  Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue.  Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.

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FGM + Other Serious Harm = Asylum

by Jason Dzubow

I had a case last week where the Eritrean government arrested and beat my client because they believed she helped her brother escape from the national military service.  We tried to frame the case in terms of imputed political opinion (our claim was that the authorities thought my client was “anti-government” because she helped her brother escape), but it was a bit of a tough sell.  We came up with a strategy that may have saved the day (she received asylum), so I thought I would share, as this strategy could be employed by many women who face persecution that is not based on a protected ground.

The key to our strategy was that my client had been a victim of female genital mutilation (“FGM”) early in her life.  In a well known decision, the Board of Immigration Appeals held that FGM could form the basis for an asylum claim.  Thus, FGM may be considered past persecution based on a protected ground.

Until the recent BIA decision, these guys had done more than anyone to define "other serious harm."

Where a person has been subject to past persecution based on a protected ground, she is eligible for asylum if there is a “reasonable possibility” that she will face “other serious harm” in her country, regardless of whether that harm is based on a protected ground and regardless of whether that harm is related to the original persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(B).  While I had written previously about “other serious harm,” it had not occurred to me how useful this provision could be for many female asylum seekers.

FGM is prevalent in a number of African countries and elsewhere.  A woman who has been subjected to FGM has likely satisfied the first prong of the requirement for “other serious harm” asylum.   To satisfy the other requirement, the asylum seeker must demonstrate that she faces a reasonable possibility of other serious harm in her country.  This could be any type of harm and does not have to be based on a protected ground or related to the original persecution.  

Until recently, there has been little guidance about what constitutes “other serious harm,” but last month, the BIA published a decision examining this basis for asylum. See Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).  In that case, the Board held that to qualify as “other serious harm,” the harm must be as severe as persecution, and the Board has given some examples:

Such conditions may include, but are not limited to, those involving civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the claimant could experience severe mental or emotional harm or physical injury.

A number of federal circuit courts (all listed in Matter of L-S-) have given examples of what might constitute other serious harm.  The list is quite diverse: (1) harm resulting from the unavailability of necessary medical care; (2) the mental anguish of a mother who was herself a victim of FGM whose daughter faces the same fate; (3) the unavailability of needed psychiatric medications; (4) victimization by criminals or militias; (5) unavailability of necessary AIDS medications coupled with social stigma.  While diverse, this list is obviously not exhaustive, and it seems to me there is a lot of room for creative lawyering (for example, might criminal prosecution qualify if the punishment is severe enough?).

Thus, for victims of FGM, the “other serious harm” category of asylum could be a useful tool to obtain asylum, even if the harm they face is not based on a protected ground.

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From Private Attorney to NGO Director

by Jason Dzubow

Thank you to guest blogger William Holston, the new Executive Director of Human Rights Initiative of North Texas, who agreed to share his experience moving from private practice to the non-profit world:

On January 15, I left my law practice of thirty years to become Executive Director of Human Rights Initiative of North Texas, a non-profit organization that provides pro bono legal services for asylum seekers and individuals seeking relief under VAWA, U-Visa, and SIJ visas. 

Bill Holston (I love this photo--very dramatic).

Thirty years ago, I graduated law school and started trying cases.  I drove to the courthouse, was sworn in by a State District Judge, and started accepting court appointed criminal defense cases.  My first jury trial was in the spring of the next year–a felony case.  My next jury trial was a condemnation case.  Eventually, my practice settled in general business work.  For most of my career, I represented creditors in commercial collections and a variety of small business clients.  I enjoyed the problem solving that I did for my business clients and found the practice of law challenging and fulfilling.

That all started to shift about twenty years ago.  I met a Mennonite missionary who was working with Central Americans here in Dallas.  In the mid-eighties, thousands of Salvadorans and Guatemalans were fleeing civil wars in their home countries. Intrigued, I agreed to help obtain guardianships for unaccompanied minors, so they could enroll in school in the U.S.  Later, I took a training in asylum law.  My first asylum case was a Guatemalan woman whose husband, a union leader, was assassinated by a death squad as he took their kids to school.  I helped her obtain asylum.  After that, I was hooked. 

