Former U.S. Marine Seeks Asylum in Russia

by Jason Dzubow

A former Marine who claims to have exposed clandestine U.S. support for the Republic of Georgia in its 2008 war with Russia has requested political asylum in Russia.  U.S. citizen Patrick Downey first sought asylum in Ireland, where his case was denied–as he puts it–by Ireland’s first ever Jewish Minister for Justice, Equality and Defense.  He then “fled” to Russia (after visiting the U.S. for his brother’s wedding), where his asylum case is currently pending.

Patrick Downey (right) is seeking asylum in Russia.

Pravda reports that while living in Georgia in 2007 and teaching English to Georgian billionaire Bidzina Ivanishvili, Mr. Downey “obtained documents” indicating that a U.S.-controlled bank transferred $12 million to Mr. Ivanishvili.  Mr. Ivanishvili, in turn, used the money to fund “anti-Russian activities” prior to and during the Russian-Georgian war.  Mr. Downey tried to publicize this “sensational material” in the U.S., but no one was interested.  However, his activities supposedly brought him to the attention of the U.S. government, which gave him the code name “Trouble Man” and tried to “neutralize” him.  Mr. Downey told Pravda, “I began to feel that it was simply dangerous for me to be in the U.S.”

Hence, he fled to Ireland and now Russia.

While I must admit that I am skeptical of Mr. Downey’s claims (and I am not thrilled by his antisemitism), the fact that he is currently receiving publicity from a Russian newspaper is significant.  On October 1st, Mr. Ivanishvili’s political party won parliamentary elections in Georgia, and he is likely to become the country’s new Prime Minister.  As such, the timing of the article about Mr. Downey–and his claims of a secret anti-Russian alliance between the U.S. and Georgia–has broader implications. 

Is Russia trying to intimidate Georgia?  Is it trying to send a signal to the United States to keep away?  Is Pravda simply writing an interesting story about an American seeking asylum in Russia?  I have no idea.  But it seems to me, if the Russian government is trying to send some type of message by publicizing Mr. Downey’s case, the message is not a friendly one.  

It will be interesting to see what the Russian government does with Mr. Downey.  Russia grants less than 5% of asylum cases, so if his case is approved, it might indicate more trouble ahead for Russian-Georgian and Russian-U.S. relations.  As for Mr. Downey, if his case is granted, his hopes are the same as those of other asylum seekers around the world: “I will live!  I will get married.  I do not want to fight, do not want to constantly be afraid.  I want a family and a home.  I hope that this is what I will get.”

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DHS Ombudsman on Unaccompanied Child Asylum Seekers

by Jason Dzubow

The DHS Office of the Ombudsman recently issued formal recommendations for the treatment of unaccompanied minor asylum seekers.  The report is entitled Ensuring a Fair and Effective Asylum Process for Unaccompanied Alien Children.

In 2008, the law was changed so that review of unaccompanied child asylum cases was shifted from EOIR (the Immigration Courts) to USCIS (William Wilberforce Trafficking Victims Protection Reauthorization Act).  The Ombudsman’s recommendations address problems with the implementation of the new law.

Statistics about the number of unaccompanied child asylum applicants are hard to come by.  According to the DHS Yearbook on Immigration Statistics, in FY 2011, there were 76 children under age 16 granted asylum and a total of 569 people under age 19 granted asylum.  These figures do not include dependent children.   Also, these are the number of asylum applications granted.  I did not find information about the number of denied asylum cases for unaccompanied children.

A USCIS employee works on writing regulations.

The Ombudsman’s recommendations touch on a number of problems, including redetermining unaccompanied alien child (“UAC”) status, difficulty rescheduling UAC interviews, inadequate methods and approaches to adjudication, and the failure of USCIS to issue regulations concerning UAC cases.  The Ombudsman made the following recommendations:

  1. Accept jurisdiction of UAC cases referred by the Executive Office for Immigration Review.
  2. Accept jurisdiction of cases filed by children in federal custody under the U.S. Department of Health and Human Services. 
  3. Follow established UAC-specific procedures, expand implementation of certain best practices, and enlist clinical experts for quality assurance and training. 
  4. Limit Headquarters review to a process that can be managed within 30 days.
  5. Issue as soon as possible regulations regarding the UAC asylum process.

I want to comment on two of these recommendations.  First, the always exciting issue of jurisdiction.  It seems that the current procedure is for EOIR or CBP (Customs and Border Protection) to make a determination that the alien is an unaccompanied child asylum seeker.  Once that determination is made, the alien’s case is transferred to USCIS.  The USCIS Asylum Office then re-determines whether the alien is an unaccompanied child.  Essentially, the child–who may not have any documentation or other evidence about her age–is forced to prove that she is a child during two separate interviews.  If she fails to do so, potentially her case will be bounced back to EOIR, which has already determined that it does not have jurisdiction.  This seems like a potential problem for the alien; not mention a waste of resources for the government.

