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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Dead Honduran Seeks Asylum in the U.S.

by Jason Dzubow

Four years ago, Josue Rafael Orellana Garcia fled Honduras to escape persecution by a criminal gang.  It seems the gang originally targeted him due to a handicap–he lost an eye and much of his hearing when he was struck by a tree during Hurricane Mitch.  Mr. Orellana arrived illegally in the United States at age 17 and requested political asylum.  His case was ultimately denied, and he was deported to Honduras in 2010.  

Mr. Orellana's mother with a photo of her deceased son.

Back in Honduras, Mr. Orellana disappeared while running an errand.  His body was found in July of last year.  Presumably, Mr. Orellana was murdered by the same gang members that had been persecuting him all along. 

Now, the Wall Street Journal reports that Mr. Orellana’s attorney has brought a posthumous asylum case before the Board of Immigration Appeals.  The purpose of the case is to highlight our country’s failure to protect people fleeing gang violence in Central America.  Mr. Orellana’s attorney, Joshua Bardavid, states, “I think it’s something that needs to be acknowledged: that we failed him; that he came here seeking safety, and the entire system let him down.”

The problem of gang violence is certainly endemic in several Central American countries.  Honduras, El Salvador, and Guatemala have some of the highest murder rates in the world (several times higher than Mexico, which has received much attention of late).  And the asylum grant rate from those countries is quite low.  According to statistics from the Department of Justice, in FY 2009 (the latest year I see data available) the asylum grant rate was as follows: Honduras: 5.5%, El Salvador: 2.9%, Guatemala: 4.3%.

As far as I know, there is no provision in the INA to grant asylum to someone who is deceased (unlike naturalization, which can be granted posthumously).  However, Mr. Orellana’s case is a sobering reminder that when we return Central American asylum seekers to their countries, we sometimes condemn them to death.  Hopefully, his case will help bring attention to this serious and difficult issue. 

For those attorneys and advocates working on gang-based asylum cases, the U.S. Committee for Refugees and Immigrants has some good resources that might prove useful.

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Credibility Determinations Are Not Credible, Part Three

by Jason Dzubow

In this series, I have been writing about methods for determining whether an alien is telling the truth.  So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable.  Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility.  I am speaking about plausibility.

First, what do we mean by plausibility?  When a fact finder determines that an event is not believable, it is implausible.  For example, I worked on a case where the Immigration Judge found my client’s testimony implausible.  The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest.  The IJ did not believe that a person wanted by the government could pass through airport security.

Unless your name is Big Daddy, you probably can't smell the mendacity.

The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible.  In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport.  In my case, we presented this evidence and my client received asylum.

As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way.  The IJ was concerned about a legitimate plausibility issue.  We presented evidence to satisfy that concern.  The case was granted. 

The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.”  Mr. Sagan’s axiom can be applied in the asylum context.  Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible.  The more implausible the claim, the better evidence the alien will need to demonstrate plausibility.  This seems like a reasonable method for assessing credibility.

If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable.  This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony.  The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness.  In the end, the fact finder must reach a conclusion using the imperfect tools that are available.  Given all that rides on these decisions, it’s not a task I envy them.

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The Problem With Immigration Lawyers and How to Fix It, Part 3: Notarios

by Jason Dzubow

The now-defunct Syms clothing store had a slogan, “An educated consumer is our best customer.”  Unfortunately, many asylum seekers and immigrants are not well educated about the immigration system or the attorneys and notarios who represent them (a notario, in the parlance of our times, is a non-lawyer who purportedly assists aliens with their immigration paperwork). 

If your lawyer also sells fried chicken, it might be a bad sign.

Some notarios are honest and do excellent work; some are crooks who exploit an alien’s naivete about the immigration system and steal their money.  Although it is somewhat self-serving for an immigration lawyer (like me) to condemn notarios, I have seen many instances where a notario caused an alien to lose his case or where the notario took the alien’s money and disappeared.  Also, I am certainly not alone in my opinion: AILA has an over-the-top website called Stop Notario Fraud, and USCIS has a campaign explaining that the wrong help can hurt.  Not to mention that it is illegal to provide legal representation unless you are an attorney or an authorized representative.

In the asylum context, many applicants use notarios to help prepare their affirmative cases (the name for these “helpers” varies depending on the country of origin; for example, an Ethiopian notario is called an “asterguami” or translator).  The notarios are known to embellish cases or to simply make up stories.  There is no regulatory authority (like a bar association) to police the notarios, and though their activity is illegal, they are rarely caught.  They also spread misinformation in their communities about how the asylum process works.  For example, there are persistent (and contradictory) rumors in the Ethiopian community that well-educated asylum seekers are granted asylum because the U.S. needs talented people and also that the outcome of an asylum interview is random, so a well-prepared application is superfluous. 

So what does all this have to do with immigration lawyers?

