“One Central Reason” and Withholding of Removal

by Jason Dzubow

In a decision issued last week, the Board of Immigration Appeals held that the “one central reason” standard for asylum also applied to withholding of removal pursuant to INA § 241(b)(3). See Matter of C-T-L-, 25 I&N Dec. 341 (BIA Sept. 14, 2010).

Under the REAL ID Act, an alien is eligible for asylum only if “one central reason” for the feared persecution is race, religion, nationality, particular social group or political opinion. See INA § 208(b)(i)(B)(I).  Now the BIA has held that the same standard applies to claims for withholding of removal under INA § 241(b)(3).  The Board reasoned that “all indications are that Congress intended to apply the ‘one central reason’ standard uniformly to both asylum and withholding claims:”

Applying this standard to withholding claims has two distinct practical advantages. The first is that it will avoid the application of the different standards adopted by the courts of appeals in “mixed motive” cases….  The second is that the burden of proof standard would be consistent between asylum and withholding of removal claims.

What motivates a persecutor?

The BIA found that “Applying a different standard in ‘mixed-motive’ cases to asylum and withholding of removal would create inherent difficulties because it would require a bifurcated analysis on a single subissue in the overall case.”  “An application for asylum necessarily includes the similar but lesser form of relief of withholding of removal….  applying the same standard promotes consistency and predictability, which are important principles in immigration law.”

The Board concluded:

Considering the language and design of the statute, congressional intent to create a uniform standard, and the inherent difficulties in applying different burden of proof standards on the subissue of the persecutor’s motive, we conclude that an applicant for withholding of removal must demonstrate that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.

With that, the Board dismissed the alien’s appeal.

While consistency is a laudable goal, the fact remains that in the REAL ID Act, Congress amended the standard for asylum and not the standard for withholding of removal.  I imagine that we have not heard the last of this issue.  A petition for review to the Ninth Circuit seems likely, and we will see how that court interprets the statute.

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The Center for Immigration Studies Latest Comments on Asylum

by Jason Dzubow

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

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

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

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

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

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

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

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

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Gay Saudi Diplomat Fears Return to His Country

by Jason Dzubow

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

I suppose this represents some sort of progress.

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

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

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

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

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

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The BIA Rules on Frivolous Asylum Claims

by Jason Dzubow

The Board of Immigration Appeals earlier this week held that an Immigration Judge can make a determination that an asylum application is frivolous even in the absence of a final decision on the merits of that application. See Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).  The Board also held that withdrawal of the alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.

In Matter of X-M-C-, the alien filed an affirmative asylum application that contained false information.  After an interview at the Asylum Office in California, the case was referred to an Immigration Court.  During a court hearing, the alien admitted that her asylum claim and her testimony before the Asylum Officer were false.  She withdrew her application for asylum and applied for adjustment of status.  She also admitted to submitting fraudulent documents.  The IJ denied the adjustment of status holding that the later recantation of her story did “not waive the fact that a frivolous application has been filed.”  The BIA found:

[An] Immigration Judge’s authority to determine that an alien has knowingly made a frivolous application for asylum is not limited to circumstances in which the Immigration Judge makes a final determination on the merits of the application. The relevant provisions of the Act and the regulations clearly indicate that an inquiry into whether an application is frivolous can be triggered once the application is “made” or “filed.” 

“Consequently,” the Board held, “after a determination has been made that an asylum application is frivolous, a separate evaluation of the merits of the application is not necessary.”

The Board also determined that withdrawal of the asylum application does not prevent a determination that the application was frivolous:

The plain language of section 208(d)(6) clearly provides that an asylum application can be deemed frivolous once it is “made” and the required warnings have been given. Allowing the preemptive withdrawal of an application to prevent a finding of frivolousness would undermine both the plain language of, and the policy behind, section 208(d)(6)—as well as the potency of the required warnings. An alien, such as the respondent, who not only filed a frivolous application but also testified falsely in support of that application to an asylum officer could escape the consequences deliberately chosen by Congress to prevent such abuse of the system.