The second issue, which is probably more problematic, is the Ombudsman’s recommendation that USCIS issue regulations implementing the 2008 law.  Four years after the law was passed, USCIS has still not issued regulations concerning unaccompanied child asylum seekers.  This reminds me of the failure to issue regulations for the Violence Against Women Act (“VAWA”).  For years, immigration attorneys used an informal application process for VAWA cases because no regulations were issued.  Although I understand that issuing regulations can be complicated, I don’t see why it should take years.  Regulations are important to help guide adjudicators and attorneys, and to ensure fairness.  Of course, the Ombudsman cannot compel USCIS to issue regulations, but I would have liked to see a stronger statement about this problem.

Overall, the Ombudsman’s recommendations seem sensible.  Hopefully, USCIS will take its own advice and implement the recommendations promptly.

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EOIR Bans Art in Immigration Court

by Jason Dzubow

The Arlington Immigration Court recently relocated from Ballston to Crystal City, Virginia.  The new court is bigger and has public bathrooms (a BIG improvement for the bladder-impaired).  It is also totally devoid of art.

One of many walls in the Arlington Immigration Court.

For those of us who practice before the Arlington Court, the bare walls feel a bit strange.  The old court had portraits of the founding fathers, various presidents, and some of our founding documents.  You could also see busts and paintings of various presidents inside the courtrooms.  One IJ, now retired, was known for her husband’s paintings (mostly flowers), which adorned her courtroom walls.  

In stark contrast, you’re lucky to find a light switch on the walls of the new court.  Now, you might be thinking, “The Court just opened, so they haven’t yet had time to decorate.”  Not so.  I asked around about the barren landscape.  The word on the street is that courtrooms and waiting areas can no longer be “personalized.”  This means no art.  I contacted the Executive Office for Immigration Review (“EOIR” – the agency that administers the Immigration Courts) for clarification.  Their response:

As EOIR is one adjudicative agency with 59 immigration court locations throughout the nation, we strive to maintain uniform public spaces throughout our facilities.  As with other federal agencies, private spaces such as judges’ chambers and individual office space may be personalized within reasonable boundaries.

In this context, “uniform public spaces” means no wall art.  I suppose I understand the reasoning.  For one thing, if you allow any art, it is hard to control what ends up on the wall.  If EOIR allows a portrait of Abe Lincoln, must they also allow a portrait of anti-immigration president Warren G. Harding?  What about a portrait of presidential candidate (and anti-immigrant crusader) Pat Buchanan?  

Also, what about images that might not be culturally sensitive to the aliens appearing before the Court?  Much as Attorney General John Ashcroft covered a bare-breasted statue in the Justice Department, might some playboy IJ seek to fill a courtroom with inappropriate images?

Given all the potential pitfalls, it is easier to completely ban art in the courtroom than to allow art and then try to regulate it.

All the same, I am not a fan of this policy.  I liked going into courtrooms filled with paintings and statues.  I prefer a “personalized” courtroom (and waiting room) to an antiseptic one.  There is something ennobling about practicing law in a room filled with historic and patriotic images.

Also, while I see the need for IJs to avoid the appearance of impropriety, it is actual impropriety that concerns me.  If some IJ adores Warren G. Harding (and there are good reasons to), why not put up his photo?  I trust that the IJ will make a determination on the merits of each case, and that a picture of President Harding does not indicate an anti-immigration bias.  If we trust IJs to make decisions that will profoundly affect people’s lives, we should trust them to use some common sense in their courtroom decor.

I described the new courtroom ambiance to an asylee friend.  She feels that the bare walls and lack of art would be “intimidating.”

Maybe I am making too big a deal about this.  But there is a long history of art in courtrooms–it benefits the judges, the lawyers, and the litigants.  And while I sympathize with the reasons for EOIR’s decision, I think that the benefits of allowing art in court greatly outweigh the dangers.  To quote George Bernard Shaw: “Without art, the crudeness of reality would make the world unbearable.”

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Somali Woman Wins Nansen Refugee Award

by Jason Dzubow

The Nansen Refugee Award has been called the “Nobel Prize for refugee workers.”  The award is bestowed annually on a person or group that has “provided extraordinary and dedicated service to the forcibly displaced.”  Past honorees include Senator Edward Kennedy, Medecins Sans Frontiers, and Eleanor Roosevelt.

The award is named for Fridtjof Nansen, a polar explorer, diplomat, and the High Commissioner for Refugees for the League of Nations (the precursor to the UN) from 1920 to 1930.  Mr. Nansen helped hundreds of thousands of refugees return home or resettle in new countries after World War I.  He also organized a relief effort to help famine victims in Russia in 1921 and 1922.  For his efforts in Russia, Mr. Nansen received the 1922 Nobel Peace Prize.

