The Problem With Immigration Lawyers and How to Fix It, Part 1: Immigration Judges

by Jason Dzubow

The poor quality of the immigration bar is a much discussed topic in certain circles (I wrote about it here).  A recent study in the Cardozo Law Review that was featured last month in the New York Times provides an opportunity to discuss the situation, and give my two cents about how to improve representation for immigrants.  According to the Times, “The study was conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City.”  “Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation.”

Judges to Immigration Lawyers: You stink!

The Times reports that Immigration Judges in the New York City area were surveyed, and they were less than pleased with the quality of the attorneys practicing in their courts.  The judges said that 33% of immigrants have “inadequate counsel” and 14% have “grossly inadequate” counsel.  The judges “gave private lawyers the lowest grades, while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics.”

I believe that Immigration Judges bear some blame for the lawyers’ poor performance.  Aside from the fact that I’m a vindictive so-and-so who doesn’t like judges dissing attorneys, why would I blame judges for attorney behavior?  Let me explain.

Immigration Judges are bound by certain ethical rules, which are set forth in the Ethics and Professionalism Guide.  The Guide states that Immigration Judges–like all DOJ attorneys–have a duty to report allegations of misconduct by other Justice Department attorneys and “a duty to report allegations of misconduct by non-Department attorneys.” See United States Attorneys’ Manual (“USAM”), Chapters 1-4.100 & 1-4.150 (“Allegations of misconduct by non-DOJ attorneys or judges shall be reported to OPR [Office of Professional Responsibility] for a determination of whether to report the allegation to appropriate disciplinary officials.” (emphasis added)).  Thus, it is mandatory for IJs to report misconduct.

According to IJs in New York, 14% of attorneys are “grossly inadequate,” meaning:

They are often poorly prepared or make incoherent arguments in court.  Some fail to present key evidence or witnesses.  Others simply do not show up.

Under the rules of the Guide and the USAM, it seems pretty clear that Immigration Judges are duty-bound to report attorneys who engage in at least some of these bad practices.  To the extent that IJs do not report such behavior, they are encouraging and enabling incompetent and/or dishonest attorneys to continue preying upon naive aliens.

Based on my experience working at an Immigration Court and as a practitioner, everyone–including the IJs–knows who the bad actors are.  I am not talking about attorneys of good will who periodically screw up.  We all make mistakes.  I am talking about attorneys who routinely fail to provide minimally competent work and who regularly destroy their clients’ chances to remain in the U.S.  Given many foreigners’ inexperience with our system and their fear of the authorities, it is critical that Immigration Judges report incompetent and dishonest lawyers to the appropriate disciplinary committees.  When they fail to fulfill this duty, they allow the harmful conduct to continue.

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Hungarian Roma (Gypsies) Seeking Asylum in Canada

by Jason Dzubow

I was surprised to learn that the largest source country for asylum seekers in Canada is Hungary.  Embassy Magazine reports that 2,297 Hungarians–mostly Roma–filed for asylum in Canada in 2010.  During the first nine months of 2011, figures show that 2,545 Hungarians applied for asylum in Canada, 1,000 more than the next highest source country, China.  Presumably most of these asylum seekers were also Roma (Roma are pejoratively known as Gypsies). 

There’s a different story in the United States.  According to the DHS Yearbook of Immigration Statistics, only a nominal number of people from Hungary sought asylum in the U.S.  Indeed, the Yearbook does not even list Hungary as a source country, and in FY 2010, only 730 people from all of Europe applied for asylum here.

So why the difference between us and (as Herman Cain would call it) Cana-an-an-anada?

My first thought was that the difference must be related to visa requirements, but this appears not to be the case.  Embassy Magazine reports that, “Canada lifted visa requirements for Hungarian nationals in 2008,” but the same is true for the U.S.  As of November 2008, Hungarians are eligible to enter the United States on the Visa Waiver Program.

Maybe Bela Lugosi is scaring away his fellow Hungarians.

Another explanation may be that Canada already has a sizable Hungarian population, including many people who fled Hungary after the 1956 Revolution.  Immigrants tend to go where they feel more comfortable, in terms of culture, language, etc., and so the new immigrants might be joining their countrymen in Canada.  But it turns out that the U.S. has more Hungarians than Canada (including Drew Barrymore and–my personal favorite–Bela Lugosi) .  

A final reason might be that it is easier to win asylum in Canada than in the U.S.  But I don’t think that is the case either.  According to Embassy Magazine, Canada “accepted less than 10 per cent of the Hungarian refugee claims since 2009.” 

