When Silence is Golden: Interpreters and Asylum

by Jason Dzubow
This blog entry is by ace reporter Maria Raquel McFadden.  Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience.   She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings.  Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736; mcfadden.maria@gmail.com.          
Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied.  It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.

Like many other professionals, interpreters must follow certain standards of practice while on the job.  Despite the fact that the number and order of cannons in the interpreters’ “Code of Ethics” can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.  

Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told  directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 
Interpreters often have access to protected, restricted, private and/or sensitive information.  The oath taken by professional interpreters to adhere to  confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.  
No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding. 
From time to time, for educational purposes, interpreters do and should share language issues that arise.  However, it is important they never share any identifying information which can include the name of the  asylum seekers, the judge, officer, or representing attorney.
Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional “interpreters” are used.  Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality. 
When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.

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Cuban Exiles in Spain Coming to the U.S.

by Jason Dzubow

In August, we reported that Spain and the Catholic Church had brokered a deal with the Cuban government to secure the release of dozens of Cuban political prisoners.  The Cubans were to be resettled in Spain.  The only problem: They wanted to come to the U.S., not Spain.  Now, it seems they will get their wish.

The AP reports that the Cuban dissidents will be coming to the United States where they will receive asylum:

The State Department is working to bring to the USA most of the 39 Cuban political prisoners exiled to Spain this summer… More than 100 family members would join them. [The] first case has been processed and nearly all are likely to accept the offer. [The] plan gets around a Catch-22 whereby Cubans who left the island were no longer considered in harm’s way, and thus not eligible for traditional asylum requests in the U.S.

Apparently, the Cubans preferred the United States because they had family and community ties here.  While I understand the desire to resettle in a country where you have connections, this is a deal that would likely not be available to asylum seekers from other countries.  Normally, once a person has asylum in one country, he is not eligible to receive asylum in the U.S.  This case reminds us that politics (here, our dislike of the Cuban government) can play a role in the asylum system. 

I have a case similar to this, where the United Nations resettled my client as a refugee in a country where the client had no community ties or friends, no knowledge of the language or culture, and no prospects for a job.  The client came to the U.S. and is now seeking asylum here.  We’ll see if the Immigration Court is as generous to my client as the State Department has been to these Cuban exiles. 

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Are Terrorists Taking Advantage of the Asylum System?

by Jason Dzubow

In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States.  This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.” 

The asylum seekers leave Somalia for Kenya, where they obtain false passports.  From there, they travel to Cuba and then Central America, where they make their way to Mexico.  In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico.  The Somalis then enter the U.S. illegally and file for asylum.

According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum.  The fear, of course, is that these Somalis are terrorists coming here to attack our country.  Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”

I have represented many Africans who have traveled to the U.S. in a similar fashion.  The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States.  They use one or more false passports and meet several different smugglers along the way.  The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).

Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued).  In my experience, the Mexican document does not–as the article states–prove the alien’s identity.  To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.

Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them.  This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally.  Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum.  Why initiiate contact with government authorities if you plan to engage in criminal activity? 

I can imagine scenerios where a terrorist would come here and falsely claim asylum.  However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country. 

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The Center for Immigration Studies Latest Comments on Asylum

by Jason Dzubow

David North recently posted a blog entry, the Uses and Abuses of the Asylum System, on the Center for Immigration Studies website.  Normally, I disagree (sometimes vehemently) with postings on the CIS website.  But this time, I’m pretty much in agreement with Mr. North.

In his posting, Mr. North describes the refugee system and the asylum system.  Apparently, he previously prepared a comparison between refugees and asylees, examining the use of public benefits by each group (he references his study, but I did not notice a link to it).  He found that asylees generally use less pubic benefits than refugees.  He posits that asylum seekers tend to be wealthier and better educated than refugees–asylum seekers make (and pay for) their own way to the United States; refugees are selected overseas from people in camps or otherwise outside their countries. 

His assessment certainly comports with my experience.  My clients these days are asylum seekers; many of them are educated people who are reasonably well off.  In the early 1990’s, I worked in refugee resettlement.  My clients then were a mixed bag–Jewish refugees from the former Soviet Union tended to be well educated, but poor.  Amerasians and other refugees from Indochina were generally less well educated, and many were indigent.   

