New Novel Explores the Lives of Asylum Seekers

by Jason Dzubow

They say that truth is stranger than fiction because fiction has to be believable. That is basically the premise that got Scott Rempell thinking about the lives and stories of asylum seekers, and which led to his new novel, Five Grounds:

The idea to write an immigration novel that delves into the asylum process first hit me when I was working at the Office of Immigration Litigation in the Department of Justice. I was sitting in my office reviewing a Department of State report on a humanitarian crisis engulfing a particular country. I remember sitting back and thinking to myself that some of what I’m reading is stranger than fiction. It’s the type of information that people might read about in a novel and say, “no way that would happen!” But it does. It happens all the time in countries around the world and very few people know about it. I wanted to write a story that would educate readers about these countries, explain how the asylum process works, and highlight the tensions in the immigration debate.

Five Grounds is great reading material while waiting for your asylum interview.
Five Grounds is great reading material while waiting for your asylum interview.

The title refers to the five protected grounds that can form the basis for an asylum claim–race, religion, nationality, membership in a particular social group or political opinion. The novel follows three asylum seekers as they flee their home countries and make their way to the United States:

In Ethiopia, Tesfaye abandons his post at the Ministry of Defense and attempts to escape the country while a crazed rebel commander hunts him down for reasons he will spend years trying to fully understand. Lin’s mother forces her to leave China to protect her from the same fate that led to her father’s disappearance. In Mexico, Sofia’s health rapidly deteriorates, so she leaves behind her two young children and the memory of a murdered husband.

The three arrive in the United States where they must confront the American asylum system. A brief excerpt captures the flavor of the book:

Tesfaye placed a hand on each of his daughters’ cheeks. “I have some business to take care of, but I will come soon. I promise.”

Unconvinced, Yenee opened the door and grabbed hold of Tesfaye’s leg. “No, you need to come with us now, please come with us.” 

Tesfaye picked up Yenee and tried to comfort her. He could feel the tears on his shoulder, seeping through his shirt. “Look at me, Yenee.” Tesfaye gently pushed up on Yenee’s chin so that her eyes met his. “Look at me,” he repeated. “I have always tried to teach you the importance of responsibility. Our country has put its trust in me and I have a responsibility to help protect it.”

“But . . .”

“You remember the importance of honoring one’s obligations?”

“Yes, it’s just . . .”

“Now I need you to be strong.” Yenee loosened her arms, which had been clenched around Tesfaye. Her body slowly slid down until her feet touched the cobblestone walkway below. After she reluctantly got back into the car, Tesfaye stuck his head inside the open window and kissed Yenee on her forehead. He walked over to the front passenger seat, reached in the car, and gently rubbed his wife’s neck, massaging her earlobe with his thumb.

“We will see you soon,” Ayana sighed, forcing herself to smile.

Tesfaye smacked the roof of the car twice with his hand and Negasi shifted into gear. The Mercedes sped down the long dirt driveway toward the front gates, dust spewing into the air. Tesfaye stood at the edge of the driveway until the dust had again settled into the bone-dry ground.

I will see them soon. I just need some time to think.

Tesfaye could not have foreseen the consequences of his decision that morning, but the circumstances of his past were already conspiring. A chain of events set in motion nearly two decades ago was about to catch up to him. Soon, the conspiracy would reveal itself, and he would spend years desperately trying to unravel it.

The author was an attorney for OIL–the Office of Immigration Litigation, which defends BIA decisions in the U.S. federal courts. Now Mr. Rempell is a professor at South Texas College of Law in Houston.

What has drawn me (and other attorneys) to the practice of asylum law is the stories of our clients: What they did in their home countries, how they survived, their journeys to the U.S., and their experience in the U.S. immigration system. Prof. Rempell writes, “my goal in writing Five Grounds is to educate and inform against the backdrop of a gripping, fast-paced story.” If you would like to learn more about Five Grounds–or buy the book, visit Prof. Rempell’s website, here.

Continue reading

When Bar Counsel Comes Calling

by Jason Dzubow

Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.  In short, Lozada states that to reopen an immigration case where the previous attorney was constitutionally ineffective, the alien must file a bar complaint against that attorney.  Despite some intervening decisions, Lozada is still the controlling law.  As a result, many immigration lawyers will face a bar complaint at some point in their career.

It starts with Lozada, and ends like this.

In that happy spirit, I am re-posting an excellent article by Dolores Dorsainvil, a Senior Staff Attorney with the D.C. Office of Bar Counsel (the article is written with the DC Rules of Professional Conduct in mind, but it really applies to all jurisdictions). Ms. Dorsainvil investigates and, where necessary, prosecutes allegations of ethical misconduct of District of Columbia attorneys.  She is also an adjunct professor at the American University’s Washington College of Law where she teaches Legal Ethics.  She has an ethics blog, The Gavel, which can be found here.  Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

For many attorneys, coming across an envelope with the return address marked “Office of Bar Counsel” undoubtedly brings a sinking feeling. After reading the Bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel as a personal attack on their credibility and professionalism. Whatever the feeling, and however the complaint arose, with hundreds of Bar Counsel complaints lodged every year, attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are seven simple tips to guide attorneys in responding to a Bar Counsel inquiry should one ever become subject to such a complaint:

1. Think. Before penning an emotional response to Bar Counsel, take time to think about the legal matter, the history of the case, and the client who filed the complaint. This will aid an attorney in focusing on the issues involved in the complaint and may give him or her time to provide a response based on facts rather than emotions. An attorney may even want to review the file in its entirety to make sure he or she is able to recall every detail about the underlying legal matter.

