Mexican Violence Challenges US Asylum System

by Jason Dzubow

According to the Brownsville (Texas) Herald, “tens of thousands of Mexican nationals, including many journalists, officials and business leaders… have relocated to the United States since Mexican President Felipe Calderón launched a sweeping offensive against drug organizations in 2006.  But because the legal standards of asylum are so high — and some researchers say even outdated — many… face devastating challenges when it comes to reaching a safe haven in the United States.”

The number of succesful asylum seekers from Mexico is small.  According to the Executive Office for Immigration Review, in 2009, only 62 out of 2,816 (or 2.2%) of Mexican asylum seekers received asylum in the U.S.  The numbers are relatively unchanged from previous years: In 2008, we granted 2.1% of claims and in 2007, we granted 1.6%. 

“The reason so many petitions are rejected is that asylum standards were set in an older time period,” said Susan Ginsburg of the Migration Policy Institute.  “Most people who have qualified for the status have fled communist regimes, dictatorships and civil wars — not criminal violence or genuine fear of violent death at the hands of drug gangs.”

“We are used to seeing the need for protection from governments and states, and this (the migration we are seeing now) is a fear of persecution from nonstate actors, criminal gangs that have taken control of areas of the country.”  If the crisis continues to escalate, perhaps we will need to rethink our asylum policies.

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Canada to Pay Asylum Seekers to Leave

by Jason Dzubow

The Montreal Gazette reports that Canada will offer incentives to persuade rejected refugee claimants to leave the country.  The measure is part of a comprehensive overhaul designed to speed up the refugee-determination process, mired in a 60,000-person backlog.  Immigration Minister Jason Kenney said “We’re going to try to use carrots instead of sticks,” and said the Canadian government would provide allowances of up to $2,000 to asylum-seekers whose claims are rejected.

A rejected Canadian asylum seeker?

The Canadian government hopes to decrease the average departure time for failed refugee claimants from 4.5 years to two years.  Mr. Kenny states that the new measure would help prevent fraud: “The longer the queue, the more false claimants come,” he said.

Similar programs in Britain and Australia have dramatically improved compliance with deportation orders, said Kenney, who acknowledged he was initially skeptical about subsidizing rejected refugee claimants.

Whether or not a similar plan would work in the United States, it seems unlikely that there exists the political will to pay rejected asylum seekers to leave our country, even if this might be cheaper than rounding people up and deporting them.

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Mexican Police Chief Seeks Asylum

by Jason Dzubow

As drug and gang violence in northern Mexico increases, KOB News reports that terrified resident–and even police officers–are fleeing across the border:

The police chief of a Mexican border town has requested asylum in the United States, where he told authorities his two officers have fled and he does not know their whereabouts.  The Luna County Sheriff’s Department and the U.S. Border Patrol say Emilio Perez of Palomas came to the port of entry at Columbus late Tuesday night, requesting political asylum.

In a related story, Fox Newsreports, “At least 30 residents of El Porvenir, located about four miles from the Texas border town of Fort Hancock, have crossed into the U.S. and asked for political asylum, telling authorities that they fear for their lives.”

Violence in Mexico seems to be spiraling out of control.  For this past Tuesday, the total 24-hour death toll for Tamaulipas was 18 people killed and four injured in the latest round of violence throughout the state.

Besides ramping up border enforcement, the U.S. will need to find a way to deal with refugees from Mexico’s drug war.  In March, the United Nations released a report examing asylum claims based on fear of persecution by criminal gangs: Guidance Note on Refugee Claims Relating to Victims of Organized Gangs.  A UNHCR press release describes the report:

Asylum claims in connection with activities of organized gangs have recently come to the fore in different parts of the world. The purpose of this Guidance Note is to assist adjudicators with the assessment of such claims and to ensure a consistent interpretation of the refugee definition. It presents a brief overview of gangs and their practices, as well as a typology of victims of gang-related violence. The Note also contains a brief analysis of the international legal framework, and builds on jurisprudential developments.

I worked on a gang case a few years ago where the Immigration Judge granted my client withholding of removal.  I think what impressed the Judge was the extreme violence of the gang (MS-13), and the real possibility that my client would be harmed or killed if he returned to his country.

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Northern Mariana Islands Court Ramps Up

by Jason Dzubow
Who wouldn't want asylum here?

