Appointing Attorneys May Be Cheaper Than Detaining Disabled Aliens

by Jason Dzubow

The recent case of a Jamaican asylum seeker who was held in detention for over a year prior to trial because he was unable to communicate with the Immigration Judge illustrates why appointing attorneys to aliens may be more cost-effective in certain cases.

Derrick Cotterel came to the U.S. 10 years ago.  After being arrested for robbery, he landed in removal proceedings.  Mr. Cotterel requested asylum because he fears returning to Jamaica, where police allegedly failed to investigate his brother’s murder because of the brother’s political activity.

Mr. Cotterel has a severe stutter, which prevented him from communicating with the Immigration Judge.  He is also illiterate, so he could not communicate in writing.  As a result, he sat in the York County, PA detention facility for 10 months before an  IJ was able to decide his case (his application was denied).

Paying for attorneys may be cheaper than paying for fancy prison cells.

At about $96.00 per day, the cost to tax payers for Mr. Cotterel’s incarceration was approximately $28,800.00.  This seems like a big waste of money, especially considering that if we had paid a few thousand dollars for a lawyer, the case would likely have been resolved much more quickly, saving money for Mr. Cotterel’s detention, and helping to ensure a fair hearing.

One possible solution is to assign a public defender-type attorney to each major immigration detention facility.  These attorneys would be paid for by the government, and would represent detained aliens who could not represent themselves (for example, children or disabled people).  With attorneys representing the most problematic detained cases, the cases would move along more quickly and this would save money.  It would also help to protect the rights of the most vulnerable aliens in the system.

Another possibility would be to pass the Refugee Protection Act of 2010, which requires that detention facilities be located near cities with lawyers who can represent aliens pro bono.  In this case, perhaps the government could subsidize the pro bono attorney’s expenses in order to encourage more lawyer to help detained aliens.

It is in the best interest of everyone to find lawyers for detained aliens who are incapable of assisting themselves.  It will help protect immigrants’ rights, ensure that we fulfill our humanitarian obligations, and save money.

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EOIR to Stop Wasting DOS’s Time

by Jason Dzubow

The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State.  Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department.  The Immigration Judge would forward the application to the State Department, which could comment on the application.

Secretary of State Hillary Clinton reviewing asylum applications for EOIR.

The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole.  Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations).  I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.

I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).

Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.”  Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.

The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker.  It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful.  Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary.  She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker. 

In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system.  The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.

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What Does “Persecution” Really Mean?

by Jason Dzubow

There is no uniform definition for the term “persecution.”  While different courts have attempted to define the term, its meaning has remained frustratingly elusive.  A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering.  About his article, Prof. Rempell writes:

Most people, even those with no immigration background, have some idea about what persecution means.  They know to equate persecution with inflicted suffering.  But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.

There are many definitions of persecution.

During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts.  Does the harm have to be severe or will any harm suffice?  Will one instance of harm be sufficient or must the harm be systematic?  Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient?  Courts have come out on both sides of each of these questions, and many other questions as well.  It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.

After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution.  In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.”  If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN.  Here is a copy of the abstract:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Prof. Rempell welcomes feedback at srempell@stcl.edu.

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The BIA’s Ridiculous Deadline

by Jason Dzubow

beeI once heard about an Admiral during WWII who described carrier warfare as hours of boredom punctuated by moments of terror.  That is a bit like how I think of appeals to the Board of Immigration Appeals.

First, you file your appeal.  Nothing happens for a couple months.

Then, the transcript arrives.  You theoretically have 21 days to write the brief.  However, by the time you receive the transcript, a few days have passed.  Plus, you have to make sure that the appeal brief is received by the Board no later than day 21, so you have to mail it early.  Thus, you actually have about 15 or 16 days to write the brief.  Of course, the transcript always arrives when you are about to leave for vacation or when you have three individual hearings to prepare for, so the 15 or 16 days is not enough.  You can ask for one extension (which seems to be granted as a matter of course), so you can realistically gain a total of about 36 or 37 days to prepare the brief.

After the brief is filed, you will then wait one to two years for a decision.