While applicants should be encouraged to recant false statements and withdraw false applications, the Immigration Judge and this Board are not prevented from finding that an application is frivolous simply because the applicant withdrew the application or recanted false statements after the appropriate warnings and safeguards were given, but prior to a decision on the merits.

The paragraph quoted immediately above lays bare the dilemma of cases involving fraudulent asylum applications.  On the one hand, we want to encourage aliens to recant false statements.  On the other hand, Congress has plainly indicated that aliens who make false statements should be punished.  The alien who makes up a claim where there is none has earned such treatment.  But aliens who have legitimate claims often “enhance” their story because they feel (or are told) that they should do so.  Such aliens are–to me at least–much more sympathetic.  In general, IJs seem to distinguish between these two categories of fraudsters, treating the latter better than the former. 

Matter of X-M-C- does not require frivolous findings and does not prevent IJs from distinguishing the different types of fraud.  It does, however, make clear that an alien cannot protect herself from a frivolous finding by withdrawing her asylum application.

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Second Circuit Denies Chinese Asylum Cases En Masse

by Jason Dzubow

The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:

Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.

The Court’s Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?

First, some background.  In response to the “one family, one child” population control measures in China, Congress passed a law modifying the definition of “refugee” to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child–which is not allowed under Chinese law–they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 

Sometimes one is enough.

Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA’s ruling unless it concluded that “no reasonable fact-finder could have failed to find in favor of petitioner.”

Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.

Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court’s decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant’s claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.

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BS from CIS

by Jason Dzubow

The Center for Immigration Studies never seems to let the facts get in the way of attacking immigrants and those who advocate for them.  Most recently, Jessica Vaughan, CIS Director of Policy Studies, criticized Immigration Daily for holding a training on gang-based asylum claims.  Instead of discussing the actual subject of the training, which is not particularly controversial, Ms. Vaughan simply made up her own version of the event in order to attack Immigration Daily.  Of the training, she writes:

Learn how to establish that your gangster clients are “members of a particular social group,” that they deserve humanitarian protection due to their “political opinions” or “religion” (such as La Familia, the murderous Mexican cult-like cartel), and what the UN guidelines are on these oppressed individuals. This e-learning session was preceded by one on how to help your client get a waiver if they are denied a green card or refugee status because of their links to terrorist groups. No, this wasn’t in The Onion, it was in Immigration Daily, the leading e-newsletter of the immigration bar.

Ms. Vaughan did not find this description on the Immigration Daily website.  Rather, she made it up.  Gang-based asylum does not involve helping gang members enter the U.S.  Rather, it is about helping people who have been threatened by gangs.  But, Ms. Vaughan’s goal apparently is not to engage in intelligent debate or education; it is simply to denigrate and discredit those who advocate for people fleeing persecution. 

The Southern Poverty Law Center says of CIS: “it has always been part of a broad-based and well-planned effort to attack immigration in all forms.”  By making up phony arguments to influence the uninformed, Ms. Vaughan seems to be making their point for them.  If CIS wants to be taken seriously, maybe it should demonstrate a little integrity.  It can start by telling the truth.

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Third Circuit Grants Relief to Mentally Ill Respondent

by Jason Dzubow

In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA’s denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).

Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident.  He was eight years old.  Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings.  Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity.  His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture (“CAT”).  He also asked for an indefinite continuance so that his competency could be determined. 

The IJ (in York, Pennsylvania) denied the motion for a continuance.  The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution “on account of” a protected ground.  However, he granted Ms. Soobrian’s application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.

The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was “no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture.”  Mr. Soobrian filed a Petition for Review in the Third Circuit.  Based on an unopposed motion, the case was remanded “for consideration of whether the class of mentally ill persons is a ‘particular social group’ for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was ‘more likely than not’ to be tortured if removed.”

On remand, the IJ held that “mentally ill persons” could constitute a particular social group.  However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources.  He also found no evidence that the government could not or would not protect such people.  As such, he denied Withholding of Removal.  Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.