In the end, it is a mystery to me why Canada is receiving so many more Hungarian asylum seekers than the U.S.  What seems pretty clear, though, is that the situation for Roma people in Hungary is dangerous.  Many Roma have been murdered and right wing extremism is on the rise.  The main reason for the low asylum grant rate is not that Roma people are safe in Hungary.  Rather, the Canadian government believes the Roma can resettle in other EU countries where they can live safely (whether the Roma agree with this is a separate question).

There is talk in Canada of making it more difficult for Hungarians to obtain visas.  Even if visas are not restricted, if the grant rate remains low, the flow of Hungarians may slow down.  But if the situation for the Roma in Hungary is as bad as it seems, a 10% chance of gaining a better life in Canada might be enough to keep people coming. 

And yes, I know Herman Cain jokes are so last month, but I thought that was a good one.

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Jesus, Mary, and Joseph – Asylum Seekers

by Jason Dzubow

When Jesus was born, three wise men came to worship him.  According to Mathew, the men came from the East, and before they met Jesus, they went to King Herod and asked him, “Where is he that is born King of the Jews?”  When Herod heard their question, he was “troubled,” as he viewed himself as the Jews’ king. 

A 900-year-old depiction of the flilght into Egypt. From St. Catherine's Monestary in the Sinai.

Herod directed the wise men to Bethlehem, where the king’s prophets predicted the baby would be found.  He also ordered the wise men to inform him when they found Jesus, so Herod could come “worship” the new King.  Of course, this was a ploy–Herod wanted to find Jesus so he could kill him and eliminate the threat to his throne.  The wise men (being wise) understood Herod’s plan and failed to return with Jesus’s whereabouts.

Herod was not pleased that the wise men betrayed him, so he decided to kill all the babies born in the Bethlehem metro area, an event that became known as the Massacre of the Innocents.  Luckily for Jesus and his family, an angel came to Joseph and warned him about the impending danger.  Joseph gathered up his family and fled to Egypt, where they received asylum.  The family remained in Egypt until Herod died a few years later.  They then moved to Nazareth, to avoid living under the rule of Herod’s son, who was by all accounts worse than his father. 

There is nothing in Mathew about the family’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt).  These include a story about a tree that was worshiped by the locals as a god.  In fact, the tree was possessed by an evil spirit.  When Jesus approached, the evil spirit fled.  The tree then bent down to worship Jesus.  From then on, the tree was venerated by the people and possessed healing powers. 

Interestingly, the Coptic view holds that the people of Egypt–who offered refuge to Jesus and his family–were “richly blessed” for their good deed.  To me, this is a reminder that the helper often receives as much (or more) of a benefit than the person he is helping.

Merry Christmas and Happy Holidays. 

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The Little Things Mean a Lot

by Jason Dzubow

Over the years, I’ve attended many asylum interviews.  I notice that different Asylum Officers conduct the interviews in different ways.  While much of this is personal style, some of the differences strike me as something more.  I wonder whether these different interview techniques have any effect on the decision.  Below are some of the differences I’ve noticed, and some thoughts about them:

– Some officers type their notes; others write the notes by hand.  Also, some officers seemingly write down every word the applicant says, while others do not.  These differences are pretty substantive, and they speak to the need to record asylum interviews.   Asylum Officer notes are not only used to make decisions; they are sometimes used for impeachment purposes in Immigration Court.  Notes that are vague or illegible may not be admissible in court.  Also, if different officers are preparing their notes in different ways, it impacts the supervisor’s ability to review the Asylum Officer’s decision.  If interviews were recorded, the officers could take whatever notes they needed to make their decision, and we would still have an accurate record of the interview available to the supervisors and the Immigration Court. 

Some interview styles work better than others.

– Some officers make photocopies of original documents, even when we have submitted copies of those documents already.  Other officers rely on the copies we have submitted.  I don’t think this makes much difference in the case, but it is a bit odd.  Why does one officer trust the copies that we’ve submitted while another officer wants to make her own copies? 

– Some officers copy the lawyer’s ID, others do not.  Again, I don’t see how this makes any substantive difference, but I have no idea why one officer wants a copy of my photo ID while another has no need for it.

– Most Asylum Officers review the form I-589 with the applicant at the beginning of the interview and allow the applicant to make any needed corrections.  A few officers do not review the form and instead make corrections as needed throughout the interview.  This difference strikes me as substantive because it may affect how an officer views the applicant’s credibility.  If the officer reviews the form at the beginning, and then the applicant’s story is not consistent with the form, the officer can find him not credible.  However, if the officer does not review the form at the beginning of the interview, it is a bit unfair to base an adverse credibility finding on a statement that is not consistent with the form, since the applicant did not have an opportunity to correct any errors.