So my question is: Since these appeals take so long anyway, why are we given such little time to prepare a brief?  

Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date.  But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?

There is, of course, a downside to limiting the time for the brief: Given most attorneys’ busy schedules, it is difficult to do our best work when we have insufficient time to write the brief, particularly if we are unlucky enough to have the transcript and briefing schedule arrive at a bad time (which always seems to happen).

The obvious solution is to extend the time for filing the brief.  Federal appeals courts (at least where I practice) generally give about 45 days to file the brief.  Lower courts usually give at least 30 days.  All these courts grant extensions where warranted.  At a minimum, the BIA should initially grant six weeks to file the brief; at least this would save lawyers the time and uncertainty of having to ask for a three-week extension.

With more time, we can expect better briefs–not only from the private bar, but also from DHS.  I imagine this would result in better BIA decisions.  There is really no good reason for such short deadlines with the BIA.  The Board should consider extending the time for filing briefs.

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Afghan Asylee Murdered in San Diego

by Jason Dzubow

Mir Najibullah Sadat Sahou was an economist and the governor of the Afghan Central Bank before he fled Afghanistan in 1992. Like many refugees and asylees, Mr. Sahou could not find work in his field.  Instead, he drove a taxi, supported his family, and continued his political activity by appearing regularly on a talk show on Ariana Afghanistan International TV. 

Mir Najibullah Sadat Sahou

Mr. Sahou, age 68, was gunned down on September 28, 2011.  According to CBS News, the police have identified a suspect and issued an arrest warrant.  It appears that the motive was robbery, but given Mr. Sahou’s political activism and his prior high-profile job, other motives cannot yet be ruled out.

The story of a prominent person who flees his country and starts over in the U.S. is fairly common among refugees.  When I worked in refugee resettlement in the early 1990’s, I knew a Russian man who had designed the radar system for the Backfire Bomber (the Soviet Union’s main long-range bomber).  In the U.S., he worked as a mechanic in a machine shop.  I also met the former Minister of Finance for the Ethiopian army.  He worked in a parking garage.  It takes a certain strength of character to go from a prominent station in life to one that is more humble.  But like many refugees, Mr. Sahou appears to have carried on for the sake of his children (one of whom is a pre-med student).

Another aspect of Mr. Sahou’s story that strikes me is his on-going concern  for his home country.  Although he did not have a professional position in his field, he continued to work for the betterment of Afghanistan by educating the public through his television show. 

Finally, although the motive for the attack seems to have been robbery, there have been many instances of foreign agents operating clandestinely in the United States and attacking political opponents.  The most famous example is probably the 1976 assassination in Washington, DC of Chilean activist Orlando Letelier, who was murdered by agents of the Pinochet government, but many foreign government have engaged in violent acts against their nationals in the United States, including China (against the Falun Gong), Cuba (against anti-Castro Cubans), and Iraq (under Saddam Hussein).  Just last week, the Justice Department announced it had uncovered an Iranian plot to kill the Saudi Ambassador in the United States (a claim disputed by Iran).  Given the frequency of such activity, it would be wise to look closely at Mr. Sahou’s case to be sure that no foreign government or agency is behind the attack.

Of course, whatever the motive, the murder of a family man who worked hard, served his home country, and loved his adopted country is a terrible tragedy.  May he rest in peace.

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Jewish Lawyers; Muslim Immigrants

by Jason Dzubow

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, “when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

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Fear and Loathing in the Asylum System, Part III: A “Solo” Visa for Refugees

by Jason Dzubow

For those who seek to limit immigration to the U.S., one area of concern is so-called “chain immigration,” where one immigrant brings multiple family members to the United States. 

This applies to asylees and refugees as follows: Such people can immediately bring their spouses and under-21, unmarried children to the United States (the term “immediately” here means that there is no backlog – processing the family member takes anywhere from six months to several years).  Asylees and refugees are eligible for their green card after one year, and then their citizenship four years later.  Once they have their green card, they can file for their over-21 children (including the child’s spouse and under-21 children), and once they become citizens, they can file for their parents, siblings (including the sibling’s spouse and under-21 children), and married children (including the spouse and under-21 children).  In short, after the asylee or refugee becomes a U.S. citizen, she is eligible to bring multiple family members to the United States–“chain migration.”

