India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention). This means that India has no regular procedure for granting asylum to people fleeing persecution. Nevertheless, according to UNHCR:
[The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation. India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.
While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.
Even Bollywood endorses helping refugees (at least the good looking ones).
In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy. Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan. Earlier this year, a group of Muslim men broke into Rinkle’s home, kidnapped her, and forced her to convert to Islam and marry her neighbor. The group of men was connected with a local Pakistani politician and the government failed to intervene. After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents. She decided to remain with her husband. Most observers believe that her decision was based on coercion–she feared that her family would be harmed if she returned home.
Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India. Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:
Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.
Ms. Calamur makes the case for India to adopt an asylum system:
To be considered a world power, you don’t just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.
Well said, Ms. Calamur. I hope those in the West who question the need for an asylum system hear your words.
A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling. He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe. The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony. He was deported to Albania.
The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.
In Albania, Mr. Bedini was waiting. He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S. This time, he was granted Withholding of Removal.
Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported. The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy. The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family. The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.
While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family. Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:
The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj—that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession. Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.
Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court. They were supported by a number of amicus briefs, including one by former law enforcement officials. That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family. Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.” The Fifth Circuit’s decision would obviously discourage such cooperation.
In the end, the petition for certiorari was withdrawn. DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family. The result is certainly a relief to the Demiraj family. But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books.
Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims. That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990’s.
The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here). The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.
People of all faiths will celebrate if the one-year deadline is repealed.
First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990’s and early 2000’s (I have represented several such people myself).
My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement. Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians. In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone? I previously discussed this idea here.
The reason–I believe–that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen. This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo. It is also the same type of reasoning that gave us the Cuban Adjustment Act–a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places. In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.
I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way. This point deserves further attention, and I will come back to it in a future posting. For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.
When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis. A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.
You known you're a dissident when you've been Shepard Fairey-ized.
In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum. Technically, though, an embassy cannot offer asylum to someone in his or her home country. Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).
Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy. This does not mean that our government was powerless to help him after he arrived at the embassy. United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.
A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square. Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.
I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions. Also, it seems, Mr. Chen had not yet made up his mind to leave the country.
As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics). If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States. He obviously has a strong case for receiving protection. But until he actually departs from China, Mr. Chen’s situation remains precarious.
Two Cuban actors who star in an award winning movie, Una Noche, have defected and will be seeking political asylum in the United States. Coincidentally, the movie tells the story of three Cuban teenagers who try to escape Cuba on a raft in order to start a new life in America.
America's newest asylum seekers are also some of its most glamorous.
Una Noche was a low budget film directed by Lucy Mulloy, a 32-year-old Brit who shot the movie in Havana. She says that she was inspired by a tale she heard on a trip to the island nation 10 years ago.
The film achieved unexpected success, and the three stars of the movie–all of whom are non-professional actors–traveled to Germany and later to the U.S. for film festivals. In the U.S., the trio was scheduled to attend the Tribeca Film Festival in New York, where Una Noche won multiple awards. However, two of the actors, Analin de la Rua and Javier Nuñez Florian, disappeared after they arrived in the United States and missed the festival (where Mr. Nuñez Florian shared an award for Best Actor in a Narrative Feature Film with the third co-star, Dariel Arrechada).
Ms. de la Rua and Mr. Nuñez Florian played brother and sister in the movie, and (in a Brady Bunch-esque twist) fell in love in real life and decided to defect together. They recently re-appeared in Miami, represented by attorney Wilfredo Allen, who indicated that they would file for political asylum “based on possible persecution if they return to Cuba.”
Although the couple seems not to have had problems in Cuba prior to their trip to the U.S. (and indeed, they returned to Cuba after a trip to Germany), the public nature of their defection possibly puts them in danger if they return and likely qualifies them for asylum. Of course, under the Cuban Adjustment Act, even if they do not receive asylum, they would be eligible to apply for residency after one year of physical presence in the United States. So either way, the couple should be able to remain in the United States. We will be looking for them in Hollywood.
It feels good to win an asylum case, particularly a case where the client faces a real danger in the home country, or where winning seemed unlikely. But one thing I’ve noticed about winning – that good feeling doesn’t last long.
The typical scene at my office after an asylum win.
It’s better for court cases, when you are actually present to hear the decision. Since you’re not in the office, the win can be savored for a while; at least until you return to work. With most Asylum Office victories, you receive the result by mail, so you might have a good couple minutes when you call the client to congratulate her. After that, it’s back to the grind stone.
Losing, on the other hand, is a different story. When you lose an asylum case, you need to explain to the client what went wrong. If you’ve screwed up, you need to explain that too, and hopefully in a way that doesn’t generate a bar complaint. If it’s the client’s fault, you need to be diplomatic–why add insult to injury? And even if you have done everything right, it’s hard not to feel guilty when a client loses his case. Maybe you could have done more? Of course, you can always do more, and since you lost the case, you clearly should have.
You also need to explain the appeals process, and how much you charge. You have to discuss the chances for success on appeal. For most clients, this is a conversation that you will have more than once.
And then, of course, you actually have to do the appeal. These are a lot of work. If the appeal is with the BIA, you won’t receive a decision for a year or two. During that time, the client will call repeatedly to ask why there is no decision. If you lose an appeal with the BIA, you then have to explain the process in the federal circuit courts and start the whole process again.
So what’s the lesson here? According to a recent survey of asylum advocates in the U.S. and the UK, we need to take time to celebrate our successes. Many advocates report that there are moments of great joy in their work. For these advocates, seeing individuals that they have supported win asylum is a strong source of motivation. Even though we are busy, we should take time to savor our wins. We help make people’s lives better. If we take some time to appreciate our successes, it will help us enjoy our work more, and that will make us better advocates for our clients.
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.
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.
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.
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.
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.
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.
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.
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.
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.
