Hungarian Roma (Gypsies) Seeking Asylum in Canada

by Jason Dzubow

I was surprised to learn that the largest source country for asylum seekers in Canada is Hungary.  Embassy Magazine reports that 2,297 Hungarians–mostly Roma–filed for asylum in Canada in 2010.  During the first nine months of 2011, figures show that 2,545 Hungarians applied for asylum in Canada, 1,000 more than the next highest source country, China.  Presumably most of these asylum seekers were also Roma (Roma are pejoratively known as Gypsies). 

There’s a different story in the United States.  According to the DHS Yearbook of Immigration Statistics, only a nominal number of people from Hungary sought asylum in the U.S.  Indeed, the Yearbook does not even list Hungary as a source country, and in FY 2010, only 730 people from all of Europe applied for asylum here.

So why the difference between us and (as Herman Cain would call it) Cana-an-an-anada?

My first thought was that the difference must be related to visa requirements, but this appears not to be the case.  Embassy Magazine reports that, “Canada lifted visa requirements for Hungarian nationals in 2008,” but the same is true for the U.S.  As of November 2008, Hungarians are eligible to enter the United States on the Visa Waiver Program.

Maybe Bela Lugosi is scaring away his fellow Hungarians.

Another explanation may be that Canada already has a sizable Hungarian population, including many people who fled Hungary after the 1956 Revolution.  Immigrants tend to go where they feel more comfortable, in terms of culture, language, etc., and so the new immigrants might be joining their countrymen in Canada.  But it turns out that the U.S. has more Hungarians than Canada (including Drew Barrymore and–my personal favorite–Bela Lugosi) .  

A final reason might be that it is easier to win asylum in Canada than in the U.S.  But I don’t think that is the case either.  According to Embassy Magazine, Canada “accepted less than 10 per cent of the Hungarian refugee claims since 2009.” 

In the end, it is a mystery to me why Canada is receiving so many more Hungarian asylum seekers than the U.S.  What seems pretty clear, though, is that the situation for Roma people in Hungary is dangerous.  Many Roma have been murdered and right wing extremism is on the rise.  The main reason for the low asylum grant rate is not that Roma people are safe in Hungary.  Rather, the Canadian government believes the Roma can resettle in other EU countries where they can live safely (whether the Roma agree with this is a separate question).

There is talk in Canada of making it more difficult for Hungarians to obtain visas.  Even if visas are not restricted, if the grant rate remains low, the flow of Hungarians may slow down.  But if the situation for the Roma in Hungary is as bad as it seems, a 10% chance of gaining a better life in Canada might be enough to keep people coming. 

And yes, I know Herman Cain jokes are so last month, but I thought that was a good one.

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Jesus, Mary, and Joseph – Asylum Seekers

by Jason Dzubow

When Jesus was born, three wise men came to worship him.  According to Mathew, the men came from the East, and before they met Jesus, they went to King Herod and asked him, “Where is he that is born King of the Jews?”  When Herod heard their question, he was “troubled,” as he viewed himself as the Jews’ king. 

A 900-year-old depiction of the flilght into Egypt. From St. Catherine's Monestary in the Sinai.

Herod directed the wise men to Bethlehem, where the king’s prophets predicted the baby would be found.  He also ordered the wise men to inform him when they found Jesus, so Herod could come “worship” the new King.  Of course, this was a ploy–Herod wanted to find Jesus so he could kill him and eliminate the threat to his throne.  The wise men (being wise) understood Herod’s plan and failed to return with Jesus’s whereabouts.

Herod was not pleased that the wise men betrayed him, so he decided to kill all the babies born in the Bethlehem metro area, an event that became known as the Massacre of the Innocents.  Luckily for Jesus and his family, an angel came to Joseph and warned him about the impending danger.  Joseph gathered up his family and fled to Egypt, where they received asylum.  The family remained in Egypt until Herod died a few years later.  They then moved to Nazareth, to avoid living under the rule of Herod’s son, who was by all accounts worse than his father. 

There is nothing in Mathew about the family’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt).  These include a story about a tree that was worshiped by the locals as a god.  In fact, the tree was possessed by an evil spirit.  When Jesus approached, the evil spirit fled.  The tree then bent down to worship Jesus.  From then on, the tree was venerated by the people and possessed healing powers. 

Interestingly, the Coptic view holds that the people of Egypt–who offered refuge to Jesus and his family–were “richly blessed” for their good deed.  To me, this is a reminder that the helper often receives as much (or more) of a benefit than the person he is helping.

Merry Christmas and Happy Holidays. 

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EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

by Jason Dzubow

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

Some experiments have unintended consequences.

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

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

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

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

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

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

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

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

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New Rules for the Asylum Clock

by Jason Dzubow

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

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

"The Persistence of Memorandum" by Salvador Dali.