2. Be timely. Request an extension, if needed. In its cover letter accompanying the complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason an attorney is not able to submit a timely response, he or she may wish to request an extension. Our office usually will grant an initial reasonable request for an extension. The attorney should confirm such a courtesy in writing. If a circumstance exists that requires a lengthy response period—as we all know, illnesses, deaths, vacations, business or personal matters happen—it is prudent for an attorney to explain that in writing to Bar Counsel and provide corroborating documents explaining the lengthy extension request.

3. Respond. This may seem like an obvious step, but there are attorneys who, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1(b). So, even if Bar Counsel is not able to make any findings of a violation of the D.C. Rules of Professional Conduct in the initial complaint, our office may pursue and prosecute an attorney for violating Rule 8.1(b). No matter how distasteful the prospect is of being subject to a complaint, every attorney has an affirmative duty under the rules to respond to requests for information from Bar Counsel authorities.

4. Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel in rendering a disposition; however, an attorney should be judicious. Providing a 30–page response while failing to actually address the allegations of misconduct may raise concerns.

5. Provide documents, and then some. An attorney should provide the documents our office requests, but he or she also should provide relevant documents as exhibits to the response if those documents corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that already has been addressed by a tribunal is extremely helpful. Taking this proactive step saves time in the investigation process.

6. Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as they relate to the underlying legal matter. It is important for an attorney not to assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied upon in the underlying matter is invaluable and can assist our office in determining the validity of the complaint.

7. Hire counsel, if necessary. This is a determination that can only be made by an attorney, but there are benefits to hiring representation. Respondent’s counsels usually are more familiar with the attorney disciplinary process and can help to navigate the system.

Overall, an attorney’s cooperation with a Bar Counsel investigation will contribute to a resolution in a manner that safeguards the rights of the public and protects attorneys from unfounded complaints.

Continue reading

The Seven Habits of Highly Annoying Clients

by Jason Dzubow

I’ve spent some time in this blog dissing immigration lawyers, so I thought it only fair to discuss some of things that immigration lawyers don’t like about their asylum-seeker clients.  Of course, none of these bad habits applies to any of my clients (so please don’t fire me).  With that important caveat, here are the seven habits of highly annoying clients:

7 – Negotiate the Price: Yes, I understand that many people come from countries where it is standard procedure to negotiate the price of something you buy.  But we are not now in that place.  In the U.S., negotiating the price is not the norm, and we lawyers really don’t like doing it.  Most of us charge a very fair price, and some of us charge too little (I sometimes hear complaints about this from my wife and kid, who keep bugging me to buy them things like food and clothing – the nerve).  While lawyers who specialize in asylum don’t expect to get rich, we don’t want to feel that we are being taken advantage of either.  It’s difficult to do your best work when your client is not fairly compensating you for your time.  On this point, lawyers also don’t like it when clients fail to pay or pay late.  To do an asylum case correctly requires a lot of time and hard work.  When a client pays too little or doesn’t pay at all, it becomes much more difficult to make the effort to help the client.    

Some former Immigration Attorneys reminisce about their clients.

6 – Change Phone Numbers Without Telling the Lawyer: It’s understandable that clients who are new and relatively unsettled in the U.S. would move and would change their phone numbers.  What’s frustrating is when they change their contact information but don’t tell their lawyer.  I always ask my clients for an “emergency contact;” not so much for emergencies (We need to file your form I-730 – Stat!), but to have someone else to contact if my client disappears.  Remember – if your lawyer can’t find you, she can’t help you with your case.

5 – Failure to Cooperate: I tend to give my clients a lot of homework.  I want them to get their work and school records, police reports, letters from friends and family, etc., etc.  Most clients do their best to get these documents, as they understand that it will greatly help their cases.  But some clients just can’t be bothered.  Not only does this make it more difficult to win the case, it makes it more difficult to represent the client with any enthusiasm–if you don’t care about your case, why should your attorney?

4 – Bringing Documents Late: I suppose this is a sub-category of “Failure to Cooperate,” but it deserves its own mention.  Immigration Courts and the Asylum Offices have deadlines for submitting documents.  If you give a document to your lawyer at the last minute, he may not have time to properly review that document–to ensure that it is consistent with the rest of your case, for example–before submitting it.  Submitting an inconsistent document could jeopardize your case.  Also, for a lawyer to organize and submit documents in a professional manner takes time.  If we receive documents late, it is more difficult for us to do our jobs.  Ultimately, of course, this is bad for the client.

3 – “No Shows” and “Dropping By:” You should be able to contact your lawyer when you need him.  But you do not have a right to stop by any time you want without an appointment.  Lawyers have busy schedules and multiple deadlines.  The more we can organize our days, the better.  When a client shows up without an appointment, it interrupts our schedules and potentially disrupts our day.  If you want to see your lawyer, please call in advance and make an appointment.  The flip side of this is when clients make an appointment and then don’t show up without calling.  It’s common courtesy to call if you can’t attend an appointment, and it makes sense to treat your attorney–the person who is working on a case that might profoundly affect your life–with respect.  

2 – Late to Court or Late to an Interview: Even worse than missing appointments with your lawyer is missing your appointment with the Immigration Judge or the Asylum Officer.  This will potentially cause you to lose your case and be deported.  It is also a problem for the lawyer, who often has to cover for you or appear at a second hearing (if you are lucky enough to be rescheduled and not simply denied).  