On appeal, the BIA again affirmed the IJ’s finding vis-a-vis Withholding of Removal.  The Board did not rule on whether “mentally ill persons” constitute a particular social group.  Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness.  The BIA again reversed the CAT grant, holding under a de novo standard of review that “the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering.” 

In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ’s decision on Mr. Soobrian’s CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.

As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo.  Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact.  Under those circumstances, “the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components.”  Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian’s Petition concerning the CAT claim.

The Court also held that Mr. Soobrian’s due process rights were not violated when the IJ refused him a continuance due to his mental health issues.  The Court reasoned:

Under our immigration laws, there is only a passing reference to an alien’s mental competency at a removal hearing.  If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

The Court ultimately found that Mr. Soobrian had received sufficient procedural protections.  In dicta (and relying on a Tenth Circuit decision), the Court also found that “the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding.” 

Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel.  Most mentally ill respondents will not be so lucky.  For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.

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Hirsi Ali Calls for a New Way to Evaluate Asylum Seekers

by Jason Dzubow

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

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

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

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

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

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

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

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

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Charles Taylor’s Son Attempts to Invalidate the Torture Convention in Order to Save Himself

by Jason Dzubow

Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation.  If an alien does not qualify for asylum, he may qualify for relief under the CAT.  But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.

Glamour shot of Chuckie Taylor

On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule.  According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is– 

a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.

For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison.  The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:

Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.

So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries.  Nice.  Fortunately, the Court soundly rejected his arguments:

After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.

Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.

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OIL’s Adverse Credibility Project

by Jason Dzubow

The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility.  Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum.  Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony.  The REAL ID Act of 2005 tightened these requirements.  Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.

OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility.  OIL describes the data used for the study:

The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.

The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.”  For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed.  This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed. 

The overall numbers mask some diversity between the different circuit courts.  In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld.  The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld).  The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%.  In the Eighth Circuit, 86% of credibility determinations were upheld.  According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations.  This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.

The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:

Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.

The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations.  Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review.  I guess that is a possibility, but I have my doubts.

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Can DNA Stop Asylum Fraud?

by Jason Dzubow

The United Kingdom is experimenting with genetic testing as a method for reducing asylum fraud.  According to the UK Border Agency, falsifying nationality to gain political asylum has been a particular problem among East Africans (I recently discussed this problem here).  In response, the UKBA attempted to implement a program to genetically test East African asylum seekers to determine their country of origin.  The 2009 program was much criticized by scientists and immigrant advocates, and the British government ultimately shelved the plan.  However, the UK is continuing a smaller scale “proof of concept” project that is scheduled to finish up this month.  According to the UKBA: 

Participation in the project will be entirely voluntary, and will test whether there is the potential for these investigations to be supported by wider use of DNA testing and isotope analysis. Whilst this trial is being undertaken, no decisions on individual cases will be made using these techniques, and they will not be used for evidential purposes.

At the end of the project, the UKBA will evaluate the efficacy and ethics of the project and determine whether the technique could be used to augment its decision-making process in asylum cases. 

A UKBA scientist tests for Somali nationality.

The main objection to the project seems to be that it conflates nationality with ancestry.  A Somali citizen, for example, may be of Ethiopian ancestry.  The science website Singularity Hub reports:

[G]enes don’t relate to political borders. And there are strong doubts as to whether testing this particular group can even provide the slightest statistical reliability, mainly because of past and present population movements throughout the region.

Current TV reports on a second part of the test:

[An] applicant will be asked to give hair and fingernail samples; by looking at which forms of certain elements the samples contain, the government scientists hope to find evidence of the person’s diet and environment [to determine the country of origin]. But isotope specialist Tamsin O’Connell says the results won’t be specific enough to be meaningful. “It is very difficult to identify individuals to very specific locations using isotopes alone,” she said.