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

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

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

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

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

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Gay Saudi Diplomat Denied Asylum

by Jason Dzubow

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

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

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

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

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

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

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

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Asylum Applications Up in 2011; Arab Spring Has Modest Impact

by Jason Dzubow

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

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

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

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

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

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

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

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

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Appointing Attorneys May Be Cheaper Than Detaining Disabled Aliens

by Jason Dzubow

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

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

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

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

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

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

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

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

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EOIR to Stop Wasting DOS’s Time

by Jason Dzubow

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

Secretary of State Hillary Clinton reviewing asylum applications for EOIR.

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

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

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

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

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

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Game Show for Rejected Asylum Seekers

by Jason Dzubow

Those wild and crazy Dutchmen are at it again.  PRI reports on a new game show where rejected asylum seekers in the Netherlands compete for US$6,000.00 to help them resettle in their country of origin.  Losing contestants receive a bag of tulips and a bullet proof vest. 

The show, “Out of the Netherlands,” is actually a “harsh criticism of the Dutch government’s conservative immigration policy,” where asylum seekers are held in limbo for long periods before being deported.  Contestants answer questions about Dutch culture, cuisine, food, and language:

[The] program’s creators attempted to show how Dutch these contenders are.  “We don’t present sad stories, we want to show who these people are, and that it is a shame to let them go.  They are real rejected asylum seekers.  They are really leaving.”  The show’s participants are all young and highly educated immigrants who are facing a grim future in their countries of origin.

Maybe if Richard Dawson hosted "Out of the Netherlands," I could get behind the idea.

So I suppose the show is meant to be a hip, ironic commentary on Dutch society that aims to educate the public about the value of the asylum seekers to Netherlands society.  Nevertheless, I can’t help but find this idea idiotic.  Plus, I remember a cooler, hipper version of this show called Running Man, hosted by Richard Dawson (Also starring Jesse Ventura!  And yes, it also starred everyone’s favorite product of Nazi gene manipulation, Arnold Schwarzenegger).  One difference was that Running Man was a show where convicted criminals–as opposed to rejected asylum seekers–competed for their freedom.  The losers died in the process.  Another difference was that Running Man was fiction while “Out of the Netherlands” features real-life asylum seekers returning to real-life countries where they face harm.  

For me, the ultimate authority on exploitative game shows was an episode of the old TV series Insight, a fictional drama that “illuminat[ed] the contemporary search for meaning, freedom, and love.”  In the episode, teams of two family members compete in a game show to see who is more willing to hurt their own family member.  Through a series of escalating challenges, different teams drop out after they are not able to hurt each other.  For example, one team drops out after a brother refuses to insult a sister.  Another team drops out after a son refuses to slap his mother.  The winning team is a husband and wife.  The husband agrees to put a bullet in a revolver, spin the chamber, aim it at his wife’s head, and pull the trigger.  The chamber is empty, the wife lives, and the couple wins the contest.  It is clear from the wife’s reaction, though, that her husband’s willingness to risk her life in order to win money has killed her love for him.  Thus, even the “winner” of such an exploitative show has not really won. 

I suppose my point is, there are ways to inform the public about the issue of rejected asylum seekers without exploiting their situation.  Somehow I doubt “Out of the Netherlands” will achieve that goal. 

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New Musical About Asylum Seekers Opens in Washington State

by Jason Dzubow

A new musical about asylum seekers and asylum adjudicators opens next week at the Village Theater in Issaquah, Washington.  The play, “Take Me America,” chronicles the story of people from different countries applying for asylum in the U.S.  The show also addresses issues faced by adjudicators, “the people who bear the responsibility of determining [the asylum seeker’s] fate.”

Music and Refugees: A winning combination.

The Issaquah Press reports that the show distinguishes between asylum seekers and immigrants:

The director Jerry Dixon encouraged the “Take Me America” author and composer to shore up the differences between asylum and immigration to offer audiences more clarity.  “One of my first jobs was to get the authors to take away any ambiguous language or monetary language like, ‘I’m coming to America to get ahead, to make a better living,’” Dixon said. “That’s immigration. That’s different. ‘I’m coming to America because my arms will be hacked off by my government.’ That’s not immigration.”

Bill Nabel, “Take Me America” author and lyricist, said “Well-Founded Fear” — a 2000 documentary about the asylum process — laid the foundation for the rock musical. The filmmakers recorded the last interviews of applicants in the asylum process for the piece.  “To me, a musical is about where you find your heart,” Nabel said. “There’s a very large part of that in the asylum question. Asylum is much more than a legal question to us. How do we make a human decision about a law?”

In light of the negative attention recently generated by the DSK housekeeper case, it’s great to see asylum seekers–and asylum adjudicators–receiving some positive attention.  And if that attention is set to music, so much the better.

The show runs from September 14 to November 20, 2011.  For more information or to purchase tickets, visit the Village Theatre website, here.