1 – Don’t Keep Asking, “Is My Case Done Yet:” Once an asylum case is filed, lawyers can only do so much to make it go faster – and by “so much,” I mean basically nothing.  Bugging your lawyer about whether there is a decision yet in your case is like asking him whether the Messiah is coming soon: We can pray for it, but that’s about all.  So please be patient.  If lawyers could issue green cards, we would work a lot less and make a lot more.  

And there you have it.  If you are a person seeking asylum and you have a lawyer, try to avoid these bad habits.  Remember – a happy lawyer will do better work, and you will have a better chance to win your case.  And, to all those clients who don’t have any bad habits, from all us lawyers – Thank you!  

Continue reading

5 Comments

Afghan Woman Who Feared Deportation Found Dead

by Jason Dzubow

An Afghan woman who was under investigation for filing a false asylum claim was found dead last month in an apparent suicide.  Gulalay Bahawdory, 60, grew up in Afghanistan and lived in Europe before coming to the United States and applying for asylum in 2000.

In her asylum application, Ms. Bahawdory apparently used a fake name.  Her husband, Bashir Bahawdory, also a former refugee from Afghanistan, states that she left the United States before receiving a decision in her case.  But ICE says that her case was denied and she was ordered removed from the U.S. in April 2001.  Both the husband and ICE could be correct: Perhaps she left before a decision was reached, and then an IJ ordered her removed in absentia.

In 2004, Ms. Bahawdory returned to the United States based on a marriage petition filed by her husband.  She became a U.S. citizen in 2009.

According to the Taliban, these girls are committing a serious crime.

Ms. Bahawdory lived in Raleigh, North Carolina.  It sounds like she had a good life there with her husband and her adult step children, who thought of her as a best friend.

For some reason, ICE began investigating her case earlier this year.  After the investigation began, Ms. Bahawdory thought of little else, her husband said.  She feared that if she were deported to Afghanistan, she would be harmed or killed by the Taliban or other extremists.

According to an ICE spokesperson, “Mrs. Bahawdory’s prior removal from the United States was discovered when ICE ran the fingerprints she provided for the spousal petition.”  ICE did not say when or why they checked the fingerprints or why it only began investigating her citizenship this year.  Also, no word on why this discrepancy was not discovered earlier.  (After all, what’s the point of taking fingerprints if they don’t reveal issues like this at the time of the application?)

Last month, Ms. Bahawdory’s body was found in a lake in north Raleigh.  Police found her car nearby.  In the car, there were three notes.  One was to her husband, stating that she loved him and knew what she had done was wrong.  She wrote a second note to her attorney, thanking her for doing what she could to help.  The third letter was left for the Raleigh police.  “I love the United States,” Ms. Bahawdory wrote.  “God bless the United States.”

Whatever the cause of death, this is clearly a tragic case.  If, as it appears, Ms. Bahawdory committed suicide for fear of deportation to Afghanistan, her death is doubly tragic.  For one thing, having already attained U.S. citizenship, it is not easy for the U.S. government to revoke that citizenship.  Remember John Demjanjuk?  He was a naturalized U.S. citizen who was convicted of accessory to murder of 27,900 Jews during World War II.  Despite his horrific crimes, it took over 30 years to finally de-naturalize and deport him.  If it took 30 years for a criminal like Mr. Demjanjuk, how long would it have taken for Ms. Bahawdory?

Also, even if her citizenship were revoked, Ms. Bahawdory had several defenses to removal: She could have sought asylum (or lesser forms of humanitarian relief like Withholding of Removal or Torture Convention relief); She might have been eligible for a waiver for the immigration fraud; She might have been eligible for Cancellation of Removal.  In addition, even if she were denied all relief, she could have asked for deferral of removal based on humanitarian grounds.  She certainly would have presented a sympathetic case given her age, her home country, her family ties to the U.S., and (as far as I know) her otherwise clean record.

I can certainly understand why someone–especially a woman from a country like Afghanistan–would feel tremendous stress if she felt she would be deported to her homeland.  But Ms. Bahawdory was a long way from being deported.  If she really did commit suicide because she feared deportation, this is a tragedy that should never have happened.

Continue reading

2 Comments

Thanksgiving: The Anti-Immigration Holiday

by Jason Dzubow

Last week, I posted about how Thanksgiving is the quintessential refugee holiday.  I didn’t want to say anything negative about Thanksgiving before the holiday, as that would be a bit of a humbug.  But now, enough time has passed that most of the leftover Turkey is gone, and now I want to write about the more challenging side of the holiday for immigration advocates.  Of course, I speak about the fact that the immigrants in the Thanksgiving scenario (the Europeans) essentially eradicated the original inhabitants of their new country (the Native Americans). 

Europeans were generally not known for being cordial to the Native Americans.

It has always surprised me that more anti-immigration folks don’t use Thanksgiving as an example of what happens when immigration runs amok.  Fifty years after the first Thanksgiving, most of the Wampanoag tribe (the Native Americans who dined with the Pilgrims in 1621) were either dead or sold into slavery.  From an estimated population of 6,600 in 1610, the Wampanoag were reduced to only about 400 individuals by 1677 (they have since recovered somewhat – in 2000, the estimated population was 2,336).  In short, while the first Thanksgiving was lovey-dovey, things didn’t end too well for the native peoples who received the new immigrants.  But this is something we rarely hear about from immigration restrictionists.

