The Executive Office for Immigration Review (EOIR) announced today the launch of a new, upgraded automated case information system, which is designed to assist respondents and their representatives and families in learning the current status of their proceedings. The toll-free number, 1-800-898-7180, has not changed, but a new local number, 240-314-1500, is in service. The system becomes effective August 23, 2010, and callers will need to be prepared to enter both the alien registration number and the date of the respondent’s charging document.
This development–at least on the immigration lawyer list serve I read–has been universally panned. The problem is, aliens and their representatives often do not have the date of the charging document. And if you do not have the charging document, it is not easy to get one. You can file a FOIA request, which takes months (I think the “F” in FOIA stands for “Forever”). You can call up DHS counsel, but they are often not very responsive. You can go to the Immigration Court to look at the file, which is too time-consuming for most advocates, especially those who work for not profit organizations. Also, sometimes there is more than one charging document, and they might have different dates.
"I said I don't have the dang charging document!"
I suppose EOIR’s intention–to make the court information more secure–is laudable (though I have never heard of anyone having a problem with the current level of security). But by requiring information that may not be available to the alien, the agency is creating a situation where it will be more difficult for aliens and their attorneys to know their court dates. This could cause aliens to miss their court dates, which would result in a removal order. In short, it is another bureaucratic barrier thrown in front of the alien.
There are alternatives. My favorite alternative is to leave the system alone. As I mentioned, I have not heard about problems with the current system. Another alternative is to remove the alien’s name from the computer system (the current system spells the alien’s name after you type in his A-number). This would provide some level of security. A third possibility would be to require some other information that the alien would know, like her birth date or her country of origin.
At this time, it is unclear whether EOIR vetted the new system with AILA or other advocacy groups. Perhaps a short pause to consider alternatives and have a conversation with immigration attorneys would be in order.
The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence. Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death. In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision. That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.” According to the brief:
DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship…. A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…
DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her. These factors will be determinative in most domestic violence asylum cases.
In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.” L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.” Thus, there was compelling evidence that the government would not protect her. There was also compelling evidence and expert testimony that she could not relocate within Mexico.
The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant. It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case. However, L.R.’s case has established a framework for asylum based on domestic violence. Now, at least, such women have a chance to gain protection in the United States.
The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers. The Court held:
Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.
The Court’s Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse. But are these mass denials fair to the petitioners and proper under the law?
First, some background. In response to the “one family, one child” population control measures in China, Congress passed a law modifying the definition of “refugee” to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures. This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution. Rather, these asylum seekers argued that because they had more than one child–which is not allowed under Chinese law–they would be subject to forced sterilization if returned to China, and should thus be granted asylum.
Sometimes one is enough.
Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution. Thus, the BIA has restricted a provision that was arguably meant to be expansive. In JianHui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA’s ruling unless it concluded that “no reasonable fact-finder could have failed to find in favor of petitioner.”
Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child. Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA. Other asylum seekers were denied by the Immigration Judge and the BIA. The asylum seekers are represented by different attorneys and have all filed their own briefs. Aside from the fact that they share similar legal issues, the cases are unrelated. But the Court denied them en masse.
Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases. This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court’s decision. It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases. I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals. Immigration cases should be treated with the same respect. It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals. However, all litigants deserve to have their cases heard and considered. Perhaps the Second Circuit has carefully reviewed each litigant’s claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.
Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation. If an alien does not qualify for asylum, he may qualify for relief under the CAT. But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.
Glamour shot of Chuckie Taylor
On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule. According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is–
a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.
For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison. The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:
Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.
So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries. Nice. Fortunately, the Court soundly rejected his arguments:
After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.
Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.
From a friend, who observes court hearings, but prefers to remain anonymous:
Imagine showing up to one of the most important meetings in your life, wearing a top cut so low that there is an eminent risk of “wardrobe malfunction” or maybe with pants hanging so low it’s a miracle that you’ve not tripped as you entered the room.
