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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EOIR to Stop Wasting DOS’s Time

by Jason Dzubow

The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State.  Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department.  The Immigration Judge would forward the application to the State Department, which could comment on the application.

Secretary of State Hillary Clinton reviewing asylum applications for EOIR.

The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole.  Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations).  I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.

I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).

Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.”  Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.

The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker.  It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful.  Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary.  She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker. 

In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system.  The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.

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What Does “Persecution” Really Mean?

by Jason Dzubow

There is no uniform definition for the term “persecution.”  While different courts have attempted to define the term, its meaning has remained frustratingly elusive.  A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering.  About his article, Prof. Rempell writes:

Most people, even those with no immigration background, have some idea about what persecution means.  They know to equate persecution with inflicted suffering.  But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.

There are many definitions of persecution.

During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts.  Does the harm have to be severe or will any harm suffice?  Will one instance of harm be sufficient or must the harm be systematic?  Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient?  Courts have come out on both sides of each of these questions, and many other questions as well.  It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.

After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution.  In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.”  If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN.  Here is a copy of the abstract:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Prof. Rempell welcomes feedback at srempell@stcl.edu.

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Dear Client: I am Not Your Mommy

by Jason Dzubow

Some clients just don’t get it.  No matter how often you tell them what evidence they need for their case, they bring you bupkis.

Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum.  I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc.  I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available.  If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it.  Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).

I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built).  I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.

Is all this excessive?  You would think so.  You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.

Many clients do, in fact, make diligent efforts to get evidence in their cases.  It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves.  Such clients greatly reduce their chances for a successful outcome.

So what can be done about these slacker-clients?  One possibility, of course, is to do nothing.  If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may.  This does not seem like a very satisfactory solution, though.  For one thing, there may be a legitimate reason why the client is not cooperating.  Perhaps he does not understand what is needed or why such evidence is important.  Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case.  Maybe he fears that the people sending evidence will be endangered.  Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential.  For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.

Another way to encourage clients to gather evidence is to nag them.  “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case.  In my practice, I don’t have a lot of extra time to chase after my clients.  I do, however, try to remind them once or twice about the need for evidence.

I find that giving the client a check list of needed documents is helpful.  When it comes time to remind them about gathering evidence, I always refer them to the check list.  It helps me remember their case as well.  A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.

Asylum seekers are not always the easiest clients.  As lawyers, we need to use our limited time efficiently.  That means informing the clients about the need for documents, and periodically reminding them about what is needed.  For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence.  And that could make the difference between a successful case and a denial.

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Fear and Loathing in the Asylum System, Part Deux

by Jason Dzubow

In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system.  My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State.  Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”

Mr. Krikorian is the Executive Director of the Center for Immigration Studies.  He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.”  “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.”  By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S.  Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”

Mexico doesn't seem like such a safe third country to me.

The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable.  However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations): 

The first issue is how to determine whether a given third country is “safe.”  For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?”  Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service).  What about a person who passes through several different countries and then comes to the United States?  How do we decide if a given country is safe for that person?  To give another example, it is perfectly safe for me to go to Kenya for a vacation.  However, it is probably not safe for an Ethiopian refugee to live in Kenya.  So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe.  To present that proof would require a certain amount of resources–and probably a decent lawyer.  Only those who could afford to make their case would qualify for asylum.  This seems like an arbitrarily way to determine who qualifies for protection in our country.

A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through.  Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.

Another issue is that, as a world leader, other countries follow what we do.  If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit.  This would generally weaken the international system for protecting persecuted people.

Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing.  I think this is dead wrong.  Our country greatly benefits from asylum seekers.  This has been historically true, and continues to be true today.  My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists.  I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country.  While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country. 

So, in the end, I oppose Mr. Krikorian’s “safe third country” idea.  As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief.  At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.

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Asylum for Women Who Can’t Get Abortions?

by Jason Dzubow

In Nicaragua, abortions are illegal under all circumstances.  That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk.  Women and girls who have abortions are subject to long terms of imprisonment.  Health professionals who perform abortions also face stiff criminal penalties.  Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.

Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law–certain treatments are now less available to pregnant women because the treatment might put the fetus at risk.  Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law.  On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).

Apparently, Nicaragua is not in the running this year.

While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here.  Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.

