Congress Considers Waiving the One-Year Asylum Deadline for Indonesian Christians

by Jason Dzubow

Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims.  That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990’s. 

The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here).  The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.

People of all faiths will celebrate if the one-year deadline is repealed.

First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990’s and early 2000’s (I have represented several such people myself). 

My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement.  Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians.  In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone?  I previously discussed this idea here.

The reason–I believe–that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen.  This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo.  It is also the same type of reasoning that gave us the Cuban Adjustment Act–a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places.  In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.

I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way.  This point deserves further attention, and I will come back to it in a future posting.  For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.

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Seeking Asylum at the U.S. Embassy in China

by Jason Dzubow

When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis.  A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.

You known you're a dissident when you've been Shepard Fairey-ized.

In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum.  Technically, though, an embassy cannot offer asylum to someone in his or her home country.  Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).

Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy.  This does not mean that our government was powerless to help him after he arrived at the embassy.  United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.

A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square.  Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.

I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions.  Also, it seems, Mr. Chen had not yet made up his mind to leave the country.

As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics).  If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States.  He obviously has a strong case for receiving protection.  But until he actually departs from China, Mr. Chen’s situation remains precarious.

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Victory Is Fleeting, But Losing Lasts Forever

by Jason Dzubow

It feels good to win an asylum case, particularly a case where the client faces a real danger in the home country, or where winning seemed unlikely.  But one thing I’ve noticed about winning – that good feeling doesn’t last long.

The typical scene at my office after an asylum win.

It’s better for court cases, when you are actually present to hear the decision.  Since you’re not in the office, the win can be savored for a while; at least until you return to work.  With most Asylum Office victories, you receive the result by mail, so you might have a good couple minutes when you call the client to congratulate her.  After that, it’s back to the grind stone.

Losing, on the other hand, is a different story.  When you lose an asylum case, you need to explain to the client what went wrong.  If you’ve screwed up, you need to explain that too, and hopefully in a way that doesn’t generate a bar complaint.  If it’s the client’s fault, you need to be diplomatic–why add insult to injury? And even if you have done everything right, it’s hard not to feel guilty when a client loses his case.  Maybe you could have done more?  Of course, you can always do more, and since you lost the case, you clearly should have.

You also need to explain the appeals process, and how much you charge.  You have to discuss the chances for success on appeal.  For most clients, this is a conversation that you will have more than once.

And then, of course, you actually have to do the appeal.  These are a lot of work.  If the appeal is with the BIA, you won’t receive a decision for a year or two.  During that time, the client will call repeatedly to ask why there is no decision.  If you lose an appeal with the BIA, you then have to explain the process in the federal circuit courts and start the whole process again. 

So what’s the lesson here?  According to a recent survey of asylum advocates in the U.S. and the UK, we need to take time to celebrate our successes.  Many advocates report that there are moments of great joy in their work.  For these advocates, seeing individuals that they have supported win asylum is a strong source of motivation.  Even though we are busy, we should take time to savor our wins.  We help make people’s lives better.  If we take some time to appreciate our successes, it will help us enjoy our work more, and that will make us better advocates for our clients.  

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South Korean Spy Blows the Whistle, Gets Asylum

by Jason Dzubow

As you might imagine, South Korea is not a big source country for asylum seekers.  So it’s newsworthy when someone receives asylum from that country–particularly when that someone is a former operative with Korea’s top spy agency, the National Intelligence Service (“NIS”).

Writing for the Korea Times, Donald Kirk reports on the asylum case of Kim Ki-sam, a South Korean intelligence agent who blew the whistle on the NIS and former South Korean President Kim Dae-jung.  Mr. Kirk also served as an expert witness at Kim Ki-sam’s asylum hearing in Philadelphia and wrote a book with Mr. Kim’s help, Korea Betrayed: Kim Dae-jung and Sunshine.

The story goes that Kim Ki-sam made public information about the “tremendous investment of time, money and resources that went into arranging the June 2000 summit between Kim Dae-jung [the former president of South Korea] and Kim Jong-il [the late and not-so-missed dictator of North Korea].”  Apparently, “hundreds of millions of dollars… flowed into North Korean coffers to grease the path to the summit while the NIS and other agencies lobbied hard for years for the Nobel Prize for Kim Dae-jung.”

People are always thinking of crazy ways to get out of Korea.

Kim Dae-jung won the Noble Peace Prize for his “Sunshine Policy” towards the North, but the award was tainted by allegations that vast sums of money flowed to the North while at the same time the South ignored human rights abuses in North Korea.

