Letter to a Young Immigration Lawyer

by Jason Dzubow

One of the perks of working in an area of the law (asylum) that interests law students and young lawyers is that I periodically get to meet people seeking advice about starting a practice or finding a job doing asylum cases.  It’s never easy to advise people about their careers, but there are a few pieces of wisdom I’ve picked up over the years that I try to pass on.  So for what it’s worth, here are some thoughts for up-and-coming immigration lawyers:

– You can do it.  This one sounds trite, so I probably should not have put it first, but I think it is the most important piece of advice I can give.  It may seem difficult (or impossible) to get started in the field of asylum law, but people who persist almost always succeed.  In my case, I could not find the job I wanted, so I worked at another job for a few years, put most of my income towards paying off my student loans, and then opened my own practice.  I kept expecting it to fail, but so far–eight years later–I’m still here.  And once you get your first job in the field, it is easier to move around.  I’ve seen many friends move between public interests jobs, private firms, and academia.  In other words, once you’re in, you’re in.

– Experience in the field prior to and during law school is more important than grades, law school rankings or law journal.  If you are thinking of a career in asylum law, try to gain as much experience as possible while in law school.  There are many opportunities to volunteer, including at the Immigration Court or DHS, for non-profit organizations, and even for private attorneys.  Also, publishing in law school journals or other journals (or writing a blog!) is a good way to get some experience and attention.

– Try to get a clerkship.  A clerkship or an internship with a court is a great way to learn how judges decide cases.  And if you know what judges want, it will help you throughout your career.  I clerked for the Third Circuit in Philadelphia (greatest city on Earth) and for the Immigration Court in Arlington, Virginia.  Both jobs taught me a lot and made me a better lawyer.

Advice from fortune cookies and immigration lawyers should be taken with a grain of salt.

– Volunteer.  One way to get your foot in the door is to volunteer with an organization that represents asylum seekers.  There are many, and they are often in need of free labor.  Volunteering for one of these organizations will allow you to meet people in the field, learn about paying job opportunities, and learn the skills needed to effectively represent people in court and at the asylum office.  I know several people whose volunteer positions led to full time employment.  I would suggest that you think strategically about where you volunteer–some organizations are better than others for purposes of networking, learning the ropes, and getting hired.

– Keep salary expectations realistic.  Your clients are refugees for Pete’s sake. 

– Consider opening your own practice.  However, I would encourage you not to do this anywhere near Washington, DC.  If I am giving you free advice, the least you can do is not compete with me.  Starting a practice of your own may seem daunting, but it really is do-able.  In fact, most private immigration attorneys are solo or work for small firms.  There is a lot of support available from bar associations, organizations (like AILA), and other attorneys.  In fact, many bar associations have a person dedicated to helping lawyers start law firms.  Call your bar association and ask about the resources they can offer you.

If you are thinking about a career in immigration law and asylum, I hope you will be encouraged to give it a go.  It’s a rewarding area of the law where you will have an opportunity to make a real difference in your clients’ lives.

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Asylum Seeker Commits Suicide to Help His Children

by Jason Dzubow

In the last few years, we’ve seen a rash of politically motivated suicides.  The most well-known case is that of Mohamed Bouazizi, whose suicide to protest mistreatment by a Tunisian government official began the Arab Spring.  There have also been a number of incidents where Tibetan Buddhist monks set themselves on fire to draw attention to the brutal Chinese occupation of their homeland.  Most recently, a Moroccan woman trapped in a forced marriage killed herself with rat poison.  The incident sparked protests against Islamic marriage laws in Morocco.

Van Gogh's painting anticipates the pain of many asylum seekers.

Now, the Irish Times is reporting the suicide of an asylum seeker from Burundi.  The incident occurred in the Netherlands, and supposedly the man killed himself in an effort to increase the chances that his children would be permitted to stay:

Alain Hatungimana lost his wife during the Burundian civil war, in which 300,000 people were killed between 1993 and 2005. Then, five years ago, he managed to escape to the Netherlands with his son, Abdillah, and daughter, Maimuna – hoping, given the political circumstances, to be granted asylum and allowed to start anew.

Unfortunately for Mr. Hatungimana, the government rejected his claim and was planning to deport the family to Burundi.  This despite strong support for the family from local government officials. 

Mr. Hatungimana became depressed and, the day before he and his children were scheduled to be deported, he took his own life.  “Those who treated him [for depression] say they have no doubt the act was a final desperate attempt to prevent his children from being sent back to Burundi – though it remains uncertain whether he’s achieved even that.”

The government has a somewhat different take on the incident: “The immigration ministry in The Hague said it ‘regretted’ the suicide, noting Mr. Hatungimana had had ‘psychiatric problems.'”  The government also claimed that Mr. Hatungimana’s deportation was not imminent.

Whether the motivation was depression or a selfless (if misconceived) desire to help his children, Mr. Hatungimana’s story serves as a cautionary tale.  While I would not advocate changing law or policy based on the fear that an asylum seeker might commit suicide, Mr. Hatungimana’s example reminds us how serious these cases are.  We must do our best to ensure that legitimate asylum seekers receive the protection to which they are entitled under international law.