Well, those are a few differences I’ve noticed.  Whether they have any effect on decisions, I don’t know.  But it seems to me that whenever decision makers use different techniques in their interviews, it is worth noting.

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UFO Cult Leader from Iran Granted Asylum in the U.S.

by Jason Dzubow

According to Raelia News, Negar Azizmoradi, a leader of the Iranian branch of the International Raelian Movement has been granted asylum in the United States.  Ms. Azizmoradi faced a possible death sentence in Iran because of her leadership role in the Raelian movement and because she is an atheist who renounced Islam (apostasy is punishable by death in Iran).  She fled to Turkey, where the government jailed her and threatened to return her to Iran.  After Raelians and others from different countries protested, the Turkish government released her and allowed her to come to the United States.  Last week, she received asylum (given the timing of events, it might be that she came here as a refugee, rather than claiming asylum after she arrived).

For those of you not familiar with Rael (a/k/a Claude Vorilhon) and his followers (called Raelians), here’s a bit of background.  Mr. Vorilhon was born in France.  He has been a race car driver, a singer, and a journalist.  In 1973, he encountered extraterrestrials, who gave him a message to pass on to other humans.  The message involved the secret history of the world and the return of the extraterrestrials.  Since then, Rael (as he is now known), has been spreading his news around the globe.  It’s not surprising that some countries, including Iran, have been less than receptive to his message.

For me as an attorney, Ms. Azizmoradi’s asylum application would have been a dream case.  Not that I’m a great fan of Rael, who supported Muammar Gaddafi and seems to have no love for the Jews.  However, I am a big fan of UFOs, lost civilization, and all things Fortean, and a Raelian asylum case certainly fits that bill. And asylum seems necessary here, where Ms. Azizmoradi faced persecution (or worse) in Iran.

Barney Hill: Immigrant and Abductee.

While we are on the subject of UFOs and immigrants, here’s an interesting tidbit.  The most famous UFO abduction case involved a couple, Betty and Barney Hill.  In September 1961, the Hills were driving through New Hampshire when they spotted a flying saucer (as UFOs were called back then).  They could see humanoids observing them from inside the saucer.  After their encounter, they realized that they “lost” three hours of their lives.  The case was investigated by the U.S. military and others, and has been the subject of several books and TV movies.  It also marked the beginning of an abduction craze, and many people claimed experiences similar to the Hill’s.

While people familiar with Hill’s case know that the couple was of mixed race (which was very unusual for 1961 America), what is not widely known is that Barney Hill was either an immigrant from Ethiopia or a descendent of Ethiopian immigrants.  I have never been able to find much information about this aspect of the case, but it strikes me as quite interesting.  When and why did he come here?  What was his birth name (I’ve met a lot of Ethiopians, but never any named Barney or Hill)?  How did he meet his wife?  Much has been made of Barney’s race in analyzing the case, including a recent scholarly article, but I have never seen anything specifically addressing his status as an immigrant.  I suppose there are many questions, but no answers.  So, as the ufologists say: Keep watching the skies!

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Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

by Jason Dzubow

Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.”  And who has the informant been ordered to turn over this information to?  The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.  If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.

First, a bit of background.  Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.  I’ve written about him before, here and here  (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.  The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.  The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.”  Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks. 

I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas.  But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.  It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.  Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.  Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.  While discovery in civil cases is quite broad, it is not unlimited.  Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.  Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.  If  this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.  For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant. 

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The Tyranny of Unreturned Phone Calls

by Jason Dzubow

Aliens have a due process right to a fair hearing in Immigration Court.  At what point is that due process right violated when the alien (or her attorney) is unable to communicate with the Court or the DHS attorney?

It is a common scenario for the attorney to contact DHS counsel for a pre-trial conference.  The purpose of this communication is to narrow the issues and learn about DHS’s position in the case.  More often than not, messages left for DHS counsel are not returned.  The DHS attorneys usually have an explanation for failing to return calls—they are too busy or they are not responsible for that particular case.  But the inability to speak with government counsel prior to trial often has real-life consequences for aliens in Immigration Court.

This guy had an easier time making a phone call than most immigration attorneys.

