FAIR’s Report on Asylees and Refugees Offers a Distorted Picture

by Jason Dzubow

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.    

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Witnesses: The Triumph or Tragedy of an Asylum Case

by Jason Dzubow

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.    

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KIND Helps Unaccompanied Children, but Are There Unintended Consequences?

by Jason Dzubow

Every year, about 8,000 unaccompanied children enter the United States and are placed in removal proceedings.  Many of those children are helped by KIND–Kids in Need of Defense, a non-profit organization begun in January 2009 with a $3 million grant from Microsoft (and help from refugee maven Angelina Jolie).  Pleased with the success of the organization, which has offices in eight cities, Microsoft last month committed to another $3 million over the next three years.

According to a press release:

Since KIND became operational in January 2009, almost 1,900 children have been referred to KIND for help finding a pro bono attorney; the children range in age from two to 18 years old, and come from more than 35 countries.  KIND’s model is an innovative public-private partnership in which lawyers from firms, corporations, or private practice volunteer to represent children in immigration proceedings.

According to KIND Executive Director Wendy Young:

Many of these children are escaping severe abuse or persecution; others have been abandoned or have been trafficked to the United States.  Some are hoping to reunite with their parents.  They need and deserve representation to help them make their claim for U.S. protection.  Without representation, children with viable claims are often unable to make them and can be sent back to their home countries, where their well-being, or even their lives, may be in danger.

There is an argument to be made that granting benefits to children who cross the border illegally creates an incentive for others to follow them and make the risky journey to the United States.  And it is a dangerous trip–a group that tracks border deaths, No More Deaths, reports that over 250 people have died along the Arizona border during the last year.  Hundreds more have died trying to enter through New Mexico, Texas, and California, or at other locations on the refugee route from Central America.  I knew a prominent DHS attorney who routinely (and passionately) opposed relief for children who crossed the border illegally because he did not want to create incentives for other children.

After pedaling for many days, a border crosser gets ready to jump the fence.

While I agree that we don’t want to create incentives for children to risk their lives by crossing illegally into the United States, I doubt that assisting children with their cases does much to create such an incentive.  For one thing, many of the children are leaving pretty awful circumstances–if they were safe and happy, they would stay home.  In this context, the border crossing may be one of the least dangerous things they have to do to survive.  Also, given the large flow of people across the border (in both directions), it seems unlikely that allowing those with meritorious cases to remain here would do much to incentivize people outside the U.S.  Finally, young people are less likely to know about or be influenced by government policies.  Even if we were deported all children who enter the U.S. without inspection, I think it would do little to dissuade others who are fleeing abuse or persecution in their homelands.

If children with legitimate claims are denied–perhaps because they are unrepresented and cannot present their cases effectively–it would mean returning them to dangerous circumstances in their home countries.  Unaccompanied children who have fled to the U.S. seeking safety need help from KIND and other similar organizations.  Without KIND’s help, many of those with legitimate claims would be sent back to their countries, where they would face abuse or worse. 

With the most recent grant from Microsoft, it seems KIND will continue its life-saving work for some time to come.

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The Unbearable Lightness of BIA-ing

by Jason Dzubow

In an average year, the  Board of Immigration Appeals decides over 35,000 cases, but publishes less than 40 decisions.  The small number of published decisions provides insufficient guidance to the nation’s Immigration Judges and results in inconsistent rulings between judges.  The lack of guidance has also contributed to the dramatic increase in immigration cases heard by the federal courts of appeals.  So instead of the law being settled by the BIA–which specializes in immigration–the various appeals courts have been interpreting the law, not always consistent with their sister circuits.

Here is how the numbers break down for the last few years: In 2009, the BIA decided 33,103 cases and published 34 decisions.  In 2008, it decided 38,369 cases and published 33 decisions.  In 2007, it decided 35,394 cases with 45 published decisions, and in 2006, it decided 41,476 cases and published 26 decisions.  So far this year, the Board has published 31 decisions.

Maybe Harry Truman could lend the BIA his famous sign.