Mr. North also notes that asylum seekers from some countries have filed meritless cases in an effort to delay their removal from the United States.  I agree that this is a problem, though it is not really anything new.  Indeed, the asylum system was reformed in 1996 to reduce the incentive to file meritless claims.  Before 1996, asylum seekers received a work permit shortly after they filed for asylum.  Now, they must wait 150 days before they can apply for a work permit.  Of course, some people still file meritless claims in order to delay their removal.  Unfortunately, Mr. North does not suggest what could be done about this.  If we offer asylum to people with a genuine fear of persecution, it is difficult to prevent others from taking advantage of our generosity. 

I do have one minor quibble with Mr. North’s posting.  He notes that during FY 2008-2010, asylum seekers from Iraq were the group most likely to receive political asylum in Immigration Court (only 13% of Iraqi cases were denied).  He writes:

The sad irony is that the U.S. government, after spending billions of dollars and thousands of lives to make life better in Iraq, has done so little good there, in the eyes of its own Immigration Judges, that when it comes to arguing that one is persecuted in one’s own country, those from Iraq are the ones most likely to win.

I don’t know if this is exactly correct.  By the time a case reaches the decision stage in court, it is usually at least one year old, and often two or three years old.  This means that any past persecution occurred probably two to five years earlier.  During that time, conditions were much worse in Iraq.  Mr. North may be correct–maybe IJs think we have not done much good in Iraq–but it is just as likely that the cases before them originated at a time when conditions in Iraq were less secure.  My guess is, we will see the grant rate for Iraqi cases dropping over the next few years (unless of course the country falls apart again). 

In any case, it is nice to agree with the Center for Immigration Studies for a change.

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Venezuelan Accused of Embassy Bombings Seeks Asylum

by Jason Dzubow

A Venezuelan man accused in the 2003 bombing of Spanish and Colombian diplomatic missions in Venezuela has fled his country and is seeking asylum in the United States.  The Miami Herald reports that Raul Diaz escaped from prison while on a daytime furlough.  He traveled by boat to Trinidad and then flew to Miami. 

 Mr. Diaz denies involvement in the embassy bombings, which injured four people.   He claims that there were irregularities in his criminal proceedings and that he was detained in inhumane conditions.

Memorial to Victims of Cuban Flight 455

Since arriving in the U.S., Mr. Diaz has garnered support from the Venezuela Awareness Foundation, a human rights organization that opposes the Hugo Chavez regime.  He has also met with U.S. representative Ileana Ros-Lehtinen, who is supporting his bid for asylum and who issued a press release stating that Diaz’s case was an example of the human rights violations carried out by Chavez.

While there is good reason to oppose Hugo Chavez and his dictatorial tendencies, it seems premature to embrace Mr. Diaz as deserving asylum in our country.  He has been accused of a serious crime–planting bombs that injured four people, including the wife and young daughter of a security guard.  This reminds me of the bombing of Cuban flight 455 in 1976, a terrorist attack that killed 73 people.  At least two of the men responsible for the attack are now living freely in the U.S., supported by various politicians, including Rep. Ros-Lehtinen, who is originally from Cuba and who is strongly opposed to the Castro government.  I guess I do not understand the logic of supporting terrorists who kill innocent people, just because we oppose the governments of the countries they attack. 

Perhaps Mr. Diaz is innocent, as he claims, but perhaps not.  An Asylum Officer or an Immigration Judge needs to scrutinize the case to determine whether he is eligible for asylum or whether he is barred as a terrorist.

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Gay Saudi Diplomat Fears Return to His Country

by Jason Dzubow

Ali Ahmad Asseri, the first secretary of the Saudi consulate in Los Angeles, has applied for political asylum in the United States, claiming that Saudi officials have terminated his job after discovering that he was gay and was close friends with an Israeli Jewish woman.  MSNBC reports that on a Saudi website, Mr. Asseri recently criticized his country’s “backwardness” and the role of “militant imams” in Saudi society.  He also threatened to expose what he describes as politically embarrassing information about members of the Saudi royal family living in luxury in the U.S.  Mr. Asseri states that he could face persecution or death in his home country.

I suppose this represents some sort of progress.

