Physicians for Human Rights will conduct a training for health professionals on April 9, 2011 in Houston, Texas. The program is titled, Aiding Immigrant Survivors of Torture and Other Human Rights Abuses: Physical and Psychological Documentation of Trauma. It aims to instruct health professionals on the skills necessary to perform physical and psychological evaluations of survivors of human rights abuses:
PHR’s volunteer network of over 400 health professionals assists survivors of human rights abuses by conducting forensic psychological and physical evaluations to document evidence of torture and abuse. Our clinicians have specialized training and expertise in recognizing and documenting the trauma of conflict, displacement, abuse, discrimination, and oppression—issues at the heart of many humanitarian relief applications. The medical-legal affidavits that they submit to courts on behalf of survivors are frequently the determining factor when judges grant asylum or other relief from deportation.
Even the best doctors will benefit from this training.
I often use reports from health professionals to help bolster my cases, particularly where there are physical scars caused by torture, so I can attest to the value of such reports to asylum seekers. A well-written report can often sway the fact finder and help a client gain asylum.
For those interested in the training, more information is available here.
More than 1,000 Libyan students are currently studying in the United States, and the continuing unrest in their homeland has them worried. To make matters worse, the Libyan Embassy in the U.S. apparently contacted many of the students and threatened to take away government scholarships unless they attended a pro-Khadafy rally in Washington, DC. The Libyan Ambassador (predictably) denied any such threats.
Anti-Khadafy protestors tell it like it is.
Some of the students are politically active. For example, a student in New York has started a Twitter account called Enough Gaddafi that has over 7,000 followers (a website is coming soon). In Kentucky, a group of 50 Libyans gathered to voice their support for the protestors in Libya. And Libyan students in Colorado and Oklahoma are speaking out publicly against Libyan leader Moammar Khadafy.
Given the current situation, can Libyans in the U.S. successfully claim political asylum?
As usual in immigration law, the answer is a definite maybe. For those students listed by name in newspapers and who engaged in anti-Khadafy political activity, or who made anti-Khadafy comments, I would imagine that they have a solid claim for political asylum. If Mr. Khadafy remains in power, the students would face severe consequences upon their return to Libya. There is no doubt that Mr. Khadafy’s regime tortures and murders political opponents. Further, given the Libyan Embassy’s attempt to rally Libyans in the U.S. to Mr. Khadafy’s defense, it is very likely that the Libyan government is aware of the students’ political opinions.
For those Libyans not mentioned in newspapers, or who were not contacted by the Embassy about attending the pro-Khadafy rally, an asylum claim might be more difficult. Generalized strife in a person’s home country–in and of itself–is usually not sufficient to qualify for asylum. Whether a particular individual qualifies for asylum would depend on his or her personal circumstances.
Finally, the situation in Libya is very fluid. Perhaps Mr. Khadafy will be gone soon (we can only hope), but perhaps not. As the situation on the ground continues to evolve, so too will the possibility for asylum for Libyans in the U.S.
A recent article in the Huffington Post reports on last week’s annual meeting of the American Association for the Advancement of Science (AAAS), the world’s largest general scientific society. Experts at the meeting warned that, “In 2020, the UN has projected that we will have 50 million environmental refugees.”
At least some people are benefitting from global warming.
“When people are not living in sustainable conditions, they migrate,” stated University of California, Los Angeles professor Cristina Tirado at the AAAS meeting. She and other speakers outlined how climate change is impacting both food security and food safety. Southern Europe is already seeing a sharp increase in what has long been a slow but steady flow of migrants from Africa.
Of course, asylum is not available to people who fear return to their country on account of environmental disaster. In the U.S., we have provided Temporary Protected Status (“TPS”) to people from certain countries that have faced natural disasters. Most recently, after the January 2010 earthquake in Haiti, Haitians in the United States were granted TPS so that they could remain in the United States until conditions improve.