My policy was that once I finished an asylum case, I’d ask for another one.  Since then, I have provided pro bono legal representation for political and religious asylum applicants from twenty different countries: Guatemala, EI Salvador, Burma, China, Russia, Bangladesh, Zaire (now the Democratic Republic of the Congo), Somalia, Togo, Cameroon, Nigeria, Egypt, Turkey, Pakistan, Eritrea, Ethiopia, Liberia, Nepal, Zimbabwe, and Rwanda.

Why did I continue to do this work?  A client from Zaire provided all of the incentive I needed.  My client had been a pro-democracy activist during the tyrannical reign of Sese Mobutu.  This resulted in his arrest.  He managed to escape and make his way to America.  He was lucky to be alive.  His wife and children were in hiding in Brazzaville.  I assisted this young man to obtain political asylum here.  Months later, he showed up unannounced at my office with his wife and children.  They were no longer in hiding.  Instead, they were making a new life in the United States.  He introduced me to them and said, “I wanted to thank you in person.”  After he thanked me. I told him rather casually that it was my pleasure.  He looked at me, paused, and said, “No, I know what you did for me, you gave me my life.”  Then it hit me.  It was I who was getting the most out of this relationship.  Most people never get a chance to hear something like that.  So, I knew that this was the most enriching work I could possibly do.  I learned that it was a privilege to represent such people.

Since 1999, I’ve been taking cases from Human Rights Initiative of North Texas, Inc.  HRI was founded in 1999 by a lawyer Betsy Healy, and a social worker, Serena Connely.   Their mutual goal was to found an agency that was motivated by compassion, and where the work was performed in an efficient and competent fashion.   I mentored Betsy on her first asylum case, when she was a lawyer in a large Dallas commercial law firm.  Their model was to use pro bono lawyers to do the work. HRI has built strategic alliances with some of the best law firms in America.  Those lawyers provide over two million dollars in legal services to our clients every year.  HRI has built a great reputation by having a rigorous process of screening and intake.

Over the years, I not only took pro bono cases, but I became an advocate for refugees.  I wrote a number of editorials for newspapers.  I wrote articles about Burma and Zimbabwe.  I also wrote commentaries about human rights issues for our local public radio station.  Any opportunity I had to speak about the issues of asylees, I took.  I realized that our clients’ stories were inspiring to others.  I became increasingly aware that this was the work I found the most satisfying in life.  In time, I began to think of it as a calling.  In part, I was motivated by the Biblical mandate to be a voice for oppressed people.

One of the best parts of this work is seeing our country through the eyes of people who risked much to get here.  I once had a client from Russia, whose family sold their home to pay for their son’s escape.  A few years back, a client escaped from a torture chamber and stowed away on a cargo ship.  He swam ashore at the port of Houston.  The main lesson I draw from such stories is that I no longer take my rights for granted. 

I drive past an Eritrean Church, where my client worships.  She spent days in an overseas shipping container just for reading a Bible.  I drive past a church where my Egyptian Coptic Clients now worship, after losing everything to extremists in their native Egypt.  I once stood in my office on Election Day, as my Zimbabwean client expressed amazement at the peaceful nature of our elections.  I realize just how fortunate I am, and I have our clients to thank.

Last year, the position of Executive Director became open at HRI.  I talked it over with my wife and we decided I should apply. It was not really a difficult choice, because I now wanted to devote all my energy to the cause of helping people seek refuge here in America. 

So how do I feel about it now?  My work place is filled with Ethiopian pro-democracy advocates, Iranian Christians, and Egyptian Coptics.  I work with young women escaping abusive arranged marriages and young teens who were survivors of crime.  It is the most fulfilling thing I have ever done.  I work with a team of young people who are full of skill and compassion. I feel younger and more energized than I have in years.  In sum, I can’t imagine work that is more fulfilling or more important. I feel like I’m home.

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South African Whites Seek Asylum in the U.S.

by Jason Dzubow

An asylum claim by a white Afrikaner farming family from South Africa has sparked a debate about whether their claim is based on a real fear of persecution or is “the result of paranoid (and racist) whites wanting to leave because they want no part in a black-governed South Africa.” 

Some Afrikaners fear that in South Africa, white is the new black.