I suppose one reason that Thanksgiving is not used by immigration opponents is that it’s not easy to be anti-Thanksgiving.  Thanksgiving is probably the most popular non-religious holiday in the U.S., and to oppose Thanksgiving might seem un-American (in fact, to oppose Thanksgiving is un-American).  Since immigration opponents always seem to be uber patriots, I guess they do not want to be seen opposing the holiday.

Another reason that the holiday is not used against immigrants is that the analogy between European settlers/colonialists and modern-day immigrants really does not stand up.  The settlers of old were not trying to integrate into the indigenous culture; they were trying to conquer it.  Even if–as some restrictionists might argue–modern day immigrants do not integrate into mainstream society, they are clearly not in the same position to conquer our country as the settlers who conquered the New World.  We are much larger and more unified than the pre-Colombian indigenous peoples.  The number of immigrants coming to the U.S. these days is much smaller proportionately than the number of Europeans coming here in the colonial period.  Finally, most Native Americans died from diseases, and–Lou Dobbs notwithstanding–that is not a real threat to us today (at least not because of immigration).  So even if restrictionists wanted to use Thanksgiving as a cautionary tale about too much immigration, the analogy is weak.

Thanksgiving is frequently cited by pro-immigration types (and pro-asylum types like me).  I do think the holiday could be used to raise questions about immigration: How much immigration is good for our country, whether immigrants appropriately integrate into our society, how best to handle people who are here illegally.  But for restrictionists, maybe it is safer and more effective to raise those issues separately from the Thanksgiving holiday.  That’s fine with me, as I am a fan of Thanksgiving.  Now if you’ll excuse me, I know we have some leftover cranberry sauce around here somewhere…

Continue reading

5 Comments

Thanksgiving: The Refugee Holiday

by Jason Dzubow

They say that if you have a hammer, every problem is a nail.  In the same way, if you have an asylum blog, every holiday involves asylum.  Last Christmas, I wrote about how Jesus, Mary and Joseph were asylum seekers.  Today, I thought I’d discuss Thanksgiving and refugees.  Maybe next time, I will explain why Arbor Day is an asylum holiday. 

The connection between refugees and Thanksgiving is probably pretty obvious. 

Starting in the late 16th century, a group of Separatists who objected to certain practices of the Church of England faced persecution from ecclesiastic and state authorities.  These people were later called Pilgrims.  As a result of their tenuous situation in England, they migrated to the Netherlands in the first decade of the 17th century.

The Pilgrims were not thrilled with the libertine atmosphere on the Continent, and so they returned to England and then sailed to North America in 1620.  If they were seeking refuge today, the Pilgrim’s return to England (re-availing themselves of the protection of the English government) might very well disqualify them for asylum.  Also, the fact that they were firmly resettled in the Netherlands, and then chose to up and move to America might also disqualify them for asylum.

In any case, after a difficult 65-day journey on the Mayflower, the Pilgrims arrived at Plymouth Rock in November 1620.  That winter was particularly hard, and about 50% of the new settlers died.

Things improved the following year with a good harvest (and with the help of local Indians), and the Pilgrims decided to celebrate–this would be the first Thanksgiving dinner.  Attending the dinner were 53 Pilgrims and 90 Native Americans from the Wampanoag tribe.  The celebration lasted for three days.

After the first Thanksgiving, various public leaders and church officials would declare thanksgiving holidays, but there was no set date for the festival.  Finally in 1789, George Washington proclaimed the first nation-wide thanksgiving celebration, but the holiday was still not regularized. 

In 1863, during the height of the Civil War, President Lincoln declared that Thanksgiving would be celebrated on the last Thursday in November (and here I must mention Sarah Joseph Hale, a tireless crusader who helped make Thanksgiving a national holiday (and who wrote the nursery rhyme Mary Had a Little Lamb)).

In 1941, Franklin Roosevelt signed a bill making Thanksgiving the fourth Thursday in November.  Thus, the holiday achieved its present form.

I’ve noticed that many new immigrants to the U.S. celebrate Thanksgiving.  Because it is a holiday for giving thanks and for success in the New World, it is perhaps the quintessential immigrant holiday.  And while some have criticized the holiday as glossing over the effect of colonialism on native peoples (including the Wampanoag), the first Thanksgiving was a moment when two very different cultures encountered each other and dined together in peace.  This, to me, is the true spirit of the holiday.  Happy Thanksgiving. 

Continue reading

2 Comments

How to Hire an Immigration Lawyer Who Won’t Rip You Off

by Jason Dzubow

I’ve written previously about the poor state of the immigration bar.  And while there are–unfortunately–too many bad lawyers, there are many excellent ones.  The question is, for an immigrant unfamiliar with the American legal system, how can you distinguish between the good and bad?  In other words, how do you find a lawyer who will assist you, and not just take your money?  Below are some hints that might be helpful:

If your lawyer wears a cape, that is probably a good sign.

– Bar complaints: Complaints against lawyers are often a matter of public record.  So you can contact the local bar association (a mandatory organization for all lawyers) to ask whether a potential attorney is a member of the bar and whether she has any disciplinary actions.  You can also look on the list of disciplined attorneys provided by the Executive Office for Immigration Review (“EOIR”).  Sometimes, good attorneys are disciplined, but if an attorney has gotten into trouble withe the Bar, it would be helpful to know why.

– Referral from non-profits: Most areas of the country have non-profit organizations that help immigrants (EOIR provides lists of such organizations here).  While these organizations are often unable to take cases (due to limited capacity), they usually have referral lists of attorneys.  I would generally trust the local non-profits for recommendations, as they know the lawyers and know their reputations. 