If predictions are accurate, and more people migrate to escape the impact of global warming, the current system of asylum, refugee resettlement, and TPS may prove inadequate. Long term environmental change may make it necessary for millions of people to migrate, and impossible for them ever to return home. If the migrations predicted at the AAAS meeting actually materialize, the U.S. and other developed countries–which are presumably more able to deal with the effects of climate change–will need to re-think how they deal with such large numbers of refugees.
In this case, it seems to me that an ounce of prevention is worth a pound of cure. The question is: Do our governments have the political will to do something about the problem? Let’s hope so.
The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011). The Court held:
“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.
The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”
In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence. However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:
First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court. Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim. Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application. Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.
Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness. In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous finding:
(1) Notice to the alien of the consequences of filing a frivolous application; (2) A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
In other words, it’s not easy to have your asylum case found frivolous. This is as it as it should be, given the harsh consequences for a frivolous finding.
I recently learned about the removal case of mentally ill man from Africa. Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there. His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding. He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.
Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself. At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer. At the hearing, the ICE officer failed to appear, so the IJ dismissed the case. The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law. DHS appealed and the case is currently before the Board of Immigration Appeals.
What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer. Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court? Clearly, something needs to be done.
According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court. Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities. Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill. (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).
In the mean time, the BIA might take matters into its own hands. In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court. An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.
Mentally ill aliens in immigration court face many difficulties. At the minimum, we should try to ensure that their due process rights are protected. As things stand now, that is not the case.
In a strongly-worded dissenting opinion, Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit Court wrote that an immigration attorney provided ineffective assistance of counsel for failing to ask her client about whether the client had been subject to female genital mutilation (“FGM”).
An attorney representing an asylum seeker has a duty to investigate all grounds upon which an applicant may be entitled to relief… [and must] inquire as to whether her female client has suffered female genital mutilation when (1) nearly 90 percent of women in the client’s home country endure such a brutal procedure, and (2) it is well-settled that female genital mutilation constitutes persecution sufficient to warrant a grant of asylum.
The Judge concludes by rejecting the majority’s reasoning that an attorney should not be required to inquire about something as personal as FGM:
The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief. The panel majority’s decision allowing attorneys to forego investigating intensely personal facts in an asylum claim diminishes the attorney’s role in the asylum process. Our precedent tells us that competent attorney performance requires more. I believe that our court should instill a greater sense of professional responsibility in attorneys who represent asylum seekers.
It’s a powerful argument–and a cautionary tale for those of us who represent women from countries where FGM is widespread. If Judge Pregerson’s position were adopted, attorneys would be required to ask about FGM not just in asylum cases, but also for clients seeking other forms of relief. And we would–I suppose–be required to file FGM-based asylum applications for all clients who have been victims of the practice. I have mixed feelings about this.
An anti-FGM poster in Kenya.
One problem is that it takes considerable time to develop an asylum case; particularly a case based on FGM. For private attorneys, we would need to charge money for this time. For non-profit attorneys, more time on one case means taking fewer cases overall. Thus, fewer asylum seekers would be represented.
Another problem is that adding an additional claim for relief may weaken the overall case. It’s a question of strategy, but generally, if I have a strong basis for relief, I would rather not include a second, weaker claim for relief. The weaker application tends to distract from the stronger, and increase the odds that both applications will fail. Under the regime outlined by Judge Pregerson, I might feel obliged to include the FGM claim, even if I felt it would distract from the main focus of the case (if only for CYA–cover your ass–purposes).
On the other hand, if asylum might be available to a client based on FGM, the lawyer has a duty to at least explore that option. I think it goes too far to label an attorney “ineffective” for failing to file an FGM asylum claim, especially where the attorney determines that such a claim is not the best strategy for the case. However, where the attorney fails to ask about FGM when the client hales from a country where that practice is prevalent, there is a good argument that the attorney has provided ineffective assistance of counsel.