Funny how the people with the toughest jobs often have the biggest smiles.

This year’s honoree is Hawa Aden Mohamed, who has helped thousands of displaced women and girls in Somalia.  Ms. Mohamed, who is widely known as Mama Hawa, escaped violence in Somalia and was a refugee in Kenya, the U.S., and Canada.  She left the (relative) comfort of Canada in 1995 and returned to Somalia, where she established the Galkayo Education Centre for Peace and Development.  Through this organization, she has worked to secure women’s rights and bring free schooling, health care, and skills training to nine communities in the Mudug region of Somalia.

In the early days of the Education Centre, it was attacked with rocks, grenades and gunfire.  Its gate was bombed.  But Mama Hawa and her colleagues did not give up.  “We persevered,” she recalled, “and slowly we convinced the elders and the women that what we were doing was for the benefit of the community.”

Today the Education Centre teaches girls and women to see themselves as full members of society who possess fundamental human rights.  It openly addresses the issues of female genital cutting, puberty, early marriage, sexual and gender-based violence, and HIV/AIDS.  It prepares women to play an active role in achieving peace, reconciliation, democracy, and development in their country.

Mama Hawa will receive the Nansen Award on October 1st in Geneva.  If you find yourself in the neighborhood, the ceremony looks to be worth attending.  If you would like to learn more about Mama Hawa and her organization, or if you would like to contribute to her worthy cause, you can do so here.

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When Asylees Return Home

by Jason Dzubow

In the old days, when a person immigrated to the United States, he would probably never return home or see his family again.  For example, when my Great-Grandfather David came to the U.S. from Russia in 1904, he left behind his parents and six siblings.  He never saw them again, and as far as we know, they and their families died in the Holocaust. 

Today, it’s a different story.  It’s much easier to remain in contact with the homeland and to return for a visit.  However, for people who have received asylum in the United States, return to the home country may result in the termination of their status. See INA § 208(c)(2).

Sorry, asylees. Missing grandma’s cooking is probably not a valid excuse for returning to your home country.

Despite the possibility of termination, my clients who have received asylum sometimes need to return home.  There are different reasons for this–some want to visit sick relatives or help relatives who are in trouble.  Others are political activists or journalists, and they want to return home to continue their activities.  A few of my clients from Afghanistan wanted to return to their country as interpreters with the U.S. military. 

In cases like these, I explain the legal consequences of returning to the home country so that the client can weigh the risk of losing asylum status against her desire to go home.

The provision for termination of asylum,  INA § 208(c)(2), states:

Asylum… does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that… the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality.

It’s clear from this provision that the AG does not have to terminate asylum if the alien returns to her country (“Asylum… may be terminated”).  Also, return to the country in-and-of itself may not be a sufficient basis for termination if the alien has not “voluntarily availed himself or herself of the protection of the [home] country.” 

So in the above examples, there is room to argue that the clients have not voluntarily availed themselves of the protection of the home country.  In the case of an alien who returns home to help a relative, perhaps he entered the country surreptitiously and remained in hiding during his time there.  Evidence that the alien’s journey home was clandestine might help to counter an attempt to terminate asylum (asylum may be terminated if DHS shows by a “preponderance of the evidence” that the alien voluntarily availed himself of the protection his country – 8 C.F.R. 208.24).

In the example of a political activist who returns to her country to engage in political activity, she can argue that she did not avail herself of the protection of her country.  On the contrary, she challenged her country’s government and put herself at risk to do so.

In the case of an alien who returns to his country to work for (or serve in) the U.S. military, that alien has not availed himself of the protection of his country.  Rather, he is being protected by the U.S. military.

In all these examples, the alien is able to argue that he or she has not “voluntarily availed himself or herself of the protection of the alien’s country of nationality.”  The alien in each case could also appeal to the Attorney General not to terminate asylum as a matter of discretion.  In these cases, the aliens have returned to their country for good reasons.  In some cases, the reason for returning might be in the interest of the U.S. government.  Under such circumstances, the AG might agree not to terminate asylum as a matter of discretion.

Although asylees who return home can sometimes make decent arguments against termination, they put themselves at risk of losing their status.  For this reason, any asylee considering a return trip should think carefully about the potential consequences.  At a minimum, the alien should gather as much evidence as possible to show that she has not voluntarily availed herself of the protection of her country.  She would also do well to consult an attorney.

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Paralympic Athletes Seek Asylum

by Jason Dzubow

The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home. 

Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom.  Ms. Kimbata seems to be the more well-known of the two.  She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old.  “I thought my life was over,” she said.  “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not?  Even if I accept this new life I do not have legs.'”  After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross. 

Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

Ms. Kimbata is now a wheelchair racer.  She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair.  She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.

