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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Hypocritical Editorial on Israeli Asylum System

by Jason Dzubow

A recent editorial in Al Jazeera by Charlotte Silver criticizes the Israeli asylum system.  The first paragraph pretty much sums up the author’s feelings on the matter:

The notion of a “Jewish and democratic state,” never a feasible reality, continues to unravel as its inherent racism is revealed in a new way.  Any political discussion of refugees that are of the wrong ethnicity inevitably refers to African migration to Israel as an “existential threat.”  Labeling these refugees as “threats” allows the state to criminalize and imprison them.  Meanwhile, the country continues to solicit immigrants from East Asia to fulfill the need for cheap labor, and Jewish immigrants to battle the internal demographic war.

To win asylum in Israel, you must show by a preponderance of evidence that your home government is meshugina.

There certainly are legitimate bases to criticize the Israeli asylum system (more on that below), but given the asylum systems–or lack thereof–in the Arab World, such criticism is hypocritical coming from Al Jazeera.  For one thing, unlike the large majority of countries on Earth, many Arab countries have not accepted the Refugee Convention and offer no protection to people fleeing persecution.  Further, wealthy countries such as Saudi Arabia, the UAE, and Kuwait are well known for their abusive treatment–akin to slavery–of foreign guest workers.  Given the absolute disaster that foreign asylum seekers face in Arab countries, Al Jazeera would do better to concentrate on the failures at home rather than complain about what the Israelis are doing.  It’s kind of like an F student criticizing an A student because he missed a question on the test (ok, maybe it’s more like an F student criticizing a C student, but you get the point).

That said, the Israeli asylum system is far from perfect.  A thoughtful–and very critical–academic article from 2010 by Professor Tally Kritzman examines the Israeli system, which was created in 2002 (although Israel has been a party to the Refugee Convention since 1954).  Essentially, the article argues that the Israeli asylum system is “an extension of Israel’s immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the ‘other,’ with the Palestinians and other enemy nationals facing maximum exclusion.”  While asylum seekers are considered “others” in many countries, Prof. Kritzman argues that in Israel such people are “more ‘other’ than elsewhere.”

Despite the problems, Israel is making an effort to improve its asylum system.  At the request of the Israeli Ministry of the Interior, in 2010 Israel partnered with the Hebrew Immigration Aid Society, UNHCR, and USCIS to help train asylum officers.  Hopefully this new effort will lead to an improved asylum system that will treat asylum seekers more correctly under international law and distinguish such people from immigrants to Israel.

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Female Asylum Seekers Need Not Apply

by Jason Dzubow

In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.”  Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.

One way to avoid the problem of gender discrimination when seeking asylum.

The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.”  Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”

The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.”  As a result, asylum seekers often do not know that certain facts are relevant to their claim.  Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.

The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”

It seems to me that the basic problem is that international law is not designed with the problems of women in mind.  As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape.  These types of harm are not covered by the Refugee Convention.  Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.

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The Nonsensical Biometrics Check

by Jason Dzubow

I arrived in Court the other day for an asylum case where I represented an Ethiopian poet who had been detained and persecuted for her political writings.  When the DHS attorney arrived, she told me that she had good news and not-so-good news.  The good news was that she reviewed the case and felt that my client should receive asylum (that was VERY good news).  The not-so-good news was that the biometric background check was not complete, so she thought we would have to reschedule the matter for another hearing, and the client would receive asylum at that time.  That news was inconvenient, and maybe a bit annoying, but not so bad.  However, it raises the question: What’s the deal with those pesky biometric background checks?

DHS biometric technicians hard at work.

Before we get to that question, here is a more basic query: What the heck is a biometric?  The State Department defines the term as follows:

A biometric or biometric identifier is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify the identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans.

In the case of asylum seekers, the biometrics are fingerprints and a photo.

Biometrics checks in asylum cases are valid for 15 months.  Meaning that if a case takes longer than that (which most cases do), the asylum seeker has to go for a new biometrics appointment where DHS again takes the person’s fingerprints and photo.  What’s nonsensical about this is that fingerprints do not change after 15 months.  In fact, the whole point of identifying people by their fingerprints is that the prints never change.  Otherwise, they would not be a very good way to identify people.  So why do the asylum seekers have to be re-printed?

As best as I can tell, sending asylum seekers for another fingerprint appointment is a way to “tickle” the system and generate a new background report.  So here’s a suggestion: Rather than wasting hours of the asylum seekers’ time arranging an appointment and traveling to the (always inconvenient) biometric office, and wasting the government’s time and money to repeatedly fingerprint and photograph hapless asylum seekers, let’s create a system where some government official pushes a button on a computer and generates a background check based on the existing biometric data.  This seems like a simple way to save time and money.  Also, since it can be done immediately prior to the Individual Hearing, it will be completely up to date.