The Federation for American Immigration Reform (FAIR) recently released a report calling for reform of our country’s refugee and asylum policies. The report, titled Refugee and Asylum Policy Reform, was authored by FAIR’s Director of Special Projects, Jack Martin. The report covers a wide range of topics, from refugee admissions, to Temporary Protected States (TPS), to Chinese family planning asylum. In general–and as expected–it calls for restricting humanitarian benefits for people seeking protection in the United States. Concerning asylum, the report states:
Our country’s asylum law has been expanded by legislation and by court decisions to the extent that it has grown from a small program intended for unusual situations, where the return to a home country would constitute exposure to persecution, to become a major component of immigrant admissions. It too, by the absence of evidentiary standards, is open to fraud by persons who have no other basis for entry as immigrants.
Having reviewed the report, there are some points I agree with, more points that I disagree with, and a few questions I have about the report’s methodology. The report is fairly long (36 pages), and there are a number of points worth discussing, so I will devote a couple blog posts to my response. For today’s post, I want to raise a few questions about the report’s methodology.
The report, p. 5, states that “combined refugee and asylee admissions have hit new levels in recent years, exceeding 200,000 in 2006,” but it is not clear where FAIR gets its numbers. According to the Department of Homeland Security, in 2006, 41,150 people were admitted into the United States as refugees, 12,873 were granted asylum affirmatively, and 13,240 were granted asylum defensively. By my calculation, the total number of refugee and asylee admissions for 2006 was 67,263 people. The figure of 200,000 likely refers to the number of asylees and refugees who adjusted status to lawful permanent residents in 2006. These are not new admissions. Rather, these are people who have been in the United States–in some cases for many years–who were able to adjust status after the cap on refugee adjustments was lifted in 2005.
Does anyone really trust statistics?
Also on page 5 of the report, there is a chart showing how many refugees and asylees were admitted into the U.S. from 1990 to 2009. The data on the chart purportedly comes from the Yearbook of Immigration Statistics. But even a casual comparison of the Yearbook to FAIR’s chart reveals major discrepancies. For example, FAIR’s chart shows that over 100,000 refugees were admitted into the United States in 2009. However, the Yearbook of Immigration Statistics (Table 13) states that 74,602 refugees were admitted in 2009. The chart also shows over 100,000 refugee admissions in 2002, but the Yearbook (Table 13) indicates that only 26,765 refugees were admitted in 2002. Again, FAIR’s numbers appear to be the number of refugees who adjusted status (i.e., obtained their green card) in a given year, not the number of refugees who actually entered the United States in the specified year.
Page 6 of the report refers to refugees from the Soviet Block. The report notes that the number of refugees has “nosedived” since the collapse of the Soviet Union, but states: “It is significant, however, that the admission of refugees from Russia and the Ukraine has not ended.” Next to this statement is a chart, purportedly showing the number of refugees from the “Soviet Union/Ukraine.” The chart shows that about 4,000 refugees came from the “Soviet Union/Ukraine” in 2009. A review of the Yearbook of Immigration Statistics (Table 14) shows that in 2009, 495 refugees came from Russia and 601 came from the Ukraine, for a total of 1,096, far short of the 4,000 refugees listed on FAIR’s chart. Again, FAIR seems to be listing the number of refugees from the former Soviet Union who are adjusting status, not the number of new admissions. Some of these refugees may have lived in the U.S. for decades before adjusting status.
Page 14 of the report unfairly represents the proportion of refugees accepted by the United States. The report states:
[The] United Nations High Commission on Refugees (UNHCR)… states that the United States accepted of 62,000 refugees out of 84,000 who were identified as needing permanent resettlement by that agency in 2009 — nearly three-fourths of the total.
In fact, footnote 23 of the FAIR report states that: “In 2009, UNHCR submitted 129,000 refugees for resettlement…. 84,000 refugees were actually resettled last year.” So it seems to me a bit misleading to say that the U.S. accepted “62,000 refugees out of 84,000 who were identified as needing permanent resettlement,” when, in reality, the UN identified 129,000 refugees in need of permanent resettlement (and when there are about 15 million refugees worldwide). This means that the U.S. accepted less than half of the refugees identified for resettlement, not three-fourths as stated in FAIR’s report.