For example, I recently had a Nepalese asylum case remanded by the BIA.  The Board found that my client had suffered past persecution based on a protected ground, and remanded the case to determine whether DHS had any evidence to rebut the presumption that my client faces a well-founded fear of future persecution.  It was pretty obvious that DHS would not rebut the presumption, and the IJ could grant asylum (the IJ said as much himself in court).  Unfortunately, several calls to DHS went unreturned, and when we got to Court, the DHS attorney was unable to state the government’s position.  The result: The case is delayed for several months so DHS can decide what to do.

We face similar problems when attempting to communicate with the Immigration Court.  A recent example of this for me was when the Court rescheduled one of my cases to a date when I was unavailable.  I promptly filed a motion to reschedule, but there was no response.  I called the Court numerous times.  Sometimes, the phone just rang with no answer.  Other times, I left messages that were not returned.  A few times, I actually spoke to someone, but those people were unable to help (they told me that the Judge had the motion but had not yet made a decision).  In the end, I had to send the client to Court without me.  The Judge was angry and blamed me.  He threatened that if I was not in Court the next time, the case would go forward without me.  In the end, he rescheduled the case.  But my inability to communicate with the Court almost caused my client to lose her right to an attorney.

The obvious solution is for DHS attorneys and court employees to return our phone calls.  But I know it is not that simple.  Case loads are oppressive, and I imagine the government workers receive many phone calls and messages.  There is very little time to return calls.  (Not to let government workers off too easy—I also receive many phone calls and have a busy schedule, but I return all my calls).

Aside from hiring more employees (not gonna happen), I am not sure how to make this better.  Perhaps there could be a dedicated email address, which we could use to communicate with the Court or DHS.  The email could be screened by an employee and priority issues could be forwarded to the appropriate party.  Or maybe there could be AILA/immigration lawyer volunteers who act as liaisons to DHS or the Court.  For the time being, though, we are left to call repeatedly and hope we reach someone.

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EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

by Jason Dzubow

The New York Times recently reported on a new policy at the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) designed to prioritize the removal of criminal aliens.  Under the policy, DHS will review cases and terminate proceedings for aliens deemed a low priority for removal.  At the same time, EOIR (the Immigration Courts) will re-arrange its dockets to expedite priority cases.  From December 4, 2011 to January 13, 2012, EOIR will be implementing the Prosecutorial Discretion Pilot Project in Baltimore and Denver.  The results for aliens seeking asylum are already pretty devastating, and if the program goes national in its present form, we can expect serious problems for many asylum seekers.

Some experiments have unintended consequences.

My first experience with the program came last week when we received notice that my client’s Individual Hearing was re-scheduled from this December to May 2014 (yes, that is 2014, almost 2.5 years from now).  The man is an Eritrean national who fled persecution in his homeland.  He has a decent case and he had been hoping for a resolution later this month.  Now he must wait until 2014.  He has no work permit and the Asylum Clock is stopped in his case.

According to EOIR, the goal of the Pilot Program is “to ensure that [limited] resources are focused on the Administration’s highest immigration enforcement priorities.”  Unfortunately, in this case, the Administration’s “enforcement priorities” (i.e., removal of aliens) comes at the expense of our country’s humanitarian obligations.

Part of the problem, I think, is the government’s attitude, articulated by the Supreme Court in INS v. Doherty, 502 U.S. 314, 323 (1992), that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”  I have always felt that this statement reflects an insensitivity and ignorance about many aliens who are in the U.S.  While some aliens do merely hope to delay their removal, asylum seekers wish to see their cases resolved as quickly as possible.  There are a number of reasons for this: Asylum seekers are hoping to petition for their family members, some of whom face threats in the home country; asylum seekers fear return to their country, and waiting for years to learn their fate is extremely stressful; many asylum seekers are young and hope to study in university, which is difficult without lawful status; many asylum seekers are well educated and hope to find professional jobs, which is also difficult without status.

For all these reasons, delaying asylum hearings for 2+ years is devastating to many asylum seekers.

The Pilot Program is going forward, and I imagine that the same or similar policies will be adopted throughout the U.S.  Given this new reality, here are a couple suggestions about how EOIR can mitigate the difficulty to asylum seekers and other aliens who are hoping for a resolution of their cases:

– When an asylum case is postponed, the Asylum Clock should start automatically, so that the asylum seeker can obtain her work permit.

– EOIR should reserve some time slots in the (relatively) near future for asylum seekers and others whose cases have been postponed.  Aliens that wish to have a sooner resolution of their cases can file motions to expedite.  Thus, for example, if EOIR reserved some time slots in 2012, my 2014 client could file a motion requesting one of those dates.