According to MSNBC, the last time a Saudi diplomat applied for asylum in the U.S. was in 1994 when the first secretary for the Saudi mission to the United Nations was granted asylum after publicly criticizing his country’s human rights record and alleged support for terrorism.

If Mr. Asseri can demonstrate he is gay, he should have a good chance to win his asylum case: homosexuals have been defined as a particular social group and country conditions in Saudi Arabia are dangerous for gays and lesbians–according to the State Department report on Saudi Arabia, sexual activity between two persons of the same gender is punishable by death or flogging.

According to MSNBC, Mr. Asseri was interview by DHS on August 30, 2010.  He should expect a decision in the near future. 

What is curious to me about the case is why Mr. Asseri felt the need to publicize his criticisms of Saudi Arabia on the internet.  His complaint about “militant imams” might be understandable given his circumstances, but it certainly would not improve his situation were he to return home.  I know nothing about Mr. Asseri, but I’ve seen other aliens engage in activities in the U.S. that are possibly designed to bolster their asylum claims–for example, attending political rallies against their government or posting anti-government messages on the internet. 

Such activities present a challenge for the decision maker.  On the one hand, the activities may be legitimate political activities.  On the other hand, they could be designed merely to engineer a stronger case.  Either way, the activities make it more dangerous for the alien to return home.  In Mr. Asseri’s case, his internet postings do not seem to be the primary basis for his asylum claim and may simply be a manifestation of his anger over his treatment.  In any case, if he can demonstrate his sexual orientation and that he was fired from the Saudi embassy, that would likely be enough for a grant of asylum.

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Sex for Asylum

by Jason Dzubow

Two female asylum seekers who were offered asylum in exchange for sex can sue the federal government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), ruled the U.S. Court of Appeals for the Ninth Circuit. See Xue v. Powell, No. 08-56421 (9th Cir. Sept. 2, 2010).  The two women are Chinese nationals who filed affirmative asylum claims and appeared for interviews at the Asylum Office in Los Angeles.  Asylum Officer Thomas A. Powell, Jr. interviewed each woman and requested sexual favors and money in exchange for granting their asylum applications.  Mr. Powell was convicted in 2004 and sentenced to three years and nine months imprisonment.  He died shortly thereafter.

If this is your Asylum Officer, ask for a supervisor, baby!

In 2001, the two asylum seekers sued Mr. Powell, his supervisor, and the U.S. government.  The District Court dismissed the claims against the U.S. government under the FTCA.  Under the FTCA, the United States is only liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [California].” See 28 U.S.C. § 1346(b)(1).  In a split decision, the Ninth Circuit reversed in part, holding that, under California law, the plaintiffs could state a claim for infliction of emotional distress and interference with the civil rights of the plaintiffs.  The case will now be remanded to the District Court for trial.

Meanwhile, one of the asylum seekers received asylum based on her fear of persecution as a Christian.  The other asylum seeker’s case was denied; she claimed a fear of persecution on account of China’s one child policy.  According to the San Francisco Chronicle, she faces deportation after the resolution of her lawsuit.

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It’s Getting Easier to Win Asylum

by Jason Dzubow

A recent report from TRAC Immigration reveals that the nation-wide asylum denial rate in Immigration Court has reached a 25-year low.  That means that a higher percentage of asylum seekers are receiving asylum than ever before.

The statistics show that in Fiscal Year 1986, 89% of asylum applications in Immigration Court were denied.  For the first nine months of the current fiscal year, only 50% of asylum cases in court were denied. 

The most obvious explanation for the higher grant rate is that a larger proportion of asylum seekers are now represented by attorneys–for FY 2010, 91% of asylum seekers were represented by attorneys; in 1986, only 52% of asylum seekers were represented. 

For those not represented by counsel, the difference in grant rate is stark: For FY 2010, only 11% of unrepresented asylum seekers received asylum in immigration court.  While this demonstrates the importance of legal representation, I suspect it also reflects the fact that aliens with weak claims often cannot find pro bono representation (law firms won’t take cases that are not meritorious).  Thus, this statistic may not be quite as bad as it seems.

Another reason for the improved grant rate may be that aliens are applying for asylum less frequently than in the past.  Since FY 2003, when Immigration Judges decided 35,782 asylum cases, the number of asylum cases has dropped to a projected 19,937 for FY 2010.  Perhaps aliens have become more savvy about what constitutes a bona fide claim, and they are more selective in making their applications for asylum. 