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UNHCR: Number of Asylum Applications Up Sharply in 2011

by Jason Dzubow

A new report from the United Nations High Commissioner for Refugees (“UNHCR”) shows that asylum claims in industrialized countries have increased 20% from 2010 to 2011.  The United States continued to receive the most asylum seekers among the countries surveyed: approximately 74,000 asylum seekers in 2011.  This compares to approximately 55,500 asylum seekers for 2010, a 33% increase (among all countries, South Africa received the most asylum seekers).

The increase in asylum seekers to the U.S. is due largely to higher numbers from three countries: China (+20%), Mexico (+94%), and India (+241%).

With all the new refugees, we should at least get some interesting food joints.

The U.S. receives more asylum seekers from China than from any other country.  In 2010, we received 12,850 asylum seekers from China.  In 2011, we received 15,450 asylum seekers from China, an increase of 2,600 people or about 20%.  The large numbers are probably due to special provisions in the Immigration and Nationality Act that provide for asylum for victims of forced family planning–these provisions were created specifically to assist people from China, and they certainly seem to have encouraged Chinese nationals to seek asylum here.  Indeed, of the 24,400 Chinese asylum seekers worldwide, the U.S. received about 63% of all cases.  This is a very high number, given our physical distance from China.   If these numbers continue to rise, I wonder whether it will cause us to re-think our decision to grant asylum to victims of forced family planning.

The biggest numerical increase was among Mexicans seeking asylum in the U.S.  In 2010, there were 4,225 asylum seekers from Mexico.  In 2011, we received 8,186 asylum seekers from Mexico.  I recently wrote a post where I expressed doubt about the reported increase in Mexican asylum claims.  If the UNHCR report is correct, I was wrong and the number of asylum seekers has increased dramatically in the last year.  We will see whether the grant rate for Mexicans–which has been about 2%–will increase with the new crop of asylum seekers.  If this trend continues, it will certainly place a burden on our asylum system, and we might need to re-evaluate how we deal with the new influx.

In terms of relative increases, India had the largest increase: Up 241% from last year (the U.S. received 720 Indian asylum seekers in 2010 and 2,457 in 2011).  As far as I can tell, Indian cases are very diverse: political persecution, religious persecution, and sexual orientation, among other basis.  Why the dramatic increase in India asylum seekers?  I have no idea.  One “push factor” that seems inapplicable to Indian cases is the economy–India has one of the fastest growing economies in the world.  One year does not make a trend, so we will have to wait and see how many Indian nationals seek asylum in the U.S. in 2012.

Aside from the “big three,” there were major increases from El Salvador (2010–2,703; 2011–4,011) and Guatemala (2010–2,235; 2011–3,363), and smaller increases from Honduras, Haiti, and Nepal.  Rounding out the top 10 source countries for asylum seekers in the U.S. were Ethiopia (which saw a small drop in numbers) and Egypt, which appeared on the U.S. top ten list for the first time, perhaps as a result of difficulties related to the Arab Spring.

Worldwide, the top source countries for asylum seekers were Afghanistan (approximately 35,700 asylum seekers, up 34% from 2010), China (24,400; up 13% from 2010), Iraq (23,500; up 14% from 2010, but significantly down from 2008 when there were 40,400 claims), Serbia (21,200; down 28% from 2010), and Pakistan (18,100; up 66% from last year).

Given world population growth (there are a lot more people than there used to be), general economic malaise, and the dismal state of human rights in many countries, it is not surprising that the number of asylum seekers is increasing.  How we address these problems and how we treat people who come to us for help are some of the defining issues of our time.

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Case Dismissed Against “Halva Terrorists”

by Jason Dzubow

Last August, I wrote about three Eritrean refugees who were arrested at Phoenix airport and accused of plotting a terrorist attack.  The Eritreans were caught with a package of halva (a common Mideast dessert, which is delicious AND Kosher for Passover).  The package of halva was suspicious because it had a cell phone taped to it.  TSA suspected this was a mock up of a bomb, and that the Eritreans were on a “dry run” for a terrorist attack.  Unfortunately, in this day and age, it is hard to blame TSA for being overly cautious.  Nevertheless, the charges seemed like a bit of a stretch. 

Jello shaped likes a grenade is also a bad idea for airplane travel.

Now, the government has dismissed the case against the three refugees:

“Based on the new information, further prosecution is not in the interest of justice,” wrote Assistant U.S. Attorney Joseph Koehler in his motion to dismiss the charges.

Philip Seplow, an attorney for one of the three, said he thinks the government simply realized the refugees were not guilty and the whole thing was a big misunderstanding, partially because of a significant language barrier.  Mr. Seplow reports that when he informed his client that she had been cleared of the charges, she wept with relief.

Of course it is better to be safe than sorry, and it is difficult to imagine how the government could have handled this case any better.  As for me, next time I travel, I will not be carrying any halva.

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Jewish Hatemonger and Her Lies About Syrian TPS

by Jason Dzubow

Conservative blogger Debbie Schlussel has made a name for herself fighting “radical Islam,” which to her is synonymous with any form of Islam.  For instance, in response to Osama bin Laden’s death, she wrote “One down, 1.8 billion to go… many of ’em inside U.S. borders.”  Regarding the teenagers murdered in last year’s massacre in Norway, she writes:

Now these kids’ families know what it feels like to be victims of the Islamic terrorists whose Judenrein boycotts and terrorist flotillas against Israel they support.

Passover reminds us not to rejoice in the downfall of our enemies, even the really annoying ones.