Finally, while it might be futile to argue that we should not be prioritizing removals over protecting people fleeing persecution, I want to give it a try.  Statistically, most removals involve people with no criminal histories.  Even many “criminal aliens” are convicted of very minor violations (driving without a license, using a false ID, and drunk in public are three common violations).  The benefit to the U.S. of removing these people quickly–and often separating them from their family members–is pretty minimal.  On the other hand, as discussed above, the harm of leaving legitimate asylum seekers in limbo for long periods is severe.  If these competing interests are balanced, it seems unjust that asylum seekers should never receive priority over the removal of “criminal aliens.”  EOIR should re-think its policy to account for the needs of legitimate asylum seekers.

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Most Canadian Refugee Judges Fail Re-Appointment Test

by Jason Dzubow

As Canada implements changes to its asylum program under the Balanced Refugee Reform Act, its refugee judges are required to apply for new positions that will commence in June 2012.  The refugee judges are currently political appointees.  To qualify for the new positions, applicants must take a multiple choice and written exam, and pass an interview.

Canadian judges spent too much time partying in high school.

According to the Canadian Star, out of 63 refugee judges, “only 10 have passed the exams and screening process, while nine are awaiting final interviews.”  Of the remaining 44 judges, “[o]ne was screened out immediately, 24 failed the multiple-choice and written exams, six did not show for the exams, seven were eliminated at interviews, and six withdrew from the process.”  Forgetting judges that decided not to re-apply, this means that over 50% of politically appointed refugee judges in Canada failed the exams or the interview. 

The Star notes that the “refugee judges’ poor performance has raised concerns about the quality of decisions they have made.”  No kidding.

So what are the implications for us, down here on the civilized side of the border?

First, it is pretty clear that we have problems of our own.  The important article Refugee Roulette: Disparities in Asylum Adjudication makes clear that decisions by Immigration Judges (and other adjudicators) often depend on who is making the decision rather than the facts of the case.  The authors found statistically significant evidence that an IJ’s work experience prior to appointment affects his or her decision-making in a particular case.  The obvious implication is that the system can easily–and subtle–be manipulated through political appointments.

This is not merely an academic point.  Just last week EOIR swore in three new judges.  Two of the three have experience with DHS or INS and all three have experience as administrative adjudicators.  From their bios, it appears that only one of the three has ever had any experience representing immigrants, and that was almost 20 years ago.  While these new IJs all seem like well-qualified individuals, their selection from within the government raises concerns, particularly in light of the biases revealed in the Refugee Roulette article.

So what is to be done? 

The authors of Refugee Roulette basically recommend more and better training.  That certainly makes sense.  Here are a few other ideas:

– The BIA should publish more decisions, to provide more guidance to Immigration Judges.

– The selection process should be broadened and more effort should be made to hire judges from the private and non-profit sectors.

– IJs whose grant or denial rate is out of whack with the mainstream should receive additional training and additional scrutiny to ensure that their decisions are complying with the law.

Maybe the lesson from Canada is that, with judges who are essentially political appointees, we need to be extra careful–and take the necessary extra steps–to ensure that they are qualified and able to properly adjudicate immigration cases and interpret the immigration law.

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Who Was Emma Lazarus?

by Jason Dzubow

Everyone knows her words:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door.

But if you are like me, you probably don’t know much about the woman who wrote these lines in 1883.  A new exhibit at the New York Museum of Jewish Heritage explores the life and times of Emma Lazarus. 

The words of Emma Lazarus continue to inspire.

The exhibit, Emma Lazarus: Poet of Exiles, marks the 125th anniversary of the dedication of the Statue of Liberty, and is the first major museum exhibition about Ms. Lazarus.  The exhibit includes rare artifacts that explore her unique story and message.  Emma Lazarus was a poet, playwrite, and novelist.  She also translated many works from Jewish poets into English.  She was a decendant of Portugese Sephardic Jews, who settled in the U.S. prior to the Revolutionary War.  Her family includes several prominent Americans, including Benjamin Cardozo, an Associate Justice on the U.S. Supreme Court. 

Ms. Lazarus was also an activist.  She taught Russian Jewish immigrants in New York and helped them become self supporting.  She also traveled twice to Europe.  When she returned from her second trip, she was very ill (probably with cancer), and she died two months later, in November 1887.  She was 38 years old.

The exhibit opened last month and runs until the summer of 2012.  To learn more, check out the museum’s website, here.  Also, if you would like to read more about Emma Lazarus, check this post in the Jewish Women’s Archive.