In other words, whether or not genetics and isotope analysis can be used to determine nationality is a dubious presumption.  Further, using genetic testing in this way raises ethical issues.  Current TV reports that geneticists and isotope specialists have referred to the project as “horrifying,” “naïve,” and “flawed.”

Writing for the Singularity Hub, Christopher de la Torre imagines a time when genetic testing might be able to identify a person’s country of origin: 

Using DNA to track populations and ancestry isn’t new, but regulating according to DNA opens a Pandora’s box of potential. As the rate of technological progress grows exponentially, it’s more important than ever to balance our ability with morality. 

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Pennsylvania Man Sentenced for Asylum Fraud

by Jason Dzubow

From a June 10, 2010 Department of Justice press release:

David Lynn, 35, of Holland, PA, was sentenced today to 40 months in prison for leading an asylum fraud scheme that netted him and five co-defendants millions of dollars in illegal profits, announced United States Attorney Zane David Memeger. Lynn pleaded guilty, in October 2008, to one count of conspiracy, one count of visa/asylum fraud, one count of money laundering, and conspiracy to commit money laundering. Lynn, who was charged with five co-defendants, ran a business that filed at least 380 bogus asylum applications for clients, between January 2003 and March 2007, charging an average of $8,000 for an application.

Investigators say Lynn posed as a lawyer.  According to an ABC News report, “only a handful of Lynn’s 380 clients from around the country made it through the system by claiming they would face oppression if they returned home.”  The majority of the aliens are in removal proceedings.  Some have already left the country knowing they were going to be deported.  According to another report, the perpetrators were Russian immigrants and most clients were from Russia, Ukraine, and Poland.

Unfortunately, it is a common pattern for unscrupulous immigrants to exploit their countrymen, who are naive about the American system and are ready to trust their own kind.  What’s most amazing to me is that a guy who lost the large majority of his cases and charged $8,000 per person–far more than most legitimate lawyers–seemed to maintain a booming business.  It’s a sad testament to the gullibility and desperation of the clients, some of whom may have lost out on bona fide claims.  Other clients were likely complicit in the fraud, and it’s harder to muster sympathy for them. 

I believe the best way to stop fraud is to go after people like Mr. Lynn, who blatantly take advantage of a system that is designed to help the most vulnerable.  By stopping Mr. Lynn, the DOJ has helped to preserve the integrity of the asylum process.  Congratulations to those involved in the investigation, and keep up the good work.

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Fraud and Asylum

by Jason Dzubow

A recent report from Ireland found that almost two thirds of asylum seekers who claimed to be from Somalia were lying.  The investigation found that the “Somalis” were from other countries, such as Tanzania, Kenya, and Yemen.  Apparently, some of the asylum seekers were found out based on language or a lack thereof; others had previously applied for visas to the UK using different nationalities.  There may be some reason to doubt whether these techniques for outing “Somalis” are valid.  For example, some Somali nationals may have been refugees for many years, raised in other countries without knowledge of Somali languages.  Others may have used false passports from other countries to travel to Europe.  Nevertheless, the high percentage of cases that are likely fraudulent presents a problem for the “system” and for those who represent asylum seekers. 

Of course, the problem is not confined to Europe.  In 2007, the U.S. Embassy in Ethiopia issued a cable (I have not been able to find it online) entitled: Report on fraud trends in Ethiopian asylee claims: A guide for DHS adjudicators.  The cable talks about “following to join” cases where an alien has been granted asylum in the United States and has filed a form I-730 for his relatives to join him in the U.S.  From August 2005 to May 2006, the Embassy reviewed 1,449 following-to-join cases, which represented 288 asylum grants in the United States.  The Embassy writes that “Almost every [following-to-join] interview at Post uncovers information that calls into question the petitioner’s original claim.”  In addition, the Embassy has found that “more than 75 percent of documents investigated were fraudulent” and consular officers “suspect that the fraud rate is well over 50 percent.”  Again, there may be problems with the Embassy’s methods of investigating fraud, but the cable certainly presents evidence of a problem. 

