Mexican Asylum Seekers Form Coalition

by Jason Dzubow

I’ve written before about the escalating violence in Mexico and the corresponding increase in people seeking asylum in the United States.  The chances of a Mexican person gaining asylum in the U.S. are very low – only about 2% of Mexican asylum cases are granted.  Now, apparently, Mexican asylum seekers and their advocates have formed a coalition to support each other in their case.  From the Americas Mexico Blog:

Cipriana Jurado: El pueblo unido jamas sera vencido!

Immigration attorneys and immigrant-rights groups in the Texas border city of El Paso said they have formed a coalition aimed at providing greater support for asylum seekers facing a hurdle-ridden application process.

The director of the Las Americas Immigrant Advocacy Center in El Paso, Louie Gilot, said cases of Mexicans fleeing drug-related violence have risen significantly over the past two years and that the asylum seekers include former police officers, rights activists, journalists, business leaders and even government officials.

Announcement of the coalition of asylum applicants coincides with a statement by Mexican activist Cipriana Jurado that she has begun the process of seeking political asylum. Jurado told Efe Tuesday that she had kept up her activism over the past five years despite the slayings of more than 19 colleagues and family members but finally decided to flee Mexico to save her own life and seek protection for herself and her children in the United States.

The violence in Mexico is some of the worst in the world.  Perhaps the new coalition will help improve the chances for Mexicans seeking asylum in the United States.  Given the low success rate of Mexican asylum cases, it is apparent that those fleeing the drug violence need all the help they can get.

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Asylum for an Anti-Semite?

by Jason Dzubow

A recent editorial in the Moscow Times calls on the U.S. to deny political asylum to Ashot Yegiazaryan, a member of the Russian Duma from the nationalistic Liberal Democratic Party, who fled to the United States to escape criminal charges related to some shady business deals.

For these guys, you can't spell Russia without SS.

Like a number of Russian oligarchs, Mr. Yegiazaryan made his money in the freewheeling 1990’s and then entered politics.  His troubles began when a multi-billion dollar business deal in Moscow went bad, and lawsuits and criminal accusations followed.  Ultimately, Mr. Yegiazaryan left Russia and made his way to (where else?) Beverly Hills.  Now, depending on the rumor you choose to believe, he will be seeking political asylum in the United States, or he already has a green card.  Mr. Yegiazaryan has denied the latter rumor, as it is apparently illegal for a member of the Duma to hold residency in another country.  In the mean time, the Russian Duma has stripped Mr. Yegiazaryan of his immunity and the Russian government is pursuing criminal charges.

This scenario–of a businessman rising rapidly to wealth and prominence only to be brought down by criminal charges and accusations of fraud–seems common in Russia these days.  When I was a law clerk at the Arlington Immigration Court (in 1999), I worked on such a case.  Alex Konanykhin, was a Russian businessman whose case bounced between the Immigration Court, the BIA, and the U.S. District Court.  In the end, he received asylum and wrote a book about his experience.  Then, of course, there is the case of Russia’s richest businessman, Mikhail Khodorkovsky, who is currently sitting in a Russian prison, convicted of criminal fraud.

Like these other cases, it is difficult to tell whether Mr. Yegiazaryan is a criminal or a victim.  What’s clear in his case, however, is that he is a member of the Liberal Democratic Party, a party founded and dominated by Vladimir Zhirinovsky, who has made many anti-Semetic and rascist remarks. 

Whether, as the Moscow Times posits, Mr. Yegiazaryan should be denied political asylum (assuming that he qualifies for asylum in the first place) on account of his membership in the LDP may be a complex question.  If the LDP has “ordered, incited, assisted, or otherwise participated in” the persecution of people based on a protected ground, than Mr. Yegiazaryan would not be eligible for asylum.  The key word here is “incited.”  I do not know what Mr. Yegiazaryan might have said or done, but others in his party, in particular the party’s leader, Mr. Zhirinovsky, have accused Jews of ruining Russia, sending Russian women to foreign countries as prostitutes, selling children and organs, and provoking the Holocaust.  That sounds like incitement to me.  At the minimum, for Mr. Yegiazaryan to win asylum, he will have some explaining to do.