Finally, the TRAC report shows that the asylum grant rates for individual IJs continues to vary widely, though there seems to have been a slight improvement.  I have always felt that more guidance from the BIA–in terms of more published decisions–would help to reduce these disparities.  

The best news from the TRAC report is that most asylum seekers are now represented by legal counsel.  Hopefully, this means that their claims are being presented properly and that few aliens with meritorious claims are being denied.

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Cuban Dissidents Choose Between Spain and the United States

by Jason Dzubow

Last month, Cardinal Jaime Ortega reached a deal with Raul Castro and the Cuban government to free 52 political prisoners who have been held since a 2003 government crackdown.  Under the agreement, the released Cubans would go to Spain and receive political asylum.  Twenty have already been freed and left Cuba for Spain, along with more than 100 relatives.  More are expected to travel to Spain over the next few months.

WWCheD?

The problem is, many of the Cuban dissidents would prefer to come to the United States, where they have relatives and community ties.  Originally, the political prisoners and their families believed that they could accept exile in Spain and then travel to the United States.  A State Department spokesman last month said that the Cubans would be “absolutely” welcome in the U.S.  Now, however, the State Department has informed dissidents that if they accept exile in Spain (and the legal status that comes with it), they would not be eligible for asylum in the U.S.  Instead, they would have to immigrate based on family or employer petitions, a slow process that may not be available to many of the dissidents.

While such aliens would likely not qualify for asylum in the United States (since they are “firmly resettled” in Spain), they should qualify for permanent residency under the Cuban Adjustment Act.  This would require them to arrive in the United States and remain here for one year.  After a year, they could obtain their permanent residency.  Of course, not all of them would be able to come here, but those who want to live in the U.S. at least have a viable option. 

The case of these Cubans raises a broader question about choosing a country to seek refuge.  Many asylum seekers travel through third countries before arriving in the U.S.  Indeed, I have represented some asylum seekers who have traveled across three continents and a dozen countries before they arrive in the U.S.  Why should we allow such people to seek refuge here when they have skipped over other countries where they could live safely?  It’s a fair question. 

For me, escaping from persecution is only part of the equation.  People are searching for a safe, stable place to re-start their lives.  They may not find that in a country that does not normally accept immigrants or where they have no friends or family.  Refugees also need community support and jobs.  They may need financial assistance, medical care, and mental health care.  Many countries–including many countries that refugees pass through–cannot offer these types of assistance.  For these reasons, some of the Cuban dissidents would rather remain detained in Cuba (while hoping to come to the U.S.) than relocate to Spain, a country where they have no family members or community support.

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Pre-election Leak Led to Aunt Zeituni’s Asylum Grant

by Jason Dzubow

In May 2010, an Immigration Judge in Boston granted asylum to President Obama’s aunt, Zeituni Onyango.  The decision sparked protests from some who claimed (without evidence) that the President used his influence to help his relative.

Now, the Boston Globe reports that the IJ’s decision has been released in response to a Freedom of Information Act Request.  The 29-page decision is largely redacted, but the IJ’s reasoning seems clear.  On November 1, 2008, shortly before the presidential election, the Associated Press reported that Barack Obama’s Kenyan aunt was living in the U.S. illegally.  Regarding the source of this information, the AP wrote:

Information about the deportation case was disclosed and confirmed by two separate sources, one of them a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release.

Based on this statement, the IJ found that “an official of the United States government disclosed the Respondent’s status as an asylum applicant… to the public at large.”  The IJ found that this disclosure–which clearly violated federal regulations–was a “reckless and illegal violation of her right to privacy which has exposed her to great risk.”  He further found that this exposure distinguished the aunt from President Obama’s other relatives living safely in Kenya because her asylum case was revealed in a “highly politicized manner.”  (According to a recent AP article, DHS is investigating the leak.)

Given the country conditions in Kenya, the IJ found that Ms. Zeituni would be a target and that she had “at least a 10% chance of future persecution.”  The IJ granted asylum, but declined to rule on her applications for withholding of removal or relief under the UN Convention Against Torture.

