Congressman Steve King (R-Iowa) is the latest politician to exploit President Obama’s Aunt Onyango for political gain. Zeituni Onyango is the Kenyan half sister of President Obama’s father. She filed for asylum in 2002 and lost, but after Obama came onto the national scene, she re-applied and her application was granted. Applications for asylum are confidential, but that doesn’t seem to bother Rep. King. In a letter to the Chair of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, he writes:
I am concerned about the public perception that favoritism played a role in the grant of asylum to Ms. Onyango. The Boston Globe reported that “the [asylum] decision unleashed a firestorm of criticism from those who felt Onyango received preferential treatment because of her relationship with the president.” In order to better determine whether favoritism played a role – especially because Ms. Onyango had been earlier turned down for asylum and ordered deported in 2004 before her nephew became president – the Subcommittee needs to hear from Ms. Onyango herself. Therefore, I will invite her as the Republican witness on the second panel at Thursday’s hearing.
While I understand that asylum proceedings are generally confidential, Margaret Wong, Ms. Onyango’s attorney, has clearly courted press attention regarding this matter. In fact, I assume that the press learned that Ms. Onyango received asylum because of comments to the media made by Ms. Wong. Therefore, Ms. Onyango has made herself a public figure and should have no hesitation about appearing before the Subcommittee. Further, in order to facilitate Ms. Onyango’s appearance before the Subcommittee, I request that you and Chairman Conyers authorize the Committee to reimburse her travel expenses.
I’ve already written about Ms. Onyango’s case and the likely basis for granting her asylum. Suffice it to say, for anyone familiar with the law of asylum, it’s no great stretch to imagine why Mr. Onyango’s case was approved. Further, Rep. King’s attempt to blame Ms. Onyango’s attorney (who is apparently a bit of a self-promoter) for turning Ms. Onyango into a public figure is ridiculous–Ms. Onyango cannot be blamed for her attorney’s actions. Finally, if there were any type of misconduct or improper influence in this case, why ask Ms. Onyango about it? Why not subpoena the Immigration Judge or the DHS attorney? The reason is simple. Rep. King does not care about the truth. He just wants to exploit Obama’s Aunt for his own political gain.
The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained. However, I can think of a couple important issues that are not addressed. Below are some problems that my clients have faced over and over again, and some suggested solutions.
The Asylum Clock
The broken asylum clock isn't even correct twice a day
Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run. When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”). The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification. The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start. So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD. Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops. It is usually impossible to restart the clock.
Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.
Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.
One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD. If the alien is deliberately causing delay in his case, the IJ should not grant an EAD. But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.
Employment Authorization Document
A second area in need of reform is the EAD itself. Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD. The EAD is valid for one year and must then be renewed. The validity period of the EAD should be changed to at least two years.
Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year. However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs. Such aliens must renew their EADs every year. This can be problematic for a number of reasons. First, the cost to renew is $340.00 every year. For aliens with limited means, this sum may be prohibitive. Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD. If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD. Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires. Even if the EAD arrives on time, there may be a delay in renewing the driver’s license. The alien could be left without a valid driver’s license (or any valid ID).
These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year.
Finally, Some Media Attention
The RPA has been largly ignored by the media. Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.” Hopefully the article adds some momentum to the push for this worthy piece of legislation.
The Senate Judiciary committee held a hearing yesterday on the Refugee Protection Act. I wasn’t able to attend, but the Senate conveniently records such hearings, and you can view it here.
Doggone it, people like the RPA
My friend who attended thought it did not go very well for supporters of the bill. I can’t say I agree, though the last five minutes, when neither of the pro-RPA witnesses could answer Senator Franken’s softball questions and each tried to defer to the other, was not a shining moment. Here are some other moments worth mentioning:
The ranking Republican, Senator Sessions from Alabama, raised some legitimate (and some not-so-legitimate) concerns that will probably need to be addressed if the bill is ever to become law. Of course, the first issue was national security. He felt that the RPA would allow Osama Bin Laden’s wife (wives?) and children to claim asylum in the United States, as the law relaxes barriers for family members of terrorists. Given the limited number of people we can admit each year, he argued, we would be better off admitting people without close ties to terrorists. He also stated that the RPA would broaden the definition of “asylum seeker,” and thus encourage more fraudulent claims. He questioned how many people we could realistically allow to enter the United States as refugees and asylees. He argued that we could not admit everyone who meets the definition of a refugee, and said that if things fell apart in Afghanistan or Iraq, we could not take in all the people who sided with us in those wars.