While many people have learned much about courtroom etiquette from television, such as the notion to stand up when the judge enters the courtroom, an aspect that seems to be lacking is the need to dress appropriately. As the weather becomes warmer and warmer, it seems to bring more and more examples into court of what not to wear as people’s efforts to dress lightly clash with the more formal atmosphere in the court.
Though there is no formal dress code when appearing before immigration court and immigration officers, asylum seekers and their witnesses should keep in mind that in order not to take away the focus from their own or another’s testimony some of the following guidelines should be kept in mind:
Hats, caps, bandanas or any head dress should not be worn unless they form part of one’s religious attire. Women should avoid wearing tube tops, tank tops, midriff, halter tops, short shorts or any other revealing clothing. Clothing should not have obscene or profane language or illustrations, nor should one wear gang-related attire. Clothing must cover all undergarments for both men and women. It is also best to avoid wearing sports jerseys and brand promotional T-shirts.
If you can wear it to a drag show, it's probably safe to say that you should not wear it in court.
When it comes to shoes, one should avoid wearing flip flops (no matter how expensive they are) and no one should come to court in bare feet (You’d be surprised.)
Avoid wearing heavy perfumes, as someone might be allergic, and the hearing or interview you have been waiting for so long might have to be postponed when that person becomes ill.
It is a good idea to also remember that during summer, most buildings have central air and can be very cold, if not downright freezing. Hearings, interviews, and even the wait for either can be very lengthy. Carrying a sweater or jacket is a wise move, as this item can be removed if the court/interview room is warm.
One of the best ways to think about what you should wear is to ask yourself: Is this something I would wear to my church, mosque, synagogue, temple or other place of worship. If you can wear it there, chances are you can wear it to court. And while fashion consultant might not be part of an attorney’s formal job description, it would be good for the client to be reminded that dressing neatly and properly for court is an important part of the courtroom etiquette.
Dressing properly for court is a way to show one’s respect to the court and the proceedings; this same courtesy should be extended to USCIS officers. After all, in the end, it is you who benefits.
Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to “determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution ‘on account of’ her membership in such a group.” See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010).
In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala. Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity. The IJ denied the application because she found that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.” Ms. Perdomo entered the U.S. in 1991 when she was 15. In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.
Guatemalan women celebrate their new social group.
The Ninth Circuit noted, “Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.” The Court further noted, “Our case law examining asylum claims based on membership in a particular social group continues to evolve.” The Court had previously defined “particular social group:”
A “particular social group” is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.
The Court had also previously concluded that “females, or young girls of a particular clan, met our definition of a particular social group.” See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005). In Mohammed, the Ninth Circuit recognized that gender is an “innate characteristic” that is “fundamental to one’s identity.” Id. The Court found that the social group “Guatemalan women” was not necessarily overbroad: “To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group.” Further, the Court “rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.” Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether “Guatemalan women” constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution “on account of” her membership in such a group.
Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.
This is not the end of the matter for Ms. Perdomo. The case will be remanded for further consideration. She will still need to prove that Guatemalan women are a social group and that her feared persecution is “on account of” her gender. It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States. Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.
I recently wrote about Chief Immigration Judge O’Leay’s comments at the AILA Conference. Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA.
Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month. This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents–detained respondents are less likely to appeal. Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days. The average time for a detained case at the Board is 95 to 100 days.
The symbol of the BIA: A blindfolded woman wielding a sword. Seems dangerous.
Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication. I strongly second that opinion. The Emergency Stay sections deals with respondents who are in imminent danger of being deported. I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney’s ineffective assistance of counsel). The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance. Thanks to their assistance, the Board reopened my client’s case, he was released from detention, and he ultimately received his lawful permanent residence.
Mr. Neal also told us that the Board’s practice of “affirmance without opinion” has been greatly reduced. Three years ago, 30% of cases were decided without a written opinion. Today, only 4% of cases are decided that way, and most of those are bond appeals. He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member). Currently, 11% of cases are decided by three Board Members. A few years ago, 7% of cases were decided by three Members. Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.