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Mexican Woman Receives Asylum on Account of Domestic Violence

by Jason Dzubow

The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence.  Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death.  In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision.  That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.”  According to the brief:

DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship….  A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”  DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…

DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her.  These factors will be determinative in most domestic violence asylum cases.

In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.”  L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.”  Thus, there was compelling evidence that the government would not protect her.  There was also compelling evidence and expert testimony that she could not relocate within Mexico.

The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant.  It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case.  However, L.R.’s case has established a framework for asylum based on domestic violence.  Now, at least, such women have a chance to gain protection in the United States.

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As Virginia AG Targets Immigrants, What About Asylum Seekers?

by Jason Dzubow

Virginia’s Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth “may… inquire into the immigration status of persons stopped or arrested.”  The AG had previously determined that “law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws.”  Last week’s opinion effectively expands law enforcement’s power to inquire about a person’s immigration status:

So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.

It's not "American" Gothic unless you have the ID to prove it.

It’s a little unclear to me what this means.  The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both. 

It’s also unclear how this advisory opinion will impact asylum seekers.  Many people in Virginia–including many of my clients–have pending asylum cases.  Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S.  At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien’s status is terminated, but he remains in possession of his work permit).  Other times, the alien will have only a printed paper from the Immigration Court or the asylum office.  Anyone with a printer could create such a document, so it is weak proof of status. 

How then will Virginia law enforcement officers deal with asylum seekers?  Will they detain them until their status can be determined?  Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke.  Or will the police simply take an alien’s word for it when she claims to be an asylum seeker?  I doubt such an “honor system” would be acceptable to the AG’s supporters.  Or maybe the police will be trained in the various documents that accompany asylum cases.  But this would be a poor use of time for officers who are already overburdened.

One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum.  At least this would help such people avoid running afoul of local law enforcement.  As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.

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European Court Fines Switzerland for Violating Asylum Seekers’ Rights

by Jason Dzubow

Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.

The applicants–Ms. Mengesha Kimfe and Ms. Agraw–and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there.  In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons.  The couples were not married at the time.

It's a tough job keeping those feisty European states in line.

After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation.  They remained in Switzerland, however, because the Ethiopian authorities prevented their return.

The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that “unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton.” 

After her marriage, Mengesha Kimfe mainly lived with her husband, illegally.  After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed.  Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband.  As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father.  Her application for a residence permit for her husband’s canton was finally granted in 2008 on the grounds of family unity.

The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively.  They did not contest their deportation.  Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples.  The Court observed that the possibility of leading a life as a couple was one of the essential elements of the “right to respect for family life,” as protected under the European Convention on Human Rights.  The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate.  Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples’ right to live together), and found that the private right outweighed the state interest.  Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe’s case and 5,526 Euros in Ms. Agraw’s case.

While a supra-national court is vital in countries where the rule of law is weak, it’s hard to imagine the United States ever submitting to international review of its legal decisions.  I for one trust our own courts more than I trust most international bodies in such matters.  Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive.  The idea, of course, is to bring international courts up to (at least) the level of American courts.  If that happens, it will be easier to make the argument for international review in cases such as the one here.  I just don’t expect that to happen anytime soon.

The European Court’s press release and links to its decisions (in French only) are available here.

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Hirsi Ali Calls for a New Way to Evaluate Asylum Seekers

by Jason Dzubow

Ayaan Hirsi Ali, a prominent critic of fundamentalist (and not so fundamentalist) Islam and the author of Infidel and Nomad, recently told The Australian that it was futile for countries to attempt to establish the bona fides of would-be refugees, not least because many asylum-seekers will say anything in order to qualify for asylum.  “Everybody lies,” she said.  Indeed, she herself admitted to lying on her own application in order to gain asylum in The Netherlands.

Instead of simply assessing whether an asylum seeker has a well-founded fear of persecution, Ms. Hirsi Ali proposes a sort-of cultural test:

[We] have to change the paradigm. You have to say, “You’re welcome, we need immigrants but there are many conditions. Here is the law, the culture, the customs. Here is what you agree to, and in exchange you get to live in a peaceful, prosperous society where you have all this opportunity. If you don’t agree we will just return you.”