The new Immigration Court in the Northern Mariana Islands is up and running.  An article in the Saipan Tribune reports that “The Department of Homeland Security’s Immigration and Customs Enforcement has filed 30 new removal cases, bringing to 51 the total number of cases that have been filed with the Saipan U.S. Immigration Court since the federalization law took effect on Nov. 28.”

From Tuesday until Thursday, Immigration Judge Philip L. DiMarzio heard the 51 cases, mostly Chinese nationals involved in human smuggling cases.  In what appears to be a blatant breach of confidentiality, the paper reported and named a Chinese asylum seeker who appeared before the court.  For more on confidentiality and Immigration Courts, click here.

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UN Asylum Statistics for 2009

by Jason Dzubow

The United Nations has released a new report on Asylum Levels and Trends in Industrialized Countries for 2009.  Some of the report’s key findings:

Afghani Refugee
  • Compared to 2008, the overall number of asylum-seekers remained the same with 377,000 applications, despite significant regional disparities highlighted by the report.
  • Afghans topped the list of asylum applicants with 26,800 submissions representing a 45 per cent increase over 2008. Iraqis dropped to second place with some 24,000 claims, while Somalis moved to third position with 22,600 asylum applications. Among the top countries of origin were also the Russian Federation, China, Serbia, and Nigeria. 
  • In terms of regions of origin, nearly half of the total 377,000 applicants originate from Asia and the Middle East (45%), followed by Africa (29%), Europe (15.5%), and the Americas (9%).
  • The United States stayed the main destination country for the fourth year, with 13 percent of the claims representing an estimated 49,000 people, in particular from China. Second was France, receiving 42,000 new applications in 2009, a 19 percent hike compared to 2008, due to increasing claims from citizens of Serbia originating predominantly from Kosovo. Canada, while still ranking third among receiving countries, saw the number of asylum applications decrease by 10 percent in 2009 down to 33,000 after a drop in Mexican and Haitian claims. Following was The United Kingdom which also registered a drop in claims with 29,800 applications, one of the lowest in 15 years. On the other hand, claims in Germany increased by 25 percent with 27,600 applications recorded in 2009, making it the fifth largest receiving country. Together, these five top destination countries received 48 percent of the total claims recorded in 2009.

    • The overall stability in the number of asylum seekers belies regional increases and decreases.  For example, countries in southern Europe (like Italy, Turkey, and Greece) experienced a 33% decrease in the number of asylum seekers from 2008 to 2009.  The Nordic countries experiences a 13% increase and Australia and New Zealand reported increases of 30% over the previous year.  The United States experienced a small decrease (49,600 in 2008 compared with 49,000 in 2009), and Canada reported a 10% decrease.

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    Long Delays at Chicago Immigration Court

    by Jason Dzubow

    Chicago Public Radio reports that a record case load at the Chicago Immigration Court is causing hardship for asylum seekers:

    Chicago’s federal immigration court is backed up with a record 8,696 cases. The average wait for a hearing is more than a year. Some immigrants don’t mind, since the backlog buys them time here. But it’s hard on asylum seekers. And it has consequences on other parts of the justice system.

    Attorney Lisa Palumbo of the Legal Assistance Foundation of Metropolitan Chicago says long delays for asylum applicants are the norm.  They have to put off decisions like buying a home and accepting a job out of state.  Palumbo points out that many can’t get work authorization or student financial aid.  Worse, many are separated from family members in their home countries, and sometimes those family members face potential persecution.

    Here’s what’s causing the logjam: The government has added more agents and prosecutors to arrest and deport undocumented immigrants. But it hasn’t added enough judges to hear the cases. At the Chicago court, the number of judges since 2006 has actually dropped from eight to five.

    The Asylumist reported on this problem in recent post, We Need More Judges.  EOIR has stated that additional immigration judges are on the way.  For asylum seekers stuck in the system, the new judges cannot arrive soon enough.

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    More Asylum Seekers Detained

    by Jason Dzubow

    According to a column in the Minnesota Daily, the number of asylum seekers who are detained by the U.S. government has increased dramatically in the last 10 years.  I have some questions about the statistics cited in the article, which states:

    Ten years ago, the number of detained asylum seekers in the United States was 10,000. By 2009, the number had reached 400,000, according to Michele Garnett McKenzie, legal counsel for the Advocates for Human Rights…. Why the number has reached such a height is difficult for experts to explain. However, they do tend to hold responsible the existing “flawed U.S. policies that have led to the extended detention of asylum seekers….”