Another area that takes more resources is published decisions. Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years. He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer). This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions. Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented. He noted that very few recent precedential decisions involved unrepresented aliens.
Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions. Over the last few years, reversal rates have declined from 20% to 10%. The biggest improvements (well, improvements from the BIA’s point of view) have been in the Second and Ninth Circuits.
I have a few items on my wish list for the BIA. For one, I would like to see more precedent decisions. Such decisions are important because they give more guidance to IJs. Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions. This would result in less work for the Board. Second, the average time for a non-detained appeal (at least for my cases) is almost two years. I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further. Finally–and this is more of a pet peeve–I would like the Board to give more time to prepare the appellate brief. Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien’s attorney. The attorney then has three weeks (plus a three-week extension upon request) to file the brief. I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed. Why not give attorneys more time to file the brief, say 60 days. That would allow us to prepare better briefs and would accommodate our often busy schedules.
The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility. Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum. Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony. The REAL ID Act of 2005 tightened these requirements. Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.
OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility. OIL describes the data used for the study:
The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.
The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.” For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed. This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed.
The overall numbers mask some diversity between the different circuit courts. In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld. The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld). The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%. In the Eighth Circuit, 86% of credibility determinations were upheld. According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations. This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.
The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:
Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.
The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations. Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review. I guess that is a possibility, but I have my doubts.
I recently came across an interesting article from the Journal of Refugee Studies, “A Rare Examination of Typically Unobservable Factors in US Asylum Decisions,” which analyzes data from 81 asylum cases to determine the “unobservable factors” that influenced the decisions in those cases. The authors had access to cases litigated by the Human Rights Initiative of North Texas (“HRI”) between 1998 and 2005. As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only. Nevertheless, the study points to some interesting possibilities concerning how decisions are made.
The authors refer to prior studies, which correlate asylum grants with factors other than a “well-founded fear” of persecution, for example, “the judge’s prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes.” Also–
While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers’ files, and could look at many factors–gender, marital status, education level, religion–that are not normally available. Some of the findings are quite surprising, and are examined below:
Gender
The authors write: “we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women’s credibility.” In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount. Indeed, of all the factors studied (except possibly religion), gender was the most significant “unobservable factor” that determined the outcome in an asylum seeker’s case.
Education
The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants. They found “applicants with a primary or middle school education had greater success than higher educated applicants.” However, they noted that “the sample size is small in the primary and middle categories” (although the results do seem to have some statistical significance). They concluded, “Overall, there does not seem to be much variation in the grant rate due to educational attainment.” People who speak English, however, are statistically more likely to succeed in their cases.
In my own experience, I have always believed that more educated applicants are more likely to win asylum. More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society. I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.
What are the odds that this single Christian female would qualify for asylum?
Religion
The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions. They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum. In fact, the authors found that having a non-Judeo-Christian religion was the most influential “unobservable factor” in gaining asylum. Their results in this regard were considered statistically significant.
This is the one observation that seems to me flawed. The authors’ cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America. People from these countries are very unlikely to gain asylum in the U.S. Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world–regions where it is more likely that they will be granted asylum. For example, many of my cllients are asylum seekers from Ethiopia and most are Christian. They have a very high likelihood of success in their cases (usually based on political persecution). Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
Marital Status
A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants. However, the authors of the current study found that being married significantly decreases the odds of an asylum grant. I’ve never noticed any difference in the grant rates for my married vs. single clients. However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee’s entire family will be “following to join” him in the United States.
Some Thoughts
As the authors point out, their sample size is small, and the results are only suggestive. Nevertheless, it seems safe to say that “unobservable factors”–or at least factors that are not related to the legal requirements for asylum–do influence decisions in asylum cases. I imagine the same is true in criminal cases and civil cases. Not that this makes the situation any better, but the fact is, such “improper” influences are difficult to eliminate in any type of case. More study is clearly needed. If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.