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A New Guide to Establishing Asylum Eligibility for Victims of Human Trafficking and Forced Marriage

by Jason Dzubow

The World Organization for Human Rights USA has recently published a Guide to Establishing the Asylum Eligibility of Victims of Human Trafficking and Forced Marriage.  Even a cursory review of the new guide reveals that it will be an important new resource for attorneys and others who represent people seeking asylum on the basis of gender persecution.  From the World Organization for Human Rights USA website:  

Human trafficking – as well as forced marriage, often a form of trafficking – is indisputably recognized around the world as an egregious human rights abuse, and many victims of this abuse fear that they cannot safely return to their home countries after escaping.  Increasingly, courts around the world are concluding that victims of trafficking and forced marriage are eligible for refugee protection.  While some U.S. immigration judges and asylum officers have also recognized this principle, there is not a large body of binding U.S. precedent specifically addressing trafficking or forced marriage.  But with a targeted litigation strategy, attorneys can convince more and more adjudicators to recognize what is becoming firmly established in international law.

The guide is designed to assist attorneys in crafting arguments and writing briefs to support their clients’ asylum applications based on trafficking and/or forced marriage. 

I’ve litigated a few cases like this, and they can be tough.  Although both human trafficking and forced marriage are types of persecution, they do not easily fit into the protected grounds set forth in asylum law.  I suppose that was once true for persecution based on female genital mutilation and sexual orientation, but now, persecution based on those grounds may form the basis for an asylum claim.  Hopefully, the new guide will help establish trafficking and domestic violence as basis for asylum, so that people fleeing such persecution can gain protection in the United States.

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Asylum Training for Health Professionals

by Jason Dzubow

Physicians for Human Rights will conduct a training for health professionals on April 9, 2011 in Houston, Texas.  The program is titled, Aiding Immigrant Survivors of Torture and Other Human Rights Abuses: Physical and Psychological Documentation of Trauma.  It aims to instruct health professionals on the skills necessary to perform physical and psychological evaluations of survivors of human rights abuses:

PHR’s volunteer network of over 400 health professionals assists survivors of human rights abuses by conducting forensic psychological and physical evaluations to document evidence of torture and abuse. Our clinicians have specialized training and expertise in recognizing and documenting the trauma of conflict, displacement, abuse, discrimination, and oppression—issues at the heart of many humanitarian relief applications. The medical-legal affidavits that they submit to courts on behalf of survivors are frequently the determining factor when judges grant asylum or other relief from deportation.

Even the best doctors will benefit from this training.

I often use reports from health professionals to help bolster my cases, particularly where there are physical scars caused by torture, so I can attest to the value of such reports to asylum seekers.  A well-written report can often sway the fact finder and help a client gain asylum. 

For those interested in the training, more information is available here.

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Twenty-Year-Old Mexican Police Chief–a/k/a the Bravest Woman in Mexico–Files for Asylum

by Jason Dzubow

In October 2010, Marisol Valles became the police chief of Praxedis Guadalupe Guerrero, a small town near Ciudad Juarez, Mexico.  Her predecessor had been beheaded by a drug gang, and the whole area has been plagued by horrific drug violence.  No one else wanted the job, so Ms. Valles, a criminal justice major at a local college, stepped in.  Mexican newspapers dubbed her “the bravest woman in Mexico,” but now, sources in Mexico and the U.S. confirm that she has crossed the border to ask for asylum in the United States.

The bravest woman in Mexico is also smart enough to know when to run away.

Ms. Valles asked for an eight-day leave for a personal matter involving her child and said she would return on Monday.  The town fired her after she failed to return and they could not reach her.  Apparently, she received multiple death threats, and feared for herself and her family.

MSNBC reports that she is in the U.S. and will seek asylum before an Immigration Judge.

According to the Wall Street Journal, in northern Mexico, “hundreds of police officers have been slain by drug traffickers who have targeted officers’ families, homes, and places of work.”  Nevertheless, the odds are not in Ms. Valles favor.  According to statistics from the Executive Office for Immigration Review, of the 3,231 Mexicans who applied for asylum in Immigration Court in FY 2010, only 49 cases, or about 1.5%, were granted. 

The reason for the low success rate is that people fleeing Mexican drug violence do not generally meet the definition of a “refugee,” a person with a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  While such people have a “well-founded fear,” they generally cannot demonstrate that the fear is on account of a protected ground. 

Another possible reason for the low success rate of Mexican asylum seekers is the U.S. government’s fear of opening the floodgate to many thousands of people who fear the rampant violence in Mexico. 

Given Ms. Valles’s high profile, her odds of gaining asylum might be better than the average Mexican’s (or even the average Mexican police officer’s).  Whether or not she succeeds in obtaining asylum, her case is another sad reminder of the difficulties faced by our Southern neighbor.

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Political Asylum for Libyan Students in the US?

by Jason Dzubow

More than 1,000 Libyan students are currently studying in the United States, and the continuing unrest in their homeland has them worried.  To make matters worse, the Libyan Embassy in the U.S. apparently contacted many of the students and threatened to take away government scholarships unless they attended a pro-Khadafy rally in Washington, DC.  The Libyan Ambassador (predictably) denied any such threats.