In a recent blog post on the Center for Immigration Studies website, David North argues that we could limit chain immigration by prohibiting asylees and refugees  from filing for family members other than spouses and under-21 children.  Before responding to Mr. North’s proposal, I want to mention a few points.  First, I disagree with the presumption behind the proposal–the idea that immigration has a negative effect on our society and should be more limited than it already is.  Of course, too many immigrants could not be absorbed and integrated, but I am not convinced we have reached that level.  Second (and maybe this is a contradictory point), I believe we should eliminate the “siblings” category of immigrants.  There are large backlogs for many categories of immigrant.  I think we would be better off eliminating the siblings category and using those slots for children and spouses of lawful permanent residents.  It never made sense to me that we allow the principal immigrant to come here with a green card, but we make his family members wait for years to join him.  This greatly delays the family members’ integration into our society, keeps family members unnecessarily separated, and causes the principal to send his earnings out of the U.S. to support his family.  We’d be better off bringing the family members here sooner, and one way to do that is to use the visa numbers that are currently given to siblings.

Reunited and it feels so good...

All that said, I must respectfully disagree with Mr. North’s proposal for several reasons.  For one thing, allowing asylees and refugees to bring their family members here does not greatly increase the overall number of people immigrating to our country.  For most categories of family immigrants, there are numerical limits on the number of people who can immigrate to the U.S. each year.  Thus, at worst, the relatives of the asylees and refugees will displace the relatives of other people who are waiting to immigrate.  There will be very little increase in the overall numbers.

Second, I disagree with the idea of making asylees and refugees “different” from others who come to the U.S.  It seems to me, if we are bringing such people to the U.S., we ought to treat them the same as every other immigrant once they become lawful permanent residents or U.S. citizens.  It is better to integrate these people into our community, rather than erect barriers that make them feel excluded. 

Finally, many asylees and refugees will never return to their home countries.  For some, the only hope of seeing their family members is that they can file petitions for them to come to the U.S.  Given the very long waiting times for an immigrant visa, and depending on which relatives are petitioned, such people can expect to wait anywhere from five to 20 years (or more) to see their family members.  Thus, while many asylees and refugees have only a slim hope of seeing their family members again, I suppose this is better than no hope at all. 

In the end, Mr. North’s proposal is quite modest.  I just believe that the “benefits” (i.e., a small reduction in the number of people coming to the U.S.) are not worth the costs.

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Dear Client: I am Not Your Mommy

by Jason Dzubow

Some clients just don’t get it.  No matter how often you tell them what evidence they need for their case, they bring you bupkis.

Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum.  I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc.  I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available.  If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it.  Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).

I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built).  I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.

Is all this excessive?  You would think so.  You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.

Many clients do, in fact, make diligent efforts to get evidence in their cases.  It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves.  Such clients greatly reduce their chances for a successful outcome.

So what can be done about these slacker-clients?  One possibility, of course, is to do nothing.  If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may.  This does not seem like a very satisfactory solution, though.  For one thing, there may be a legitimate reason why the client is not cooperating.  Perhaps he does not understand what is needed or why such evidence is important.  Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case.  Maybe he fears that the people sending evidence will be endangered.  Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential.  For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.

Another way to encourage clients to gather evidence is to nag them.  “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case.  In my practice, I don’t have a lot of extra time to chase after my clients.  I do, however, try to remind them once or twice about the need for evidence.

I find that giving the client a check list of needed documents is helpful.  When it comes time to remind them about gathering evidence, I always refer them to the check list.  It helps me remember their case as well.  A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.

Asylum seekers are not always the easiest clients.  As lawyers, we need to use our limited time efficiently.  That means informing the clients about the need for documents, and periodically reminding them about what is needed.  For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence.  And that could make the difference between a successful case and a denial.

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Telephonic Interpreters

by Jason Dzubow

Without interpreters, the asylum system could not function. 