In the United Kingdom, she decided to seek asylum.  Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila.  While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country.  For these reasons, she likely has a good chance for success in her asylum claim.

It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK.  As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.

Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land.  It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support.  She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.

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The Party Platforms and Refugees

by Jason Dzubow

The platforms of the various political parties are basically statements about what those parties believe and what they intend to do if elected.  Since it is now election season (the joy), I thought it might be interesting to see what the party platforms have to say about refugees, so here we go:

Republicans

The Republican Party Platform is the only platform that directly references our country’s commitment to refugees.  The Platform states:

We affirm our country’s historic tradition of welcoming refugees from troubled lands.  In some cases, they are people who stood with us during dangerous times, and they have first call on our hospitality.

“My wife owns a couple of refugees.”

This is a positive statement, and it is encouraging.  As an asylum attorney, I particularly like the second sentence, which acknowledges that some refugees are people who stood with the United States and now face persecution in their homelands.  I represent many people from Iraq, Afghanistan, and elsewhere who assisted the U.S., often at great risk to themselves.  My clients include law enforcement officers, journalists, interpreters, human rights workers, and others.  Given that they risked their lives to help us in our mission, we should offer them refuge when needed.

Unfortunately, of late, we have heard many anti-Muslim statements from prominent members of the Republican party.  It seems that such bigotry is inapposite to the Party Platform, which recognizes people like my Muslim clients who “stood with us during dangerous times.”  I hope that the spirit of the Platform–rather than the hatefulness of some Republican officials–will prevail in the Grand Old Party.

Democrats

The Democratic Party Platform does not specifically mention refugees.  It does discuss immigration, and endorses comprehensive immigration reform, the DREAM Act, and the new Deferred Action program.  However, it is disappointing that the Platform is silent on refugee issues.

“If you’re a refugee and you live in a tent, you didn’t build that.”

Since President Obama has been in office for several years, we can safely assume that his policy on refugees and asylees will continue forward if he is re-elected.  The Obama Administration has capped the number of refugees admitted into the U.S. at 80,000 per year.  However, we have never reached the cap.  In 2009, we admitted 74,602 refugees; in 2010, we admitted 73,293; and in 2011, we admitted 56,384 refugees.  As for asylees, we admitted 22,219 in 2009; in 2010, we admitted 21,056; and in 2011, we admitted 24,988 (all of this is courtesy of the DHS Yearbook of Immigration Statistics).

President Obama’s policies have been comparable with his predecessors, and I think we can expect similar policies if he has a second term.

Libertarian Party

Since I have an affinity for third parties, I thought I would mention two.  The first is the Libertarian Party.  The party’s Platform is silent on refugee issues.  The only mention of human rights is in the context of property law: “Property rights are entitled to the same protection as all other human rights.”  The Platforms mentions immigration and states:

Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws.

Given the general Libertarian philosophy (“We would end the current U.S. government policy of foreign intervention, including military and economic aid”), I’d imagine that they would leave refugee assistance up to private individuals and agencies, such as churches or humanitarian NGOs.  Like much of Libertarianism, this is nice in theory, but has problems in practice.  For various reasons, refugees impact national security and relationships between nations.  For this reason, governments cannot always leave refugee policy in the hands of private organizations.

Green Party

Finally, the Green Party Platform mentions refugees several times, but always in the context of the Israeli-Palestinian conflict: “We reaffirm the right and feasibility of Palestinian refugees to return to their homes in Israel.”

While I support the rights of Palestinian refugees, this is pretty ridiculous.  Why single out Palestinians among all the world’s refugees while at the same time completely ignoring refugees from other countries, including many who are living (and dying) under worse conditions than the Palestinians?  It seems to me that this is not a serious party platform, which is unfortunate, as we could certainly use a strong, articulate liberal voice on this and other issues.

OK, so there you have it.  To judge solely by party platform, I’d say that the Republicans win on the refugee issue, though I suppose the win is mostly by default.

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BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

by Jason Dzubow

Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here).  The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges).  Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

A BIA Board Member addresses the Ninth Circuit.

First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue.  The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit.  Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).

In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances.  However, these are two independent tracks.  According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.

The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).”  The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS).  The BIA concludes that

[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status.  The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).

What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge.  The IJ does not have to accept the determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.

The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.”  Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.

Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA).  Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important.  I expect we will see much litigation about these issues over the next few years.

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Asylum Seekers as Law Breakers

by Jason Dzubow

I recently litigated an Eritrean asylum case where my client traveled through various countries to reach the United States.  He passed through each country illegally—sometimes with a false South African passport; other times, he just crossed the borders without inspection.  From the beginning to the end of his journey, smugglers assisted him (for a price—the average cost for such a trip is around $15,000.00).  My client did not ask for asylum in any of the countries he passed through, even though he remained in some countries for several months and even though such countries (theoretically at least) offer asylum to refugees.