    The 400,000 figure likely represents all detained immigrants, not just detained asylum seekers.  Detention Watch Network, (“DWN”) which tracks detained immigrants, states that 440,000 aliens were detained at the end of 2009, three times as many as were detained 10 years ago.  A 2009 report from Human Rights First indicates that there are about 10,000 new asylum seekers detained each year.  A link to that report is available here. 

    The figures indicate a significant increase in the number of detained aliens.  According to ICE, “Detention and removal of illegal aliens is a priority of U.S. Immigration and Customs Enforcement (ICE).”  Information on many of the various detention facilities is available on the ICE website. 

    Conditions in the various detention facilities vary.  The ACLU has studied conditions in Massachusetts, and has issued a report: Detention and Deportation in the Age of ICE.  Documented problems include inadequate medical care, harassment, and overcrowding.  According to DWN, since 2003, “there have been at least 90 reported deaths in immigration detention.”  “Many of these deaths have been caused by a lack of timely and thorough medical care, and nearly one fifth of them have been suicides.”  Mental health concerns would be particularly acute for detained asylum seekers.  The recently introduced Refugee Protection Act would help to alleviate some of the problems faced by detained asylum seekers.

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    Recommendations Regarding Detained Asylum Seekers

    by Jason Dzubow

    From the Heartland Alliance’s National Immigrant Justice Center:

    Heartland Alliance’s National Immigrant Justice Center and 30 other national and international immigrant and human rights organizations, think tanks, and academics have petitioned the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) to issue regulations allowing the release of detained asylum seekers who pose no danger to the community and would face persecution if returned to their home countries.

    According to the report, in 2006, “of the 5,761 asylum seekers who were detained, 1,559 (27%) were detained for more than 180 days.”  The report continues: “On average, arriving aliens who eventually obtain asylum spend 10 months in detention.”  The report discusses the mental and physical effects of detention on asylum seekers, and also notes that the cost of detaining asylum seekers averages $95 per person per day–from 2003 to 2009, we spent more than $300 million to detain asylum seekers.  The report recommends regulatory changes to allow more detained asylum seekers to be released prior to their final hearings. 

    As usual, this problem is also a question of the asylum seeker’s financial situation and access to counsel.  Represented asylum seekers who are eligible for release (and who can afford to pay the bond) will almost always be released in a month or two.  The poorest and most vulnerable asylum seekers are the most likely to remain detained.  Case in point: I received a call today from a woman whose sister was threatened by gang members in El Salvador.  She fled the country, crossed the border illegally, and was detained.  She is currently being held in Eloy, Arizona, and has already made a claim for asylum.  The sister is looking for an attorney in Arizona to prepare an application for bond.  I referred her to the Florence Project, an excellent legal services organization that assists immigrants detained in Arizona.  If the woman can secure a bond, the chances of her asylum claim succeeding will be much improved.  If she remains detained, she will have to prepare her case and gather evidence–such as letters from witnesses, police reports, and medical reports–from behind bars.  Under those circumstances, I imagine the chances for her to succeed are pretty slim.

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    Immigration “Consultants” and Fraud

    by Jason Dzubow

    When asylum seekers arrive in the United States, they are often unfamiliar with how to file for asylum and how to find help with their cases.  Such people commonly hire “consultants” (or “notarios” in the Spanish-speaking community) to assist them.  The consultants prepare the case and sometimes attend the asylum interview as an interpreter.  They charge a fee–often the same or a little cheaper than a legitimate attorney.  Sometimes these cases succeed and asylum is granted.  More frequently, the case is denied and referred to the Immigration Court.  Other times, the consultant just takes the money and runs. 

    The ABA (American Bar Association) has created a program called Fight Notario Fraud to help report and crack down on consultant fraud.   From the ABA website:

    Unscrupulous “notarios” or “immigration consultants” have become an increasingly serious problem in immigrant communities throughout the United States. Often using false advertising and fraudulent contracts, notarios hold themselves out as qualified to help immigrants obtain lawful status, or perform legal functions such as drafting wills or other legal documents. Unethical Notarios may charge a lot of money for help that they never provide. Often, victims permanently lose opportunities to pursue immigration relief because a notario has damaged their case. The [American Bar Association] Commission is working to provide immigrant communities with information about this dangerous practice, and to support advocates who represent victims.