Nicaraguan Women

To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground.  The protected ground that might apply here is “particular social group.”  I can think of two possible “particular social groups:” (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.

While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of “persecution,” as that term is defined by case law.  I’ve actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution.  Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).

The second category–pregnant women who face health problems because they are unable to obtain abortions–is more interesting.  Again, this is probably a cognizable particular social group.  The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution.  The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).  Health care is certainly an “essential of life,” and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.

So it seems to me that women in the second category–and perhaps also in the first–would qualify for asylum under the Immigration and Nationality Act.

Nicaraguan Health Care Workers

The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother.  As I discussed above, I doubt that prison time in Nicaragua would be considered “persecution,” so the health care workers would have difficulty establishing this element of an asylum claim.  Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.

One possible protected ground is political opinion, i.e., that women should be allowed to have abortions.  However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.

The other possible protected ground is particular social group–health care workers who have performed abortions.  The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution.  In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:

Whatever its precise scope, the term “particular social groups” surely was not intended for the protection of members of the criminal class… merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other….  We suppose there might be an exception for some class of minor or technical offenders… who were singled out for savage punishment in their native land.  

Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a “particular social group.”

So far, I do not know of any United States asylum cases arising from Nicaragua’s  abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon.  If you are interested to learn more about this topic, check out Rights Undone, a blog about the “struggle to repeal the ban on life-saving abortions in Nicaragua.”

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Fear and Loathing in the Asylum System

by Jason Dzubow

Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud.  “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.

First, though, I must mention that the problem of asylum fraud seems to me overblown.  In my practice, I might do 35 or 40 asylum cases each year.  Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide.  In the U.S., between the  Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year.  Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%).  Even if many of the cases are false, the numbers just aren’t that significant.  That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases.  Anyway, enough of my ramblin’.  Here is one proposed solution, and my response:

Our Foreign Service Officers apparently have nothing better to do, so they might as well adjudicate asylum cases.

In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.”  Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”

Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators.  The reason for this, I suspect, is because there are no such people pressuring adjudicators.  Sure, there are groups (such as TRAC) that track and publish asylum statistics.  When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence.  Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss.  Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that.  Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud.  The plurality of asylum seekers are from China.  Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases?  If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case?  I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases.  In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.

Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea.  But I’ll save that for a future post.

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My Guest Blog Posting in the New York Times

by Jason Dzubow

Earlier this week, the New York Times had an article about fraud and asylum, Immigrants May Be Fed False Stories to Bolster Asylum Pleas.  The article was inspired by revelations about the maid who accused former-IMF chief Dominique Strauss-Kahn of sexual assault.  It turned out that the maid was an asylee, who likely gained asylum by fabricating a claim of past persecution. 

The NY Times asked several professionals in the field–including yours truly–to contribute their thoughts about how the asylum system can be improved.  Our comments appeared in a forum called Room for Debate.  I suggested that the government make a greater effort to prosecute lawyers and other people who help immigrants create fraudulent cases.  Not only is this more efficient than going after individual asylum seekers, but it ultimately would protect immigrants by reducing the number of fraudsters involved in the business.  Here are my comments (slightly modified since my essay in the Times was limited to 300 words and here I can use as many words as I want):  

Go After the Lawyers

There is an old adage in criminal law: Better that 10 guilty people go free than convict one innocent person. Our asylum law is based on the opposite philosophy: It is better to allow some asylum seekers to enter the United States fraudulently, than return one person to a country where he faces persecution or death. For this reason, the burden of proof for asylum is relatively low (as opposed to criminal law, where the burden for a conviction–beyond a reasonable doubt–is quite high). 

People reading and discussing my NY Times article.

This low burden, combined with the very valuable benefit of asylum, creates an incentive for people to make fraudulent claims. The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

It seems to me there are three main possibilities.

One option is to devote more resources to individual cases. If asylum officers, immigration judges and government attorneys could spend more time on each case, they would probably discover more instances of fraud. But attacking fraud on a case-by-case basis seems inefficient and, given limited resources, unlikely to significantly reduce the number of fraudulent claims.

Another option is to raise the burden of proof required to obtain asylum. The problem, of course, is that such a move would exclude legitimate asylum seekers, and would degrade the high moral standard our nation set when we created our asylum system.