The family’s claim seems to be that they are being discriminated and persecuted by the government.  Also, they face a severe risk of racially motivated crime and the government is unwilling or unable to protect them.

The family’s attorneys have been searching for an expert witness, but they have been rejected by several academics:

Professor Mark Behr, of Rhodes College, in Memphis, Tennessee, and Dr. Dennis Laumann, of the University of Memphis, have rejected requests that they help the family.  “I am not interested in assisting Afrikaners claiming discrimination in a non-racial, democratic, post-apartheid South Africa,” wrote Laumann.  “In my scholarly opinion, there is absolutely no basis for their allegation – whatever evidence they may present.”

Such rejection seems to me to represent the worst of academia.  To assume that any claim of asylum by a white South African is based on paranoia and racism is bad enough, but to publicly state that “there is absolutely no basis for their allegation – whatever evidence they may present” is completely irresponsible.  As a top asylum attorney once remarked: No country is safe for everyone all the time.

Nevertheless, it seems to me that the family will face an uphill battle for asylum.  For one thing, it appears that much of the case is based on the claim that the South African government discriminates against whites.  Assuming this is true, discrimination is not sufficient for a grant of asylum.  Also, to the extent that the family faces violence, they would need to show that there is nowhere in South Africa where they could relocate and live safely.  Given that there are about 4.5 million whites living in South African, I am not sure how the family can demonstrate that internal relocation is not an option.

Finally, the articles about white South Africans cite a figure that I find misleading.  They state that between 2001 and 2010, a total of 129 South Africans were granted asylum in the United States.  The articles imply that all these South African asylees are white.  DHS statistics show that 129 South Africans were granted asylum, but there is no reason to believe that these asylees are white.  Indeed, given that only 9% of South Africans are white, it is likely that the majority of asylum seekers coming to the U.S. are not white.

In any case, the asylum claim of the white South African family–like all asylum claims–should be evaluated on its merits.  Despite the irresponsible public comments of some academics, if the family has a well founded fear of persecution in South Africa, their application should be granted.

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Republicans Politicize Asylum Process for Venezuelans

by Jason Dzubow

Apparently spurred on by the anti-Chavez Venezuela Awareness Foundation, several members of Congress have written to DHS Secretary Janet Napolitano asking that she review the asylum process as it pertains to asylum seekers from Venezuela and ensure that it is “fair, humane, expeditious, and fully consistent with U.S. law.”  It seems the Members of Congress are concerned because of delays in Venezuelan cases and because the asylum grant rate for asylum cases is too low.

In a letter to Secretary Napolitano, Congressman Mario Diaz-Balart (R-Florida) writes:

I am concerned that the recent delays in processing these applications are the unfortunate result of a timid foreign policy that favors placating tyrants over assisting oppressed peoples achieve their democratic aspirations….  It would be shameful if the Administration allowed its asylum decisions, which are purportedly determined by a process untainted by political considerations to be delayed or denied in order to placate the very tyrant that asylum applicants seek to escape.

In a separate letter, Ileana Ros-Lehtinen (R-Florida), Chairwoman of the House Foreign Affairs Committee, complains that only a quarter of asylum petitions from Venezuela are granted.

There's at least one person who doesn't think President Obama appeases dictators.

The accusations in these letters are heavy on rhetoric, but short on reality.  First of all, in FY 2011, there were 445 asylum cases received in Immigration Court.  According to EOIR, 205 were granted and 136 were denied.  This is a grant rate of about 46%, not 25% as the Congresswoman claims.  Further, the rate for Venezuela is higher than the rate for such bastions of human rights as the Democratic Republic of the Congo (33%), Pakistan (33%), and China (44%).

Second, for anyone familiar with the Immigration Court system, the idea that asylum grant rates reflect the policy of the Obama administration is pretty ludicrous.  Many Immigration Judges were appointed during previous administrations and they may or may not agree with Administration foreign policy.  Even if they do agree with our current foreign policy (and assuming that that policy involves appeasing dictators), they are still bound by law to adjudicate cases based on the merits, and there is no reason to believe they are doing otherwise.