When I was at the AILA conference last summer, we heard that published decisions require far more time and resources than unpublished decisions, but I just don’t buy it.  The BIA is authorized to have up to 15 Board Members.  It has a staff of well over 100 attorneys.  So even during their most prolific year (2007, when they published 45 decisions), each Board Member was required to write only three decisions, and each staff attorney wrote less than half of one decision.   

According to the BIA Practice Manual:

Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.

It’s hard to believe that of the 30 to 40 thousand cases the Board reviews each year, only about 0.1% (one in one thousand) contain an issue that meets the above criteria.  I’ve had several cases before the BIA that involved issues of first impression, none of which were published (though two of them were published decisions by federal circuit courts).  Why is the Board passing the buck on decisions to the federal courts of appeals?

Although it might be more work over the short term, if the Board published more frequently, IJ decisions would become more consistent–creating less work for the BIA over the long term.  It would also make life easier for the federal courts of appeals, saving government resources.  Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families. 

The BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.

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Do Immigration Lawyers Suck?

by Jason Dzubow

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. 

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Amicus Brief on Protecting Mentally Disabled Respondents

by Jason Dzubow

Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

Our view of the mentally ill continues to evlove, but we've still got a way to go.

In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 

“‘The [incompetency] doctrine [where a defendant can not stand trial if he can’t comprehend the charges against him, can’t effectively consult with counsel, and can’t assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'”  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person’s rights and is the hallmark of a functioning justice system. 

To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent’s right to counsel, (2) the Immigration Judge’s (“IJ”) ability to terminate proceedings, (3) the IJ’s power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 

In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 

U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 

If this case is anything like the cases I’ve litigated in the BIA, we won’t have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA. 

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When Silence is Golden: Interpreters and Asylum

by Jason Dzubow
This blog entry is by ace reporter Maria Raquel McFadden.  Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience.   She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings.  Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736; mcfadden.maria@gmail.com.          
Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied.  It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.

Like many other professionals, interpreters must follow certain standards of practice while on the job.  Despite the fact that the number and order of cannons in the interpreters’ “Code of Ethics” can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.  

Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told  directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 
Interpreters often have access to protected, restricted, private and/or sensitive information.  The oath taken by professional interpreters to adhere to  confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.  
No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding. 
From time to time, for educational purposes, interpreters do and should share language issues that arise.  However, it is important they never share any identifying information which can include the name of the  asylum seekers, the judge, officer, or representing attorney.
Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional “interpreters” are used.  Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality. 
When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.

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The Eleventh Circuit Rules on Impermissible Gay Stereotypes

by Jason Dzubow

Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that an Immigration Judge improperly relied on gay stereotypes to reach an adverse credibility determination. See Todorovic v. Attorney General, Case No. 09-11652 (11th Cir. Sept. 27, 2010). 

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.”

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“One Central Reason” and Withholding of Removal

by Jason Dzubow

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

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

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

What motivates a persecutor?

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

The Board concluded:

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

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

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

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Sex for Asylum

by Jason Dzubow

Two female asylum seekers who were offered asylum in exchange for sex can sue the federal government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), ruled the U.S. Court of Appeals for the Ninth Circuit. See Xue v. Powell, No. 08-56421 (9th Cir. Sept. 2, 2010).  The two women are Chinese nationals who filed affirmative asylum claims and appeared for interviews at the Asylum Office in Los Angeles.  Asylum Officer Thomas A. Powell, Jr. interviewed each woman and requested sexual favors and money in exchange for granting their asylum applications.  Mr. Powell was convicted in 2004 and sentenced to three years and nine months imprisonment.  He died shortly thereafter.

If this is your Asylum Officer, ask for a supervisor, baby!

In 2001, the two asylum seekers sued Mr. Powell, his supervisor, and the U.S. government.  The District Court dismissed the claims against the U.S. government under the FTCA.  Under the FTCA, the United States is only liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [California].” See 28 U.S.C. § 1346(b)(1).  In a split decision, the Ninth Circuit reversed in part, holding that, under California law, the plaintiffs could state a claim for infliction of emotional distress and interference with the civil rights of the plaintiffs.  The case will now be remanded to the District Court for trial.