A final — and to me, the most effective — option is to identify attorneys and others who prepare claims deemed suspicious. Investigating and, where appropriate, prosecuting these people can dramatically reduce fraud, since each such person produces and/or facilitates large numbers of false claims. A few high-profile prosecutions would also help deter others who might engage in such practices.

I have represented many asylum seekers, including journalists, human rights workers, diplomats, rape victims, and survivors of genocide. Such people have legitimate claims and would face persecution or worse if they returned home. In responding to fraud, we should remember our ethical responsibility to protect such people.

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Asylum for Mexican HR Activist Spotlights Problems in Mexico and the US

by Jason Dzubow
Last week, the U.S. government granted asylum to Cipriana Jurado, a Mexican human rights activist who feared persecution by the Mexican army.  According to the Associated Press, Ms. Jurado’s “friend and long-time human rights colleague Josefina Reyes was gunned down in Juarez in January.”  Like Ms. Jurado, Ms. Reyes had campaigned against government and gang violence.  Not only was Ms. Reyes murdered–killed by unidentified gunmen–several members of her family were abducted.  Given the danger, it is not surprising that Ms. Jurado received asylum (not to minimize this accomplishment–only about 2% of asylum cases from Mexico are granted).  Ms. Jurado’s case, I think, highlights problems in the United States and Mexico caused by the escalating violence across our border. 
                                                                                                                                                                                                                 
To paraphrase Mr. Franklin: "An ounce of prevention is worth a pound of cocaine."
First in Mexico: The blatant attacks against human rights workers points to a general disregard for the rule of law.  Has the army become just another gang in the on-going turf war?  Tens of thousands of people have died as a result of drug and gang violence.  The U.S. certainly bears some of the blame, since we are the main consumers of the drugs passing through Mexico and we are the source of most of the guns used in the violence across our Southern border.  Mexico needs to get control of the situation and we need to help.  We need to do more to prevent weapons from crossing the border.  Also, it wouldn’t hurt to try something new in the “war on drugs.”  Perhaps legalizing certain drugs would help reduce the involvement of criminal gangs, and consequently reduce violence.  The website Law Enforcement Against Prohibition has some good information on the potential benefits of legalizing some controlled substances.
                                                                                                              
As for the U.S., if Northern Mexico becomes a failed state, the implications for us are pretty severe.  One fear is that increasing numbers of people will seek asylum in the United States.  The low grant rate for Mexican cases might change if–as in Ms. Jurado’s case–the persecutor is the Mexican government (as opposed to criminal gangs, who currently do most of the persecuting across the border).  This fear may be mitigated by the fact that–unlike Ms. Jurado–most people persecuted by the Mexican government will likely be involved in criminal activities and thus ineligible for asylum (though still eligible for relief under the UN Convention Against Torture). 
                                                                                                                                                                                                                                                                           
It seems to me that a border enforcement-only policy would betray our ideals of protecting bona fide refugees like Ms. Jurado.  We can’t live up to our ideals simply by trying to keep people out who are fleeing persecution.  We need to work more on the prevention side of the equation.  If we succeed, we can help reduce the flow of refugees and improve the situation for our Southern neighbor. 

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Battle Hymn of the Tiger Lawyer

by Jason Dzubow

In her memoir, Battle Hymn of the Tiger Mother, law professor Amy Chua compares the strict “Chinese” parenting style with the more permissive parenting style popular in the West.  The book (or at least the out-of-context ideas in the book) shook the parenting word: Are Western parents focused so much on building their children’s self esteem that they’re raising self-indulgent, spoiled kids?  Are traditional Chinese parents raising children who will be smarter and more successful than their peers in the West?

Tiger Lawyers win more cases.

I am not sure which parenting style works better, but in the context of immigration law, it makes sense that the “Chinese” style will result in better outcomes for our clients. 

It might seem like a no brainer to treat our clients strictly–if we need a document in time to meet a deadline, the client better get us that document on time.  The problem is, immigration lawyers, and more particularly asylum lawyers, are generally big softies.  We may talk tough, but our sympathies are with the little guy.  For the most part, we are nice people trying to help out those in need.  We’re not really the type to crack the whip.    