Asylum seekers or asylum sneakers?

From my client’s perspective, he was fleeing an extremely repressive regime, and he dreamed of starting a new life in the U.S., where he would be safe and enjoy freedom.  (It’s said that in art, imitation is the highest form of flattery; I’d say that in international affairs, immigration is the highest form of flattery).

The Immigration Judge was not pleased with my client’s illegal journey or with his failure to seek asylum in any country along the route, and he had some strong words for the client at the end of the hearing.  While I don’t agree with all that the Judge had to say, I think his words are important, and I wanted to share them here:

First, the Judge told my client that asylum exists to help people who are fleeing persecution.  It is not an alternative for those without a better immigration option.  When a person flees her country, she should seek asylum in the first country of safety; she should not shop around for the country where she would prefer to live.  To use asylum as an alternative to immigration is an abuse of the system, and takes advantage of our country’s generosity.  If enough people abuse the system, we might change the law to make asylum more restrictive.

Second, smuggling is a criminal activity and when an asylum seeker pays a smuggler, he is complicit in that activity; he is not an innocent bystander.  Each smuggled person pays thousands of dollars to smugglers.  Collectively, this is big—and illegal—business.  It violates the sovereignty of nations and possibly supports a network that might be used for more nefarious purposes, like facilitating the transport of terrorists, criminals, and drugs.

Third, each asylum seeker who enters the U.S. in the manner of my client makes it more difficult for legitimate asylum seekers who follow him.  As more people enter the U.S. this way, a reaction becomes more likely.  Maybe the law will be changed to deny asylum claims where the applicant passed through other countries without seeking asylum.  Maybe other restrictions will be put into place.  In any case, if there are new restrictions, legitimate refugees will suffer.

Finally, the Judge warned my client against encouraging his fellow countrymen by his example.  He noted that such encouragement might violate criminal and immigration laws, and this could cause problems for my client.  It could also be dangerous for any future asylum seekers, as people have been harmed and killed on the journey to the U.S.

I think the Judge said all this to try, in a small way, to stem the flow of asylum seekers across the Southern border.  I am not sure whether his words will have any effect, but I believe they are worth hearing.  And while his points are legitimate and important, there are convincing (to me at least) counterpoints to each.  But I will leave those for another time. 

Under the current asylum law, illegal travel through various countries is a discretionary factor, but without more, it is generally not a basis for denying an asylum claim.  Despite his concerns, the IJ granted my client’s application (and DHS did not appeal).  How many more people will follow him and receive asylum in the United States remains to be seen.

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Bill Linking Palestinian and Jewish Refugees Sets a Dangerous Precedent

by Jason Dzubow

A new bill in the House of Representatives seeks to link resolution of the Palestinian refugee situation with the plight of Jews (and Christians) expelled from Arab lands.  Both Palestinians and Jews suffered as a result of expulsions from their home countries during and after the creation of the State of Israel.  Palestinians left and were forced to leave Israel (and the West Bank and Gaza).  And most Jews living in Muslim countries left or were forced to leave their homes as well.  The bill is designed to ensure that these Jews are not forgotten by linking resolution of their issues with resolution of the on-going Palestinian refugee crisis.  The bill’s supporters state:

Any comprehensive Middle East peace agreement can only be credible and enduring if it resolves all issues related to the rights of all refugees in the Arab world and Iran, including Jews, Christians and others.

In the chess game of life, Palestinians are everyone’s favorite pawn.

The legislation has bipartisan support in the House and calls on the Obama administration to pair any reference to Palestinian refugees with a similar reference to Jewish and other refugees.

While I agree that it is important to remember and address the grievances of Jews and others expelled from Arab lands (I recently wrote about this issue), linking the resolution of that problem with the issue of Palestinian refugees sets a dangerous precedent and undermines international law related to the protection of refugees.

The United Nations Convention Relating to the Status of Refugees (1951) defines a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The majority of Palestinians who fled Israel and now live in various Arab countries are “refugees” according to this definition.  They do “not [have] a nationality and [are] outside the country of [their] former habitual residence as a result of such events.”  Of course one reason they remain refugees is because the different Arab governments have refused to grant them citizenship.  The other reason is that Israel does not permit them to return home.

As opposed to the Palestinians, the large majority of Jews who fled Arab countries are not “refugees” as that term is defined in international law.  Most (if not all) such Jews have been granted citizenship in their new country of residence (be it Israel, the U.S., France or some other country).  Also, for the most part, Jews expelled from Arab lands do not wish to return to their home countries.  This does not mean that these Jews do not have legitimate claims for compensation for lost land, property, and the lives of loved ones.  They most certainly do.  But this is not the same as being a refugee.  Thus, the new bill is factually incorrect when it refers to such Jews as refugees.