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Possible Lawsuit to Help Victims of the Asylum Clock

by Jason Dzubow

The Asylum Clock has been the bane of asylum seekers and their lawyers since it was created in 1994 (and codified into law in 1996).  It requires an asylum applicant to wait 150 days before applying for an employment authorization documents (“EAD”), but the clock “stops” if the applicant causes a delay in her case.  The idea was to dissuade people from filing frivolous asylum applications in order to get EADs.  The problem, however, is that legitimate applicants are often prevented from obtaining EADs for seemingly random and inexplicable reasons. 

In this artist's rendition of the destruction of the Asylum Clock, AIC and NWIRP are represented by Donald Duck.

One reason for this problem is that the regulations implementing the Clock are vague, and are interpreted differently by different Immigration Judges.  So for example, most of my cases are in the Immigration Courts in Baltimore, Maryland or Arlington, Virginia.  Clients with the same case will receive an EAD in one court, but not the other.  All because the regulations are interpreted differently in different places.  For a good analysis of the Asylum Clock, check out this report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock prepared by the American Immigration Counsel and Penn State’s Dickinson School of Law.

Now, the American Immigration Counsel (“AIC”) and the Northwest Immigrant Rights Project “(NWIRP”) are exploring potential litigation on behalf of individuals who have been unable to obtain employment authorization due to Asylum Clock problems.  The organizations are looking for potential plaintiffs in the following three categories:

(1) Applicants whose clocks have not started and will not start until the next scheduled master calendar hearing because their applications are not yet considered filed in immigration court;

(2)  Applicants whose clocks have not started or restarted even after alleged applicant-caused delays have been resolved; and

(3) Applicants whose clocks have not started or restarted after their cases were remanded following appeal.

If you have a client in one of these categories who might be willing to participate in litigation, please contact Agnes Gyorfi at AIC at (202) 507-7523 or agyorfi.immcouncil@gmail.com by Friday, September 16, 2011.

Here’s hoping that AIC and NWIRP are able to pursue this litigation and knock some sense into the Asylum Clock.

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Fear and Loathing in the Asylum System, Part Deux

by Jason Dzubow

In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system.  My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State.  Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”

Mr. Krikorian is the Executive Director of the Center for Immigration Studies.  He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.”  “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.”  By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S.  Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”

Mexico doesn't seem like such a safe third country to me.

The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable.  However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations): 

The first issue is how to determine whether a given third country is “safe.”  For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?”  Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service).  What about a person who passes through several different countries and then comes to the United States?  How do we decide if a given country is safe for that person?  To give another example, it is perfectly safe for me to go to Kenya for a vacation.  However, it is probably not safe for an Ethiopian refugee to live in Kenya.  So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe.  To present that proof would require a certain amount of resources–and probably a decent lawyer.  Only those who could afford to make their case would qualify for asylum.  This seems like an arbitrarily way to determine who qualifies for protection in our country.

A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through.  Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.

Another issue is that, as a world leader, other countries follow what we do.  If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit.  This would generally weaken the international system for protecting persecuted people.

Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing.  I think this is dead wrong.  Our country greatly benefits from asylum seekers.  This has been historically true, and continues to be true today.  My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists.  I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country.  While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country. 

So, in the end, I oppose Mr. Krikorian’s “safe third country” idea.  As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief.  At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.

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New BIA Decision Will Harm Asylum Seekers

by Jason Dzubow

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

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Fear and Loathing in the Asylum System

by Jason Dzubow

Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud.  “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.

First, though, I must mention that the problem of asylum fraud seems to me overblown.  In my practice, I might do 35 or 40 asylum cases each year.  Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide.  In the U.S., between the  Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year.  Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%).  Even if many of the cases are false, the numbers just aren’t that significant.  That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases.  Anyway, enough of my ramblin’.  Here is one proposed solution, and my response:

Our Foreign Service Officers apparently have nothing better to do, so they might as well adjudicate asylum cases.

In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.”  Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”

Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators.  The reason for this, I suspect, is because there are no such people pressuring adjudicators.  Sure, there are groups (such as TRAC) that track and publish asylum statistics.  When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence.  Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss.  Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that.  Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud.  The plurality of asylum seekers are from China.  Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases?  If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case?  I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases.  In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.

Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea.  But I’ll save that for a future post.

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Doonesbury Takes on Asylum

by Jason Dzubow
Trff Bmzklfrpz and Duke in happier days.

Gary Trudeau’s comic strip Doonesbury is running a series about a deposed dictator named Trff Bmzklfrpz who is seeking asylum in the United States.  The dictator is living with (and mooching off) Uncle Duke, and Duke wants him out of the house.  He tries to convince–and coerce–Trff to attend his asylum hearing and “get his green card,” so he can find a job and get out of the house.  If you are interested, here is a link to the first strip in the series.

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