She refers to the victims, who were as young as 14 years old, as “hateful, privileged brats.”  Their crime according to Ms. Schlussel–some of them expressed support for Palestinian rights and boycotting Israel.

You would think that mocking murder victims and calling for genocide against Muslim men, women, and children would put Ms. Schlussel outside the boundaries of civilized conversation.  Her work might be appropriate for a neo-Nazi website like Stormfront (though I imagine they won’t have her since she purports to be Jewish), but not for the main stream media.  Unfortunately, Ms. Schlussel appears regularly in the New York Post and the Jerusalem Post, as well as other media outlets.

The thing about her is that not only is she hateful, but she is a liar.  When the facts don’t support her miserable view of the world, she makes up facts to help fuel her hate (and her readers’ hate).  This is certainly the case with TPS for Syrians.  She writes:

Barack Obama and Janet Napolitano just gave thousands of Syrian Muslims–all of them either sympathizers with Hezbollah or the Muslim Brotherhood–permission to stay in the United States forever.

The Syrians in our midst–many of them here illegally–will now be untouchable by ICE (which isn’t arresting illegal aliens, anyway) for at least 18 months on the books.  But, as we know, in each case in which the U.S. has granted TPS for 18 months, the aliens got to stay forever.

And to add insult to injury:  these people, as with the Libyans and others who were granted TPS by Obama, will be able to work without restrictions in the U.S.–taking jobs from U.S. citizens.

Of course the first lie is that Syrians in America sympathize with Islamic terrorist groups.  There is no evidence what-so-ever to support this claim.  Indeed, the Syrians I have met in the U.S. oppose Islamic extremism and oppose the Assad regime (one of my clients–a medical doctor–was arrested and held in a torture prison on account of his opposition to the regime).

A second lie is that the Syrians, “as with the Libyans and others who were granted TPS,” will stay in the U.S. forever.  First of all, Ms. Schlussel is wrong (or more likely just made up a “fact” to suit her argument)–Libyans were never granted TPS in the United States.  Second, there is no reason to believe Syrians will stay here “forever.”  While TPS has been extended repeatedly for certain countries (mostly in Central America), that has not been the case for other countries, like Liberia, and–according to the Center for Immigration Studies (a restrictionist organization)–TPS for Sudan is winding down.

A third lie (and I simply don’t have time to address them all) is that Syrians in the U.S. are “untouchable by ICE (which isn’t arresting illegal aliens, anyway).”  In general, people with criminal convictions are not eligible for TPS.  Further, if a person with TPS commits a crime or if there is reason to believe that he is a security threat, he can–and probably will–be arrested.  Finally, contrary to Ms. Schlusser’s claim that we are not arresting illegal aliens, DHS has deported record numbers of aliens during each year of the Obama administration.

It’s too bad that Ms. Schlussel’s lies are able to distort the public dialogue on this important issue.  It’s also too bad that a person who claims to be the “granddaughter of immigrant Holocaust survivors” would perpetrate the same type of hatred and lies that led to the Holocaust.  I expect better from my fellow Jews.

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Section 13: An Asylum Alternative for Diplomats

by Jason Dzubow

Diplomats who cannot return to their countries can claim asylum, like anyone else.  But an alternative form of relief is available: Section 13 of the Immigration and Nationality Act allows individuals who entered the United States under diplomatic status to obtain a green card.  To be eligible for residency under Section 13, you must demonstrate that:

  • You entered the United States as an A-1, A-2, G-1, or G-2 nonimmigrant
  • You failed to maintain your A-1, A-2, G-1, or G-2 nonimmigrant status 
  • Your duties were diplomatic or semi-diplomatic
  • There is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat
  • You are a person of good moral character
  • You are admissible to the United States for permanent residence
  • Granting you a green card would be in the national interest of the United States

Several of these requirements are a bit tricky.  First, you must show that your duties were diplomatic or semi-diplomatic.  “Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13.” See Matter of —, Administrative Appeals Office, July 23, 2007.  Second, you must show a compelling reason why you cannot return to the country that accredited you.  Fear of persecution would qualify as a “compelling reason,” but the law does not seem limited to such claims. Id. (however, the inability to support oneself in the home country is not a “compelling reason”).  Finally, you would need to show that granting residency is in the “national interest” of the United States.  The only information I could find about this requirement is in the AAO decision, mentioned above, which notes that being a healthy, hard working man who can contribute to society is not the type of advantage to our national interest envisaged by the Act. Id.

Diplomats get all the perks.

To apply for section 13 relief, a diplomat must file an I-485 form with supporting documents.  More information about the requirements is available here.  The diplomat may also apply for a work permit (I-765) while the application for permanent residency is pending.

So what is the advantage of section 13 adjustment over asylum?  For one thing, it appears that section 13 adjustment does not require any nexus between the feared harm and a protected ground (race, religion, nationality, particular social group or political opinion).  Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency.  One disadvantage to section 13 is that the diplomat would not be eligible for some of the special benefits available to asylees (like housing assistance and job placement).  Another disadvantage is that diplomats must show granting them residency is in the U.S. “national interest.” 

I imagine section 13 would come in handy for diplomats from a country like Syria.  Although I have not heard about mass defections from that embassy, one can only hope that professional diplomats would have the courage to abandon a regime that is murdering thousands of people.  Section 13 allows such people to take a stand against their government and remain safely in the United States.