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New Rules for the Asylum Clock

by Jason Dzubow

Nobody makes simple things complex better than the government.  The new 16-page, single-spaced memorandum on the Asylum Clock is a perfect example.  As far as I can tell, there are no major changes to how the Clock works, but there is some new “guidance.” 

I should say at the outset that I think the Asylum Clock is one of the stupidest ideas to be put into law since Prohibition (I’m a big drinker), so my comments here should be taken with a grain of salt (also, I’m drunk).  With that in mind, here are some observations on the new memo:

"The Persistence of Memorandum" by Salvador Dali.

The memo clarifies that cases referred to the IJ from the Asylum Office with less than 75 days on the clock are “expedited cases,” meaning that the IJ “should” complete them within 180 days from the date that the application was filed.  To comply with this rule, IJs sometimes bump non-expedited cases, thus causing major delays for other respondents.  This seems like a lot of trouble just to prevent an asylum applicant from getting her EAD.  Given the massive delays in all Immigration Courts, why not simply make all cases non-expedited?

The memo does not change the requirement that to start the clock in a defensive case, the I-589 must be filed with the Immigration Judge in open court.  This means that if the hearing is scheduled for next year, the Clock will not start until the application is filed in court next year.  The easy solution here would be to allow applicants to file their I-589 forms with the clerk (this would have the added advantage of avoiding problems with the ever-annoying one-year asylum bar).  Clerks are competent to determine whether an application is substantially complete and, if so, they could start the Clock.

One bit of clarification that seems helpful is that the Clock will restart at the next hearing after a delay caused by the applicant.  Where I practice, different IJs have different policies on the Clock, and this will hopefully resolve the issue of restarting the Clock after the applicant causes a delay.

For a more detailed discussion of the new memo, see the American Immigration Counsel’s statement released on Monday, which offers some helpful criticism.

The bottom line for me is that the Asylum Clock should be completely re-done.  The Clock should run from the date that the application is filed.  It should only be stopped if the IJ (or the Asylum Officer) determines that the applicant is purposely causing a delay in order to abuse the system and obtain an EAD.  I understand the need for the Clock: To prevent aliens from filing for asylum solely to obtain an EAD, and so I do not support returning to the old days when asylum applicants got an EAD immediately after filing (and many people abused the system).  However, the pendulum has swung way too far, and we waste way too much time and energy on this issue.  There are far fewer frivolous cases today, and the Asylum Clock mainly serves to make life more difficult for legitimate asylum seekers.  By shifting the presumption in favor of asylum seekers, we can restore some of the balance and help–rather than harm–people fleeing persecution.

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The Forgotten Path to Asylum: “Other Serious Harm”

by Jason Dzubow

In most cases, to obtain asylum, an applicant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  But there are a couple of exceptions: “Humanitarian Asylum” and “Other Serious Harm.”

Humanitarian asylum allows an applicant to receive asylum if she “demonstrate[s] compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(1)(iii)(A).  In other words, we don’t send a person back to a country where she faced severe past persecution based on a protected ground, even if it would be safe for her to return to that country today.  I had a case a few years ago that illustrates this type of relief–My client was a 10-year-old Tutsi girl in Rwanda in 1994.  When the genocide began, she went with her mother and two siblings to hide in a church.  The Interhamwe militia arrived and separated the people in the church into two groups: one group that would live and one that would die.  The little girl fainted (mercifully) before she could see her mother and one sibling murdered.  Years later, she was in the U.S. seeking asylum.  For some reason, the Asylum Office referred her case to the Immigration Court and she hired me.  We were able to get humanitarian asylum based on the severity of her past persecution.  In a sense (the legal sense), this was an easy case.  Humanitarian asylum is well-known and relatively common.

Kids, eating your vegetables is not "other serious harm."

A less well known form of relief is asylum based on other serious harm.  To obtain asylum on this basis, an applicant who has suffered past persecution based on a protected ground must “establish[] that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(B).  Put another way, where an asylum applicant suffered past persecution based on a protected ground, but he no longer has a well-founded fear of future persecution based on that ground, he can still obtain asylum if he demonstrates that he could suffer “other serious harm” in his country.  “Other serious harm” does not have to be based on a protected ground, and it does not have to be related to the original persecution. 