First, the problem of fraudulent asylum claims is widely acknowledged (I wrote about it here).  However, Ms. Hirsi Ali’s statement that “everybody lies” on their asylum applications is simply wrong.  That would mean that no one who has been persecuted in their country has ever escaped and sought asylum abroad.  Maybe it’s a small point–as she was likely speaking in general terms–but when we’re talking about people who have been tortured and lost loved ones, it seems a bit insensitive and ungenerous.

Second, while there may be reason for a cultural test in Australia (Ms. Hirsi Ali was speaking about asylum seekers in Australia), it seems less needed in the U.S.  Ms. Hirsi Ali is concerned about importing destructive cultural practices, such as female circumcision, forced marriage, and honor killings.  She associates these practices with Islam and would basically exclude asylum seekers who refuse to adopt a more Western lifestyle.  Most people seeking asylum in the U.S. are not from countries where these practices are common.  According to the Department of Justice, almost 35% of successful asylum seekers come from China.  The next largest groups–about 4% each–come from Ethiopia and Haiti.  While these countries certainly have problems (hence people from these countries seek asylum), the asylees from these places generally embrace Western values and do not bring with them the kinds of cultural baggage that concerns Ms. Hirsi Ali.  

In addition, any type of “cultural test” for asylum seekers seems doomed to fail.  If, as Ms. Hirsi Ali says, people will “say anything,” then certainly they will falsely claim to adopt Western values in order to win asylum.   

Finally, under U.S. law, people who practice FGM or commit honor killings are not eligible for asylum (whether the adjudicator learns about these acts is another matter).  Asylum seekers who are found to have persecuted others (FGM is a form of persecution) or who have committed serious non-political crimes (like murder) may not receive asylum.  If asylees commit such crimes in the United States, they will be deported.  Asylees should be educated about these laws, and such laws need to be enforced.    

It seems that a cultural test as proposed by Ms. Hirsi Ali is not needed for asylum seekers in the United States.  We can better balance our human rights obligations with our desire to avoid negative cultural influences by educating new Americans, making it safe for people to report abusive cultural practices, and enforcing the law.

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Moscow in the Hawkeye State

by Jason Dzubow

The Iowa Press-Citizen reports on a Moscow couple who moved to Iowa, and applied for political asylum in the United States.  Irakliy Surguladze and Elena Boryuk came to Iowa with their children in 2007 to escape growing tension in Russia: she is Russian and he is Georgian.  Their two countries have had a history of problems, including the deportation of several hundred Georgians from Russia in 2006 and a war in 2008.

Now, the couple is waiting for a hearing in their asylum case, which is scheduled for January 2011 in the Omaha, Nebraska Immigration Court–a court that opened its doors in October 2008 and hears cases from Nebraska and Iowa.

According to an interview with the couple by the Press-Citizen:

Life had been good for the growing family in Moscow, they said.  Both having earned advanced college degrees, Surguladze had been working as an engineer, while Boryuk had a good job with an Italian company.  He had obtained dual Russian-Georgian citizenship.  However, as tensions grew between their native countries, the family began looking for a way out, and in October 2006, they applied for political asylum at the United States Embassy in Moscow.

They learned at the Embassy that they would have to travel to the U.S. to apply for asylum, so they obtained tourist visas and came to the United States.

The Press-Citizen article does not make it clear, but apparently, the couple applied for asylum after they arrived, and their case was referred to an Immigration Judge (either that, or they were somehow placed in removal proceedings and filed a defensive asylum application). 

One issue that the couple faces is that Mr. Surguladze has dual Russian-Georgian citizenship.  This means that he would need to prove that he cannot return to Russia or Georgia.  To get around this problem, perhaps Ms. Boryuk could serve as the lead respondent (it seems she has only Russian citizenship)–if she wins, her husband will receive asylum as her dependent.  Of course, this assumes that her case is as strong as her husband’s.  

Another problem they might face is proving that they cannot relocate within Russia (it’s a big place).  If the IJ finds that they can live safely in some other part of Russia, they may be denied relief.  I once represented a Russian human rights worker from North Ossetia, a very troubled region.  We faced this same problem, but overcame it when we demonstrated that he could not obtain a propiska–a kind of residence permit–for any other part of Russia.

It sounds like their case might be difficult, and I wish them good luck.

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