There were two pro-RPA witnesses, Dan Glickman of Refugees International and Patrick Giantonio of Vermont Immigration and Asylum Advocates. They argued that the one-year filing deadline does not serve its intended purpose of reducing fraud. Mr. Giantonio noted that many asylum seekers who fail to file within one year of arrival receive withholding of removal or relief under the UN Convention Against Torture. Both forms of relief have a higher burden of proof than asylum. Thus, if the one year deadline were not an issue, such people would have qualified for asylum (I agree with this point). From the alien’s point of view, asylum is a more desirable outcome than the other forms of relief, but the witnesses did not mention the benefits of asylum. The pro-RPA witnesses also emphasized that the bill would not compromise national security because refugees and asylum seekers would remain subject to all the same background checks that are currently required. Mr. Giantonio also briefly mentioned some of the deleterious effects of immigration detention on asylum seekers.
Igor V. Timofeyev, a former DHS official and a Soviet Jewish refugee, testified in his personal capacity. He appeared as the anti-RPA witness, though his criticisms were fairly tame (refreshing given the normal discourse on most immigration-related issues). His concerns were national security, national security, and national security. He also mentioned that federal appeals courts are overburdened with immigration cases.
Finally, it bears mentioning that Senator Leahy included in the record a letter signed by 89 faith-based, human rights, legal services and refugee assistance organizations and 99 individual asylum law practitioners, pro bono attorneys, law professors and other experts in the field (including this humble blogger).
Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed. The Refugee Protection Act would require DHS to record these interviews.
A DHS employee demonstrates the agency's latest recording equipment
Currently, asylum interviews at the border (or the airport) are generally not recorded. As a result, there are often disputes about what the alien said at the interview. For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border. He was immediately detained and requested asylum. His friend and traveling companion served as my client’s interpreter. The Border Patrol agent wrote down the client’s responses to the agent’s questions. The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum. On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border. Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.
IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes. Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews). Thus, the accuracy of the prior statements is frequently an issue. If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations. The RPA provides for recorded interviews at the border. It should also provide for recorded interviews at the Asylum Office.
The Senate Committee on the Judiciary has scheduled a hearing on “Renewing America’s Commitment to the Refugee Convention: The Refugee Protection Act of 2010” for Wednesday, May 19, 2010 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building. The scheduled witnesses are: (1) The Honorable Dan Glickman, President, Refugees International; (2) Patrick Giantonio, Executive Director, Vermont Immigration and Asylum Advocates; and (3) Igor V. Timofeyev, Paul, Hastings, Janofsky & Walker LLP
This is the fifth part in an ongoing series about the Refugee Protection Act. The RPA contains many provisions to improve legal services and legal access for asylum seekers.
The root cause of many problems in the asylum system is that aliens are not provided with counsel. According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court. That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court). Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower—such aliens have limited access to attorneys and resources to help them with their applications. The RPA would improve this situation.
The RPA provides improved access to attorneys in several ways. First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel “if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.” Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases. This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel. The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed. Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary. The RPA as written does not provide for an independent decision concerning the need for counsel.
Second, the RPA provides detained asylum seekers with improved access to legal services and resources. It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge. The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship. Under the RPA, all new detention facilities must be located within 50 miles of a “community in which there is a demonstrated capacity to provide free or low-cost legal representation,” and by January 2014, all detention facilities must comply with this location requirement.
Third, the RPA establishes a National Legal Orientation Support and Training Center to “ensure quality and consistent implementation of group legal orientation programs nationwide.” The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and “know your rights” presentations to detained aliens. The RPA would also provide grants to the non-profit agencies.
By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.
This is part three in a series about the Refugee Protection Act. The RPA provides guidance about what constitutes a “particular social group.”