– Referrals from friends: Most people who hire me were referred by an existing or former client.  However, from the immigrant’s point of view, I do not think that this is the best way to find a lawyer.  They say that a million monkeys with a million typewriters, typing for a million years will eventually write a novel.  It is the same with bad immigration lawyers.  Once in a while, they actually win a case (usually through no fault of their own).  The lucky client then refers other people.  I suppose a recommendation from a friend is better than nothing, but it would not be my preferred way to find a lawyer.

– Instinct: If you think your attorney is not doing a good job, he probably isn’t.  Attorneys are busy people, and they may not be as responsive as you might like, but if your attorney never returns calls and is never available to meet with you, that is a problem.  Also, if your attorney seems unprepared in court, that is obviously a bad sign.  If you are having doubts about your attorney, nothing prevents you from consulting with a different lawyer for a second opinion.

Hiring a lawyer can be tricky, especially for someone who is unfamiliar with the American legal system.  Given that the quality of lawyers varies so much, it is worth while to spend some time investigating a lawyer before you hire him.  That is the best way to protect yourself and (hopefully) ensure that you receive the legal assistance that you need.

Continue reading

4 Comments

Lawyers Can Help, Even When They Can’t Help

by Jason Dzubow

It happens two or three times each week.  Someone contacts me for help with an immigration issue and after talking to the person for a few minutes, it becomes obvious that there is nothing to be done.  The person does not qualify for adjustment of status, Cancellation of Removal, asylum, VAWA or any other form of relief.  Besides commiserating, what’s a lawyer to do in this situation?  I suppose you could sing them a verse of Shana na na, na na na na, hey hey, goodbye and show them the door.  But probably the more responsible course is to give the person some advice about where they stand.  Here are some issues I usually discuss with these unfortunate souls:

If nothing else, you can help your clients buy an airplane ticket.

– I often tell them that since (contrary to popular belief) I am not infallible, they might want to speak to other lawyers.  However, I caution them that some lawyers will take advantage of people in their situation and charge money when there is no way to help.  I suggest that if another lawyer offers to help them, they can ask what the lawyer will do, and then call me and tell me.  I won’t charge them anything, but I will tell them whether I think the lawyer is trying to rip them off.  I figure this is a win-win.  Either the person will avoid a potential scam, or I will learn about a new form of relief.

– Recently, I have been discussing the new rule on waivers.  In case you did not hear about this rule, starting in January 2013, instead of leaving the county to apply for a waiver, eligible aliens will be able to apply for a waiver in the U.S. and, if it is approved, leave the United States, process their case at the consulate, and quickly return to the U.S.  This new rule will potentially save people years of separation from their families (unless it is blocked by Congressional Republicans).

– I also advise people about the consequences of remaining in the U.S. illegally.  Such people face detention and deportation.  I tell them that a traffic stop or any type of criminal arrest can result in an ICE detainer.  Once detained, it is very unlikely that the person will be released before being deported, so it is important to have someone to look out for family members and property in case of an arrest.

– If the person is already in proceedings, I discuss Prosecutorial Discretion and Deferred Action.  PD is where DHS agrees to terminate proceedings, leaving the alien in limbo.  At least the government will end its efforts to deport the person–for the time being.  Deferred Action may be requested before a person has been placed into removal proceedings or once they have been ordered removed.  It is simply a request that DHS not deport the alien.  People granted Deferred Action can apply for a work permit. 

– Finally, I often have to explain away false rumors.  It seems that every time there is a policy change, desperate people are led to believe that it is some type of amnesty.  Those responsible for these rumors include unscrupulous lawyers and notarios, who want to make money, and the conservative press, which interprets anything the Obama Administration does as an “amnesty.”  I explain that there has been no major change in the law and that there is no amnesty.

Although we can’t always help our clients resolve their immigration problems, at least we can educate them about their situation and help them avoid scams.  This is an important service, and your clients will (hopefully) thank you for it.

Continue reading

4 Comments

Florida Congressman Moves to Limit the Cuban Adjustment Act

by Jason Dzubow

Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:

The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.

Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

Reforming the CAA is like upgrading your 8-track.

It is interesting that a politician from Florida–particularly one with the anti-Castro bona fides of Mr. Rivera–would have the chutzpa to challenge the Cuban American community on this issue.  It doesn’t strike me as a particularly wise move politically, even if it makes sense from a policy point of view.

Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera’s proposed reform–which is ostensibly to help preserve the CAA–seems pointless given that the law is simply not worth preserving.

Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don’t see what this propaganda victory has achieved.  The CAA was passed in 1966 and–45 years later–the Castro brothers are still in charge.

Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:

“No matter what the reason for stepping foot in Cuba, you lose your status,” Lofgren said. “If you go to visit family members you haven’t seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status.”

Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee’s immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.

In any case, it seems Mr. Rivera’s proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.

Continue reading

14 Comments

Want to Help Gay Couples with Immigration? Give Them Asylum

by Jason Dzubow

I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.  The two men started a successful business and are pillars of their community.  But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.  This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act: DOMAnd Dumber.

Last week, a federal appeals court struck a blow against DOMA.  The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.  However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter.  Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.  We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner. 

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions.  When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move.  For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.  Also, people who fear coercive family planning in China are eligible for asylum.  For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief. 