Far worse than the semantics of “who is a refugee” is the problem of politicizing a humanitarian benefit.  Anyone who meets the definition of “refugee” is a refugee.  Period.  Such people are entitled to protection in the host country because they are refugees.  There are no other requirements (though obviously there are exceptions for persecutors, criminals, and terrorists). 

By linking the fate of one refugee population to another, the bill adds an external contingency to international refugee law.  We no longer protect refugees because they are refugees.  Now, we only protect them if some other conditions are met.  Does this mean that we should deport legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa’s 1916 invasion?  Can Great Britain deny asylum to all Egyptians unless Egypt returns the Suez Canal?  Is Japan permitted to reject all Chinese asylum seekers until China returns “Manchukuo?”

This is not how international refugee law works.  We do not blame the victims and hold them hostage until some outside contingency–in this case a contingency not of their own making–is satisfied.  In other words, it is not the fault of Palestinian refugees that Jews were expelled from Arab lands.  So why should the Palestinians’ fate be tied to compensation for the Jewish “refugees” (something over which they have no control)?

I think the real motivation for this bill is not to help Jews from Arab lands.  Rather, it is to justify Israel’s refusal to allow Palestinians to return to their homeland by demonstrating that there was suffering and loss “on both sides.”  This seems to me a cynical and sinister use of international refugee law.  I hope the bill will be soundly rejected. 

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Julian Assange: Legitimate Asylee or Propaganda Pawn?

by Jason Dzubow

Ecuador has granted asylum to Wikileaks founder Julian Assange.  Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial.  “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital.  “Ecuador is convinced that his procedural rights have been violated.”  Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.  Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

Could this be Julian Assange escaping from the Embassy?

I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.”  While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.  For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.  Such people now face increased danger in their home country.  Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.  Exposure damaged our international relationships and did nothing to further the cause of freedom.  Our diplomats and our military officials need to communicate frankly with each other.  This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).  I suppose overall, I believe that Mr. Assange did more harm than good.  But I also suppose that my opinion in this regard is not all that important.  What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.

It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.  First of all, Mr. Assange is a citizen of Australia.  He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.  If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.  Normally, a person receives asylum from his home country; not from a third country.  As a citizen of Australia, he should receive protection from his own government.  There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).  Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.  Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.  

Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden.  He claims that the charges have been contrived to punish him for exposing state secrets.  That may well be true, but there is no indication that Sweden would deny him a fair and public trial.  Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.  All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.

Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.  So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).  That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?   

Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States.  As far as I know, exposing government secrets is illegal in every country.  People who violate this law may be punished according to the law.  Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.”  In Mr. Assange’s case, there is no reason to believe that he would face the death penalty.  Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.  Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.  It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.  As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.

For all these reasons, Mr. Assange would not qualify for asylum under international law.  Ecuador has its own reasons for granting Mr. Assange asylum.  Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.  Maybe they just want to annoy the the U.S. and the West.  Maybe they see it as a way to score propaganda points.  Who knows?  What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.

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Letters from Witnesses

by Jason Dzubow

One key piece of evidence in most asylum cases is the witness letter.  Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available.  Often times, the only evidence that is reasonably available is a letter from a witness.  So what makes a good witness letter?

First, the witness needs to identify herself and state how she knows the applicant.  While this may seem like a no-brainer, you’d be surprised how many witnesses don’t include this information.  I prefer that the witness states her name, address, phone number, and email address.  Then she should describe how she knows the applicant (for example, “Mr. X and I met in the church choir in 2003.”).

There’s no excuse for failing to get witness letters.

Next, the witness should list what they know about the applicant’s claim–here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts.  Extraneous material is a distraction.  I can’t tell you how many witness letters I’ve seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant.  Who cares?  Instead, the witness should mention what he or she knows about the case.  One way to start this section of the letter is like this: “Mr. X asked me to write what I know about his problems in Cameroon.  Here is what I know…”

Also, I prefer that the witness write about what she has seen with her own eyes.  Did the witness see the applicant engage in political activity?  Did she see the applicant get arrested?  Did she see the applicant’s injuries after he was released from detention?  The witness should write what she saw (and the date that she saw it).  Secondhand information is admissible, but most fact finders will give such information little weight.

I also hate when witnesses give me general statements, like “Please don’t return to Ethiopia, it is dangerous here.”  Not helpful.  We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing.  A better letter might say, “Please don’t return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you.”

My clients often ask about how long the letter should be.  My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information.  I prefer that the witness gets to the point and doesn’t waste time with irrelevant information, so hopefully that leads to shorter letters.  Also, the longer the letter, the greater the possibility for inconsistencies.

Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.).  Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript).  Of course, this assumes that the applicant has also included evidence that he attended that school.  