I can think of plenty of occasions where clients brought me documents on deadline day, after I finished preparing their cases.  I may have grumbled (a lot), but I dutifully pulled apart the documents, re-did the index of exhibits, and submitted a complete package with the new evidence.  Other times, I receive documents after the deadline.  I submit them late and make some excuse to the judge, often times taking the blame myself.  A Tiger Lawyer would not do these things.  He would tell the client that it was too late, and let the chips fall where they may–if the client loses her case, she has only herself to blame.

Of course, clients don’t care much about deadlines or documents; they just want to win their cases.  If lawyers didn’t submit the documents late or take the blame for our clients’ failures, we would lose more cases.  Perhaps it would be better if our clients suffered the consequences of their shortcomings.  But I suspect a lawyer who follows that approach won’t be in business for very long.   

To be successful, we have to be tough on our clients so that they gather the evidence and do what is needed to win their cases.  But in the end, we have to put our clients’ interests first, and when they fail to do their part, we have to make up for it.  So maybe the best approach is to be a nice guy in a Tiger Lawyer’s clothing.

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The BIA on Firm Resettlement

by Jason Dzubow

Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.

If Angelina Jolie shows up, it probably means you are not firmly resettled.

It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S.  In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.

The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country.  When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.  An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement.  Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.

It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country.  In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years.  He married a Senegalese citizen.  The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal.  A-G-G- then had an opportunity to rebut that evidence.  The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar.  However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.

Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.



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DHS Protects Women and Girls, but More Can Be Done

by Jason Dzubow

In a recent posting on the Department of Homeland Security blog, January Contreras, the DHS Ombudsman, describes the Department’s efforts to help protect women and girls.  Some highlights:

In 2010, U.S. Citizenship and Immigration Services (USCIS) administered the full statutory allotment of 10,000 visas for victims of domestic crimes who participated in the investigation and prosecution of their perpetrators – for the first time.

Through U.S. Immigration and Customs Enforcement (ICE)’s Victim Assistance Program, 18 new full-time victim assistance specialists have been deployed to 17 ICE offices, in addition to 250 collateral duty Victim Assistance Coordinators, to provide continued guidance and support for victims of violent crimes.

The Federal Law Enforcement Training Center has deployed programs that train officers on protecting women and girls, including a web-based human trafficking training course and training on violence against women.

January Contreras: DHS Ombudsman

Ms. Contreras concludes, “While we are extremely proud of our accomplishments in the protection of women and girls, we know there is always the opportunity to do more.”  “As a Department, we are committed to dedicating even more of our efforts to the security of women and girls in the years to come.”

DHS should be commended for its efforts and accomplishments to protect women and girls.  As Ms. Contreras notes, there is more to be done.  Some suggestions:

DHS recently expanded the unit that adjudicates VAWA, T and U visas (victims of domestic violence, victims of human trafficking and victims of certain crimes, respectively) to approximately 100 officers.  Previously, officers elected to join the “VAWA unit,” but it seems this practice has changed and officers are often rotated through the unit.  The results of this change have been mixed.  On the one hand, processing times have been reduced, which is certainly good news.  But on the other hand, expertise has gone down and the number of RFEs (Requests for Evidence) issued by the unit has increased as new officers learn the new areas of law.  These superfluous RFEs cause delay and reflect the lack of specialization of officers rotated through the unit.  One solution would be to go back to the previous model where the staff of the VAWA unit were permanent, chose to be in the unit, and were well-trained prior to starting in domestic violence and VAWA.  Such officers would be more specialized and would increase the quality of the work product.  

The Victims Assistance Program is an excellent program that assists victims, including victims of human trafficking many of whom are eligible for T and/or U visas.  However, very few U visas certifications seem to be signed by ICE agents.  DHS needs to do a better job of informing ICE agents about their ability to sign U visa certifications and the process for doing so.  DHS should do more to help ICE agents understand their role in the certification process.

Also, on the subject of U visas and certification, many local law enforcement officers do not understand the visa and how it was designed to help them investigate crimes.  DHS should do more to inform local law enforcement about U visa certifications and how to assist crime victims with their U visa applications.