A refugee is defined as a person with a well founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. See INA § 101(a)(42)(A). There has been much litigation concerning what constitutes a “particular social group.”
The Refugee Protection Act provides helpful guidance on what constitutes a “particular social group.” The RPA states:
For purposes of determinations under the Act, any group whose members share a characteristic that is either immutable or fundamental to identity, conscience, or the exercise of the person’s human rights such that the person should not be required to change it, shall be deemed a particular social group, without any additional requirement.
While this provision makes the definition of “particular social group” more specific, it still leaves open at least one important question: Will the definition of “particular social group” apply to former members of criminal organizations? In the Seventh Circuit case, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), the court held that former gang members might constitute a particular social group. If the Refugee Protection Act defines a “particular social group” as “any group whose members share a characteristic that is… immutable,” then former gang members would qualify as a particular social group. Current–as opposed to former–gang members would not qualify as a particular social group because gang membership is not immutable. In other words, it is possible to quit the gang. Former gang membership is immutable, because it is not possible for an alien to change the fact that he once belonged to a criminal gang. Under the RPA, it seems that a former member of any organization would be part of a particular social group
Ex-members of the knitting circle form a particular social group
Even if former gang members constitute a particular social group, they would likely be ineligible for asylum based on criminal and security-related grounds.
I have worked on several cases where former gang members feared persecution by gangs. In one case, several members of my client’s family had been killed. My client was granting withholding of removal based on his particular social group (his family; not his former gang membership). In another case, my client was denied relief where the IJ found that he did not belong to a particular social group. In both cases, the clients faced harm from the gang because they quit the gang. The danger of gang violence against former gang members is very real. In a well known case, Edgar Chocoy, a 16-year-old former member of the MS-13 gang, was ordered removed from the United States. Shortly after he returned to Guatemala, gang members murdered him.
The Refugee Protection Act should provide protection for former gang members who face harm in their countries. While we must be cognizant of security concerns (and of offering benefits to criminals), we must also recognize the severe threat faced by legitimate former gang members.
This is part dieux in our series of posts about the Refugee Protection Act. Today’s topic is the “Material Support Bar,” INA § 212(a)(3)(B)(iv)(VI), which states that an alien who commits an act that he “knows, or reasonably should know, affords material support” to a terrorist organization is inadmissible. As written, the law makes no exception for instances where the alien has been coerced into providing support. The RPA would change that.
About a year ago, I represented an elderly Iraqi Christian woman who had received threats from unknown people seeking to extort money. The people threatened to murder her son. As a result of the threats, and in order to save her son, the women gave money to the extortionists. Given that these people were likely terrorists, the woman faced a bar to obtaining asylum in the U.S. We relied on a USCIS memorandum, which allowed for limited exceptions to the material support bar in the case of duress, and the woman received asylum. A pro se applicant might not have access to that memorandum, and might not be able to relate the relevant facts necessary to meet the exception to the material support bar.
The Refugee Protection Act creates an exception to the material support bar for people who have been coerced to provide material support to terrorists. This would reduce or eliminate the problem of denying asylum to people who have been victimized by terrorists.
The Refugee Protection Act of 2010 is currently working its way through Congress. The proposed law makes some pretty significant changes to the asylum laws of the United States. Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media. As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law. The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss. So this will be the first part in a series of posts about the RFA. Today’s topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.
The current law puts the "dead" in deadline
INA § 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by “clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien’s arrival in the United States.” If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA § 241(b)(3) or relief pursuant to the UN Convention Against Torture (“CAT”).
For aliens represented by competent counsel, it is often possible to demonstrate “changed circumstances” or “extraordinary circumstances,” either of which can excuse the one year filing deadline. See INA § 208(a)(2)(D). In my own practice, I have encountered many cases where the alien has not filed within one year of arrival. In most cases, we have been able to demonstrate “changed circumstances” or “extraordinary circumstances,” and the alien has qualified for asylum.