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New Handbook on Best Asylum Practices in the US and UK

by Jason Dzubow

A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.

In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged–an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.

The U.S. and Britain agree: We don't like the asylum system or the French.

The report found many similarities between the U.S. and Great Britain, which led to the conclusion that “there are merits to dialogue and exchange… across these distinct country contexts.”  Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.

The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain.  The report also recommends sharing ideas and policy objectives between organizations in different countries.

One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries.  Despite the relatively small amount of international cooperation between asylum support groups, survey respondents “felt that there was much potential for co-ordinated international approaches to the issues they face,” particularly issues that could draw on international experience, like alternatives to detention.  While this is true in theory, I am not exactly sure how it would work in practice.

For me–and I think for most immigration lawyers and advocates–the local connections are the most important.  I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments.  While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients’ claims, I can find this information on the internet without much trouble.  I certainly like the idea of connecting with asylum advocates in other countries.  It’s just that with limited time, it is difficult to establish and maintain such connections. 

In the report, the authors indicate that they are attempting to start a conversation.  I hope that this proves to be true.  Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue.  Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.

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FGM + Other Serious Harm = Asylum

by Jason Dzubow

I had a case last week where the Eritrean government arrested and beat my client because they believed she helped her brother escape from the national military service.  We tried to frame the case in terms of imputed political opinion (our claim was that the authorities thought my client was “anti-government” because she helped her brother escape), but it was a bit of a tough sell.  We came up with a strategy that may have saved the day (she received asylum), so I thought I would share, as this strategy could be employed by many women who face persecution that is not based on a protected ground.

The key to our strategy was that my client had been a victim of female genital mutilation (“FGM”) early in her life.  In a well known decision, the Board of Immigration Appeals held that FGM could form the basis for an asylum claim.  Thus, FGM may be considered past persecution based on a protected ground.

Until the recent BIA decision, these guys had done more than anyone to define "other serious harm."

Where a person has been subject to past persecution based on a protected ground, she is eligible for asylum if there is a “reasonable possibility” that she will face “other serious harm” in her country, regardless of whether that harm is based on a protected ground and regardless of whether that harm is related to the original persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(B).  While I had written previously about “other serious harm,” it had not occurred to me how useful this provision could be for many female asylum seekers.

FGM is prevalent in a number of African countries and elsewhere.  A woman who has been subjected to FGM has likely satisfied the first prong of the requirement for “other serious harm” asylum.   To satisfy the other requirement, the asylum seeker must demonstrate that she faces a reasonable possibility of other serious harm in her country.  This could be any type of harm and does not have to be based on a protected ground or related to the original persecution.  

Until recently, there has been little guidance about what constitutes “other serious harm,” but last month, the BIA published a decision examining this basis for asylum. See Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).  In that case, the Board held that to qualify as “other serious harm,” the harm must be as severe as persecution, and the Board has given some examples:

Such conditions may include, but are not limited to, those involving civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the claimant could experience severe mental or emotional harm or physical injury.

A number of federal circuit courts (all listed in Matter of L-S-) have given examples of what might constitute other serious harm.  The list is quite diverse: (1) harm resulting from the unavailability of necessary medical care; (2) the mental anguish of a mother who was herself a victim of FGM whose daughter faces the same fate; (3) the unavailability of needed psychiatric medications; (4) victimization by criminals or militias; (5) unavailability of necessary AIDS medications coupled with social stigma.  While diverse, this list is obviously not exhaustive, and it seems to me there is a lot of room for creative lawyering (for example, might criminal prosecution qualify if the punishment is severe enough?).

Thus, for victims of FGM, the “other serious harm” category of asylum could be a useful tool to obtain asylum, even if the harm they face is not based on a protected ground.

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From Private Attorney to NGO Director

by Jason Dzubow

Thank you to guest blogger William Holston, the new Executive Director of Human Rights Initiative of North Texas, who agreed to share his experience moving from private practice to the non-profit world:

On January 15, I left my law practice of thirty years to become Executive Director of Human Rights Initiative of North Texas, a non-profit organization that provides pro bono legal services for asylum seekers and individuals seeking relief under VAWA, U-Visa, and SIJ visas. 

Bill Holston (I love this photo--very dramatic).

Thirty years ago, I graduated law school and started trying cases.  I drove to the courthouse, was sworn in by a State District Judge, and started accepting court appointed criminal defense cases.  My first jury trial was in the spring of the next year–a felony case.  My next jury trial was a condemnation case.  Eventually, my practice settled in general business work.  For most of my career, I represented creditors in commercial collections and a variety of small business clients.  I enjoyed the problem solving that I did for my business clients and found the practice of law challenging and fulfilling.

That all started to shift about twenty years ago.  I met a Mennonite missionary who was working with Central Americans here in Dallas.  In the mid-eighties, thousands of Salvadorans and Guatemalans were fleeing civil wars in their home countries. Intrigued, I agreed to help obtain guardianships for unaccompanied minors, so they could enroll in school in the U.S.  Later, I took a training in asylum law.  My first asylum case was a Guatemalan woman whose husband, a union leader, was assassinated by a death squad as he took their kids to school.  I helped her obtain asylum.  After that, I was hooked. 