Finally, with the rise of ICE detention in the United States, it is important that DHS put in place a framework to identify victims of domestic violence, sexual assault, human trafficking, and other violent crimes who may be eligible for immigration relief.  A system should exist so that such people can be connected with appropriate resources.  Ideally, this screening would occur prior to the issuance of an ICE detainer

While DHS’s efforts to assist women and girls has been laudable, there are estimated to be about 100,000 children (under age 18) in the sex trade each year in the United States (it is not known how many are immigrants and how many are U.S. citizens).  In addition, there are likely several hundred thousand adults.  All of these people may not be victims of human trafficking, but many are.  Others may be victims of domestic violence, sexual assault, and other violent crimes for which there may be immigration relief available.  Given the large numbers of victims, DHS and Congress should devote more resources to helping those in need.

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Virginia Denies Driver’s Licenses to Refugees

by Jason Dzubow

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV.  As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal. 

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum.  In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country).  Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum. 

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum.  This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia.  An asylum seeker need only show a 10% chance of persecution to obtain asylum. 

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.”  I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not.  She has been granted Withholding of Removal.  That order has not been appealed, and it is final.  There is nothing more to review.  It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license.  Her legal status is Withholding of Removal.  It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele.  It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs.  My guess is that the lawsuits are coming.  Let’s hope so.

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Do Women Face Discrimination in the Asylum System?

by Jason Dzubow

A recent posting on the blog Women and Foreign Policy by Carol Bohmer and Amy Shuman argues that “cultural, social and political attitudes and expectations can affect how a woman’s claim for asylum is evaluated by the authorities” and that such claims are treated “differently” and “less well” by those asylum authorities:

Most of the ways that the political asylum treats women differently are not articulated in policy but rather are implicit in the hearing processes, especially notable in explanations for denials of asylum.  In our work, we have categorized these as 1) how credibility is tied to gendered practices in the asylum hearings themselves, especially expectations of women’s demeanor; 2) gendered expectations about the content of women’s accounts of the violence and persecution they have experienced; 3) more general discrimination against women applicants, who are not taken seriously or whose legitimacy depends on additional requirements; and 4) evaluation of women’s political action is sometimes regarded as either not political enough or as belonging to such a general category that granting political asylum would “open the floodgates” to too many individuals.

My initial reaction to the claim that women and men are treated differently by Asylum Officers and Immigration Judges is one of skepticism.  For one thing, a good proportion of IJs, DHS Trial Attorneys, and Asylum Officers are women.  Not that one woman cannot discriminate against another, but we’re not talking about Phyllis Schlafly here–most of the women working in the system are very progressive on women’s issues.  Second, at least in my experience, the people involved in the system strive to apply the law equally and objectively, and tend to be cognizant of issues affecting women and girls.  Finally, in some ways, women are treated better by “the system” in that certain categories of relief exist specifically to protect women (female genital mutilation as persecution); other categories are used more frequently by women than by men (domestic violence, forced marriage, and human trafficking as persecution).

Future asylum adjudicators?

On the other hand, of the 40 or 45 asylum seekers I represented in 2010 and 2011, I lost five cases: four of them were women and the fifth was a gay man.  I had not really thought about this before, but it is surprising that 80% of the denied cases involved female asylum seekers.  I am still not convinced that gender played a role in these defeats, but I suppose my mini cohort provides some anecdotal support for Ms. Bohmer and Ms. Shuman’s thesis.  

With regard to the legal grounds for claiming asylum, Ms. Bohmer and Ms. Shuman make an important point:

When asylum officials reject a case, they are not necessarily saying that someone didn’t suffer a trauma….  Instead, when, for example, they deny a case about rape or domestic violence because the rape or violence was not political and/or because the woman was not persecuted as a member of a targeted social group, they are saying that the catastrophe, the trauma, the violence was part of another realm, crime, ordinary everyday crime, rather than political persecution.  Women, as people seen to occupy ordinary, domestic life, rather than political (public) life, are more likely to be the victims of crime.

This seems to me an important and often overlooked point–asylum was created to provide protection to people in the public sphere.  Such people tend to be men (though this is slowly changing).  Asylum was not designed to protect people who face persecution in the private sphere.  The recent efforts to expand the definition of asylum to include victims of FGM, domestic violence, forced marriage, and human trafficking are aimed at broadening the definition of asylum to include persecution that occurs in the private realm.  These efforts have generally involved litigation, not legislation.  It seems too bad that international legislative bodies and the U.S. Congress have not done more to protect people (women) who face these types of non-public persecution.  Perhaps the study by Ms. Bohmer and Ms. Shuman will help move the law in a direction that is more protective of female asylum seekers.

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