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.  In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).  More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.  Witness the new regulations on waivers.  Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.  This often meant a long separation from family members while the waiver was processed.  Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.  So why not do something for the thousands of same-sex couples faced with forced separation?  Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.  If DOMA is repealed or overturned, the government could re-visit this definition of persecution.  But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.  We should grant asylum to gay and lesbian spouses of U.S. citizens.

Continue reading

4 Comments

Some (Unsolicited) Advice for the Anti-Refugee Crowd

by Jason Dzubow

It’s easy to find anti-immigration websites and blogs on the internet, but there really aren’t many websites devoted exclusively to opposing refugees and asylum seekers in the U.S.  Of course, many of the anti-immigration websites periodically discuss these issues, but this is not the same as a restrictionist website focusing on asylum. 

The only blog I’ve found that is devoted exclusively to these issues is Refugee Resettlement Watch, which (as the name implies) was founded to highlight problems in the U.S. refugee resettlement program.  RRW advocates for fewer refugees and better oversight of the resettlement program.  It also opposes bringing in “Muslim refugees, Somalis in particular, who have no intention of becoming Americans.”  The blog authors add a note for those who might think the website racist:

Some of you reading this have for way too long intimidated and silenced people you disagree with by calling them racists, xenophobes, hatemongers and on and on and on.  It doesn’t work here, in fact, when you start with that sort of attack and don’t address the issues we raise, it validates our work.

The bloggers for RRW are very active, and post several articles each day.  They also attract a fair bit of attention–according to their website statistics, the site has received almost 1.2 million hits.

Although I obviously disagree with the main goal of RRW, I don’t think there is anything inherently wrong with advocating for the reduction or elimination of our refugee and/or asylum programs.  Indeed, I can think of a number of legitimate arguments supporting such a move: Our money would be more effectively spent helping refugees overseas; these programs are too costly given our current economic woes; refugees integrate too slowly–or not at all–into our communities; we should only help refugees who are “culturally compatible” with our society.  I won’t address these arguments here.  Instead, I want to talk about RRW (in other words, it’s time for the unsolicited advice).

"Why are people always dis-ing Ishtar?"

First, RRW would be more effective if it was less partisan.  The blog is not even close to neutral in its approach; it reports almost exclusively negative news about refugees.  If a refugee jaywalks in Cincinnati, RRW will cover it.  But if a refugee saves 10 children from a burning school bus, you won’t hear about it on RRW.  Perhaps the point is to destroy the myth of refugees as innocent victims and replace it with a more sinister image.  While this type of advocacy might do well with the already converted, it is unlikely to change many people’s minds.  So my advice to RRW is, try to be a bit more subtle.  If you want to convince me that Dustin Hoffman is a crummy actor, you can’t only talk to me about Ishtar.  You have to address The Graduate and (G-d forbid) Meet the Fockers.  My point being, unless RRW acknowledges in a meaningful way the positive aspects of the refugee and asylum programs, it will not have much legitimacy to address the negative aspects.   

Second, while I am willing to  accept RRW’s claim that it is not racist or xenophobic, it certainly provides a safe space for racists, xenophobes, and hatemongers.  A quick purview of the comments (and RRW’s responses) demonstrates this pretty clearly.  Even the Center for Immigration Studies–a well known restrictionist group that has itself been (unjustly in my opinion) called a hate group by the Southern Poverty Law Center–keeps a safe distance from RRW.  So my advice is, don’t allow hateful and racist comments to go unchallenged.  When you actually demonstrate that you oppose racism and xenophobia, instead of just saying it on your “about us” page, people will take you more seriously.

Finally, many of the articles on RRW take a contemptuous tone towards refugees and advocates for refugees.  While these repeated–and often nasty–comments might be viscerally appealing to people who oppose (or hate) refugees, they are a big turn off to the unconverted.  My advice: Have a sense of humor and give people the benefit of the doubt, at least once in a while.  Everyone who advocates for refugees is not a self-serving, crypto-jihadist, and many refugees are simply ordinary people fleeing terrible circumstances.  A more respectful tone towards such people might actually win you some converts.

Of course, I don’t expect RRW to listen to my advice (does anyone listen to advice these days anyway?). Perhaps they are satisfied speaking to a like-minded audience and avoiding honest debate with their political opponents.  To engage in a real discussion with people who have different views requires listening, humility, patience, and courage.  I know from personal experience that it is not always easy to engage in such discussions.  But that is how we learn and grow, and it is how we get closer to the truth.

Continue reading

1 Comment

NY State Bar Protects Incompetent Lawyers, Not Immigrant Victims

by Jason Dzubow

As far as I can tell, the NY State Bar exists to protect incompetent and dishonest immigration attorneys.  It could care less about the immigrant victims of those attorneys.

New York has more attorneys than any other state–about 157,000 of them (as of 2010).  A disproportional number of immigration attorneys are barred in NY because it is one of the few states that allows foreign lawyers to sit for the bar (assuming they take a certain number of credit hours at a U.S. law school), and many foreign-trained attorneys practice immigration law.  Because there are so many immigration attorneys barred in New York, the NY Bar Association has a particular responsibility to protect immigrant victims of attorney malpractice. 

What other organization protects its own (and its pets) regardless of right or wrong?

Thus, when an alien (or her attorney) files a bar complaint against a New York-barred lawyer, you might think the Bar Association would take that complaint seriously.  Unfortunately, this is not the case. 

As an initial matter, it is not easy to file a bar complaint in New York.  Unlike most other states, there is no central authority where complaints are filed.  Instead, the injured client needs to determine the correct NY department with authority over the offending attorney.  This depends on where the attorney is located, but it is not always easy to figure out.  Once you know the correct department, you can file your complaint. 