The asylum case apparently wasn’t easy.  Mr. Kim first applied for asylum in 2002.  An IJ granted asylum in 2008, but DHS appealed.  The case was remanded to the IJ and Mr. Kim presented his claim again.  Finally, last month, the IJ granted asylum and DHS agreed not to appeal.  Mr. Kim was ably represented by Janet Hinshaw-Thomas of Prime Immigration Ministry in Philadelphia.

Of course, all this makes me think of another supposed whistle blower from a democratic country–Bradley Manning, who is currently awaiting trial (and facing a possible death sentence) for revealing classified information to Wikileaks.  Perhaps it is ironic that we grant asylum to one whistle blower while we potentially put another to death, but I think the cases are distinguishable.  One difference is that Bradley Manning publicized documents that mention Afghan civilians by name.  This put the civilians in serious jeopardy of Taliban attack.  As far as I can see, Kim Ki-sam’s actions have not put people’s lives at risk.  Ironic or not, the South Korean whistle blower has now received political asylum from the U.S. government.

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Episcopalian Bishop from Sudan Receives U.S. Asylum

by Jason Dzubow

A Sudanese Bishop who spoke out against atrocities committed by the government of Sudan has received asylum in the United States.  The Legal Times reports that Bishop Andudu Adam Elnail of South Kordofan, a province of Sudan that borders the new country of South Sudan came to the United States for medical treatment in May 2011.  Conflict broke out in his home region shortly thereafter, and he filed for political asylum.

Martyrs of Sudan by Awer Bul, one of the Lost Boys of Sudan.

Bishop Elnail stated, “friends, brothers and sisters, children, my flock, have been killed mercilessly [by the government of Sudan] and are lying now in mass graves in Kadugli.”  According to one of his lawyers, the Bishop’s home was destroyed and looted, his office was destroyed and looted, and his church was destroyed and looted.  Based on his (very) well-founded fear of persecution in Sudan, the Bishop received asylum in the United States.

Now that he is safely in the U.S., Bishop Elnail plans to continue his advocacy for the people of Sudan.  In a written statement, he says, “Asylum is the way for me to advocate for the people of South Kordofan.”  “I can do more for my people here than if I was in Sudan.”  It’s hard to argue with this sentiment, since it seems pretty clear that if he returned to Sudan, the government–which has repeatedly demonstrated its utter disregard for human life–would make sure that he kept quiet.  Permanently.

The case was litigated by Covington & Burling attorneys Arjun Singh Sethi and Gerald Masoudi.  Mazel tov to them for their success in this important case.

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BIA Expands the Definition of Firm Resettlement

by Jason Dzubow

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

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

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

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

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

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

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

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Credibility Determinations Are Not Credible, Part Three

by Jason Dzubow

In this series, I have been writing about methods for determining whether an alien is telling the truth.  So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable.  Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility.  I am speaking about plausibility.

First, what do we mean by plausibility?  When a fact finder determines that an event is not believable, it is implausible.  For example, I worked on a case where the Immigration Judge found my client’s testimony implausible.  The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest.  The IJ did not believe that a person wanted by the government could pass through airport security.

Unless your name is Big Daddy, you probably can't smell the mendacity.

The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible.  In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport.  In my case, we presented this evidence and my client received asylum.

As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way.  The IJ was concerned about a legitimate plausibility issue.  We presented evidence to satisfy that concern.  The case was granted. 

The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.”  Mr. Sagan’s axiom can be applied in the asylum context.  Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible.  The more implausible the claim, the better evidence the alien will need to demonstrate plausibility.  This seems like a reasonable method for assessing credibility.

If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable.  This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony.  The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness.  In the end, the fact finder must reach a conclusion using the imperfect tools that are available.  Given all that rides on these decisions, it’s not a task I envy them.

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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.

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Credibility Determinations Are Not Credible, Part Two

by Jason Dzubow

I previously wrote about how credibility determinations based on inconsistencies are not reliable.  Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods.  First, two methods that don’t work well:

Demean girl.

– Demeanor.  Fact finders often judge credibility based on the alien’s demeanor during testimony.  Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.”  Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts.  The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor.  This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal.  These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.

– Lack of Detail.  This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court.  My initial reaction when I see this is to blame the Asylum Officer.  If the Officer wanted more detail, she should have asked more questions.  But I know this is not exactly what is meant by “lack of detail.” 

Demeanor girl.