Anti-Khadafy protestors tell it like it is.

Some of the students are politically active.  For example, a student in New York has started a Twitter account called Enough Gaddafi that has over 7,000 followers (a website is coming soon).  In Kentucky, a group of 50 Libyans gathered to voice their support for the protestors in Libya.  And Libyan students in Colorado and Oklahoma are speaking out publicly against Libyan leader Moammar Khadafy.

Given the current situation, can Libyans in the U.S. successfully claim political asylum? 

As usual in immigration law, the answer is a definite maybe.  For those students listed by name in newspapers and who engaged in anti-Khadafy political activity, or who made anti-Khadafy comments, I would imagine that they have a solid claim for political asylum.  If Mr. Khadafy remains in power, the students would face severe consequences upon their return to Libya.  There is no doubt that Mr. Khadafy’s regime tortures and murders political opponents.  Further, given the Libyan Embassy’s attempt to rally Libyans in the U.S. to Mr. Khadafy’s defense, it is very likely that the Libyan government is aware of the students’ political opinions.  

For those Libyans not mentioned in newspapers, or who were not contacted by the Embassy about attending the pro-Khadafy rally, an asylum claim might be more difficult.  Generalized strife in a person’s home country–in and of itself–is usually not sufficient to qualify for asylum.  Whether a particular individual qualifies for asylum would depend on his or her personal circumstances.

Finally, the situation in Libya is very fluid.  Perhaps Mr. Khadafy will be gone soon (we can only hope), but perhaps not.  As the situation on the ground continues to evolve, so too will the possibility for asylum for Libyans in the U.S. 

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Fifty Million Environmental Refugees by 2020

by Jason Dzubow

A recent article in the Huffington Post reports on last week’s annual meeting of the American Association for the Advancement of Science (AAAS), the world’s largest general scientific society.  Experts at the meeting warned that, “In 2020, the UN has projected that we will have 50 million environmental refugees.”

At least some people are benefitting from global warming.

“When people are not living in sustainable conditions, they migrate,” stated University of California, Los Angeles professor Cristina Tirado at the AAAS meeting.  She and other speakers outlined how climate change is impacting both food security and food safety.  Southern Europe is already seeing a sharp increase in what has long been a slow but steady flow of migrants from Africa.

Of course, asylum is not available to people who fear return to their country on account of environmental disaster.  In the U.S., we have provided Temporary Protected Status (“TPS”) to people from certain countries that have faced natural disasters.  Most recently, after the January 2010 earthquake in Haiti, Haitians in the United States were granted TPS so that they could remain in the United States until conditions improve.

If predictions are accurate, and more people migrate to escape the impact of global warming, the current system of asylum, refugee resettlement, and TPS may prove inadequate.  Long term environmental change may make it necessary for millions of people to migrate, and impossible for them ever to return home.  If the migrations predicted at the AAAS meeting actually materialize, the U.S. and other developed countries–which are presumably more able to deal with the effects of climate change–will need to re-think how they deal with such large numbers of refugees. 

In this case, it seems to me that an ounce of prevention is worth a pound of cure.  The question is: Do our governments have the political will to do something about the problem?  Let’s hope so.     

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Liu v. Holder: Frivolous Asylum Applications

by Jason Dzubow

The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011).  The Court held:

“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.

The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”

In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence.  However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.”  The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:

First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court.  Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim.  Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application.  Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.

Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness.  In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous finding: 

(1) Notice to the alien of the consequences of filing a frivolous application; (2) A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

In other words, it’s not easy to have your asylum case found frivolous.  This is as it as it should be, given the harsh consequences for a frivolous finding.

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DHS and Mentally Ill Respondents: Why Is the Fox Guarding the Hen House?

by Jason Dzubow

I recently learned about the removal case of mentally ill man from Africa.  Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there.  His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding.  He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.   

Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself.  At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer.  At the hearing, the ICE officer failed to appear, so the IJ dismissed the case.  The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law.  DHS appealed and the case is currently before the Board of Immigration Appeals.

What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer.  Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court?  Clearly, something needs to be done.

According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court.  Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities.  Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill.  (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).

In the mean time, the BIA might take matters into its own hands.  In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court.  An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.

Mentally ill aliens in immigration court face many difficulties.  At the minimum, we should try to ensure that their due process rights are protected.  As things stand now, that is not the case. 