On behalf of my clients, I have filed two complaints against NY-barred lawyers. 

The first was against an attorney who refused to turn over a client file because the client had not paid money allegedly owed to him.  Refusing to turn over a file is not allowed under the Rules of Professional Conduct.  After I filed the complaint, the attorney responded to Bar Counsel and threatened me with a frivolous bar complaint for the “tone” of my phone conversation and letter to him.  Threatening a frivolous complaint is not allowed either.  Nevertheless, the NY Bar saw fit to dismiss my complaint.

The second complaint did not even get that far, and was dismissed out of hand.  In that case, my client received a decision from the BIA (she lost) and the lawyer failed to inform the client–for over one year.  As you might imagine, not knowing that her case was denied caused problems for my client.  The Bar Association’s response to our complaint:

After careful review, it has been determined that the issues you raise are more appropriate for resolution by the Board of Immigration Appeals in the first instance [we had also filed a motion to reopen with the BIA, but they are not responsible for attorney discipline].  Therefore, although we appreciate your effort, we are unable to assist you.

How nice that they appreciate our effort.  Further, we did not file the complaint so that the Bar Association could “assist us.”  We filed the complaint because the attorney violated her duty to inform my client about the result of the appeal, and because such a complaint is required to reopen the immigration case.  If she did this to our client, likely she has done it to others.  The Bar Association should be as concerned (or more concerned) about protecting potential future victims of this attorney than it is about “assisting” my client.  But obviously, they do not care about my client or about any potential future victims. 

To their credit, the Bar Association did an excellent job of protecting the incompetent lawyer.  They did not even require her to make a response to our complaint.  Thank goodness that the attorney was not inconvenienced by having to spend time explaining her bad conduct.  Better, she should use that time to rip off other immigrants.   With all the money she makes, I hope she remembers to bay her bar dues–she certainly owes them for protecting her. 

Despite my annoyance at the general failure of the New York Bar to protect immigrants, there are some resources available.  You can contact the Attorney Grievance Committees.  You can also contact the Immigrant Affairs Program of the District Attorney’s Office for the City of New York.  For the sake of future immigrant (and non-immigrant) victims, we can only hope that the NY Bar Association will one day recognize its responsibility to protect the public, and not just its own members.

Continue reading

8 Comments

The Problem With Immigration Lawyers and How to Fix It, Part 4: Attorneys

by Jason Dzubow

If you have been reading this series of posts, you know that so far I’ve blamed several people/organizations for the poor quality of immigration attorneys: Immigration Judges, Bar Associations, and Notarios.  I suppose some of the blame for bad attorneys might possibly… perhaps… maybe rest with the attorneys themselves (ourselves).  So what’s wrong with immigration attorneys?

We lawyers aspire to be as competent as we are good looking.

For one thing, most immigration attorneys are solo or work for small firms (I fit into this category).  Therefore, the only real barrier to entry is to pass the bar.  This is not a particularly high standard.  Other areas of law where attorneys tend to be solo or small-firm practitioners also seem to have their fair share of problems: For example, there was a spate of incidents where criminal defense attorneys fell asleep during capital murder cases.  Not that attorneys who work for large firms, large organizations or the government are necessarily better than small firm lawyers, but at least they are vetted by the employer before being hired.  In a prior post I mentioned the idea of a mandatory immigration bar association.  I believe that such an association would improve the practice of law by educating and regulating lawyers who practice before Immigration Courts and agencies.  In other words, it would fulfill some of the functions of a large employer in terms of quality control.

Another issue for immigration lawyers (which I believe is changing) is that immigration law was not considered a very prestigious practice area.  This means that top-notch attorneys and law students have generally not been attracted to this field (obviously there are many exceptions).  One reflection of this problem is the absence of academic journals related to immigration law.  When I was a law student in the 1990’s, I was on the Georgetown Immigration Law Journal.  Even today, that journal bills itself as the “only student-edited law journal devoted exclusively to the study of immigration law.”  Given the growing popularity of immigration law–and the important ways it affects people’s lives–I am hopeful that the practice of immigration law will become more respected and that we will see more law school journals devoted to the subject.

A related issue is that until relatively recently, law schools offered very limited (or no) classes about immigration law.  Over the last five or 10 years, this situation has begun to change pretty dramatically.  Now, students interested in immigration law can take a number of relevant classes at most law schools.  Also, law school clinics where students represent asylum seekers and others in Immigration Court have become quite popular.  These increased educational opportunities will, I think, help improve the quality of attorneys practicing immigration law.

Finally, since many immigrant clients are unfamiliar with the American legal system, they are often poor advocates for themselves and require extra help from their attorneys.  They are also particularly vulnerable to unscrupulous lawyers.  This means that perhaps the field of immigration law attracts people who would take advantage of others.  An analogous (though largely anecdotal) situation involves a 1998 study of disbarred attorneys in Michigan.  The study (of only 16 attorneys) found that the practice area with the most disbarred attorneys was probate law.  “The combination of estate funds and often older clients apparently proved irresistible to several former attorneys,” the report speculates.  In other words, easy money and vulnerable clients attract unscrupulous lawyers.  In the immigration context, a mandatory bar association would help mitigate this problem.

I would like to conclude this series on an optimistic note.  I think immigration lawyers are getting better.  The field is becoming more prestigious and is attracting the best and brightest law school graduates.  Also, immigrants are becoming more sophisticated and better able to protect themselves.  Hopefully, all this will lead to better representation for people in Immigration Court.