For one thing, when applicants have been educated by notarios in their communities to believe that the outcome of a case is random, or dependent on factors other than the fear of persecution, there is no incentive to hire a competent attorney.  Indeed, the incentive is to hire the least expensive attorney available.  Except in the case of non-profits or pro bono counsel, such attorneys are not likely to provide the highest quality service.  Since many aliens do not understand that a decent attorney can improve the chances for success in a case, incompetent attorneys are able to continue attracting clients despite a poor track record.  In this case, a mis-educated consumer is their best customer.

In addition, notarios can–to a large degree–control which attorneys their clients will hire after the notario loses the initial case and it is referred to an Immigration Judge.  The notarios (who are not lawyers and cannot go to court) refer their unsuccessful clients to certain attorneys.  As you might imagine, unscrupulous notarios refer their clients to unscrupulous attorneys.

The current efforts to crack down on notario fraud are a good start, but those efforts largely ignore non-Spanish speaking populations in general, and asylum seekers in particular.  Advocacy organizations and the government should do more to address this problem.  Stopping unscrupulous notarios will reduce asylum fraud and, indirectly, improve the quality of lawyers practicing immigration law.

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Credibility Determinations Are Not Credible, Part Two

by Jason Dzubow

I previously wrote about how credibility determinations based on inconsistencies are not reliable.  Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods.  First, two methods that don’t work well:

Demean girl.

– Demeanor.  Fact finders often judge credibility based on the alien’s demeanor during testimony.  Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.”  Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts.  The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor.  This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal.  These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.

– Lack of Detail.  This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court.  My initial reaction when I see this is to blame the Asylum Officer.  If the Officer wanted more detail, she should have asked more questions.  But I know this is not exactly what is meant by “lack of detail.” 

Demeanor girl.

An example will illustrate the point.  An asylum seeker (represented by my friend) was asked to describe the conditions of her detention.  She responded: “I was locked up and I was interrogated.”  The Officer repeated the question and received a similar answer.  As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated.  Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it.  In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc.  If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.

The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.

Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible.  However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth.  In a future post, I will discuss some methods of judging credibility that might be more effective. 

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Credibility Determinations Are Not Credible

by Jason Dzubow

In an asylum case, one of the most difficult determinations for the fact finder is the alien’s credibility: Is the alien telling the truth about his claim?

Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says “Circuit Credibility Outline”). 

One of the main methods used to determine credibility is to to look for inconsistent statements in an alien’s testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

Someone named Mr. Incredible would probably not do well in Immigration Court.

A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 

For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client’s affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.

This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien’s memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates–except in the most egregious circumstances–should not be used to support a negative credibility finding. 

Another technique to evaluate credibility is to look for inconsistencies between an alien’s testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.

Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent’s and a witness’s testimony.

In a future posting, I will discuss other methods of determining credibility.

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The Problem With Immigration Lawyers and How to Fix It, Part 2: Bar Associations

by Jason Dzubow

This is part two in a series of posts about the poor quality of immigration lawyers.  A recent survey of judges’ opinions found that 33% of immigrants had “inadequate” counsel and 14% had “grossly inadequate” counsel.  I previous wrote about how Immigration Judges could improve the situation by reporting incompetent and dishonest attorneys.  Indeed, according to Justice Department rules, IJs are required to report such attorneys.

Most bar complaints end up here (but at least they recycle).

Of course, reporting incompetent attorneys accomplishes little unless the disciplinary authorities–i.e., the state bar associations–actually impose sanctions where such punishment is appropriate.  Although a large number of practitioners have been disciplined, given the current state of affairs, the bar associations are not doing enough to protect immigrants.  Here are some thoughts on what bar associations could do to improve the situation:

– Bar associations should reach out to immigrant communities to help inform aliens about their right to competent counsel.  This means providing information–including information about how to report dishonest attorneys–to various immigrant advocacy groups and encouraging those groups to translate and disseminate the information.

– Given that immigrants are particularly vulnerable to unscrupulous lawyers, bar associations should pay close attention to complaints filed in immigration cases.  My sense is that the bar associations tend to protect lawyers, and that it is not easy to get disbarred (I hope I am not jinxing myself!).  Bar associations need to take complaints seriously and, in the case of vulnerable populations (minors, immigrants, etc.), need to thoroughly investigate allegations of bad conduct.

– Another issue is that certain bars–most notably New York and California–allow people with a foreign law degree to sit for the bar after they receive an LLM.  The requirements for admission to LLM programs are much less rigorous than for admission to JD programs, and thus graduates of these programs are not as familiar with the U.S. legal system as people who receive a JD degree at an accredited law school.  New York, at least, has taken some modest steps to improve this situation.

– A final–and more sweeping–idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies.  Volunteer immigration lawyers, who are knowledgeable about immigration law and who speak different languages, could serve on the disciplinary committee.  This way, aliens could file complaints directly to the immigration bar association, and those complaints would be reviewed by people familiar with the system and who (probably) speak the alien’s native language.  Also, an immigration bar association could require legal education and ethics training.

I don’t think we’ll see a mandatory immigration bar association any time soon, but I believe such an association would improve the quality of immigration attorneys.  For now, we will have to rely on state bar associations–however imperfect–to protect immigrants.

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