In my Ethiopian case, the DHS attorney was able to run back to her office and get the results of the background check, so my client’s case was granted that day.   But for efficiencies sake, it would be better to reform the current biometric procedures.

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Asylum for the Pakistani Doctor Who Helped Get Osama Bin Laden?

by Jason Dzubow

By now, the story of Shakil Afridi is well known.  The Pakistani doctor ran a vaccination program in Pakistan that served as cover for his real mission–to help the CIA track down Osama Bin Laden.  According to Leon Panetta, the former head of the CIA (and current Secretary of Defense), Dr. Afridi’s contribution was crucial to finding Bin Laden and terminating him with extreme prejudice.

The CIA Vaccine Program: We have ways of making you talk!

As a reward for helping rid the world of its number one terrorist, the government of Pakistan arrested Dr. Afridi and charged him with high treason, a crime punishable by death. Pakistan has also arrested Dr. Afridi’s wife for good measure.

I suppose from Pakistan’s point of view, Dr. Afridi should have informed the Pakistani government, not the U.S. government, about Mr. Bin Laden.  But I also suppose that–had he done so–Mr. Bin Laden would still be alive and well today.

So far, Pakistan has refused U.S. demands to release the good doctor, and now Congress is getting into the act.  A bill sponsored by Dana Rohrabacher, the Chair of the House Foreign Affairs Subcommittee on Oversight, calls for granting citizenship to Dr. Afridi.  Congressman Rohrabacher states:

My bill would grant [Dr. Afridi] US citizenship and send a direct and powerful message to those in the Pakistani government and military who protected the mastermind of 9/11 for all those years and who are now seeking retribution on those who helped to execute bin Laden….  This bill shows the world that America does not abandon its friends.

There are a few too many assumptions in the Congressman’s condemnation of Pakistan for my taste, but I agree with the general sentiment.  It is outrageous that our supposed ally would treat Dr. Afridi (and his wife) in this manner.  While Pakistan’s pride might have been hurt by our Abbottabad Operation, the fact is, Osama Bin Laden was living right under their noses and they did nothing about it.  Rather than lash out at the man who helped find Osama Bin Laden, they would do better to look inward and examine the shocking intelligence failure that allowed Mr. Bin Laden to live for years practically next door to Pakistan’s top military academy.

Whether the efforts of the State Department and Congress bear fruit, we shall see.  But certainly we should not abandoned the man who helped us eliminate Mr. Bin Laden.

As a side note, there are many other foreign nationals who have helped us in our fight against terrorism, often at great personal risk.  So far, we have not done right by most of them (I’ve written about this here).  We should not abandoned these people either.

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South Korean Spy Blows the Whistle, Gets Asylum

by Jason Dzubow

As you might imagine, South Korea is not a big source country for asylum seekers.  So it’s newsworthy when someone receives asylum from that country–particularly when that someone is a former operative with Korea’s top spy agency, the National Intelligence Service (“NIS”).

Writing for the Korea Times, Donald Kirk reports on the asylum case of Kim Ki-sam, a South Korean intelligence agent who blew the whistle on the NIS and former South Korean President Kim Dae-jung.  Mr. Kirk also served as an expert witness at Kim Ki-sam’s asylum hearing in Philadelphia and wrote a book with Mr. Kim’s help, Korea Betrayed: Kim Dae-jung and Sunshine.

The story goes that Kim Ki-sam made public information about the “tremendous investment of time, money and resources that went into arranging the June 2000 summit between Kim Dae-jung [the former president of South Korea] and Kim Jong-il [the late and not-so-missed dictator of North Korea].”  Apparently, “hundreds of millions of dollars… flowed into North Korean coffers to grease the path to the summit while the NIS and other agencies lobbied hard for years for the Nobel Prize for Kim Dae-jung.”

People are always thinking of crazy ways to get out of Korea.

Kim Dae-jung won the Noble Peace Prize for his “Sunshine Policy” towards the North, but the award was tainted by allegations that vast sums of money flowed to the North while at the same time the South ignored human rights abuses in North Korea.

The asylum case apparently wasn’t easy.  Mr. Kim first applied for asylum in 2002.  An IJ granted asylum in 2008, but DHS appealed.  The case was remanded to the IJ and Mr. Kim presented his claim again.  Finally, last month, the IJ granted asylum and DHS agreed not to appeal.  Mr. Kim was ably represented by Janet Hinshaw-Thomas of Prime Immigration Ministry in Philadelphia.