One final note about witness letters.  Unless they are consistent with the applicant’s affidavit, they will harm the case.  I would rather submit no letter than an inconsistent letter.  For this reason, it is important to compare the witness letters with the applicant’s affidavit (and his other evidence) to ensure consistency.  While people often have different recollections of events–even dramatic events–the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.

Witness letters are often crucial to a successful asylum application.  A well-crafted letter will help your client’s case and could make the difference between a grant and a denial.

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Sudanese Lost Boy Will Run for Gold with Team USA

by Jason Dzubow

A dozen years ago it seemed impossible that Lopez Lomong would be running as a member of the United States Olympic team.  In 2000, he was 15 years old and living in Kenya.  Most of his life had been spent in refugee camps.

Lopez Lomong: Living the Dream.

Mr. Lomong grew up in rural Sudan, without running water or electricity.  When he was still a boy, rebel soldiers kidnapped him and other children, intending to turn them into soldiers.  The rebels drove the children to their camp in a truck–it was the first time Mr. Lomong had ridden in a vehicle.  He escaped from the camp with other boys and ultimately arrived in Kenya, where border guards sent them to a refugee camp.

Life in the camp was difficult–there was not enough food and nothing to do.  Mr. Lomong began running as a form of escape: “When I ran, I was in control of my life,” he writes. “I ran for me.”  He got into the habit of running the perimeter of the camp–18 miles–in bare feet.

In 2000, he walked five miles with some friends to watch the Olympics on a small black and white television.  Inspired by American runner Michael Johnson, his dream was born: To run in the Olympics for the United States of America.

In 2001, the U.S. brought 3,800 “lost boys” to the United States for resettlement.  Among them was Lopez Lomong.  In the U.S., he continued running–it was something familiar to him in his new country.

In 2007, Mr. Lomong became a United States citizen.  “Now I’m not just one of the ‘Lost Boys,'” he told reporters. “I’m an American.”  He went to Beijing with the U.S. Olympic team in 2008, but he did not qualify for the final round due to an injury.

Since he has been in the U.S., Mr. Lomong wrote a book about his experience, Running for My Life, and established a foundation to help people in his native South Sudan.

Now, he is again competing with Team USA.  (As a side note, more than 40 athletes on our national team are foreign-born.)

This time around, Mr. Lomong has a chance for gold.  He has qualified for the finals of the men’s 5,000 meter race, which is scheduled for tomorrow.  Hopefully, we’ll see him on the podium.  It would be another remarkable achievement in an extraordinary life.

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Citing the Beatles, Ninth Circuit Determines that Only the Attorney General Can Terminate Asylum

by Jason Dzubow

A few days before Yesterday, the Ninth Circuit ruled that only the Attorney General–not DHS–can terminate asylum.  In Nijjar v. Holder, No. 07-74054 (9th Cir. 2012), the Department of Homeland Security, through the Asylum Office, terminated Gurjeet Singh Nijjar’s asylum approval In Spite of All the Danger in his country. 

Mr. Nijjar received asylum in 1995, based on political persecution he claimed to have suffered in India.  Before he left India, he was advised to Run for Your Life.

The Beatles: Great music AND binding precedent.

In 2003, DHS notified Mr. Nijjar that it intended to terminate his asylum status for fraud and order him to Get Back to India.  DHS wrote that it had information indicating that Mr. Nijjar was in the United States at the time he claimed to have been Across the Universe being persecuted in India and that Every Little Thing about his case was false.  The DHS letter instructed Mr. Nijjar to Come Together for a termination interview with an asylum officer to see whether We Can Work It Out or whether they would tell him, Hello, Goodbye.  However, Mr. Nijjar was a Nowhere Man and failed to appear.  After he failed to Help himself, DHS terminated his asylum status and referred his case to Immigration Court.

After a Long and Winding Road, the IJ (a Woman) concluded that she did not have jurisdiction to review the termination and gave Mr. Nijjar a Ticket to Ride to India.  After She Said She Said he is deported, the BIA Let It Be.  Mr. Nijjar then filed a petition for review with the Ninth Circuit Like Dreamers Do.  There, he asked the Court to Please Please Me.

On review, three Ninth Circuit judges noted All Together Now that the regulations, 8 C.F.R. § 208, provide as follows–

[An] asylum officer [of the DHS] may terminate a grant of asylum . . . if following an interview, the asylum officer determines that… There is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.

The problem, however, is that the statute (the INA) does not give DHS the authority to issue such regulations–

Congress [a/k/a The Fools on the Hill] did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.

Congress expressly provided that “the Secretary of Homeland Security or the Attorney General may grant asylum . . . .” But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The “termination of asylum” subsection of the statute says that asylum “may be terminated if the Attorney General determines” that any of several conditions are met.