For interviews at the asylum office, applicants must provide their own interpreter, either a friend, a volunteer, or a paid professional.  To ensure that the interpretation is accurate (and that there is no funny business going on in the translation), USCIS requires that a professional interpreter monitors the interview by phone.  Who are these mysterious monitors?

One is Maria McFadden, interpreter extraordinaire, who works in the Washington, DC area and beyond.  Here are her thoughts on telephonic interpretation:

One of the most challenging tasks for an interpreter is telephonic interpretation.  While court interpreters aspire to be unobtrusive in order to allow each party to have their say, being able to observe or signal the speakers can make communication flow much more easily.

When using a telephonic interpreter, be sure to speak loudly into the phone.

During interviews at the asylum office, telephonic interpreters are rarely used to interpret the actual proceedings; rather, they serve as monitors.  The role of these monitor interpreters is to ensure the quality and accuracy of the on-site interpreter.  Oftentimes, the person brought to the interview to serve as an interpreter is not a professional.  While such a person might be aware of and adhere to the interpreter code of ethics, their ability to interpret is sometimes not sufficient to ensure an accurate translation.  This could damage the credibility of the asylum applicant and deprive her of the chance to tell her story.

At times, the monitor might “challenge” the interpretation.  This could cause the on-site interpreter to become flustered and become defensive.  If he/she feels that their interpretation is correct, they should state so to the officer and not directly to the monitor.  Each interpreter has the right to stand by their interpretation and it is up to the officer to settle the matter.

Being a monitor is not an easy task and most interpreter’s take the job seriously.  If you feel that the monitor is being unnecessarily disruptive and combative, this issue should be addressed to the asylum officer.  There is no need to talk to the monitor interpreter.

If you have a telephonic interpreter, please keep the following points in mind:

1. Keep your voice loud and clear.  While this is important when working with an on-site interpreters as well, it is even more important over the phone.
2. Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
3. Try not to talk over other people.  The interpreter can only translate for one person at a time.  Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other.  This could result in a statement by the applicant going unheard by the asylum officer–with potentially disastrous consequences.
4. Wait for the interpreter to finish interpreting before making another statement or asking a question.
5.If you don’t hear or can’t understand the interpreter, speak up!

By keeping this short list of pointers in mind, the process will go more smoothly for all involved. 

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Game Show for Rejected Asylum Seekers

by Jason Dzubow

Those wild and crazy Dutchmen are at it again.  PRI reports on a new game show where rejected asylum seekers in the Netherlands compete for US$6,000.00 to help them resettle in their country of origin.  Losing contestants receive a bag of tulips and a bullet proof vest. 

The show, “Out of the Netherlands,” is actually a “harsh criticism of the Dutch government’s conservative immigration policy,” where asylum seekers are held in limbo for long periods before being deported.  Contestants answer questions about Dutch culture, cuisine, food, and language:

[The] program’s creators attempted to show how Dutch these contenders are.  “We don’t present sad stories, we want to show who these people are, and that it is a shame to let them go.  They are real rejected asylum seekers.  They are really leaving.”  The show’s participants are all young and highly educated immigrants who are facing a grim future in their countries of origin.

Maybe if Richard Dawson hosted "Out of the Netherlands," I could get behind the idea.

So I suppose the show is meant to be a hip, ironic commentary on Dutch society that aims to educate the public about the value of the asylum seekers to Netherlands society.  Nevertheless, I can’t help but find this idea idiotic.  Plus, I remember a cooler, hipper version of this show called Running Man, hosted by Richard Dawson (Also starring Jesse Ventura!  And yes, it also starred everyone’s favorite product of Nazi gene manipulation, Arnold Schwarzenegger).  One difference was that Running Man was a show where convicted criminals–as opposed to rejected asylum seekers–competed for their freedom.  The losers died in the process.  Another difference was that Running Man was fiction while “Out of the Netherlands” features real-life asylum seekers returning to real-life countries where they face harm.  