Of course, all this makes me think of another supposed whistle blower from a democratic country–Bradley Manning, who is currently awaiting trial (and facing a possible death sentence) for revealing classified information to Wikileaks.  Perhaps it is ironic that we grant asylum to one whistle blower while we potentially put another to death, but I think the cases are distinguishable.  One difference is that Bradley Manning publicized documents that mention Afghan civilians by name.  This put the civilians in serious jeopardy of Taliban attack.  As far as I can see, Kim Ki-sam’s actions have not put people’s lives at risk.  Ironic or not, the South Korean whistle blower has now received political asylum from the U.S. government.

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The Problem With Immigration Lawyers and How to Fix It, Part 4: Attorneys

by Jason Dzubow

If you have been reading this series of posts, you know that so far I’ve blamed several people/organizations for the poor quality of immigration attorneys: Immigration Judges, Bar Associations, and Notarios.  I suppose some of the blame for bad attorneys might possibly… perhaps… maybe rest with the attorneys themselves (ourselves).  So what’s wrong with immigration attorneys?

We lawyers aspire to be as competent as we are good looking.

For one thing, most immigration attorneys are solo or work for small firms (I fit into this category).  Therefore, the only real barrier to entry is to pass the bar.  This is not a particularly high standard.  Other areas of law where attorneys tend to be solo or small-firm practitioners also seem to have their fair share of problems: For example, there was a spate of incidents where criminal defense attorneys fell asleep during capital murder cases.  Not that attorneys who work for large firms, large organizations or the government are necessarily better than small firm lawyers, but at least they are vetted by the employer before being hired.  In a prior post I mentioned the idea of a mandatory immigration bar association.  I believe that such an association would improve the practice of law by educating and regulating lawyers who practice before Immigration Courts and agencies.  In other words, it would fulfill some of the functions of a large employer in terms of quality control.

Another issue for immigration lawyers (which I believe is changing) is that immigration law was not considered a very prestigious practice area.  This means that top-notch attorneys and law students have generally not been attracted to this field (obviously there are many exceptions).  One reflection of this problem is the absence of academic journals related to immigration law.  When I was a law student in the 1990’s, I was on the Georgetown Immigration Law Journal.  Even today, that journal bills itself as the “only student-edited law journal devoted exclusively to the study of immigration law.”  Given the growing popularity of immigration law–and the important ways it affects people’s lives–I am hopeful that the practice of immigration law will become more respected and that we will see more law school journals devoted to the subject.

A related issue is that until relatively recently, law schools offered very limited (or no) classes about immigration law.  Over the last five or 10 years, this situation has begun to change pretty dramatically.  Now, students interested in immigration law can take a number of relevant classes at most law schools.  Also, law school clinics where students represent asylum seekers and others in Immigration Court have become quite popular.  These increased educational opportunities will, I think, help improve the quality of attorneys practicing immigration law.

Finally, since many immigrant clients are unfamiliar with the American legal system, they are often poor advocates for themselves and require extra help from their attorneys.  They are also particularly vulnerable to unscrupulous lawyers.  This means that perhaps the field of immigration law attracts people who would take advantage of others.  An analogous (though largely anecdotal) situation involves a 1998 study of disbarred attorneys in Michigan.  The study (of only 16 attorneys) found that the practice area with the most disbarred attorneys was probate law.  “The combination of estate funds and often older clients apparently proved irresistible to several former attorneys,” the report speculates.  In other words, easy money and vulnerable clients attract unscrupulous lawyers.  In the immigration context, a mandatory bar association would help mitigate this problem.

I would like to conclude this series on an optimistic note.  I think immigration lawyers are getting better.  The field is becoming more prestigious and is attracting the best and brightest law school graduates.  Also, immigrants are becoming more sophisticated and better able to protect themselves.  Hopefully, all this will lead to better representation for people in Immigration Court.

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Episcopalian Bishop from Sudan Receives U.S. Asylum

by Jason Dzubow

A Sudanese Bishop who spoke out against atrocities committed by the government of Sudan has received asylum in the United States.  The Legal Times reports that Bishop Andudu Adam Elnail of South Kordofan, a province of Sudan that borders the new country of South Sudan came to the United States for medical treatment in May 2011.  Conflict broke out in his home region shortly thereafter, and he filed for political asylum.

Martyrs of Sudan by Awer Bul, one of the Lost Boys of Sudan.

Bishop Elnail stated, “friends, brothers and sisters, children, my flock, have been killed mercilessly [by the government of Sudan] and are lying now in mass graves in Kadugli.”  According to one of his lawyers, the Bishop’s home was destroyed and looted, his office was destroyed and looted, and his church was destroyed and looted.  Based on his (very) well-founded fear of persecution in Sudan, the Bishop received asylum in the United States.