For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims. The purpose of the bar is to help eliminate fraudulent claims. However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country. Some examples:
Avoidance – I had one case where a political activist from Zimbabwe was arrested and then raped by the police. After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application). As a result, she did not complete the asylum application within one year. The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge (“IJ”). The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien’s failure to file within one year was due to “extraordinary circumstances,” i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events. Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.
Alternative Relief – I represented a man from a prominent family in Peru. After a change in government, the man received anonymous death threats and was followed by unknown people. He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen. The marriage did not succeed, so he applied late for asylum. He was not represented by counsel. The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement. As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA § 241(b)(3). As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment. If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.
Changed Circumstances & Other Obligations – In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine. The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case. Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office. My client’s case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.
In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers. Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation). Thus, these aliens—who were later determined to be legitimate refugees—were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum. Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution.
The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.
The Montreal Gazette reports that Canada will offer incentives to persuade rejected refugee claimants to leave the country. The measure is part of a comprehensive overhaul designed to speed up the refugee-determination process, mired in a 60,000-person backlog. Immigration Minister Jason Kenney said “We’re going to try to use carrots instead of sticks,” and said the Canadian government would provide allowances of up to $2,000 to asylum-seekers whose claims are rejected.
A rejected Canadian asylum seeker?
The Canadian government hopes to decrease the average departure time for failed refugee claimants from 4.5 years to two years. Mr. Kenny states that the new measure would help prevent fraud: “The longer the queue, the more false claimants come,” he said.
Similar programs in Britain and Australia have dramatically improved compliance with deportation orders, said Kenney, who acknowledged he was initially skeptical about subsidizing rejected refugee claimants.
Whether or not a similar plan would work in the United States, it seems unlikely that there exists the political will to pay rejected asylum seekers to leave our country, even if this might be cheaper than rounding people up and deporting them.
The Refugee Opportunity Act (s.2960), sponsored by Senators Leahy (D-VT), Cardin (D-MD), Feingold (D-WI), and Lugar (R-IN), would exempt aliens who are admitted into the U.S. as refugees or granted asylum and are employed abroad by the federal government or a federal contractor from the continued physical presence requirement. Under current law, refugees who enter the U.S. must be present in the country for one year in order to have their immigration status adjusted to lawful permanent resident (LPR).
Senators Leahy (D-VT) and Levin (D-MI) introduced the Refugee Protection Act of 2010 (S. 3113) on Monday. The new bill seeks to ensure that legitimate refugees and asylum seekers are protected by the United States. Key provisions of the bill:
Increased Protections for Asylum Seekers:
Eliminates the requirement that asylum applicants file their claim within one year of arrival.
Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even where their persecution was not socially visible.
Ensures fair process by requiring an immigration judge to give notice and an opportunity to respond when the judge requires corroborating evidence of the asylum claim.
Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
Enables minors who seek asylum to have an initial interview with an asylum officer in a non-adversarial setting.
Allows the Attorney General to appoint counsel where fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.
Reforms to the Expedited Removal Process:
Requires the referral of asylum seekers to an asylum officer for a credible fear interview, and, if credible fear is found, for an asylum interview.
Authorizes the United States Commission on International Religious Freedom to conduct a new study on the effects of expedited removal authority on asylum seekers.
Parole of Asylum Seekers:
Codifies the current DHS policy that asylum seekers be considered for release (“parole”) and requires DHS to issue regulations establishing criteria for parole.
Establishes a nation-wide, secure “alternatives to detention” program.
Requires changes in the immigration detention system to ensure asylum seekers and others have access to counsel, medical care, religious practice, and visits from family.
Terrorism Bar to Admissibility:
Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars in the law, while ensuring that those with legitimate ties to terrorist activity will continue to be denied entry to the United States.
Protection for Refugees and Asylees:
Eliminates the one year waiting period for refugees and asylees to apply for a green card.
Allows certain children and family members of refugees to be considered as derivative applicants for refugee status. All such applicants must pass standard security checks.
Authorizes the Secretary of State to designate certain groups as eligible for expedited adjudication as refugees.
Prevents newly resettled refugees from slipping into poverty by adjusting the per capita refugee resettlement grant level annually for inflation and the cost of living.