An example will illustrate the point.  An asylum seeker (represented by my friend) was asked to describe the conditions of her detention.  She responded: “I was locked up and I was interrogated.”  The Officer repeated the question and received a similar answer.  As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated.  Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it.  In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc.  If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.

The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.

Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible.  However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth.  In a future post, I will discuss some methods of judging credibility that might be more effective. 

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Credibility Determinations Are Not Credible

by Jason Dzubow

In an asylum case, one of the most difficult determinations for the fact finder is the alien’s credibility: Is the alien telling the truth about his claim?

Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says “Circuit Credibility Outline”). 

One of the main methods used to determine credibility is to to look for inconsistent statements in an alien’s testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

Someone named Mr. Incredible would probably not do well in Immigration Court.

A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 

For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client’s affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.

This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien’s memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates–except in the most egregious circumstances–should not be used to support a negative credibility finding. 

Another technique to evaluate credibility is to look for inconsistencies between an alien’s testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.

Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent’s and a witness’s testimony.

In a future posting, I will discuss other methods of determining credibility.

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UFO Cult Leader from Iran Granted Asylum in the U.S.

by Jason Dzubow

According to Raelia News, Negar Azizmoradi, a leader of the Iranian branch of the International Raelian Movement has been granted asylum in the United States.  Ms. Azizmoradi faced a possible death sentence in Iran because of her leadership role in the Raelian movement and because she is an atheist who renounced Islam (apostasy is punishable by death in Iran).  She fled to Turkey, where the government jailed her and threatened to return her to Iran.  After Raelians and others from different countries protested, the Turkish government released her and allowed her to come to the United States.  Last week, she received asylum (given the timing of events, it might be that she came here as a refugee, rather than claiming asylum after she arrived).

For those of you not familiar with Rael (a/k/a Claude Vorilhon) and his followers (called Raelians), here’s a bit of background.  Mr. Vorilhon was born in France.  He has been a race car driver, a singer, and a journalist.  In 1973, he encountered extraterrestrials, who gave him a message to pass on to other humans.  The message involved the secret history of the world and the return of the extraterrestrials.  Since then, Rael (as he is now known), has been spreading his news around the globe.  It’s not surprising that some countries, including Iran, have been less than receptive to his message.

For me as an attorney, Ms. Azizmoradi’s asylum application would have been a dream case.  Not that I’m a great fan of Rael, who supported Muammar Gaddafi and seems to have no love for the Jews.  However, I am a big fan of UFOs, lost civilization, and all things Fortean, and a Raelian asylum case certainly fits that bill. And asylum seems necessary here, where Ms. Azizmoradi faced persecution (or worse) in Iran.

Barney Hill: Immigrant and Abductee.

While we are on the subject of UFOs and immigrants, here’s an interesting tidbit.  The most famous UFO abduction case involved a couple, Betty and Barney Hill.  In September 1961, the Hills were driving through New Hampshire when they spotted a flying saucer (as UFOs were called back then).  They could see humanoids observing them from inside the saucer.  After their encounter, they realized that they “lost” three hours of their lives.  The case was investigated by the U.S. military and others, and has been the subject of several books and TV movies.  It also marked the beginning of an abduction craze, and many people claimed experiences similar to the Hill’s.

While people familiar with Hill’s case know that the couple was of mixed race (which was very unusual for 1961 America), what is not widely known is that Barney Hill was either an immigrant from Ethiopia or a descendent of Ethiopian immigrants.  I have never been able to find much information about this aspect of the case, but it strikes me as quite interesting.  When and why did he come here?  What was his birth name (I’ve met a lot of Ethiopians, but never any named Barney or Hill)?  How did he meet his wife?  Much has been made of Barney’s race in analyzing the case, including a recent scholarly article, but I have never seen anything specifically addressing his status as an immigrant.  I suppose there are many questions, but no answers.  So, as the ufologists say: Keep watching the skies!

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Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

by Jason Dzubow

Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.”  And who has the informant been ordered to turn over this information to?  The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.  If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.

First, a bit of background.  Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.  I’ve written about him before, here and here  (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.  The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.  The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.”  Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks. 

I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas.  But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.  It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.  Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.  Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.  While discovery in civil cases is quite broad, it is not unlimited.  Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.  Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.  If  this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.  For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant. 

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Most Canadian Refugee Judges Fail Re-Appointment Test

by Jason Dzubow

As Canada implements changes to its asylum program under the Balanced Refugee Reform Act, its refugee judges are required to apply for new positions that will commence in June 2012.  The refugee judges are currently political appointees.  To qualify for the new positions, applicants must take a multiple choice and written exam, and pass an interview.