My policy was that once I finished an asylum case, I’d ask for another one.  Since then, I have provided pro bono legal representation for political and religious asylum applicants from twenty different countries: Guatemala, EI Salvador, Burma, China, Russia, Bangladesh, Zaire (now the Democratic Republic of the Congo), Somalia, Togo, Cameroon, Nigeria, Egypt, Turkey, Pakistan, Eritrea, Ethiopia, Liberia, Nepal, Zimbabwe, and Rwanda.

Why did I continue to do this work?  A client from Zaire provided all of the incentive I needed.  My client had been a pro-democracy activist during the tyrannical reign of Sese Mobutu.  This resulted in his arrest.  He managed to escape and make his way to America.  He was lucky to be alive.  His wife and children were in hiding in Brazzaville.  I assisted this young man to obtain political asylum here.  Months later, he showed up unannounced at my office with his wife and children.  They were no longer in hiding.  Instead, they were making a new life in the United States.  He introduced me to them and said, “I wanted to thank you in person.”  After he thanked me. I told him rather casually that it was my pleasure.  He looked at me, paused, and said, “No, I know what you did for me, you gave me my life.”  Then it hit me.  It was I who was getting the most out of this relationship.  Most people never get a chance to hear something like that.  So, I knew that this was the most enriching work I could possibly do.  I learned that it was a privilege to represent such people.

Since 1999, I’ve been taking cases from Human Rights Initiative of North Texas, Inc.  HRI was founded in 1999 by a lawyer Betsy Healy, and a social worker, Serena Connely.   Their mutual goal was to found an agency that was motivated by compassion, and where the work was performed in an efficient and competent fashion.   I mentored Betsy on her first asylum case, when she was a lawyer in a large Dallas commercial law firm.  Their model was to use pro bono lawyers to do the work. HRI has built strategic alliances with some of the best law firms in America.  Those lawyers provide over two million dollars in legal services to our clients every year.  HRI has built a great reputation by having a rigorous process of screening and intake.

Over the years, I not only took pro bono cases, but I became an advocate for refugees.  I wrote a number of editorials for newspapers.  I wrote articles about Burma and Zimbabwe.  I also wrote commentaries about human rights issues for our local public radio station.  Any opportunity I had to speak about the issues of asylees, I took.  I realized that our clients’ stories were inspiring to others.  I became increasingly aware that this was the work I found the most satisfying in life.  In time, I began to think of it as a calling.  In part, I was motivated by the Biblical mandate to be a voice for oppressed people.

One of the best parts of this work is seeing our country through the eyes of people who risked much to get here.  I once had a client from Russia, whose family sold their home to pay for their son’s escape.  A few years back, a client escaped from a torture chamber and stowed away on a cargo ship.  He swam ashore at the port of Houston.  The main lesson I draw from such stories is that I no longer take my rights for granted. 

I drive past an Eritrean Church, where my client worships.  She spent days in an overseas shipping container just for reading a Bible.  I drive past a church where my Egyptian Coptic Clients now worship, after losing everything to extremists in their native Egypt.  I once stood in my office on Election Day, as my Zimbabwean client expressed amazement at the peaceful nature of our elections.  I realize just how fortunate I am, and I have our clients to thank.

Last year, the position of Executive Director became open at HRI.  I talked it over with my wife and we decided I should apply. It was not really a difficult choice, because I now wanted to devote all my energy to the cause of helping people seek refuge here in America. 

So how do I feel about it now?  My work place is filled with Ethiopian pro-democracy advocates, Iranian Christians, and Egyptian Coptics.  I work with young women escaping abusive arranged marriages and young teens who were survivors of crime.  It is the most fulfilling thing I have ever done.  I work with a team of young people who are full of skill and compassion. I feel younger and more energized than I have in years.  In sum, I can’t imagine work that is more fulfilling or more important. I feel like I’m home.

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NY State Bar Protects Incompetent Lawyers, Not Immigrant Victims

by Jason Dzubow

As far as I can tell, the NY State Bar exists to protect incompetent and dishonest immigration attorneys.  It could care less about the immigrant victims of those attorneys.

New York has more attorneys than any other state–about 157,000 of them (as of 2010).  A disproportional number of immigration attorneys are barred in NY because it is one of the few states that allows foreign lawyers to sit for the bar (assuming they take a certain number of credit hours at a U.S. law school), and many foreign-trained attorneys practice immigration law.  Because there are so many immigration attorneys barred in New York, the NY Bar Association has a particular responsibility to protect immigrant victims of attorney malpractice. 

What other organization protects its own (and its pets) regardless of right or wrong?

Thus, when an alien (or her attorney) files a bar complaint against a New York-barred lawyer, you might think the Bar Association would take that complaint seriously.  Unfortunately, this is not the case. 

As an initial matter, it is not easy to file a bar complaint in New York.  Unlike most other states, there is no central authority where complaints are filed.  Instead, the injured client needs to determine the correct NY department with authority over the offending attorney.  This depends on where the attorney is located, but it is not always easy to figure out.  Once you know the correct department, you can file your complaint. 

On behalf of my clients, I have filed two complaints against NY-barred lawyers. 

The first was against an attorney who refused to turn over a client file because the client had not paid money allegedly owed to him.  Refusing to turn over a file is not allowed under the Rules of Professional Conduct.  After I filed the complaint, the attorney responded to Bar Counsel and threatened me with a frivolous bar complaint for the “tone” of my phone conversation and letter to him.  Threatening a frivolous complaint is not allowed either.  Nevertheless, the NY Bar saw fit to dismiss my complaint.