Finally, as to the supposed delays that Venezuelans face in Immigration Court, there is no evidence that such delays are any worse for Venezuelans than for asylum seekers from other countries.

In short, the letters to Secretary Napolitano are a cheap political stunt and the complaints are not based in reality.  There are plenty of issues in the asylum system that could use some attention.  Inequitable treatment of asylum seekers from Venezuela is not one of them.

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Confusion Over Mexican Asylum Seeker Statistics

by Jason Dzubow

A recent report from the Fronteras Project states that the number of Mexican asylum seekers has doubled due to the ongoing violence in that country.  The report states that in FY 2010, about 3,200 Mexicans asked for asylum in the United States.  Only 49 received asylum.  In FY 2011, the report continues, 6,100 Mexicans filed for asylum and 104 were granted.

Even a seasoned mathmatician would have trouble with the government's asylum statistics.

While there has been an increase in the number of asylum seekers, the data from the Fronteras Project is incomplete and paints a distorted picture.

For one thing, the number of asylum seekers in FY 2010 was actually 4,510.  Apparently, the Fronteras Project used data from a January 2011 report, not the more up-to-date report from February 2012.  Their data for FY 2011 is accurate: 6,133 Mexicans sought asylum and 104 were granted in Immigration Court.  Thus, there was actually a 36% increase in the number of Mexicans claiming asylum in Immigration Court–a significant increase, but far less than the Fronteras Project reports.

Another problem is that the statistics from the Fronteras Project appear not to count Mexican asylum seekers who filed their applications affirmatively.  It is not easy to find data on affirmative applications, but according to DHS, 143 Mexicans were granted asylum affirmatively in FY 2010 (meaning a total of 192 Mexicans received asylum in FY 2010 affirmatively and defensively).  DHS has not yet published data on affirmative asylum approvals for FY 2011, nor has it made data available on the total number of Mexicans who filed affirmatively for asylum.

I suppose this is a lot of statistical mumbo jumbo just to show that the number of Mexican asylum cases increased 36% and not 100% as reported by the Fronteras Project, but the difference is pretty significant.

A second problem with the Fronteras Project report relates to the claim that the increase in defensive cases is caused by ongoing violence in Mexico.  This claim is somewhat dubious.  Many defensive asylum claims are filed when people are placed into removal proceedings.  As DHS has been deporting large numbers of people during the last few years, it is possible that more of them are filing asylum as a defense to removal.  This does not necessarily indicate an increase in the number of people afraid to return to Mexico.  Rather, it may simply show that more Mexicans are being deported and they are filing for asylum in a last ditch effort to remain in the U.S.

Given the data available, I am simply not convinced that there has been a major increase in the number of asylum seekers from Mexico.  Maybe when DHS releases the numbers for affirmative asylum applicants for FY 2011, we will learn something new (affirmative applicants are people who fled here and then affirmatively filed for asylum, so they are a better measure of people fleeing persecution than defensive applications).  But I doubt it.  Despite the growing violence in Mexico, the number of asylum seekers from that country has remained steady over the past decade.  As far as I can tell, the long anticipated flood of Mexican asylum seekers has yet to materialized.

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U.S. Consulate Attempts to Block Asylum Seekers

by Jason Dzubow

The job of United States consular officers is to prevent undesirable aliens from obtaining visas to the United States.   But sometimes the consular officers are a bit too enthusiastic about weeding out potential asylum seekers.

In an Ethiopian asylum case I litigated earlier this week, the DHS attorney submitted as impeachment evidence a consular officer’s assessment of my client, who was interviewed at the consulate for a non-immigrant visa.  After describing why my client needed a visa (for a heart operation in the U.S.), the officer wrote:

Applicant swears she does not intend to seek asylum or stay in the US longer than needed, and has no problems that would prevent her from returning to Ethiopia.  If she files an asylum claim, it is fraudulent.

The conclusory last sentence is what really bothers me–“If she files an asylum claim, it is fraudulent.”  The consular officer does not know whether my client’s situation will change, or whether the situation in her country will change.  His statement seems to be simply an effort to prevent her from gaining asylum under any circumstances.  Not only is this unfair, but it contradicts established case law.  The BIA has held that an asylum seeker who lies to obtain a visa in order to escape her country is not ineligible for asylum once she gets to the United States, though the misrepresentation may be considered an adverse factor depending on the circumstances. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

I am absolutely not coming to the U.S. to seek asylum. Or to sleep with Morgan Fairchild.