Canadian judges spent too much time partying in high school.

According to the Canadian Star, out of 63 refugee judges, “only 10 have passed the exams and screening process, while nine are awaiting final interviews.”  Of the remaining 44 judges, “[o]ne was screened out immediately, 24 failed the multiple-choice and written exams, six did not show for the exams, seven were eliminated at interviews, and six withdrew from the process.”  Forgetting judges that decided not to re-apply, this means that over 50% of politically appointed refugee judges in Canada failed the exams or the interview. 

The Star notes that the “refugee judges’ poor performance has raised concerns about the quality of decisions they have made.”  No kidding.

So what are the implications for us, down here on the civilized side of the border?

First, it is pretty clear that we have problems of our own.  The important article Refugee Roulette: Disparities in Asylum Adjudication makes clear that decisions by Immigration Judges (and other adjudicators) often depend on who is making the decision rather than the facts of the case.  The authors found statistically significant evidence that an IJ’s work experience prior to appointment affects his or her decision-making in a particular case.  The obvious implication is that the system can easily–and subtle–be manipulated through political appointments.

This is not merely an academic point.  Just last week EOIR swore in three new judges.  Two of the three have experience with DHS or INS and all three have experience as administrative adjudicators.  From their bios, it appears that only one of the three has ever had any experience representing immigrants, and that was almost 20 years ago.  While these new IJs all seem like well-qualified individuals, their selection from within the government raises concerns, particularly in light of the biases revealed in the Refugee Roulette article.

So what is to be done? 

The authors of Refugee Roulette basically recommend more and better training.  That certainly makes sense.  Here are a few other ideas:

– The BIA should publish more decisions, to provide more guidance to Immigration Judges.

– The selection process should be broadened and more effort should be made to hire judges from the private and non-profit sectors.

– IJs whose grant or denial rate is out of whack with the mainstream should receive additional training and additional scrutiny to ensure that their decisions are complying with the law.

Maybe the lesson from Canada is that, with judges who are essentially political appointees, we need to be extra careful–and take the necessary extra steps–to ensure that they are qualified and able to properly adjudicate immigration cases and interpret the immigration law.

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New Rules for the Asylum Clock

by Jason Dzubow

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

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

"The Persistence of Memorandum" by Salvador Dali.

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

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

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

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

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

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The Forgotten Path to Asylum: “Other Serious Harm”

by Jason Dzubow

In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  But there are a couple of exceptions: “Humanitarian Asylum” and “Other Serious Harm.”

Humanitarian asylum allows an applicant to receive asylum if she “demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(1)(iii)(A).  In other words, we don’t send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today.  I had a case a few years ago that illustrates this type of relief–My client was a 10-year-old Tutsi girl in Rwanda in 1994.  When the genocide began, she went with her mother and two siblings to hide in a church.  The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die.  The little girl fainted (mercifully) before she could see her mother and one sibling murdered.  Years later, she was in the U.S. seeking asylum.  For some reason, the Asylum Office referred her case to the Immigration Court and she hired me.  We were able to get humanitarian asylum based on the severity of her past persecution.  In a sense (the legal sense), this was an easy case.  Humanitarian asylum is well-known and relatively common.

Kids, eating your vegetables is not "other serious harm."

A less well known form of relief is asylum based on other serious harm.  To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish[] that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(B).  Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer “other serious harm” in his country.  “Other serious harm” does not have to be based on a protected ground, and it does not have to be related to the original persecution. 

I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?).  My case involved a guard who worked for the Special Court for Sierra Leone–the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation.  In 1991, rebels killed his parents in order to retaliate against him for his political activity.  My client was working for the Special Court more recently, and he was assigned to protect an important witness.  Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money.  He refused, and reported the incident to his superiors.  After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him.  He ran from the house and fled the country.

My client satisfied the first prong for “other serious harm” relief–He was persecuted on account of his political opinion during the time of the civil war.  He also satisfied the second prong–He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness.  Unfortunately, at the time, I did not know about relief based on “other serious harm.” 

Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted.  However, the more appropriate form of relief was asylum based on “other serious harm.”  I learned about this avenue of relief at the First Annual USCIS Ombudsman’s Conference, which took place about a week after my case.  Aside from the bad timing, it was a great conference.  Anyway, now that I know, I thought I would share some information about “other serious harm,” as it might be helpful to others in their cases.

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