The U.S. Embassy in Cameroon has issued a cable similar to the Ethiopian cable.  It states that asylum claims have increased dramatically since 1992.  The Embassy knows of no corresponding increase in political problems, though the economy has gotten worse, leading to the conclusion that many asylum seekers are economic migrants (the State Department Report on Human Rights conflicts somewhat with this view, listing human rights abuses such as torture, arbitrary arrest, and life-threatening prison conditions).  The Embassy also reports that Cameroonians have been detained entering the United States with all sorts of fake documents that could be used to create fraudulent asylum claims.  Relatives following to join frequently know nothing about the asylees’ political activities or persecution.  As a result of this fraud, non-immigrant visa refusal rates have increased from 35% in 2001 to 60% in 2004.  Further, the Embassy complains that fraudulent applications and following-to-join applications have dramatically increased its workload.  It recommends that Cameroonian asylum cases be viewed skeptically. 

Other evidence is more anecdotal.  A recent report from the blogosphere–I cannot vouch for the report’s credibility–indicates that an Ethiopian diplomat at the Embassy in Washington, DC quit his job, claimed asylum, and then returned to work at the Embassy as a public relations officer.  He was even listed on the Embassy website.  The report states that the diplomat’s asylum claim was false, and urged the U.S. government and the Ethiopian government to investigate.  

The problem of fraud presents a dilemma for attorneys who specialize in asylum and a challenge to the “system.” 

Attorneys who specialize in asylum have generally entered the field to assist those who genuinely fear persecution (we certainly don’t specialize in asylum for the money!), not to help facilitate fraud.  However, for the most part, we can’t know which cases are genuine and which are not, and it’s sometimes dangerous to judge.  I remember one Ethiopian woman whose case I doubted.  We won, and a few months later she returned to my office and asked whether I could help her find a doctor.  Ever since her detention and beating, she said, she had been suffering pain on one side of her body.  Although I don’t know whether this was true or not, she had no reason to lie.  Experiences like this make me cautious about judging my client’s veracity.  Instead, it’s better to represent my clients to the best of my ability and to let the Immigration Judge decide the case.

The problem of fraud also presents a challenge to the legal system.  Our country has–I think quite properly–taken a generous approach to asylum.  We would rather allow some fraudulent cases to succeed than turn away genuine asylum seekers.  Of course, if fraud becomes too pervasive, it might cause us to re-consider how we evaluate asylum claims.  The Australia government recently initiated a six-month freeze on processing asylum applications filed by Afghani and Sri Lankan asylum seekers who arrive by sea.  The system was becoming overwhelmed by applicants, and the government reacted with a heavy hand.  Such a broad brush approach is questionable under international law, and would obviously affect legitimate and illegitimate asylum seekers. 

So what can be done to reduce fraudulent asylum claims?

The U.S. Embassy in Cameroon suggests that DHS check asylum applications with records obtained at the Embassy to determine whether family members listed on the asylum form were also mentioned at the Embassy.  This would avoid the problem of asylum seekers “adding” family members in order to bring them to the U.S. after they win asylum.  If “false family members” could not follow to join, the incentive for seeking asylum might be reduced. 

Also, more generally, documented information at the Embassy could be compared with information in the asylum application.  Theoretically, this should happen already, but DHS has limited resources, and this method seems to have limited value, as most biographical information is consistent between the Embassy and the asylum application.

In many cases, friends and relatives in the home country submit letters in support of an applicant’s claim.  Such people could be called to the Embassy for questioning.  It is more difficult to create a fraudulent case if people in the home country are required to testify about the claimed persecution.  Of course, this would have to be done while maintaining confidentiality, but this should be possible given that such people already know about the asylum claim (having written letters in support of the claim).

Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the “client” engage in fraud, the attorney could be charged with a crime (that is exactly what happened to a Washington State couple who helped create fraudulent asylum cases).  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.

The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:

(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.

(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group.  On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.” 

Mazel Tov to all on these successful outcomes.

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A Short “Wish List” for the Refugee Protection Act

by Jason Dzubow

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

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