As I mentioned in a previous post, I attended the American Immigration Lawyers Association annual conference last week. One panel I went to included a talk by the Chief Immigration Judge of the United States, Brian M. O’Leary. Judge O’Leary previously served as an IJ in Arlington, Virginia, and I tried a number of cases before him. As much as I think he is doing a great job as Chief Judge, he is certainly missed by those of us who practice in Virginia.
Judge O’Leary updated us on the news at EOIR. We learned that there are 43 new IJs “in the pipeline” and they are expected to start work by the end of the year. During the last round of hiring, over 1,700 people applied for 28 positions, and Judge O’Leary is confident that the new IJs will be very competent. EOIR will be opening a new Immigration Court in Texas later this summer; this will be the 59th Immigration Court in the United States. Hopefully all this will help alleviate the long waits that have become so common in almost all Immigration Courts.
Speaking of long waits, Judge O’Leary noted that receipt of new cases was up 17% from 2007 to 2009, with an 11% rise in the last year alone. This is because DHS is bringing more aliens into the system. Completion rates are also up, but only by 4%, which is not keeping pace with the ever-growing case load. Judge O’Leary also stated–and this was a surprise to me–that the detained docket has reached nearly 50% of all cases in Court. He speculated that this may be because DHS has more beds available and they are making a greater effort to detain criminal aliens. Apparently, DOJ/EOIR and DHS have been meeting to review the immigration process. Hopefully, this will give EOIR a heads up about how many new cases are coming into the system (DHS brings new cases to EOIR when they file papers to remove an alien), which will allow EOIR to better anticipate its docket.
We also heard that there will be a new Assistant Chief Immigration Judge (“ACIJ”) whose portfolio will include only “vulnerable populations,” such as juveniles and aliens with mental disabilities. Such people have often had great difficulty in Immigration Court, and hopefully an ACIJ devoted completely to them will improve the situation. Another ACIJ has a portfolio that includes training new (and old) IJs.
In terms of improvements to the Court facilities, Judge O’Leary noted that most Courts now have digital-audio recording. The only exceptions are Los Angeles and Hawaii, and those Courts should have the new system by August. The digital-audio recording system records Court proceedings on a computer hard drive. This is an improvement over the old system, which used cassette tapes. The system is controlled by the IJ on the bench and cannot be used to listen to conversations going on when the IJ is not in the courtroom (I must admit that wasn’t sure whether anyone could listen in when I was in the courtroom and I have been careful about what I say; despite Judge O’Leary’s assurance, I guess I am too paranoid to change my ways).
There have also been some personnel changes. EOIR has been increasing the number of judicial law clerks. Currently there are 65 JLCs. In FY 2011, there will be 90. In addition, the tenure for the clerks has been increased from one year to two years. This latter development is very significant. I served as a JLC back in the late 1990s. I felt like I was reaching my stride after the first year, and I think I could have made a greater contribution to the Court if I had had a second year. I think the IJs will notice a difference in the quality of their help during the JLC’s second year.
If you are interested in learning more about EOIR (from their point of view), visit their website. For independent statistical information about EOIR, visit the TRAC website, which collects and publishes a wide range of data on the agency.
So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference. I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn’t think I would get much out of it. Turns out, I really enjoyed the conference–it is fun to meet and hear about people who are doing the same work as you and who speak the same “language,” though invariably I spent most of the time hanging out with people I already knew. Although the fee was pretty steep, I’m glad I went, and maybe I will go again next year if I am feeling flush.
I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney. The subject was the UN Convention Against Torture (“CAT”). More specifically, we talked about how the Torture Convention might apply to non-governmental actors. My role was pretty easy–I presented some hypothetical examples for the audience and the panelists to discuss. Since I am not so creative, my hypos were actual cases that I had litigated. One “hypo” examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT. In real life, I lost that case, though I managed to convince the IJ that FGM was torture. At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006). The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities. That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.
The audience responds to my analysis of the UN Convention Against Torture.
Aside from that panel, there were a number of panels–and some informal meetings–relevant to the asylum practitioner. Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a “particular social group.” I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass).
AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice. Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference. The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense. One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner. Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys. There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.
Overall, it was a useful and energizing conference. I hope to be back next year.
We’ve reported before about Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef. The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience. He has been living in California for the last few years and his application for asylum was recently rejected because he supposedly provided “material support” to Hamas, a designated terrorist organization. Mr. Yousef claims any “support” he provided was done in the course of learning about the organization in order to prevent terrorist attacks. His case is currently before an Immigration Judge, who will review his claim for asylum de novo.
Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef’s claim. The Jewish Journal reports that Gonen Ben-Yitzhak confirmed that Mr. Yousef provided information that “prevent[ed] attacks that saved countless Israeli and Arab lives.” Mr. Ben-Yitzak will testify at Mr. Yousef’s upcoming asylum hearing.
It is illegal for a former Shin Bet agent to publicly reveal his name, and Mr. Ben-Yitzak faces potential legal trouble in Israel when he returns:
“It’s my country, my land. I love the Shin Bet, and I love Israel. But I have to help my friend,” he said of the San Diego hearing. “This is my duty — to stand with him and say the truth. It’s something I need to do. He always stood beside me. In the harshest days of the second intifadah, I called and asked about his opinion because his understanding about Hamas is unbelievable.”
The two men received awards at a dinner sponsored by the Endowment for Middle East Truth, a pro-Israel organization. Other muckety-mucks at the dinner included Senator Sam Brownback, Congressman Brad Sherman, and Congressman Doug Lamborn. The event was held at the U.S. Senate, leading Mr. Yousef to joke, “How did security let a terrorist like me into this building?”
Mr. Yousef’s asylum hearing is scheduled for next week. There seems little doubt that he has a well-founded fear of persecution in the Palestinian territory–not just for his efforts against Hamas, but also for his apostasy (he has publicly referred to Islam as a religion of hate). The issue is whether his “support” for Hamas will disqualify him for asylum. Mr. Ben-Yitzak’s testimony should go a long way towards solving the “material support” problem. And even if the Immigration Judge determines that Mr. Yousef supported Hamas, he should still qualify for relief under the United Nations Convention Against Torture, which would allow him to remain in the United States.
When asked about the U.S. government’s effort to deport Mr. Yousef, Mr. Ben-Yitzak, the former Shin Bet agent, said, “It’s hard for me to understand — very hard for me to understand.” Former CIA director James Woolsey was less diplomatic. “My view is that the decision to deny him political refugee status was incredibly idiotic,” Woolsey said. “It’s hard to think of a worse immigration decision in history. It’s fundamentally nuts.”
Immigration and Customs Enforcement (ICE) has announced a new five-year Strategic Plan. The Plan’s top three priorities are: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws. There is not a whole lot in the Plan that relates to asylum, perhaps because ICE does not view asylum seekers as a major concern. However, a few sections of the Plan may impact asylum seekers:
One objective of the plan is to dismantle organized alien smuggling. In my practice, I’ve seen a number of asylum seekers who have followed a smuggling route from Africa to the U.S. (via South and Central America). My guess is, this operation is too small to garner much attention from ICE, though there certainly are examples of individual smugglers brought to justice. We’ll see if ICE’s plan impacts these small-scale operations, and whether it does anything to stem the modest flow of asylum seekers entering at our Southern border.
The report also states that “newly arriving aliens who do not successfully evade detection are apprehended, detained, and removed as appropriate by law.” As long as these arriving aliens continue to have opportunities to request asylum and credible fear interviews at the border, this provision should not greatly impact asylum seekers. The danger is that the practice of cajoling, threatening, and tricking arriving aliens into waiving their right to seek protection will become more common in a culture of stepped up enforcement. Such behavior is not supposed to happen now, but I have heard many reports that it does. Hopefully, ICE’s get-tough approach will not compromise our human rights obligations.