The second complaint did not even get that far, and was dismissed out of hand.  In that case, my client received a decision from the BIA (she lost) and the lawyer failed to inform the client–for over one year.  As you might imagine, not knowing that her case was denied caused problems for my client.  The Bar Association’s response to our complaint:

After careful review, it has been determined that the issues you raise are more appropriate for resolution by the Board of Immigration Appeals in the first instance [we had also filed a motion to reopen with the BIA, but they are not responsible for attorney discipline].  Therefore, although we appreciate your effort, we are unable to assist you.

How nice that they appreciate our effort.  Further, we did not file the complaint so that the Bar Association could “assist us.”  We filed the complaint because the attorney violated her duty to inform my client about the result of the appeal, and because such a complaint is required to reopen the immigration case.  If she did this to our client, likely she has done it to others.  The Bar Association should be as concerned (or more concerned) about protecting potential future victims of this attorney than it is about “assisting” my client.  But obviously, they do not care about my client or about any potential future victims. 

To their credit, the Bar Association did an excellent job of protecting the incompetent lawyer.  They did not even require her to make a response to our complaint.  Thank goodness that the attorney was not inconvenienced by having to spend time explaining her bad conduct.  Better, she should use that time to rip off other immigrants.   With all the money she makes, I hope she remembers to bay her bar dues–she certainly owes them for protecting her. 

Despite my annoyance at the general failure of the New York Bar to protect immigrants, there are some resources available.  You can contact the Attorney Grievance Committees.  You can also contact the Immigrant Affairs Program of the District Attorney’s Office for the City of New York.  For the sake of future immigrant (and non-immigrant) victims, we can only hope that the NY Bar Association will one day recognize its responsibility to protect the public, and not just its own members.

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South African Whites Seek Asylum in the U.S.

by Jason Dzubow

An asylum claim by a white Afrikaner farming family from South Africa has sparked a debate about whether their claim is based on a real fear of persecution or is “the result of paranoid (and racist) whites wanting to leave because they want no part in a black-governed South Africa.” 

Some Afrikaners fear that in South Africa, white is the new black.

The family’s claim seems to be that they are being discriminated and persecuted by the government.  Also, they face a severe risk of racially motivated crime and the government is unwilling or unable to protect them.

The family’s attorneys have been searching for an expert witness, but they have been rejected by several academics:

Professor Mark Behr, of Rhodes College, in Memphis, Tennessee, and Dr. Dennis Laumann, of the University of Memphis, have rejected requests that they help the family.  “I am not interested in assisting Afrikaners claiming discrimination in a non-racial, democratic, post-apartheid South Africa,” wrote Laumann.  “In my scholarly opinion, there is absolutely no basis for their allegation – whatever evidence they may present.”

Such rejection seems to me to represent the worst of academia.  To assume that any claim of asylum by a white South African is based on paranoia and racism is bad enough, but to publicly state that “there is absolutely no basis for their allegation – whatever evidence they may present” is completely irresponsible.  As a top asylum attorney once remarked: No country is safe for everyone all the time.

Nevertheless, it seems to me that the family will face an uphill battle for asylum.  For one thing, it appears that much of the case is based on the claim that the South African government discriminates against whites.  Assuming this is true, discrimination is not sufficient for a grant of asylum.  Also, to the extent that the family faces violence, they would need to show that there is nowhere in South Africa where they could relocate and live safely.  Given that there are about 4.5 million whites living in South African, I am not sure how the family can demonstrate that internal relocation is not an option.

Finally, the articles about white South Africans cite a figure that I find misleading.  They state that between 2001 and 2010, a total of 129 South Africans were granted asylum in the United States.  The articles imply that all these South African asylees are white.  DHS statistics show that 129 South Africans were granted asylum, but there is no reason to believe that these asylees are white.  Indeed, given that only 9% of South Africans are white, it is likely that the majority of asylum seekers coming to the U.S. are not white.

In any case, the asylum claim of the white South African family–like all asylum claims–should be evaluated on its merits.  Despite the irresponsible public comments of some academics, if the family has a well founded fear of persecution in South Africa, their application should be granted.

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Republicans Politicize Asylum Process for Venezuelans

by Jason Dzubow

Apparently spurred on by the anti-Chavez Venezuela Awareness Foundation, several members of Congress have written to DHS Secretary Janet Napolitano asking that she review the asylum process as it pertains to asylum seekers from Venezuela and ensure that it is “fair, humane, expeditious, and fully consistent with U.S. law.”  It seems the Members of Congress are concerned because of delays in Venezuelan cases and because the asylum grant rate for asylum cases is too low.

In a letter to Secretary Napolitano, Congressman Mario Diaz-Balart (R-Florida) writes:

I am concerned that the recent delays in processing these applications are the unfortunate result of a timid foreign policy that favors placating tyrants over assisting oppressed peoples achieve their democratic aspirations….  It would be shameful if the Administration allowed its asylum decisions, which are purportedly determined by a process untainted by political considerations to be delayed or denied in order to placate the very tyrant that asylum applicants seek to escape.

In a separate letter, Ileana Ros-Lehtinen (R-Florida), Chairwoman of the House Foreign Affairs Committee, complains that only a quarter of asylum petitions from Venezuela are granted.