For me, the ultimate authority on exploitative game shows was an episode of the old TV series Insight, a fictional drama that “illuminat[ed] the contemporary search for meaning, freedom, and love.”  In the episode, teams of two family members compete in a game show to see who is more willing to hurt their own family member.  Through a series of escalating challenges, different teams drop out after they are not able to hurt each other.  For example, one team drops out after a brother refuses to insult a sister.  Another team drops out after a son refuses to slap his mother.  The winning team is a husband and wife.  The husband agrees to put a bullet in a revolver, spin the chamber, aim it at his wife’s head, and pull the trigger.  The chamber is empty, the wife lives, and the couple wins the contest.  It is clear from the wife’s reaction, though, that her husband’s willingness to risk her life in order to win money has killed her love for him.  Thus, even the “winner” of such an exploitative show has not really won. 

I suppose my point is, there are ways to inform the public about the issue of rejected asylum seekers without exploiting their situation.  Somehow I doubt “Out of the Netherlands” will achieve that goal. 

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Bolivian Man Accused of Genocide Has Asylum in the U.S.

by Jason Dzubow

Late last month, Bolivia’s Supreme Court of Justice convicted seven former military and government officials of genocide, reports Indian Country Today Media Network.  The military officials received 10-15 years imprisonment and the civilians three years in prison.  However, the primary suspects in the case, former president Gonzalo Sánchez de Lozada and former defense minister Carlos Sánchez Berzain, remain in the United States.  As far as I can tell, Mr. Sanchez de Lozada is either a citizen or a permanent resident of the United States.  Mr. Sanchez Berzain was granted asylum in the U.S. in 2008 (sparking protests in Bolivia).

Carlos Sanchez Berzain: Accused mass murderer and...

The convictions and accusations stem from a 2003 incident known as the Bolivian Gas War, where protesters blocked a natural gas shipment from Bolivia to Chile.  The then-president of Bolivia used the military to open the road.  As a result of this incident, as many as 67 people died (all of them members of Bolivia’s indigenous Aymara community) and 400 were injured.  The “war” was part of a larger economic and social conflict in Bolivia, and as a result President Sanchez de Lozada resigned from office.  The current president, Evo Morales, was a leader of the protesters.

Since Messrs. Sanchez de Lozada and Sanchez Berzain have been in the U.S., the Bolivian government has filed a formal extradition request, which so far has not been acted upon.  Also, victims of the alleged genocide have filed a lawsuit under the Alien Torts Statute against the two Bolivian leaders seeking to hold them accountable for the deaths in 2003.  The lawsuit involves some heavy hitters on both sides.  For the plaintiffs: Ira Kurzban, Harvard University’s Human Rights Clinic, the Center for Constitutional Rights, and the law firm Akin Gump.  Representing the defendants are my former idol Alan Dershowitz (who seems to have repositioned himself from a defender of civil liberties to a defender of all things right-wing), and the law firms Williams and Connelly, LLP and Greenberg Traurig.  In November 2009, the District Court dismissed some counts of the complaint and allowed others to go forward.  The defendants appealed, and the case is currently before the U.S. Court of Appeals for the Eleventh Circuit.

Ned Flanders look-alike.

As there is (probably) enough evidence for the civil case to move ahead, I wonder whether the Department of Homeland Security is investigating the asylee defendant, Mr. Sanchez Berzain.  Under the law of asylum, one who engaged in genocide or persecution of others is ineligible for asylum.  Clearly, there is some evidence that Mr. Sanchez Berzain was involved in persecuting people.  Aside from the District Court ruling, a leader of the indigenous peoples of Bolivia called Mr. Sancehz Berzain the “specific intellectual author” of the 2003 massacre. 

Given the calls to deport the housekeeper in the DSK case (who seemingly lied about her asylum claim), I wonder whether there will be a similar outcry here, where the asylee is accused of much worse than lying.  My guess is–since our country has a rocky relationship (at best) with President Morales–it’s likely DHS will look the other way when it comes to Mr. Sanchez Berzain.  And that’s too bad–asylum law is supposed to be based on international principles; not politics.   

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CBS Special About Refugees and Faith-Based Organizations

by Jason Dzubow

CBS News has announced a new interfaith religion special, “Refugee Resettlement: Faith Communities Making a Difference,” to be aired on Sunday, September 25, 2011.