Meanwhile, one of the asylum seekers received asylum based on her fear of persecution as a Christian.  The other asylum seeker’s case was denied; she claimed a fear of persecution on account of China’s one child policy.  According to the San Francisco Chronicle, she faces deportation after the resolution of her lawsuit.

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It’s Getting Easier to Win Asylum

by Jason Dzubow

A recent report from TRAC Immigration reveals that the nation-wide asylum denial rate in Immigration Court has reached a 25-year low.  That means that a higher percentage of asylum seekers are receiving asylum than ever before.

The statistics show that in Fiscal Year 1986, 89% of asylum applications in Immigration Court were denied.  For the first nine months of the current fiscal year, only 50% of asylum cases in court were denied. 

The most obvious explanation for the higher grant rate is that a larger proportion of asylum seekers are now represented by attorneys–for FY 2010, 91% of asylum seekers were represented by attorneys; in 1986, only 52% of asylum seekers were represented. 

For those not represented by counsel, the difference in grant rate is stark: For FY 2010, only 11% of unrepresented asylum seekers received asylum in immigration court.  While this demonstrates the importance of legal representation, I suspect it also reflects the fact that aliens with weak claims often cannot find pro bono representation (law firms won’t take cases that are not meritorious).  Thus, this statistic may not be quite as bad as it seems.

Another reason for the improved grant rate may be that aliens are applying for asylum less frequently than in the past.  Since FY 2003, when Immigration Judges decided 35,782 asylum cases, the number of asylum cases has dropped to a projected 19,937 for FY 2010.  Perhaps aliens have become more savvy about what constitutes a bona fide claim, and they are more selective in making their applications for asylum. 

Finally, the TRAC report shows that the asylum grant rates for individual IJs continues to vary widely, though there seems to have been a slight improvement.  I have always felt that more guidance from the BIA–in terms of more published decisions–would help to reduce these disparities.  

The best news from the TRAC report is that most asylum seekers are now represented by legal counsel.  Hopefully, this means that their claims are being presented properly and that few aliens with meritorious claims are being denied.

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Full Disclosure: What Your Lawyer Doesn’t Know Can Hurt You

by Jason Dzubow

My friend, who is a keen observer of the Immigration Court and USCIS (and who wishes to remain anonymous), has noticed that clients often hide or forget information that effects their cases:

There are surprises in life we all wish we could avoid. Finding a hair in your meal at your favorite restaurant comes to mind, but for lawyers there is an even worse scenario: Showing up to court (or an immigration interview) only to find out that YOU (the client) have failed to tell the lawyer the most important information about your case. Imagine being “surprised” by the government’s trial attorney or an immigration officer with (for example) the revelation that his/her clients has an aggravated felony conviction and is not eligible for the relief sought.

Tell your lawyer everything and you will increase your chances of success.

Though the above example above might seem extreme, it never ceases to amaze me the information that clients seem to “forget” to share with their lawyer: from the fact that they are awaiting trial for two or three misdemeanors (which occurred within three months of the client’s immigration hearing) to changes in domicile that can cause the case to change venue (move to
another location) at the last minute.

The failure to share crucial information with your lawyer is akin to not telling your doctor you have clotting problems as he prepares to do surgery on you. Imagine the complications that would arise in the operating room!

Not having all the facts of the case could be worse than being lied to, (which most seasoned professionals can spot a mile away) since it makes the lawyer look unprepared and negates all the work and effort he/she might have put into the case! As the saying goes, “Forewarned is forearmed”: If a lawyer knows what the issues are, he/she can prepare accordingly and present the best possible case.

Perhaps what’s even more shocking is the fact that clients often “forget” to mention facts that can help their attorney build a stronger case and present a more convincing argument. There are even times when information not shared might have opened the door to more options when it comes to relief before the court or CIS. When presented too late, this information is of no help to the applicant.

Some information you should always share with your attorney (but that routinely seems to be overlooked) is:

– Arrest: No matter when or where they took place. Whether you live on the East or West Coast. Arrest that happened ANYWHERE in or outside the country do count!!! DUI and DWI should always be mentioned! Even if you were not convicted and someone told you the case would be purged.