In sum, FAIR’s report gives a distorted impression of the number of refugees and asylees coming to the U.S. The report should have relied on the number of new arrivals–not the number of refugees and asylees who are already here and who are applying for residency–to make its points. Perhaps this would have made FAIR’s points somewhat less compelling, since the number of refugees and asylees arriving in the U.S. is less than what the report represents, but it would have had the virtue of being less misleading.
In future posts, I will discuss some points of agreement and disagreement with FAIR’s policy recommendations.
A recent article in the Baptist Press illustrates just how diverse the refugee advocacy community really is–and now, some pro-immigrant organizations have joined forces with an anti-Moslem, anti-gay hate group. The issue that has brought together this “coalition of religious, conservative, and human rights leaders” is the material support bar and the Obama Administration’s failure to adopt reforms to prevent innocent refugees from being classified as terrorists (I touched on this problem in a previous post).
Among the groups that joined together to call for reform are the Southern Baptist Ethics & Religious Liberty Commission, the Hebrew Immigrant Aid Society (HIAS), Human Rights First, Concerned Women for America, the National Association of Evangelicals, and the U.S. Conference of Catholic Bishops.
The group that really stands out to me is Concerned Women for America. Here are some quotes from their website:
In a time when families are struggling to pay their mortgages and utility bills, much less buy Christmas presents for their loved ones, the Smithsonian Institution, which is partly funded by American taxpayers, is promoting an exhibit that degrades Christianity and exalts homosexuality…. I urge Congress to swiftly take steps to defund the Smithsonian Institution for their reckless and inexcusable judgment in funding such a project.
On September 15, 2011, CWA will present an in-depth discussion with experts on America’s most important policy issue. This issue affects foreign policy, human rights and perhaps even our own system of law in the future. Come join us and our panel as we expose underlying tenets of Sharia Law and how it threatens our nation and your family.
Another measure that failed during the lame duck session was the DREAM Act, a back door amnesty bill that would grant automatic citizenship to the children of illegal immigrants, with “children” defined as anyone up to the age of 35.
So, CWA hates Moslems and DREAM Act children. They also hate gay people: the Southern Poverty Law Center notes that the organization’s founder “has blamed gay people for a ‘radical leftist crusade’ in America and, over the years, has occasionally equated homosexuality with pedophilia.” But the CWA supports reforming the material support bar for refugees, and is thus part of the broader coalition.
What’s surprising to me is that mainstream groups such as HIAS and Human Rights First–groups that I strongly support–would join together with a group like CWA. Maybe I am naive to think that reform can occur without a broad coalition, but it seems to me that some groups are simply beyond the pale. Don’t get me wrong–I greatly respect most of the groups that have joined together to call for reforming the material support bar. But I respectfully suggest that they should be more careful about who they partner with in the future. To me at least, the ends simply do not justify the means.
I finished my last asylum trial of the year earlier this month, and I almost lost the case, thanks to a witness who had flown in from Cameroon especially for the occasion.
I felt that our case was pretty strong–my client was a political activist who had been arrested several times in his country. The case was well documented, and my client seemed credible. Even the government attorney indicated that we should get it over with quickly–a sure sign that she anticipated a grant. Then, basically out of nowhere, the witness starts babbling about the time he and my client were arrested together in Cameroon. My client had never mentioned this arrest to me, nor had the witness told me about it during our preparation session. In Immigration Court, attorneys are not permitted to strangle their own witnesses, so there was nothing I could do but watch my case go down the drain. Fortunately, during re-direct, I was able to elicit some explanation from the witness. Then we had my client return to the stand to further clarify. In the end, the Judge granted relief, but a strong case was nearly sunk by a witness with a big mouth.
The Rules of Professional Conduct do not allow an attorney to strangle a witness, even when it seems justified.
All this raises the question: Do the benefits of witnesses outweigh the risks? It’s a question I have thought a lot about. On the one hand, the REAL ID Act requires us to submit reasonably available evidence, so if a witness is available and we do not bring her to Court, the IJ could use that to support a denial. On the other hand, it is difficult to hold the respondent responsible for a witness who fails to appear, and a well-supported case will likely be granted even when there is no witness.