There's at least one person who doesn't think President Obama appeases dictators.

The accusations in these letters are heavy on rhetoric, but short on reality.  First of all, in FY 2011, there were 445 asylum cases received in Immigration Court.  According to EOIR, 205 were granted and 136 were denied.  This is a grant rate of about 46%, not 25% as the Congresswoman claims.  Further, the rate for Venezuela is higher than the rate for such bastions of human rights as the Democratic Republic of the Congo (33%), Pakistan (33%), and China (44%).

Second, for anyone familiar with the Immigration Court system, the idea that asylum grant rates reflect the policy of the Obama administration is pretty ludicrous.  Many Immigration Judges were appointed during previous administrations and they may or may not agree with Administration foreign policy.  Even if they do agree with our current foreign policy (and assuming that that policy involves appeasing dictators), they are still bound by law to adjudicate cases based on the merits, and there is no reason to believe they are doing otherwise.

Finally, as to the supposed delays that Venezuelans face in Immigration Court, there is no evidence that such delays are any worse for Venezuelans than for asylum seekers from other countries.

In short, the letters to Secretary Napolitano are a cheap political stunt and the complaints are not based in reality.  There are plenty of issues in the asylum system that could use some attention.  Inequitable treatment of asylum seekers from Venezuela is not one of them.

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Confusion Over Mexican Asylum Seeker Statistics

by Jason Dzubow

A recent report from the Fronteras Project states that the number of Mexican asylum seekers has doubled due to the ongoing violence in that country.  The report states that in FY 2010, about 3,200 Mexicans asked for asylum in the United States.  Only 49 received asylum.  In FY 2011, the report continues, 6,100 Mexicans filed for asylum and 104 were granted.

Even a seasoned mathmatician would have trouble with the government's asylum statistics.

While there has been an increase in the number of asylum seekers, the data from the Fronteras Project is incomplete and paints a distorted picture.

For one thing, the number of asylum seekers in FY 2010 was actually 4,510.  Apparently, the Fronteras Project used data from a January 2011 report, not the more up-to-date report from February 2012.  Their data for FY 2011 is accurate: 6,133 Mexicans sought asylum and 104 were granted in Immigration Court.  Thus, there was actually a 36% increase in the number of Mexicans claiming asylum in Immigration Court–a significant increase, but far less than the Fronteras Project reports.

Another problem is that the statistics from the Fronteras Project appear not to count Mexican asylum seekers who filed their applications affirmatively.  It is not easy to find data on affirmative applications, but according to DHS, 143 Mexicans were granted asylum affirmatively in FY 2010 (meaning a total of 192 Mexicans received asylum in FY 2010 affirmatively and defensively).  DHS has not yet published data on affirmative asylum approvals for FY 2011, nor has it made data available on the total number of Mexicans who filed affirmatively for asylum.

I suppose this is a lot of statistical mumbo jumbo just to show that the number of Mexican asylum cases increased 36% and not 100% as reported by the Fronteras Project, but the difference is pretty significant.

A second problem with the Fronteras Project report relates to the claim that the increase in defensive cases is caused by ongoing violence in Mexico.  This claim is somewhat dubious.  Many defensive asylum claims are filed when people are placed into removal proceedings.  As DHS has been deporting large numbers of people during the last few years, it is possible that more of them are filing asylum as a defense to removal.  This does not necessarily indicate an increase in the number of people afraid to return to Mexico.  Rather, it may simply show that more Mexicans are being deported and they are filing for asylum in a last ditch effort to remain in the U.S.

Given the data available, I am simply not convinced that there has been a major increase in the number of asylum seekers from Mexico.  Maybe when DHS releases the numbers for affirmative asylum applicants for FY 2011, we will learn something new (affirmative applicants are people who fled here and then affirmatively filed for asylum, so they are a better measure of people fleeing persecution than defensive applications).  But I doubt it.  Despite the growing violence in Mexico, the number of asylum seekers from that country has remained steady over the past decade.  As far as I can tell, the long anticipated flood of Mexican asylum seekers has yet to materialized.

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Refugees Who Served With US Military Seek Burial in Veterans’ Cemetery

by Jason Dzubow

During the Vietnam War, thousands of Hmong people fought as allies of the United States against the Communist government of Laos.  An estimated 10% of the Hmong population of Laos–about 30,000 people–was killed during the war, and over 100,000 were displaced.  Now, Military.com reports that Hmong veterans who have resettled as refugees in the United States are seeking burial in U.S. military cemeteries.  Hmong leader Chue Chou Tchang testified at the Minnesota State House:

We were American soldiers fighting alongside American soldiers….  We fought like brothers.  We died together.  Coming to this country, we’d like to rest with the American soldiers that fought with us.

One way to honor foreign veterans who served with the U.S. military: Name a beer after them.

Because of a United Nations agreement not to commit American troops to Laos in the early 1960s, the CIA launched a covert operation of training and funding Hmong soldiers, first to retrieve the bodies of pilots whose planes had crashed and then to block supplies and attack North Vietnamese and Communist troops.  The Hmong soldiers fought bravely and won the respect of their American comrades.  

The main arguments against burying the Hmong fighters in U.S. military cemeteries are that the cemeteries are exclusively for people who served in the United States Armed Forces (as opposed to allied forces) and that there is limited space.  Based on a quick review of the comments on Military.com, it seems many veterans who served during the war believe the Hmong should be granted burial in military cemeteries.