I had a case recently where this would have been an appropriate form of relief, had I known about it (why is it that I always learn these types of things after the fact?).  My case involved a guard who worked for the Special Court for Sierra Leone–the court that tried war criminals from the time of the civil war. During the civil war, my client was persecuted based on his political party affiliation.  In 1991, rebels killed his parents in order to retaliate against him for his political activity.  My client was working for the Special Court more recently, and he was assigned to protect an important witness.  Former rebels who did not want the witness to testify asked my client to murder the witness in exchange for money.  He refused, and reported the incident to his superiors.  After his refusal, the former rebels repeatedly threatened to kill him, they broke into his house and left a warning note, and finally they invaded his house to kill him.  He ran from the house and fled the country.

My client satisfied the first prong for “other serious harm” relief–He was persecuted on account of his political opinion during the time of the civil war.  He also satisfied the second prong–He was facing harm or death because he failed to comply with the demands of the former rebels to murder the witness.  Unfortunately, at the time, I did not know about relief based on “other serious harm.” 

Luckily for my client (and me), the DHS attorney felt that my client qualified for humanitarian asylum based on the severity of the past persecution, and so asylum was granted.  However, the more appropriate form of relief was asylum based on “other serious harm.”  I learned about this avenue of relief at the First Annual USCIS Ombudsman’s Conference, which took place about a week after my case.  Aside from the bad timing, it was a great conference.  Anyway, now that I know, I thought I would share some information about “other serious harm,” as it might be helpful to others in their cases.

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Pleading the Fifth

by Jason Dzubow

It’s rare that one of my clients or witnesses needs to assert the protection of the Fifth Amendment, but it happened the other day in court.

The case involved an Eritrean who fled persecution in his country and made his way to the U.S. with the help of smugglers.  His journey cost more than $10,000.00, paid for by various relatives.  One of the relatives came to court as a witness.  During cross examination of this witness, the trial attorney asked about sending money to my client to pay the smugglers.  Not only is this a crime, but it is also a deportable offense (the witness is a lawful permanent resident). 

The Fifth Amendment: It's not just for baseball players, Solyndra executives, and comedians.

I objected to the question on the basis that the witness was unrepresented, and if he testified about paying for a smuggler, his testimony could be used against him in a criminal prosecution (not to mention a removal proceeding).  After my objection, the IJ instructed the witness about his rights under the Fifth Amendment and the witness chose to invoke his right against self incrimination.  Probably a smart move.

The situation raises a few issues.  For one, what is the attorney’s obligation to protect the witness?  I certainly could have allowed the witness to answer DHS’s question.  The witness did not know that he might face prosecution for helping his friend enter the U.S. illegally; nor did he know about his Fifth Amendment right.  In this case, there was no conflict between my client’s interests and the witness’s, and so objecting was clearly the right thing to do.  But what if the witness’s testimony would have helped my client, but harmed the witness? Perhaps I would be obliged to allow the witness to testify in order to help my client (I have a duty to my client, but not to the witness).  I suppose this points to the need for witnesses to have their own attorneys in court, but as a practical matter, I imagine that is pretty unlikely.  

Another issue is the Immigration Judge’s obligation in this situation.  A quick review of the Immigration Judge Benchbook does not reveal any helpful guidance.  The Ethics  and Professional Guidelines are little better, though they do advise the IJ to “act in a professional manner towards all… witnesses.”  Based on this, one could argue that the IJ should inform a witness when he is entering dangerous territory.  To the extent that IJs are not obligated to notify witnesses of potentially self incriminating testimony, it seems to me that EOIR should create some guidance on this point to protect witnesses in Immigration Court.     

Finally, does the DHS attorney have any obligation to the alien?  The only other time a Fifth Amendment issue came up in one of my cases, I was questioning a witness and the DHS attorney pointed out that the witness’s answer might incriminate him (and no, I was not purposely out to get the witness; I didn’t realize that my question had potentially dangerous consequences).  DHS attorneys represent the government and should act justly.  However, sometimes there are good reasons to question a witness about issues that might incriminate him.  DHS attorneys need to balance their obligation to do justice with the need for information in the case.  I would argue that DHS attorneys should warn witnesses when they are asking questions that might incriminate them, but my guess is, most DHS attorneys would disagree with me.

As for my case, the Respondent was granted relief under the Torture Convention (a result we were not thrilled with, but it beats a denial) and the witness did not incriminate himself.  I guess that is mostly a happy ending.

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Gay Saudi Diplomat Denied Asylum

by Jason Dzubow

About a year ago, I wrote about Ali Ahmad Asseri, the first secretary of the Saudi Arabian consulate in Los Angeles, who applied for asylum based on his sexual orientation.  Now, the Jerusalem Post reports that his claim for asylum has been denied (the article also demonstrates the Post’s shoddy journalism, but more on that below).

