Immigration Judges Repudiate Asylum Officers

by Jason Dzubow

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:

There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 

The IJ grant rate for affirmative cases is significantly higher than for defensive cases:

Year

 IJ Grant Rate for Affirmative Asylum Cases

IJ Grant Rate for Defensive Asylum Cases

 FY 2006

 51%

 34%

 FY 2007

 51%

 39%

 FY 2008

 51%

 37%

 FY 2009

 55%

 36%

 FY 2010

 61%

 35%

This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.

Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 

One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 

Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case.  In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).   

When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.

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FAIR Gets It Wrong

by Jason Dzubow

The Federation for American Immigration Reform recently issued a report called Refugee and Asylum Policy Reform.  I already blogged about flaws in the report’s methodology and some points in the report I agree with.  For today, I want to discuss some points that I disagree with (i.e., where FAIR got it wrong).

The Hebrew Immigrant Aid Society (HIAS)

The FAIR report basically attacks HIAS:

I wonder if this refugee family - reunited with help from HIAS - thinks the organization has outlived its purpose.

A prime example of a refugee resettlement organization whose raison d’etre has become self-perpetuation is the Hebrew Immigrant Aid Society (HIAS). The venerable organization that has helped Jews fleeing pogroms, the Holocaust and, more recently, oppression in the Soviet Union, has been confronted with a situation that might otherwise be considered a positive development: There [are] remarkably few Jewish refugees in need of resettlement. Without a real mission, HIAS has resorted to inventing one rather than declaring its mission accomplished and closing its doors. By its own admission, only a small percentage of the people resettled by HIAS are the people whom the organization ostensibly exists to serve.

This statement is pretty ridiculous.  Today, there are over 14 million refugees in the world.  HIAS was created to help Jewish refugees.  Now that (thankfully) there are few Jewish refugees, HIAS uses its expertise to assist other people in need.  To anyone concerned about helping others, this seems like a no-brainer.  Apparently, though, FAIR doesn’t get it. 

Particular Social Group

FAIR complains that the definition of “particular social group” has been expanded too far.  Specifically, the report mentions homosexuals, and argues that most cases of persecution based on sexual orientation involve persecution by private individuals where the government cannot or will not protect the individual from harm.  FAIR objects to this in principle:

In essence, decisions of this type put the United States in the position of a safety valve whenever foreign governments fail to exercise their responsibilities to protect their own citizens. That may be a noble objective, but it is an unreasonable burden.

First, while some cases of persecution of gays involve non-state actors, a number of countries persecute homosexuals, including Iran and Saudi Arabia, where the “offense” of homosexuality is punishable by death.  Second, protecting individuals who face harm or death is not an “unreasonable burden” (when is saving someone’s life ever really an unreasonable burden?).  There are no statistics about the number of people granted asylum based on “particular social group,” but my guess is that only a small percentage of asylum seekers fear persecution on account of their particular social group.  So even if we are concerned with the number of people winning asylum based on this protected ground, that number is fairly small.  Finally, the asylum law does not require state action–people who face persecution from non-state actors are eligible for asylum if their government cannot or will not protect them.  To the person who is persecuted or killed, it may not matter much whether he is killed due to government action or government inaction.  Dead, as they say, is dead.

Asylum Should Be Temporary

FAIR also believes that a grant of asylum should generally be temporary:

Asylum protection should be temporary, maintaining the focus of the individual on the need to return to the home country to work for positive change.

By this logic, we should have sent Einstein back to Nazi Germany to work for “positive change.”  

The hope, of course, is that asylum seekers will return to their country if conditions improve, but the reality is that most will not–even if it becomes safe to go back.  For one thing, it usually takes a long time for country conditions to change.  I represent many asylum seekers from Ethiopia.  That country has had the same repressive government for almost 20 years, and it does not look to improve anytime soon.  Also, people need to feel that they are safe.  To grant someone asylum, only to deport her later, leaves her in a frightful limbo, unable to move forward with her life or to feel secure.  Finally, when helping another person, it is important to respect that person.  We should respect asylees enough to allow them to make their own decision about whether it is safe to return.

So I suppose that concludes my comments on FAIR’s report.  While I disagree with many of the recommendations, the report raises points that are worth discussing, and I hope the conversation will continue.

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Why It Is Offensive to Read the Constitution

by Jason Dzubow

I may belong to the last generation of Americans who make analogies to Eddie Haskell, Wally Cleaver’s two-faced friend from Leave It to Beaver who used to give Beaver “the business” and then turn around and feign sweetness towards his mother.  Mrs. Cleaver never bought Eddie’s act, but she was always too polite to say anything.  In the current scenario, the House Republicans are Eddie Haskell and the American People are June Cleaver. 

Golly Gee Willikers! What's wrong with reading the Constitution?

The House Republicans read the Constitution at the start of the new Congress, and then dared anyone to object: What red-blooded American could oppose reading the Constitution, they ask with feigned incredulity.  I object, and I think all Americans should too. 

So what’s wrong with reading the Constitution?  The problem, of course, is not the Constitution itself, but the underlying message, delivered with a wink: We Republicans and Tea Partiers–not you–own this document.  It is ours to interpret.  We–not you–know what it means.  We’ll explain it to you in our folksy, no nonsense, commonsensical style.  We’ll use words like “originalism,” “Judeo-Christian,” and “American exceptionalism.”  No reasonable person—no real American—could possibly hold any other view of our founding document.  It’s so simple, the Republicans tell us, even a liberal could understand.

But the Constitution does not belong to the Republicans, or the Tea Partiers.  It belongs to all Americans.  To everyone.  The triumph and the tragedy of the Constitution is that it is subject to different interpretations.  The search for certainty in the document is a red herring.  In the 1920s and 30s, the search for certainty led many countries to turn to the Übermensch, the strong father figure who promised security in a dangerous and uncertain world.  We all know how that turned out.  As adults, we must accept that certainty is an illusion. 

And while the lack of certainty might be discomfiting, this is also the brilliance of our founding document.  It requires vigorous debate.  It requires engagement on substantive issues.  Without the uncertainty of the Constitution, we would not have had the great or the terrible decisions that shaped our nation: Dred Scott, Brown v. Board of Education, Roe v. Wade, Bush v. Gore.  The Constitution’s ambiguity led us to debate the important issues of our time, but the document has also given us an historic framework and a legal process for those debates.   

They say, we are who we are because of, and in spite of our parents.  We as a nation are what we are because of and in spite of the Constitution.  By attempting to seize exclusive control of this document through a seemingly innocent, Eddie Haskell-like reading, Conservatives want to force their interpretation upon us and to cut off debate.  They did the same thing with the American flag, turning it into a symbol for the Right, worn on every “real American’s” lapel.  Co-opting jingoistic symbols of patriotism is one thing, but when they try to make us swallow their version of the Constitution and no other, we need to stand up and say no.  That is why the Republican’s reading of the Constitution in the House was so offensive.

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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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