Last year, after Vang Pao, an important Hmong general died, he was refused burial at Arlington National Cemetery.  However, a few months after his death, a U.S. Army Honor Guard participated in a memorial service for the General and other Hmong veterans at Arlington (though the Hmong veterans were not buried there). 

It seems unlikely that the policy on burial will change any time soon, so holding ceremonies like the one for General Vang Pao seems like a respectful way to honor our foreign allies who fought–and sometimes died–with us. 

Given the number of foreigners who served (and continue to serve) with the U.S. military, my guess is that we will see this issue raised again and again in the future.  I have represented a number of people who worked with the U.S. military and who then had to flee their homelands–from Afghanistan, Iraq, and Laos.  The military should develop a consistent policy to deal with such people when it comes to burial and other veterans’ benefits.  The model used in the case of General Vang Pao seems like a reasonable way to handle the issue of burial, but it needs to be consistently applied to all our foreign allies.  Like our own veterans, we owe our foreign allies a great debt, and we need to do right for them all. 

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U.S. Consulate Attempts to Block Asylum Seekers

by Jason Dzubow

The job of United States consular officers is to prevent undesirable aliens from obtaining visas to the United States.   But sometimes the consular officers are a bit too enthusiastic about weeding out potential asylum seekers.

In an Ethiopian asylum case I litigated earlier this week, the DHS attorney submitted as impeachment evidence a consular officer’s assessment of my client, who was interviewed at the consulate for a non-immigrant visa.  After describing why my client needed a visa (for a heart operation in the U.S.), the officer wrote:

Applicant swears she does not intend to seek asylum or stay in the US longer than needed, and has no problems that would prevent her from returning to Ethiopia.  If she files an asylum claim, it is fraudulent.

The conclusory last sentence is what really bothers me–“If she files an asylum claim, it is fraudulent.”  The consular officer does not know whether my client’s situation will change, or whether the situation in her country will change.  His statement seems to be simply an effort to prevent her from gaining asylum under any circumstances.  Not only is this unfair, but it contradicts established case law.  The BIA has held that an asylum seeker who lies to obtain a visa in order to escape her country is not ineligible for asylum once she gets to the United States, though the misrepresentation may be considered an adverse factor depending on the circumstances. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

I am absolutely not coming to the U.S. to seek asylum. Or to sleep with Morgan Fairchild.

Matter of Pula recognizes that people fleeing persecution often say or do unsavory things in order to escape danger. Granted, such case law creates a perverse incentive–if you are able to lie your way past the consular officer, you can claim asylum in the United States–but what is the alternative?  If a person honestly admits a fear of persecution in his country, the officer will deny the visa.  I suppose we could force all visa applicants to sign a statement indicating that they have no fear of return, and then enforce that agreement if they claim asylum in the U.S.  Of course, this would put us in the position of deporting people to countries where they face persecution or death, which is not only undesirable and immoral, but flies in the face of our international obligations.

All that said, I am sympathetic to the plight of the consular officers.  I’ve compiled some statistics below about the number of people who receive visas and then later claim asylum.  In FY 2010, over 14% of non-immigrant visa applicants from Ethiopia  received asylum in the U.S., a not insignificant figure (like most statistics, these are a bit murky, since I compare visa applicants in the given fiscal year with asylum grants in the same year; nevertheless, I think they provides some general guidance).  Given the high percentage of Ethiopian non-immigrant visa holders who win asylum, it is not surprising that the consular officers are pushing the envelope to stop this trend.  Here are the Ethiopian stats for the last five years:

Ethiopia

Year 2006 2007 2008 2009 2010
Visas Issued 6,407 8,047 8,479 7,947 7,777
Asylum Granted 780 851 900 1,109 1,093
Percentage 12.2% 10.6% 10.6% 14.0% 14.1%

 

And by the way, at least in my case, the consular officer’s effort to stop my client from obtaining asylum did not work.  The Immigration Judge granted asylum and the DHS attorney agreed not to appeal.

The country that send the most asylum seekers to the U.S. is China.  Here are the stats for China (keep in mind that none of these statistics account for people who applied for asylum but were denied, or people who entered the U.S. illegally and then applied for asylum):

China

Year 2006 2007 2008 2009 2010
Visas Issued 347,832 401,331 455,279 475,548 753,198
Asylum Granted 5,598 6,370 5,462 6,118 6,683
Percentage 1.6% 1.6% 1.2% 1.3% 0.9%

 

Most asylum seekers I represent come from Ethiopia and Afghanistan, so I wanted to include some information about Afghanistan.  This is a relatively new source country for asylum seekers (at least in the United States), and so the absolute numbers are not as high.  The upward trend is clear, and some Western countries are now making it more difficult for people from Afghanistan to get a visa.  Here are the statistics for Afghanistan:

Afghanistan

Year 2006             2007 2008 2009 2010
Visas Issued 193 1,119 1,173` 1,667 1,805
Asylum Granted 34 65 73 88 120
Percentage 17.6% 5.8% 6.2% 5.3% 6.6%

 

Data on affirmative and defensive asylum grants comes from the DHS Yearbook on Immigration Statistics.  Data on the number of non-immigrant visas issued in each country comes from the U.S. State Department.

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