And that’s the way it is…

The special will focus on Church World Service(“CWS”), which has helped over 500,000 refugees resettle in the U.S. since its founding in 1946.  The special features interviews with Erol Kekic, Director of Immigration and Refugee Program for CWS, as well as Vincent Cochetel, Regional Representative for The UN High Commissioner for Refugees.  The program also includes interviews with volunteers from interfaith co-sponsorship teams (where a Muslim and a Christian are paired to assist a refugee), as well as refugees from Eritrea and Somalia, “who are adjusting with the help of their new friends, many of whom are now like family.”

Given the hateful propaganda against Muslims in the U.S. these days, I am particularly interested in the interfaith partnerships.  This seems like a great way to bring people together while accomplishing important work.  The initiative is sponsored by the Minnesota Counsel of Churches and is called the Taking Root program.  Here is an excerpt from the Taking Root website:

Imagine you are a refugee fleeing persecution, arriving in Minnesota knowing no one. You are greeted at the airport and helped in your first months by a team of Muslim and Christian volunteers working together. In your homeland you only knew people of your own religious tradition, or your experience with other religions was one of distrust and persecution. But here your interfaith sponsors help you find a home, a job and make a successful transition to self-sufficiency. Gradually you build a new life of hope, safety, peacefulness and connection. This unique team of volunteers has also given you a gift that may have been unimaginable to you – an experience of interfaith cooperation.

The CBS documentary will help spread the word about interfaith cooperation and about refugee resettlement.  It sounds like a win-win.

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New Musical About Asylum Seekers Opens in Washington State

by Jason Dzubow

A new musical about asylum seekers and asylum adjudicators opens next week at the Village Theater in Issaquah, Washington.  The play, “Take Me America,” chronicles the story of people from different countries applying for asylum in the U.S.  The show also addresses issues faced by adjudicators, “the people who bear the responsibility of determining [the asylum seeker’s] fate.”

Music and Refugees: A winning combination.

The Issaquah Press reports that the show distinguishes between asylum seekers and immigrants:

The director Jerry Dixon encouraged the “Take Me America” author and composer to shore up the differences between asylum and immigration to offer audiences more clarity.  “One of my first jobs was to get the authors to take away any ambiguous language or monetary language like, ‘I’m coming to America to get ahead, to make a better living,’” Dixon said. “That’s immigration. That’s different. ‘I’m coming to America because my arms will be hacked off by my government.’ That’s not immigration.”

Bill Nabel, “Take Me America” author and lyricist, said “Well-Founded Fear” — a 2000 documentary about the asylum process — laid the foundation for the rock musical. The filmmakers recorded the last interviews of applicants in the asylum process for the piece.  “To me, a musical is about where you find your heart,” Nabel said. “There’s a very large part of that in the asylum question. Asylum is much more than a legal question to us. How do we make a human decision about a law?”

In light of the negative attention recently generated by the DSK housekeeper case, it’s great to see asylum seekers–and asylum adjudicators–receiving some positive attention.  And if that attention is set to music, so much the better.

The show runs from September 14 to November 20, 2011.  For more information or to purchase tickets, visit the Village Theatre website, here.

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Possible Lawsuit to Help Victims of the Asylum Clock

by Jason Dzubow

The Asylum Clock has been the bane of asylum seekers and their lawyers since it was created in 1994 (and codified into law in 1996).  It requires an asylum applicant to wait 150 days before applying for an employment authorization documents (“EAD”), but the clock “stops” if the applicant causes a delay in her case.  The idea was to dissuade people from filing frivolous asylum applications in order to get EADs.  The problem, however, is that legitimate applicants are often prevented from obtaining EADs for seemingly random and inexplicable reasons. 

In this artist's rendition of the destruction of the Asylum Clock, AIC and NWIRP are represented by Donald Duck.

One reason for this problem is that the regulations implementing the Clock are vague, and are interpreted differently by different Immigration Judges.  So for example, most of my cases are in the Immigration Courts in Baltimore, Maryland or Arlington, Virginia.  Clients with the same case will receive an EAD in one court, but not the other.  All because the regulations are interpreted differently in different places.  For a good analysis of the Asylum Clock, check out this report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock prepared by the American Immigration Counsel and Penn State’s Dickinson School of Law.