The plan continues:
To best protect the system, ICE will work closely with USCIS and the Department of State to identify, address, and prevent the many large-scale, organized frauds perpetrated on the government each year. In addition, ICE will pursue criminal cases against individuals who lie on applications, engage in fraud, and pose a threat to national security or public safety. As ICE attorneys have great insight into possible fraud, they will actively refer cases to ICE agents and, as possible, serve as Special Assistant United States Attorneys to assist with prosecutions. ICE will expand the number of document and benefit fraud task forces to every Special Agent in Charge office. Following criminal cases, ICE will work closely with USCIS to address lingering administrative fraud. Also to protect the integrity of the immigration system, ICE will remove aliens who receive final orders, with a focus on convicted criminals and those who have most recently received orders.
I’ve written before about methods to combat asylum fraud. While ICE can target cases of individual fraud, I’ve always felt that the best policy is to pursue attorneys, notarios, and others who create fraudulent cases. These people are the most culpable, and removing them from the scene will have a greater impact than removing an individual alien. Plus, from my conversations with ICE attorneys, it should not be too hard to identify the fraudsters. The danger, of course, is that legitimate asylum seekers will be intimidated by over-zealous attorneys looking for fraud. In an atmosphere of increased enforcement, it will be more important than ever for ICE personnel to be sensitive to the situation of legitimate asylum seekers.
Without interpreters, the Immigration Court system could not operate. One of the best interpreters I’ve worked with is Maria Raquel McFadden. She is 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. She is registered with the State of Maryland and can be reached at: (202) 709-3602 (office) or (202) 360-2736 (cell). Her email address is mcfadden.maria@gmail.com. Ms. McFadden offers some advice on how best to utilize an interpreter:
Nicole Kidman makes interpreting cool
Many people who are scheduled for interviews before the asylum office or immigration court speak little or no English. Often they have never used the services of an interpreter before.
Being aware of the function of an interpreter can help the process go along more smoothly. The interpreter’s role is to remove the language barrier to the extent possible, so that the access to justice for a person with non- or limited English skills is the same as that of similarly situated English speakers for whom no such barrier exists.
When speaking through an interpreter, people should continue to speak directly to each other. The interpreter serves merely as a mouthpiece. Interviews and conversations should flow as if the interviewer/judge, lawyer(s), and the asylum applicant are the only ones participating. Experienced interpreters know to use only the third person when referring to themselves.
In court, it is the job of the interpreter to interpret the questions asked into the alien’s language and interpret the answers into English. At an interview, the interpreter will likewise interpret all questions and answers given.
Some interpreters are better than others and it’s necessary that both lawyers and clients learn how to best use an interpreter. Here are some tips to keep in mind:
1. Before the interview, the asylum seeker and interpreter should talk to each other to make certain that they speak the same dialect and/or understand each other.
2. Try to speak in short, very clear sentences. This will help because it can be difficult for an interpreter to accurately interpret more than a couple of sentences at a time.
3. Look at and speak directly to the person to whom you are responding. Do not address the interpreter.
4. If you do not understand the interpreter, notify the judge/interviewing officer immediately.
5. Remember that the interpreter must keep all the information he/she learns during the interview/hearing confidential and may not share it with anyone.
One should bear in mind that when an asylum-applicant goes before a judge, it is the court that will be make an interpreter available. However, asylum applicants must provide their own interpreter when interviewing before USCIS or the Asylum Office. When hiring one’s own interpreter, one should take into account that a person related to the asylum-seeker may not interpret for them. It is better to have a neutral/disinterested party. The interpreter must take his/her government issued ID and be prepared to stay the entire duration of the interview. Sometimes, appointments are delayed and all parties should be prepared for long waits.
By taking all the above factors into consideration, the asylum interview/hearing can be more manageable when working with an interpreter.
Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:
(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man. The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication. Without medication, the man would not be able to comply or adapt to the conditions in prison. As a result of this non-compliance, he would be beaten and tortured in prison. The BIA found that it was more likely than not that he would be tortured. The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief. The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.
(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision. In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group. On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.”
Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef’s claim. The 