    Unfortunately, as the ABA notes, consultant “fraud is usually identified after the fact, when an immigrant has already suffered an adverse event as the result of a consultant’s services.”  If you have been a victim of consultant fraud, you can report the fraud to the ABA, and they may be able to assit you.  Submit your contact information and a description of the problem here.

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    How Confidential Is the Asylum Process?

    by Jason Dzubow

    Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

    In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

    Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

    The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

    Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

    Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

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    An Insider’s View of the Asylum System

    by Jason Dzubow

    Mesfin (not his real name) fled Ethiopia to escape political persecution.  Once he reached the United States, he filed for political asylum.  Four years, four attorneys, and thousands of dollars later, Mesfin’s journey finally came to an end when an Immigration Judge granted his application for asylum earlier this week.  “When [my claim] was denied at USCIS, I had another chance with the Immigration Judge, and when [my claim] was denied there, I had another chance with the BIA [Board of Immigration Appeals],” a happy and relieved Mesfin said in an interview the day after his asylum grant.

    It is not surprising that refugees who have completed a long odyssey through the Immigration Courts would have familiarized themselves with the procedural framework of the process.  It is likewise unsurprising that such immigrants, if successful, would come to have an appreciation for the principles of due process that underlie the layered review of immigration cases.  Still, Mesfin’s conversance with these concepts is impressive.  In recounting his case, the computer science student sounded every bit the law student, using terms like “clearly erroneous” and “credibility determination” as he discussed such concepts as burden shifting and appellate posture. 

    Certain items in Mesfin’s files offer other clues about the traits that made him such a ready student of the immigration system.  Mesfin’s transcript from Addis Ababa University, for instance, shows that he carried a 4.0 GPA and needed only a thesis defense to complete his master’s degree.  That thesis defense, which was to be delivered in 2005, never did get made.  The reasons for this were the same events in 2005 that prompted Mesfin’s flight from Ethiopia, a large, ethnically diverse country ruled by an authoritarian government that keeps power by pitting different ethnic groups against each.

    The current Ethiopian government, which The Economist has characterized as a “hybrid regime” situated between a “flawed democracy” and an “authoritarian regime,” cracked down hard on protestors in the aftermath of contested parliamentary elections in 2005.  A government ban on protests was imposed throughout the election period, but the repression got much worse for opposition party members (including Mesfin) after the disputed results.  Police are said to have massacred 193 protestors, according to a reported prepared by a since-exiled Ethiopian judge who was appointed by the Prime Minister to investigate the killings.  More than 100 opposition leaders were arrested and charged with treason and “attempted genocide.”  Hundreds more rank-and-file opposition party members on college campuses – including Mesfin – were arrested for mobilizing political opposition to protest the election results, which they regarded as fraudulent. 

    He was detained for eight days and was interrogated, beaten, threatened, deprived of sleep, denied food and medicine, and held incommunicado – without the opportunity to consult an attorney and without word to his family about his whereabouts. 

    “The prison cell I was in was filled with many prisoners,” he would later say. “[At night], they would wake me up and splash me with dirty water for sleep deprivation and mental torture.  [During] interrogation, the investigators warned me that my life would be taken because of links with anti-government bodies….  I was denied bail rights and court appearances since there was no evidence of wrong doing.  I was not charged with any crime.  But still, I was kept in jail and abused.  I got no justice or due process of law.”

    Mesfin was released from his illegal detention after eight days, and only after a previously released cellmate contacted his cousin who arranged an expensive bribe that secured his release.  It was then that he resolved to flee the country to avoid further persecution.  The sense of urgency that fueled that decision was evidenced by the fact that he felt compelled to depart within weeks of release – and just two weeks before the 4.0 student was scheduled to defend his thesis.

    But the hastiness of his escape would later make things difficult, Mesfin said, noting that the initial rejections of his asylum claim by USCIS officials and the Immigration Judge were based in part on a lack of documentary evidence to corroborate his account of being beaten and jailed.  “All you are thinking about is leaving,” he explained.  “You’re not thinking about the documents you’ll need” to later make an asylum claim.  And even if he was thinking ahead and about those matters, “I didn’t know any lawyers [in Ethiopia] who could tell me” what was needed.  Fortunately for him, Mesfin was finally able to convince the U.S. government that he needed protection.  Now, after four years, he hopes to return to school and begin his life again.

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