Now that he is safely in the U.S., Bishop Elnail plans to continue his advocacy for the people of Sudan.  In a written statement, he says, “Asylum is the way for me to advocate for the people of South Kordofan.”  “I can do more for my people here than if I was in Sudan.”  It’s hard to argue with this sentiment, since it seems pretty clear that if he returned to Sudan, the government–which has repeatedly demonstrated its utter disregard for human life–would make sure that he kept quiet.  Permanently.

The case was litigated by Covington & Burling attorneys Arjun Singh Sethi and Gerald Masoudi.  Mazel tov to them for their success in this important case.

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BIA Expands the Definition of Firm Resettlement

by Jason Dzubow

A recent BIA decision addresses the issue of firm resettlement. See Matter D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012).  If an alien is firmly resettled in a third country, she is not eligible for political asylum in the United States. 

Last year, in a case called Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011), the Board set forth a framework for determining whether an alien is firmly resettled and thus barred from obtaining asylum.  First, DHS bears the burden of presenting prima facie evidence, such as a passport or other travel document, of an offer of firm resettlement.  The asylum applicant can then rebut DHS’s prima facie evidence by showing that the offer has not, in fact, been made, that he would not qualify for it or that an exception to firm resettlement applies.  One exception is that the applicant’s entry into the country “was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country.” See 8 C.F.R. § 1208.15(a).

A frequent diner card from the Belize City Johnny Rockets may constitute prima facia evidence of firm resettlement.

In Matter of D-X- & Y-Z-, a Chinese asylum seeker went to Belize where she fraudulently obtained a residence permit.  She then continued her journey to the United States and filed for asylum.  Despite the Belize residency permit, the Immigration Judge found that the alien was not firmly resettled because she remained in Belize “only as long as was necessary to arrange onward travel” and she “did not establish significant ties in that country.”  The IJ granted asylum.

The BIA reversed, holding that, “Even if the respondents used some form of fraud or bribery through a middleman to obtain [the residency permit], there has been no showing that they were not issued by the Belize Government.”  The Board also noted, “aliens who have obtained an immigration status by fraud should not be permitted to disavow that status in order to establish eligibility for another type of relief.”  The BIA concluded that the alien’s “claim of fraud in obtaining permits to reside in Belize does not rebut the DHS’s prima facie evidence of firm resettlement in that country [i.e., the fact that she held a Belize residency permit].”

This decision is problematic because it is common for aliens to obtain false documents from countries that will not protect them while they are en route to the United States.  For example, I have represented a number of East African clients who fraudulently obtained South African passports.  These people have no permission to remain in South Africa, and if that government discovered their fraud, they would be deported to the country where they face persecution.   Thus, any “status” they may have in South Africa is tenuous at best.

Perhaps the alien in Matter of D-X- & Y-Z-, should have done a better job obtaining evidence to rebut the presumption of firm resettlement in Belize.  For the rest of us, the case is a cautionary tale–if a client has used a fraudulently obtained documents from a third country, she had better obtain evidence demonstrating that she is not firmly resettled in that country.

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New Government Training Manuel for Lesbian, Gay, Bisexual, Transgender, and Intersex Asylum Claims

by Jason Dzubow

USCIS and Immigration Equality have joined forces to create a new training module for asylum adjudicators called “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims.”  According to Immigration Equality, the new module “instructs asylum officers on substantive aspects of the law and highlights the unique difficulties that LGBTI claimants may experience in articulating their claims for asylum.”  A few highlights from the module:

  • My favorite LGBTI asylum seeker.
    Helpful definitions, and appropriately sensitive questions, for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices;
  • LGBTI-specific examples of harm that may constitute persecution, including: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to “cure” an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse;
  • Instructions for analyzing complex issues, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBTI applicants are not required to meet pre-conceived stereotypes or “look gay;” and that cultural norms within the LGBTI community in an applicant’s home country may differ from those in the U.S.; and
  • A non-exhaustive list of possible one-year filing deadline exceptions (which make it difficult to pursue asylum after one year of presence in the United States), including: recently “coming out” as LGBTI; recent steps to transition from birth gender to corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.

I am particularly happy to see some (though, in my opinion, not enough) guidance about the one-year filing deadline (see page 47 of the module).  Most likely, the reason for the sparse guidance is that there is not much BIA case law on this issue (note to BIA–publish more cases!).  In my experience–and I am not alone–the one year deadline is a particular problem in LGBTI cases.

Overall, the module seems like a valuable resource for adjudicators and advocates.  Congratulations to Immigration Equality and USCIS on a job well done.

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