Matter of Pula recognizes that people fleeing persecution often say or do unsavory things in order to escape danger. Granted, such case law creates a perverse incentive–if you are able to lie your way past the consular officer, you can claim asylum in the United States–but what is the alternative?  If a person honestly admits a fear of persecution in his country, the officer will deny the visa.  I suppose we could force all visa applicants to sign a statement indicating that they have no fear of return, and then enforce that agreement if they claim asylum in the U.S.  Of course, this would put us in the position of deporting people to countries where they face persecution or death, which is not only undesirable and immoral, but flies in the face of our international obligations.

All that said, I am sympathetic to the plight of the consular officers.  I’ve compiled some statistics below about the number of people who receive visas and then later claim asylum.  In FY 2010, over 14% of non-immigrant visa applicants from Ethiopia  received asylum in the U.S., a not insignificant figure (like most statistics, these are a bit murky, since I compare visa applicants in the given fiscal year with asylum grants in the same year; nevertheless, I think they provides some general guidance).  Given the high percentage of Ethiopian non-immigrant visa holders who win asylum, it is not surprising that the consular officers are pushing the envelope to stop this trend.  Here are the Ethiopian stats for the last five years:

Ethiopia

Year 2006 2007 2008 2009 2010
Visas Issued 6,407 8,047 8,479 7,947 7,777
Asylum Granted 780 851 900 1,109 1,093
Percentage 12.2% 10.6% 10.6% 14.0% 14.1%

 

And by the way, at least in my case, the consular officer’s effort to stop my client from obtaining asylum did not work.  The Immigration Judge granted asylum and the DHS attorney agreed not to appeal.

The country that send the most asylum seekers to the U.S. is China.  Here are the stats for China (keep in mind that none of these statistics account for people who applied for asylum but were denied, or people who entered the U.S. illegally and then applied for asylum):

China

Year 2006 2007 2008 2009 2010
Visas Issued 347,832 401,331 455,279 475,548 753,198
Asylum Granted 5,598 6,370 5,462 6,118 6,683
Percentage 1.6% 1.6% 1.2% 1.3% 0.9%

 

Most asylum seekers I represent come from Ethiopia and Afghanistan, so I wanted to include some information about Afghanistan.  This is a relatively new source country for asylum seekers (at least in the United States), and so the absolute numbers are not as high.  The upward trend is clear, and some Western countries are now making it more difficult for people from Afghanistan to get a visa.  Here are the statistics for Afghanistan:

Afghanistan

Year 2006             2007 2008 2009 2010
Visas Issued 193 1,119 1,173` 1,667 1,805
Asylum Granted 34 65 73 88 120
Percentage 17.6% 5.8% 6.2% 5.3% 6.6%

 

Data on affirmative and defensive asylum grants comes from the DHS Yearbook on Immigration Statistics.  Data on the number of non-immigrant visas issued in each country comes from the U.S. State Department.

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Hypocritical Editorial on Israeli Asylum System

by Jason Dzubow

A recent editorial in Al Jazeera by Charlotte Silver criticizes the Israeli asylum system.  The first paragraph pretty much sums up the author’s feelings on the matter:

The notion of a “Jewish and democratic state,” never a feasible reality, continues to unravel as its inherent racism is revealed in a new way.  Any political discussion of refugees that are of the wrong ethnicity inevitably refers to African migration to Israel as an “existential threat.”  Labeling these refugees as “threats” allows the state to criminalize and imprison them.  Meanwhile, the country continues to solicit immigrants from East Asia to fulfill the need for cheap labor, and Jewish immigrants to battle the internal demographic war.

To win asylum in Israel, you must show by a preponderance of evidence that your home government is meshugina.