Nevertheless, I tend to bring witnesses to Court if I have them. For one thing (and perhaps this is naive), I feel a certain duty to present my case, for better or worse. If the IJ sees that we are presenting everything we have, and being as open as possible, I believe that we are more likely to win the case. Also, I feel it makes me a more credible lawyer, and thus helps my clients over the long run. In addition (and again, possibly naively), I believe I can usually prepare the witness for cross examination and anticipate questions that the DHS attorney might ask. When the respondent and her witness testify consistently about details of an event (especially when those details have not been presented previously in the written statements), it is strong evidence of their veracity. Finally, I tend to believe (maybe yet again naively) that my clients are telling me the truth when they describe the basis for their asylum claim. If the client is telling the truth, a well-prepared witness should only help the case. If the client is lying about his claim, and inconsistent testimony exposes the lie, the client really only has himself to blame.
Of course, even in a completely bona fide case, an ill-prepared or foolish witness can tank an asylum claim. That is why I am very wary of witnesses who can corroborate large tracts of a respondent’s story. The more the witness knows about a respondent’s story, the more opportunities exist for the DHS attorney (or the IJ) to ask detailed question about information not in the written statement and that we did not discuss during trial preparation (the idea is to ask questions that the witnesses are not prepared for, and then compare the answers to make sure the testimony is consistent). Such questions can be confusing to witnesses who–despite repeated reminders not to do so–sometimes guess at the answers. A better witness is a person with first-hand knowledge of one small part of the case. Such a person is less likely to face a broad range of questions from the DHS attorney.
Despite the risks, I feel that a well-prepared witness can go a long way towards winning an asylum case. I can think of several cases that were won by credible witnesses. Each case is different, and there are good arguments for avoiding the risks inherent in using a witness. Despite the risks, I will continue to favor the use of witnesses in my cases.
According to the EOIR website’s List of Currently Disciplined Practitioners, almost 400 immigration attorneys (397 by my count) have been seriously disciplined since 2000. What I mean by “seriously disciplined” is suspended or expelled from the practice of law. The list does not include attorneys who have been subjected to lesser punishments, such as “reprimands” or “admonishments,” whatever those are.
Last I heard, there were around 10,000 attorney-members of AILA, the American Immigration Lawyers Association, but it is unclear how many other attorneys practice immigration law. Assuming (and it is a big assumption) that AILA represents 50% of all immigration attorneys; there are about 20,000 immigration attorneys nationwide. If 400 of them had been suspended, that means that about 2% of all immigration attorneys have been seriously disciplined.
Even these guys would have a hard time getting suspended.
Depending on your point of view, maybe 2% is a lot, or maybe it is a little. Call me a pessimist, but if I hire someone to assist me with one of the most important endeavors in my life, and there is a 2% chance that that person is a crook, I would feel a bit uneasy. If 2% of pilots were incompetent, I doubt many people would fly.
But my guess is that the problems are worse than the numbers reveal. For one thing, it’s not easy to get suspended or expelled from the practice of law. I once filed a bar complaint against an attorney for lying to my client, stealing his money, and getting him ordered deported (the complaint was a required part of the process to get the case reopened). We had all sorts of documentation proving this attorney’s incompetence and maliciousness. The Bar Association found that she had violated the Rules of Professional Conduct, but declined to punish her because there were “special circumstances.” Ironically, the “special circumstances” were that she had already been punished for destroying the cases of two other people. So, in other words, she was saved from punishment by her own prior bad acts. It’s ridiculous, but it helps illustrate how difficult it is to get suspended. Nevertheless, 400 of my fellow immigration attorneys have managed to do so.
Another problem is that immigrants–particularly illegal immigrants–are unlikely to report bad attorneys. Many immigrants do not speak English and are not familiar with their rights. They do not know how to report attorneys. Also, they might be afraid to report attorneys.
For these reasons, my guess is that the 400 attorneys on the EOIR list represents only a fraction of the incompetent and/or dishonest immigration attorneys who are practicing law today.