– Convictions: Once again, no matter when or where these happened. All of the above information regarding arrests applies here.

– Stays in a third country (a country that is not your home country and that is not the United States) no matter what the length.

– Previous applications that you might have filed before USCIS (including INS), the Asylum Office or the Immigration Court.

– Witnesses: The availability or absence of witnesses might be crucial to a case.

– Medical Conditions: Whether they are yours, a family member’s or a witness’s.

– The number of ALL people living in your house and their relationship to you.

– The immigration status of all your relatives living in the United States. If you have relatives who previously lived here and left, you should tell your attorney about them as well.

In short, the more you tell your lawyer, the more he/she can help you with your case. Finally, remember that everything you tell your attorney is confidential—the attorney is not allowed to reveal this information to anyone.  By giving your attorney all the information, you increase your chance for a successful outcome in your case.

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How Safe Are Immigration Judges?

by Jason Dzubow


Government Executive reports on a recent event at the National Press Club featuring Judge Randall Frye from the Social Security Administration and president of the Association of Administrative Law Judges, and Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges.  The pair described threats to judges involving guns, baseball bats, cut brake lines, and broken legs.

A safe judge is a happy judge.

“Between March 2009 and February 2010, SSA offices that handle disability claims received 49 threats; individual Social Security judges received 20 threats,” reported Government Executive.   “At a Las Vegas federal courthouse in January, a man believed to have been irate over a reduction in his Social Security benefits gunned down a courthouse official and injured a U.S. deputy marshal.”  There are no statistics available from the Department of Justice concerning threats to immigration judges or court personnel, but given the high-stakes nature of proceedings, it would not be surprising if threats have been made. 

The main concern is lack of security at certain immigration and SSA courts.  Many such courts are not housed in government buildings and do not have rigorous screening procedures.  Immigration courts also often lack secure parking lots, elevators, and entryways.  At the Press Club event, Immigration Judge Marks pointed out that “she could ride the elevator with someone whom she decided to deport.”  That is certainly the case in the courts where I litigate. 

Suggestions for improvements included increasing the number of security guards in the reception area, stationing a bailiff in every active courtroom, higher railings in front of judges’ benches, and creating secure entrances, exits, and parking lots for judges.  At the minimum, the Justice Department should make available data on threats to immigration courts.  Then, at least, we could have a sense of the problem.

Of course, improvements to security cost money, which seems to be in short supply.  As the number of cases (and level of frustration) in immigration courts increase, we should not forget to ensure the safety of those who enforce and adjudicate our immigration law.  Let’s hope we don’t have to wait for a tragedy to realize the importance of protecting our public servants.

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The BIA Rules on Frivolous Asylum Claims

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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Pre-election Leak Led to Aunt Zeituni’s Asylum Grant

by Jason Dzubow

In May 2010, an Immigration Judge in Boston granted asylum to President Obama’s aunt, Zeituni Onyango.  The decision sparked protests from some who claimed (without evidence) that the President used his influence to help his relative.

Now, the Boston Globe reports that the IJ’s decision has been released in response to a Freedom of Information Act Request.  The 29-page decision is largely redacted, but the IJ’s reasoning seems clear.  On November 1, 2008, shortly before the presidential election, the Associated Press reported that Barack Obama’s Kenyan aunt was living in the U.S. illegally.  Regarding the source of this information, the AP wrote:

Information about the deportation case was disclosed and confirmed by two separate sources, one of them a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release.

Based on this statement, the IJ found that “an official of the United States government disclosed the Respondent’s status as an asylum applicant… to the public at large.”  The IJ found that this disclosure–which clearly violated federal regulations–was a “reckless and illegal violation of her right to privacy which has exposed her to great risk.”  He further found that this exposure distinguished the aunt from President Obama’s other relatives living safely in Kenya because her asylum case was revealed in a “highly politicized manner.”  (According to a recent AP article, DHS is investigating the leak.)

Given the country conditions in Kenya, the IJ found that Ms. Zeituni would be a target and that she had “at least a 10% chance of future persecution.”  The IJ granted asylum, but declined to rule on her applications for withholding of removal or relief under the UN Convention Against Torture.

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