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In Defense of Government Bureaucrats

by Jason Dzubow

As an immigration attorney, I have plenty of contact with “government bureaucrats:” USCIS and ICE officers, DHS attorneys, CBP officials, and Immigration Judges, to name a few.  Some of them can be annoying (why can’t they always just do what I want?).  A few are downright mean or incompetent.  But the current attack against government workers gives me pause.

Do you love your country? Thank a bureaucrat.
Do you love your country? Thank a bureaucrat.

John Boehner recently dismissed concerns that proposed budget cuts would cost tens or hundreds of thousands of government jobs: “So be it,” he said.  And in Wisconsin, the Republican governor has used the budget crisis as an excuse to bust government employee unions.  It’s all part of a philosophy of government that stretches back to President Reagan, who famous told us that “government is the problem.”

My view is that the current climate of disrespect for government workers is dangerous to our democracy and reflects a naiveté bordering on stupidity.

Ours is a nation of laws, and those laws are enforced by government workers.  Whether their responsibility is to enforce immigration laws, protect the environment, educate our children or ensure that our food is safe, government workers implement the law.  They are not always perfect, to be sure, but generally they have helped perpetuate a democratic system based on the rule of law.  Thus, the attacks against them are dangerous to our democracy.

Also, these attacks are incredibly naive.  Anyone who has spent time in a country that does not have an established, (relatively) corruption-free bureaucracy understands how crucial it is to have honest civil servants.  If you want to know why the United States is different from any number of third world countries, look no further than the people who enforce our laws.  The idea that attacking them and devaluing their service is somehow patriotic is ridiculous.

While I can’t say I always love the government workers I interact with, I recognize that they are an indispensible part of our system of government.  The recent attacks against “government bureaucrats” are not only wrong-headed, they are downright unpatriotic.

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Federal Government Provides Grants to Help Refugee Children

by Jason Dzubow

The Office of Refugee Resettlement (“ORR”) at the U.S. Department of Health and Human Services provides grant money to support local school systems that are impacted by significant numbers of newly arrived refugee children.  Last year, ORR provided about $15 million in grants. 

Children everywhere are celebrating the ORR grants.

The ORR Program “target[s] school-age refugees between the ages of five (5) and 18 years of age with program activities that include English as a Second Language instruction, after-school tutorials, programs that encourage high school completion and full participation in school activities, after-school and/or summer clubs and activities, parental involvement programs, bilingual/bicultural counselors, interpreter services and other services.”

The San Jose Mercury News reports that about $890,000 in grants were awarded to school districts in California.  The money went to districts that received more than 300 refugee school-age children during the past three fiscal years.  “We are excited to announce these awards,” said state Department of Social Services Director John Wagner.  “These funds will allow our local partners to provide needed supplemental educational services to refugee students.”

From the information I could gather (in a very difficult to understand chart from ORR), it appears that the program has assisted over 69,000 refugee children from FY 2007 to FY 2009. 

It’s unclear whether the cuts in the upcoming budget will affect the ORR grant program.  Hopefully not, as refugee children are some of the most vulnerable people in our community, and the federal money for helping them integrate will likely yield long term benefits for them and for our country.

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Think You Can Do Better Than USCIS – Let Them Know!

by Jason Dzubow

The Refugee, Asylum, and International Operations (RAIO) Directorate will hold a stakeholders meeting on March 2, 2011 at 2:00 PM (EST) in Washington, DC.  The purpose of the meeting is

to discuss changes to the organizational structure of the Directorate. RAIO aims to strengthen cohesion between its three divisions by developing directorate-level functions that will allow for more integrated planning, guidance, and management of knowledge assets. During the session, USCIS will provide an overview of the organizational changes and plans for the transition as well as address questions and concerns from stakeholders.

RAIO is the office responsible for overseeing, planning, and implementing policies and activities related to asylum and refugee issues as well as immigration services overseas.  It is made up of three divisions: (1) The Refugee Affairs Division, which is a principal partner in the United States Refugee Admissions Program, and is responsible for providing the humanitarian benefit of refugee resettlement to applicants in need of protection throughout the world while diligently protecting the U.S. homeland; (2) The Asylum Division, which manages the U.S. affirmative asylum process; and (3) The International Operations Division, which has 29 international field offices around the world and serves as the face of USCIS overseas.  The international offices play a critical role in extending immigration benefits to eligible individuals and exercising vigilance in matters of fraud detection and national security.

For more information or to sign up to attend the meeting (in person or by phone), click here.

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Mubarak Is Not Eligible for Asylum

by Jason Dzubow
When your photo is crossed out AND burned, you know it's time to go.