Now, the American Immigration Counsel (“AIC”) and the Northwest Immigrant Rights Project “(NWIRP”) are exploring potential litigation on behalf of individuals who have been unable to obtain employment authorization due to Asylum Clock problems.  The organizations are looking for potential plaintiffs in the following three categories:

(1) Applicants whose clocks have not started and will not start until the next scheduled master calendar hearing because their applications are not yet considered filed in immigration court;

(2)  Applicants whose clocks have not started or restarted even after alleged applicant-caused delays have been resolved; and

(3) Applicants whose clocks have not started or restarted after their cases were remanded following appeal.

If you have a client in one of these categories who might be willing to participate in litigation, please contact Agnes Gyorfi at AIC at (202) 507-7523 or agyorfi.immcouncil@gmail.com by Friday, September 16, 2011.

Here’s hoping that AIC and NWIRP are able to pursue this litigation and knock some sense into the Asylum Clock.

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Closing Argument

by Jason Dzubow

Last week, I won an asylum case thanks to a good closing argument.  The lead respondent was a woman from Ethiopia.  She had been arrested a few times in her country, and faced persecution in prison.  In many ways, it was a standard-issue case–the type of case that cynical judges and DHS attorneys tend not to believe.  And the case was not going well—the DHS attorney had raised some legitimate questions about the plausibility of the woman’s story.  After her testimony, the DHS attorney and I spoke during a brief recess.  We both agreed that the IJ was leaning heavily towards a denial based on implausibilities. 

Closing arguments are not always my strong suit, but that day, I gave an argument that did the trick.  The IJ listened to what I said, and he granted the case.  

Throughout my career, I’ve been fairly indifferent to closing arguments.  At least one judge I practice before does not allow them, and I’ve generally felt that closing arguments rarely make a difference.  Over the years, though, I’ve come to believe that a good closing can persuade the judge, and there are a few techniques that I’ve found to be effective.

You don't have to be a super hero to give a good closing argument.

First and foremost, a good closing argument should address the weakest parts of your case—it is crucial not to ignore or hide from the weak points of the case.  Rather, these points must be confronted directly.  As you listen to the DHS attorney’s (and the IJ’s) questions, you should gain a pretty good understanding of what they perceive as the weak points in the case.  You need to mitigate these weaknesses and explain to the IJ why they should not sink the case.  For example, in my case last week, the IJ questioned the alien about how her husband could work for the government and, at the same time, join an opposition political party.  Using record evidence (in this instance, the State Department Country Report), I argued that several well-known opposition leaders worked for the Ethiopian government.  My client also misspoke during cross exam and gave the wrong date for her husband’s arrest.  I mentioned her error and pointed out that she gave the correct date during direct examination.  I also noted that she quickly corrected her mistake on cross, and that this was the only inconsistency in her testimony.  Of course, to effectively address the weak parts of your case, you need to pay close attention to the IJ and the DHS attorney.  You generally cannot prepare the closing in advance; it will be shaped by the testimony and questions at trial.

Second, a good closing should remind the IJ about the legal standard and show how your client meets that standard.  In my case, the client was unable to get some evidence that the IJ wanted to see.  I reminded the IJ that, under the REAL ID Act, my client was only required to obtain evidence that was “reasonably available.”  I then explained why the missing evidence was unavailable. 

Finally, you should discuss the strong points of your case.  This is probably the most obvious thing to do during closing, but it is also—in my opinion—the least important.  Usually, the strong points of the case are apparent.  Also, asylum cases that are denied tend to be denied for lack of credibility.  Findings of incredibility are based on the weak parts of the case.  Once a client is found not credible, the strong parts of the case become irrelevant (who cares if you say you were tortured in prison if the IJ has found your testimony incredible).  That said, it is a good idea to remind the IJ about the strongest parts of your client’s case.

Well, those are some thoughts on closing arguments.  I still believe that in most cases, they do not make much difference.  But after last week, I am convinced that sometimes they can turn a denial into a grant.

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