This photo probably was not taken in Saudi Arabia (and not just because of the snowy mountains in the background).

According to the Post, Mr. Asseri’s supporters believe that the decision to deny asylum was politically motivated: “This was a political decision by the Obama administration, who are afraid of upsetting the Saudis,” one Saudi dissident said.  The Post also hints at another issue in the case:

[Mr. Asseri’s] initial interview with Homeland Security was very positive, but then they came back and grilled him for two days after they found out that he had worked in the public prosecutor’s office in Saudi Arabia….  He had been an inspector to make sure that judicial punishments, such as lashings, were carried out within the law – not more, not less.  They then accused him of participating in a form of torture.

Anyone familiar with U.S. asylum law will immediately see the problem–people who persecute others are barred by statute from obtaining asylum.  Mr. Asseri apparently participated in punishments “such as lashings” (and who knows what else?), and so he is barred from asylum as a persecutor.  There is nothing political about this, and it has nothing to do with the Obama Administration somehow trying to appease the Saudis. 

Despite his bar against asylum, Mr. Asseri is possibly eligible for Withholding of Removal and he is certainly eligible for relief under the UN Convention Against Torture (Saudi Arabia is known to torture and kill gay people).  The Asylum Office does not have the legal authority to grant these forms of relief; only an Immigration Judge has the power to do so.  From the Post’s article, it is unclear who (Asylum Officer or IJ) denied Mr. Asseri’s claim, but my guess is that he was denied by the Asylum Office.  If so, his case will be referred to an Immigration Court, where–as a high-profile gay man–he probably has a good chance of being granted Withholding of Removal or relief under the Torture Convention.

And now a word about the Jerusalem Post’s–and correspondent Benjamin Weinthal’s–sloppy reporting.  The Post is a right-wing newspaper that does not like President Obama.  From what I see on-line, Mr. Weinthal is a right-wing journalist who also is no fan of the President.  It is not surprising that those who dislike President Obama would make negative assumptions about him.  What is surprising is that supposedly legitimate news organizations/reporters would fail to actually research the asylum law, which clearly indicates that a persecutor is not entitled to asylum.  Instead, they assume that a lower-level decision-maker (an Asylum Officer or IJ) is ignoring the law and implementing Administration policy to appease Saudi Arabia.  The assumption is not only ridiculous, but intellectually dishonest.  Further, it is made in support of an ideological position.  The Post and Mr. Weinthal should be ashamed of themselves for their shoddy “journalism” and allowing their dislike for the President to trump their responsibility to tell the truth. 

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Asylum Applications Up in 2011; Arab Spring Has Modest Impact

by Jason Dzubow

Asylum claims in “industrialized” countries were up 17% during the first half of 2011, according to the United Nations:

An estimated 198,300 asylum applications were recorded during the first six months of 2011 in the 44 countries included in this report.  This is 17 per cent more than during the same period 2010 (169,300), and is nearly identical to the number of applications recorded during the second half of 2010 (197,600).

Coincidentally, asylum lawyers received a 17% raise in the first half of 2011.

Applications in North America were up 25% and the U.S. received more asylum seekers than any other country (36,400).  The second most popular receiving country was France (26,100), followed by Germany (20,100), Sweden (12,600), and the United Kingdom (12,200).

The top five “source” countries for asylum seekers for the first half of 2011 were: Afghanistan (15,300), China (11,700), Serbia and Kosovo (10,300), Iraq (10,100), and Iran (7,600).

Asylum seekers from countries experiencing the Arab Spring are up, but not as significantly as European leaders had feared.  According to the UN:

The high­est relative increase was recorded for Tunisian citizens whose asylum claims increased from 410 to more than 4,600, primarily in the number of arrivals in Italy by boat.  The first half of 2011 saw more Tunisians lodging asylum claims than during the entire period from 2004 to 2010 put together.  Similarly, there was a major increase in asylum applications lodged by Libyan citizens, with 2,000 claims during the first half of 2011 compared to only 800 during the whole of 2010.

While these increases are large in percentage terms (according to my–probably questionable–math, Tunisian claims are up by more than 1,100%), the relative numbers are not all that dramatic.  Perhaps this demonstrates that when people have an outlet for their political aspirations, they tend to remain in their home countries.  As the Arab Spring grinds along in countries like Syria and Yemen, we can expect those countries to produce greater numbers of asylum seekers–When people have no hope and when governments murder their citizens instead of listen to them, people have no choice but to flee to safer lands.

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