After 30 years of autocratic rule, the people of Egypt have forced President Hosni Mubarak to resign.  There has been much talk about Mr. Mubarak seeking asylum abroad, but does he qualify for asylum under international law?  I think the answer is an unqualified “No!”

A person who faces a well founded fear of persecution on account of race, religion, nationality, political opinion or particular social group, may qualify for asylum.  However, one who “ordered, incited, assisted, or otherwise participated in the persecution of any person” on account of a protected ground is barred from asylum.  Under this provision, Mr. Mubarak is barred from receiving asylum.

Here are some reports about Mr. Mubarak’s Egypt.  First, from the U.S. State Department:

The government’s respect for human rights remained poor, and serious abuses continued in many areas.  The government limited citizens’ right to change their government and continued a state of emergency that has been in place almost continuously since 1967.  Security forces used unwarranted lethal force and tortured and abused prisoners and detainees, in most cases with impunity….  Security forces arbitrarily arrested and detained individuals, in some cases for political purposes, and kept them in prolonged pretrial detention.

Amnesty International reports:

The government continued to use state of emergency powers to detain peaceful critics and opponents….  Some were held under administrative detention orders; others were sentenced to prison terms after unfair trials before military courts.  Torture and other ill-treatment remained widespread in police cells, security police detention centres and prisons, and in most cases were committed with impunity.

And this, from the Daily Beast:

Few know the cruelty of Mubarak’s regime better than [Kareem] Amer, who spent the last four years in prison for criticizing the dictator and “insulting” Islam on his blog.  When I asked him to describe Mubarak’s record, he said: “Many human-rights activists and journalists were imprisoned during his reign.  Some were beaten and tortured.  Others were abducted or disappeared without a trace.  The most important of these incidents was the disappearance of the Egyptian journalist Reda Helal in the heart of Cairo in 2003.  Many believe the security services were behind the abduction because of his political views.”

Mr. Mubarak has been an ally of the U.S. and he respected the peace treaty with Israel, but he was a human rights abuser who held power by torturing and killing his own people.  With such a record, it is clear that Mr. Mubarak would be barred from asylum under international law.

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Ethiopian Asylum Seekers Die Along the Smuggling Route

by Jason Dzubow

I’ve written a number of times about the route East African asylum seekers take to reach the United States.  The journey usually takes them through Africa to South Africa, and then to South America, Central America, and finally the U.S.  Along the way, the asylum seekers are passed from one smuggler to the next.  Because I deal with the people who make it here, I don’t usually think about those who do not survive the trip.

Voice of America reports that on February 2, eight Ethiopian asylum seekers suffocated to death in a closed container truck while attempting to reach South Africa:

The UN refugee agency [UNHCR] said the Ethiopian asylum seekers had been living in the Maratane refugee camp in northern Mozambique, from where they embarked on their ill-fated journey.  The driver of the truck in which they were traveling reportedly only realized the eight had suffocated when he made a stop at Mocuba, after seven hours of driving from the camp.

Statistics on asylum seeker deaths are hard to come by, so the magnitude of the problem is not well known, but I’d venture to guess that the number of deaths is quite high.  I sometimes hear anecdotal evidence from my clients about this problem.  For example, an Eritrean client recently told me about two Eritrean women who drowned while crossing a swamp in Panama.  I could not find statistics for asylum seekers coming to the U.S., but I did find some information about Britain and Australia:

The New Statesman report that 77 asylum seekers died in Great Britain during the last four years: Of the deaths, more than a third (28) were suicides following rejected asylum claims. Seven people died after being denied healthcare for “preventable medical problems.” Seven more died in police custody, while 15 lost their lives during “highly risky” attempts to enter the country. Seven were killed in racist street attacks, four after deportation to a country where they feared for their safety, two as a result of destitution, and four because they had been forced into dangerous work in the black economy. 

A website called Abolish Foreignness reports that between 2000 and 2010, 1,053 asylum seekers died in Australia or en route to that country.  The majority of the deaths were from people drowned at sea.

It is probably impossible to know how many asylum seekers die on the long and dangerous journey to the United States.  But it is clear that, despite the risk, many people are willing to make the trip.  

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Immigration Judges Repudiate Asylum Officers

by Jason Dzubow

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:

There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 

The IJ grant rate for affirmative cases is significantly higher than for defensive cases:

Year

 IJ Grant Rate for Affirmative Asylum Cases

IJ Grant Rate for Defensive Asylum Cases

 FY 2006

 51%

 34%

 FY 2007

 51%

 39%

 FY 2008

 51%

 37%

 FY 2009

 55%

 36%

 FY 2010

 61%

 35%

This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.

Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 

One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 

Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case.  In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).   

When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.

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