The Government attorney countered that Because the Asylum Office had the power to grant asylum, it must also have the power to take asylum away Any Time at All.  The Court called this argument “euphonious but not logical,” and held that popular songs are full of euphonious lyrics that make false statements, such as the Beatles’ lyrics:

There’s nothing you can know that isn’t known,
Nothing you can see that isn’t shown,
Nowhere you can be that isn’t where you’re meant
to be…

In other words, don’t Ask Me Why, but “there is no general principle that what one can do, one can undo.”  Because the statute specifically gives DHS and DOJ the power to grant asylum, but only DOJ the power to terminate asylum, the Court concluded that only the Attorney General can terminate asylum.  The regulations allowing DHS (through the Asylum Office) to terminate asylum are invalid.

I Want to Tell You, the Ninth Circuit’s logic seems sound.  I Imagine that unless Congress changes Something in the statute, future asylum terminations by the Asylum Office will face strong challenges from asylees Here, There and Everywhere.  Rather than waste resources litigating this issue Helter Skelter every time the government seeks to terminate, I’m Down with the regulations being amended to reflect the statute–only DOJ has the power to terminate an asylum grant.  In the future, when DHS wants to declare The End of an alien’s asylum status, it will need to issue a Notice to Appear, and then allow the IJ to make the initial decision concerning termination.  Dig It?

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The Asylum Affidavit, Part 2: Details, Details…

by Jason Dzubow

This is the second part in a short series about helping asylum seekers prepare good affidavits.  The first posting dealt with the overuse of the passive voice.  Today, I want to discuss the appropriate level of detail that should be included in the affidavit.

One problem that I’ve encountered in many affidavits is that they contain too little detail for important topics and too much detail for irrelevant topics.  One reason for this is that victims of persecution often avoid focusing on the painful or depressing aspects of their cases–they do not want to re-live difficult memories.  Another reason is that the asylum seekers do not always understand what information is legally relevant.

An IJ enjoys another exciting asylum affidavit.

When preparing an affidavit, it is important to keep in mind the requirements for asylum–the applicant must demonstrate a well-founded fear of persecution based on a protected ground.  Often, the applicant has suffered past persecution, and this creates a presumption of future persecution.  In some cases, there are other legal issues: Did the applicant file within one year of her arrival in the U.S.?  Is there a material support issue?  Are there changed country conditions in the home country so that it is now safe to return there?  Once you know the legal issues in the case, you can focus on developing the factual record related to those issues.

The easiest example of this is past persecution.  In most cases, if an asylum applicant demonstrates past persecution based on race, religion, nationality, particular social group or political opinion, he will receive asylum.  To prove past persecution, the affidavit needs to provide sufficient detail about the claimed persecution so that the fact finder can evaluate whether the applicant was, in fact, persecuted.  If the affidavit merely says, “I was tortured” or “I was beaten,” that is insufficient. 

Various courts have defined the term “persecution,” and that definition includes “the infliction of suffering or harm.”  To demonstrate suffering or harm, the applicant must explain in detail what happened.  For example, instead of “I was beaten,” give some detail:

As soon as I left the opposition political party meeting, three policemen stopped me on the street.  They accused me of supporting the opposition party.  One of the men punched me in the stomach.  The blow was very painful and I could not breath for a few moments.  I fell onto the ground and I was in too much pain to stand up.  When I saw the armed policemen above me, I was afraid they might kill me.  While I was on the ground, another officer kicked me with his military boot in my back.  It felt like he broke my ribs and I cried out.  Afterwards, there was a large bruise on my back.

The affidavit here emphasizes why the police attacked (political opinion) and describes the details of the beating.  It also mentions that the physical assault was painful (since we are trying to demonstrate suffering).  It is questionable whether one punch and one kick would qualify as “past persecution,” but when you provide more details about the event, and explain how painful and frightening it was, you make it more likely that the fact finder will conclude that there was past persecution.

I like to think about the affidavit in terms of time.  For less important events, time moves quickly and one paragraph of the affidavit may cover days, months or years.  But for legally relevant events, such as a police beating, time slows down.  So one paragraph about a beating might cover only a few seconds.  Remember–the fact finder is not interested in reading a novel.  She just wants to know whether the applicant meets the requirements for asylum.  When the affidavit focuses on the legally relevant facts, it makes the job of the IJ or the Asylum Officer easier.  And a happy fact finder is more likely to grant relief.

One final point about adding more details to the affidavit.  I find that such details are quite helpful in the event of an appeal to the BIA.  In many cases, there is limited time for testimony, and applicants sometimes gloss over details of the story.  When that happens, the transcript on appeal may be somewhat lacking.  If so, you can use details from the affidavit to supplement the transcript and make a more compelling appeal brief.

While obtaining legally relevant details can be time consuming, it greatly increases the chance for a successful outcome and is well worth the trouble.

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