There certainly are legitimate bases to criticize the Israeli asylum system (more on that below), but given the asylum systems–or lack thereof–in the Arab World, such criticism is hypocritical coming from Al Jazeera.  For one thing, unlike the large majority of countries on Earth, many Arab countries have not accepted the Refugee Convention and offer no protection to people fleeing persecution.  Further, wealthy countries such as Saudi Arabia, the UAE, and Kuwait are well known for their abusive treatment–akin to slavery–of foreign guest workers.  Given the absolute disaster that foreign asylum seekers face in Arab countries, Al Jazeera would do better to concentrate on the failures at home rather than complain about what the Israelis are doing.  It’s kind of like an F student criticizing an A student because he missed a question on the test (ok, maybe it’s more like an F student criticizing a C student, but you get the point).

That said, the Israeli asylum system is far from perfect.  A thoughtful–and very critical–academic article from 2010 by Professor Tally Kritzman examines the Israeli system, which was created in 2002 (although Israel has been a party to the Refugee Convention since 1954).  Essentially, the article argues that the Israeli asylum system is “an extension of Israel’s immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the ‘other,’ with the Palestinians and other enemy nationals facing maximum exclusion.”  While asylum seekers are considered “others” in many countries, Prof. Kritzman argues that in Israel such people are “more ‘other’ than elsewhere.”

Despite the problems, Israel is making an effort to improve its asylum system.  At the request of the Israeli Ministry of the Interior, in 2010 Israel partnered with the Hebrew Immigration Aid Society, UNHCR, and USCIS to help train asylum officers.  Hopefully this new effort will lead to an improved asylum system that will treat asylum seekers more correctly under international law and distinguish such people from immigrants to Israel.

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Female Asylum Seekers Need Not Apply

by Jason Dzubow

In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.”  Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.

One way to avoid the problem of gender discrimination when seeking asylum.

The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.”  Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”

The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.”  As a result, asylum seekers often do not know that certain facts are relevant to their claim.  Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.

The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”

It seems to me that the basic problem is that international law is not designed with the problems of women in mind.  As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape.  These types of harm are not covered by the Refugee Convention.  Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.

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The Nonsensical Biometrics Check

by Jason Dzubow

I arrived in Court the other day for an asylum case where I represented an Ethiopian poet who had been detained and persecuted for her political writings.  When the DHS attorney arrived, she told me that she had good news and not-so-good news.  The good news was that she reviewed the case and felt that my client should receive asylum (that was VERY good news).  The not-so-good news was that the biometric background check was not complete, so she thought we would have to reschedule the matter for another hearing, and the client would receive asylum at that time.  That news was inconvenient, and maybe a bit annoying, but not so bad.  However, it raises the question: What’s the deal with those pesky biometric background checks?

DHS biometric technicians hard at work.

Before we get to that question, here is a more basic query: What the heck is a biometric?  The State Department defines the term as follows:

A biometric or biometric identifier is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify the identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans.

In the case of asylum seekers, the biometrics are fingerprints and a photo.

Biometrics checks in asylum cases are valid for 15 months.  Meaning that if a case takes longer than that (which most cases do), the asylum seeker has to go for a new biometrics appointment where DHS again takes the person’s fingerprints and photo.  What’s nonsensical about this is that fingerprints do not change after 15 months.  In fact, the whole point of identifying people by their fingerprints is that the prints never change.  Otherwise, they would not be a very good way to identify people.  So why do the asylum seekers have to be re-printed?

As best as I can tell, sending asylum seekers for another fingerprint appointment is a way to “tickle” the system and generate a new background report.  So here’s a suggestion: Rather than wasting hours of the asylum seekers’ time arranging an appointment and traveling to the (always inconvenient) biometric office, and wasting the government’s time and money to repeatedly fingerprint and photograph hapless asylum seekers, let’s create a system where some government official pushes a button on a computer and generates a background check based on the existing biometric data.  This seems like a simple way to save time and money.  Also, since it can be done immediately prior to the Individual Hearing, it will be completely up to date.

In my Ethiopian case, the DHS attorney was able to run back to her office and get the results of the background check, so my client’s case was granted that day.   But for efficiencies sake, it would be better to reform the current biometric procedures.

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BIA Expands the Definition of Firm Resettlement

by Jason Dzubow

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

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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Dead Honduran Seeks Asylum in the U.S.

by Jason Dzubow

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

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

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

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

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

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

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

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