Of course, the vast majority of immigration attorneys are caring, competent, and honest. Most (if not all) attorneys I know have worked long hours for little or no pay to help clients in need. Immigration law is usually not the most lucrative field, and most attorneys practice in this area because we want to help people fleeing persecution or reuniting with family or making a better life. I do think we have a responsibility to report bad conduct when we see it, and to encourage people who have been harmed to file complaints where appropriate. Bar associations should also be more aggressive in enforcing the rules. In this way, we can protect our clients and improve the profession.
Earlier this month, the European Center for Constitutional and Human Rights submitted an Amicus Brief titled Sexual Violence as Torture in several cases stemming from the military dictatorship in Argentina.
In a 1976 coup, the Argentine military seized power and ruled until 1983. During those years, the government violently suppressed dissent. As part of the repression, government officers committed sexual violence against women (and men). These crimes were generally committed in clandestine detention centers as part of a systematic and deliberate plan, orchestrated within the highest government levels. The Amicus Brief argues that these actions are crimes against humanity. From the brief:
This amicus curiae brief is submitted in order to call the Court’s attention to the universal acceptance of sexual violence and rape – as a special form of it – as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression. It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and international human rights law.
The brief states that in the present case, Argentina has the opportunity to “develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.”
The brief notes that international law concerning sexual violence is a relatively recent development: “When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.”
The following principles have emerged from international humanitarian law: (1) Sexual violence is not limited to the sexual act of penetration, but could include other behaviors; (2) Rape may be understood as a serious crime of sexual violence; (3) Women as well as men can be victim of these crimes given that the established elements are gender neutral; (4) Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength; and (5) Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.
While the ECCHR Amicus Brief has been filed in a criminal case, the principles could be applied to asylum and Convention Against Torture claims, and help to establish that sexual violence is a form of torture.
I have a copy of the brief (English version), but it is not available on-line. Feel free to contact me if you would like a copy.
Mladen Todorovic is a gay man from Serbian who came to the United States in 2000. He applied for asylum in 2003, claiming to have endured several acts of persecution in Serbia on account of his sexual orientation. Some of the persecution was perpetrated by government officials. Mr. Todorovic was also persecuted by private individuals, but the government would not protect him. His asylum claim was filed late, and his case was referred to the Immigration Court.
The Eleventh Circuit rules against offensive gay stereotypes. Sorry Bruno.
In his decision, the IJ stated, “[t]he Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay.” The IJ continued, “it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual.” In reaching his conclusion, the IJ again noted that Mr. Todorovic “is not overtly homosexual,” and, therefore, that there was no reason to believe he would be “immediately recognized” as gay.
The Eleventh Circuit first noted that “One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence.” A number of other circuits have “rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear.”
The Court held:
As we see it, this so-called “demeanor” determination rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to “other trait[s]” that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look… The IJ’s comments elevated these ungrounded assumptions to demeanor evidence, and the IJ drew adverse inferences about the petitioner’s credibility and legal conclusions from them… These stereotypes most assuredly are not substantial evidence. They “would not be tolerated in other contexts, such as race or religion.” … We see no reason to tolerate them here.
The Court vacated the agency’s decision and remand the matter for a new hearing, “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.”
In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States. This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.”
The asylum seekers leave Somalia for Kenya, where they obtain false passports. From there, they travel to Cuba and then Central America, where they make their way to Mexico. In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico. The Somalis then enter the U.S. illegally and file for asylum.
According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum. The fear, of course, is that these Somalis are terrorists coming here to attack our country. Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”
I have represented many Africans who have traveled to the U.S. in a similar fashion. The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States. They use one or more false passports and meet several different smugglers along the way. The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).
Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued). In my experience, the Mexican document does not–as the article states–prove the alien’s identity. To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.
Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them. This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally. Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum. Why initiiate contact with government authorities if you plan to engage in criminal activity?
I can imagine scenerios where a terrorist would come here and falsely claim asylum. However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country.
The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway. Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country’s law on gun ownership and having possible links to organized crime. Mr. Datsik’s asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.