Continue reading

The Problem With Immigration Lawyers and How to Fix It, Part 3: Notarios

by Jason Dzubow

The now-defunct Syms clothing store had a slogan, “An educated consumer is our best customer.”  Unfortunately, many asylum seekers and immigrants are not well educated about the immigration system or the attorneys and notarios who represent them (a notario, in the parlance of our times, is a non-lawyer who purportedly assists aliens with their immigration paperwork). 

If your lawyer also sells fried chicken, it might be a bad sign.

Some notarios are honest and do excellent work; some are crooks who exploit an alien’s naivete about the immigration system and steal their money.  Although it is somewhat self-serving for an immigration lawyer (like me) to condemn notarios, I have seen many instances where a notario caused an alien to lose his case or where the notario took the alien’s money and disappeared.  Also, I am certainly not alone in my opinion: AILA has an over-the-top website called Stop Notario Fraud, and USCIS has a campaign explaining that the wrong help can hurt.  Not to mention that it is illegal to provide legal representation unless you are an attorney or an authorized representative.

In the asylum context, many applicants use notarios to help prepare their affirmative cases (the name for these “helpers” varies depending on the country of origin; for example, an Ethiopian notario is called an “asterguami” or translator).  The notarios are known to embellish cases or to simply make up stories.  There is no regulatory authority (like a bar association) to police the notarios, and though their activity is illegal, they are rarely caught.  They also spread misinformation in their communities about how the asylum process works.  For example, there are persistent (and contradictory) rumors in the Ethiopian community that well-educated asylum seekers are granted asylum because the U.S. needs talented people and also that the outcome of an asylum interview is random, so a well-prepared application is superfluous. 

So what does all this have to do with immigration lawyers?

For one thing, when applicants have been educated by notarios in their communities to believe that the outcome of a case is random, or dependent on factors other than the fear of persecution, there is no incentive to hire a competent attorney.  Indeed, the incentive is to hire the least expensive attorney available.  Except in the case of non-profits or pro bono counsel, such attorneys are not likely to provide the highest quality service.  Since many aliens do not understand that a decent attorney can improve the chances for success in a case, incompetent attorneys are able to continue attracting clients despite a poor track record.  In this case, a mis-educated consumer is their best customer.

In addition, notarios can–to a large degree–control which attorneys their clients will hire after the notario loses the initial case and it is referred to an Immigration Judge.  The notarios (who are not lawyers and cannot go to court) refer their unsuccessful clients to certain attorneys.  As you might imagine, unscrupulous notarios refer their clients to unscrupulous attorneys.

The current efforts to crack down on notario fraud are a good start, but those efforts largely ignore non-Spanish speaking populations in general, and asylum seekers in particular.  Advocacy organizations and the government should do more to address this problem.  Stopping unscrupulous notarios will reduce asylum fraud and, indirectly, improve the quality of lawyers practicing immigration law.

Continue reading

2 Comments

The Problem With Immigration Lawyers and How to Fix It, Part 2: Bar Associations

by Jason Dzubow

This is part two in a series of posts about the poor quality of immigration lawyers.  A recent survey of judges’ opinions found that 33% of immigrants had “inadequate” counsel and 14% had “grossly inadequate” counsel.  I previous wrote about how Immigration Judges could improve the situation by reporting incompetent and dishonest attorneys.  Indeed, according to Justice Department rules, IJs are required to report such attorneys.

Most bar complaints end up here (but at least they recycle).

Of course, reporting incompetent attorneys accomplishes little unless the disciplinary authorities–i.e., the state bar associations–actually impose sanctions where such punishment is appropriate.  Although a large number of practitioners have been disciplined, given the current state of affairs, the bar associations are not doing enough to protect immigrants.  Here are some thoughts on what bar associations could do to improve the situation:

– Bar associations should reach out to immigrant communities to help inform aliens about their right to competent counsel.  This means providing information–including information about how to report dishonest attorneys–to various immigrant advocacy groups and encouraging those groups to translate and disseminate the information.

– Given that immigrants are particularly vulnerable to unscrupulous lawyers, bar associations should pay close attention to complaints filed in immigration cases.  My sense is that the bar associations tend to protect lawyers, and that it is not easy to get disbarred (I hope I am not jinxing myself!).  Bar associations need to take complaints seriously and, in the case of vulnerable populations (minors, immigrants, etc.), need to thoroughly investigate allegations of bad conduct.

– Another issue is that certain bars–most notably New York and California–allow people with a foreign law degree to sit for the bar after they receive an LLM.  The requirements for admission to LLM programs are much less rigorous than for admission to JD programs, and thus graduates of these programs are not as familiar with the U.S. legal system as people who receive a JD degree at an accredited law school.  New York, at least, has taken some modest steps to improve this situation.

– A final–and more sweeping–idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies.  Volunteer immigration lawyers, who are knowledgeable about immigration law and who speak different languages, could serve on the disciplinary committee.  This way, aliens could file complaints directly to the immigration bar association, and those complaints would be reviewed by people familiar with the system and who (probably) speak the alien’s native language.  Also, an immigration bar association could require legal education and ethics training.

I don’t think we’ll see a mandatory immigration bar association any time soon, but I believe such an association would improve the quality of immigration attorneys.  For now, we will have to rely on state bar associations–however imperfect–to protect immigrants.

Continue reading

5 Comments