In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years. In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing “race-hate” by the Leeds Crown Court in England. After receiving bail, the two men fled the UK for Los Angeles. On arrival at LAX, immigration officials took the two men–now dubbed the “heretical two”— into custody. The men filed for political asylum in the United States.
The Heretical Two
The heretical two believe that their government is unjustly curtailing their right to freedom of speech. Indeed, many European governments—in particular Germany—have made neo-Nazi activities and Holocaust denial illegal.
Claims for asylum by European neo-Nazis raise some interesting questions. For one, can a person receive asylum in the United States for hate speech that is illegal in his home country? Such speech would be legal in the United States, but can be punished by jail time in Europe. Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted “on account of” political opinion. Whether or not the government action against the individual rises to the level of “persecution” might be a more difficult case to make. But recently, an Immigration Judge granted asylum to some German home schoolers who faced “persecution” because they refused to send their children to public school (the DHS appeal of this decision is currently pending). If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well.
Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum. Our asylum laws, to some extent, reflect our values. We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary—even crucial—by the Chinese government. Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant. Do we think that people arrested for political statements should be granted asylum? Does the imprisonment of such people rise to the level of persecution?
If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum. Whether they qualify as a matter of discretion is another matter.
As for the heretical two, their applications for asylum were denied and they declined to appeal. After removal to England, they were each convicted of crimes related to racial hatred. Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months.
I was never quite sure what that meant, but it somehow seems appropriate to preparing asylum cases. There is a temptation when preparing a case to include everything the applicant brings you: school and work records, letters from witnesses, police documents, medical documents, news articles. But sometimes in asylum, less is more, and the more asylum cases I do, the more I feel comfortable leaving things out.
Zen and the art of asylum application.
For one thing, I’ve seen too many cases where the client included a piece of unnecessary evidence, only to have that piece of evidence create problems. For example, I worked on an Ethiopian asylum case that was well supported with letters and other evidence. The client also included a hospital receipt showing that she was treated for stomach illness shortly after her release from prison. The document supported her assertion that she was sick while in prison, but we had other evidence for that, including letters from people who saw her after she was released. DHS investigated the document and found that it was fraudulent. Ultimately, the client was granted asylum, but not without a whole lot of difficulty and expense that could have been avoided if we left out the hospital receipt.
The hard part, of course, is how to know what to leave out. Generally, if I have a document that solidly supports one aspect of the applicant’s claim, I feel comfortable leaving out other documents that do the same thing. For example, I am representing an Afghan asylum seeker who worked with a well known NATO General in Afghanistan. We have photos of the two men together, a letter from the General, and letters from other people attesting to the relationship. If my client’s claim is that the Taliban threatened to harm him because he was seen together with the NATO General, then it would be helpful to prove that my client and the General were actually together (I do not need to prove the substance of their meeting, only that they were together). The photos alone are enough to prove that the two men met; the remaining evidence is extraneous and has the potential to create problems–maybe a letter is incorrectly dated or the government will suspect that the General’s letter is fraudulent and send it for a time-consuming investigation. In this scenario, when I submit the additional evidence, I gain nothing for my client and we potentially create problems. So why submit this additional evidence?
The REAL ID Act requires an asylum applicant to submit supporting evidence or explain the absence of that evidence, so I am not advocating not submitting pertinent evidence. I merely suggest that an asylum applicant does not need to submit redundant evidence once he has submitted sufficient evidence to prove an aspect of his story. Submitting the additional evidence may “bulk up” the asylum application, but it also creates the risk of an inconsistency–and inconsistencies can pop up where you’d least expect them.
I think this principle holds true for general country condition information as well. I’ve worked on several appeals where the underlying case was litigated by someone who submitted copious evidence of country conditions. Why? If the New York Times has an article about a particular political rally, you don’t need an additional article from the BBC to prove that the rally occurred. The second (or fifth) article is completely redundant and so it adds nothing to the case. However, it does serve to burden the fact-finder. And worse, it creates the risk of an inconsistency.
I guess the lesson for today is: Prove your case, but not too much.
The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”
