Private Asylum for Refugee Academics

by Jason Dzubow

A recent editorial in the science journal Nature calls for increased assistance to academics fleeing persecution.  In many parts of the world, the editorial notes, “academics and their families can face discrimination, prison, or worse, for speaking out about or studying issues that threaten dominant policies or ideologies.”  “They can also be persecuted for their politics, or for belonging to a particular ethnic group.”

The most famous refugee also had a great set of gams.

A number of organizations exist in the U.S. and abroad to assist threatened academics.  Probably the most venerable such group is CARA–the Counsel for Assisting Refugee Academics.  Founded in the UK in the 1930s to help scientists in continental Europe fleeing the Nazis, CARA supported some 1,500 academics in those dark years, 16 of whom went on to win Nobel prizes.  It currently aids around 200 refugee academics annually.  At a CARA event earlier this year, Rowan Williams, the Archbishop of Canterbury, summed up what is at stake: “Defending intellectual freedom is defending the possibility not only of a free academy but of a society willing to learn — and thus a society willing to see itself critically.”

In the United States, two groups that assist endangered academics are Scholars at Risk and the Scholar Rescue Fund.  Among other things, these groups protect threatened scholars by bringing them to universities in the United States and support academic freedom in countries throughout the world. 

It is interesting that these NGOs are able to circumvent the normal refugee/asylum process for the people they are assisting.  Rather than applying for refugee status abroad or seeking asylum in the United States, the academics are offered positions at host universities.  They can then travel to the U.S. (or whichever country is hosting) using a regular visa (maybe an H1-B visa or a J visa, for example) and remain in legal status while they work at the university.  Of course, once they are here, the scholars could apply for asylum if necessary.

I wonder whether this model–of private organizations bringing refugees into the country using the immigration tools at their disposal–could be applied to other groups who are ill served by our immigration laws: gay and lesbian partners of U.S. citizens, for example, or victims of domestic violence, or others who face persecution but cannot establish that the persecution is “on account of” a protected ground.  I know professors are a special category–highly educated and employable under different immigration categories.  But perhaps this type of “private political asylum” could be used to help others in need.

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KIND Helps Unaccompanied Children, but Are There Unintended Consequences?

by Jason Dzubow

Every year, about 8,000 unaccompanied children enter the United States and are placed in removal proceedings.  Many of those children are helped by KIND–Kids in Need of Defense, a non-profit organization begun in January 2009 with a $3 million grant from Microsoft (and help from refugee maven Angelina Jolie).  Pleased with the success of the organization, which has offices in eight cities, Microsoft last month committed to another $3 million over the next three years.

According to a press release:

Since KIND became operational in January 2009, almost 1,900 children have been referred to KIND for help finding a pro bono attorney; the children range in age from two to 18 years old, and come from more than 35 countries.  KIND’s model is an innovative public-private partnership in which lawyers from firms, corporations, or private practice volunteer to represent children in immigration proceedings.

According to KIND Executive Director Wendy Young:

Many of these children are escaping severe abuse or persecution; others have been abandoned or have been trafficked to the United States.  Some are hoping to reunite with their parents.  They need and deserve representation to help them make their claim for U.S. protection.  Without representation, children with viable claims are often unable to make them and can be sent back to their home countries, where their well-being, or even their lives, may be in danger.

There is an argument to be made that granting benefits to children who cross the border illegally creates an incentive for others to follow them and make the risky journey to the United States.  And it is a dangerous trip–a group that tracks border deaths, No More Deaths, reports that over 250 people have died along the Arizona border during the last year.  Hundreds more have died trying to enter through New Mexico, Texas, and California, or at other locations on the refugee route from Central America.  I knew a prominent DHS attorney who routinely (and passionately) opposed relief for children who crossed the border illegally because he did not want to create incentives for other children.

After pedaling for many days, a border crosser gets ready to jump the fence.

While I agree that we don’t want to create incentives for children to risk their lives by crossing illegally into the United States, I doubt that assisting children with their cases does much to create such an incentive.  For one thing, many of the children are leaving pretty awful circumstances–if they were safe and happy, they would stay home.  In this context, the border crossing may be one of the least dangerous things they have to do to survive.  Also, given the large flow of people across the border (in both directions), it seems unlikely that allowing those with meritorious cases to remain here would do much to incentivize people outside the U.S.  Finally, young people are less likely to know about or be influenced by government policies.  Even if we were deported all children who enter the U.S. without inspection, I think it would do little to dissuade others who are fleeing abuse or persecution in their homelands.

If children with legitimate claims are denied–perhaps because they are unrepresented and cannot present their cases effectively–it would mean returning them to dangerous circumstances in their home countries.  Unaccompanied children who have fled to the U.S. seeking safety need help from KIND and other similar organizations.  Without KIND’s help, many of those with legitimate claims would be sent back to their countries, where they would face abuse or worse. 

With the most recent grant from Microsoft, it seems KIND will continue its life-saving work for some time to come.

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The Unbearable Lightness of BIA-ing

by Jason Dzubow

In an average year, the  Board of Immigration Appeals decides over 35,000 cases, but publishes less than 40 decisions.  The small number of published decisions provides insufficient guidance to the nation’s Immigration Judges and results in inconsistent rulings between judges.  The lack of guidance has also contributed to the dramatic increase in immigration cases heard by the federal courts of appeals.  So instead of the law being settled by the BIA–which specializes in immigration–the various appeals courts have been interpreting the law, not always consistent with their sister circuits.

Here is how the numbers break down for the last few years: In 2009, the BIA decided 33,103 cases and published 34 decisions.  In 2008, it decided 38,369 cases and published 33 decisions.  In 2007, it decided 35,394 cases with 45 published decisions, and in 2006, it decided 41,476 cases and published 26 decisions.  So far this year, the Board has published 31 decisions.

Maybe Harry Truman could lend the BIA his famous sign.

When I was at the AILA conference last summer, we heard that published decisions require far more time and resources than unpublished decisions, but I just don’t buy it.  The BIA is authorized to have up to 15 Board Members.  It has a staff of well over 100 attorneys.  So even during their most prolific year (2007, when they published 45 decisions), each Board Member was required to write only three decisions, and each staff attorney wrote less than half of one decision.   

According to the BIA Practice Manual:

Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.

It’s hard to believe that of the 30 to 40 thousand cases the Board reviews each year, only about 0.1% (one in one thousand) contain an issue that meets the above criteria.  I’ve had several cases before the BIA that involved issues of first impression, none of which were published (though two of them were published decisions by federal circuit courts).  Why is the Board passing the buck on decisions to the federal courts of appeals?

Although it might be more work over the short term, if the Board published more frequently, IJ decisions would become more consistent–creating less work for the BIA over the long term.  It would also make life easier for the federal courts of appeals, saving government resources.  Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families. 

The BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.

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Do Immigration Lawyers Suck?

by Jason Dzubow

According to the EOIR website’s List of Currently Disciplined Practitioners, almost 400 immigration attorneys (397 by my count) have been seriously disciplined since 2000.  What I mean by “seriously disciplined” is suspended or expelled from the practice of law.  The list does not include attorneys who have been subjected to lesser punishments, such as “reprimands” or “admonishments,” whatever those are.

Last I heard, there were around 10,000 attorney-members of AILA, the American Immigration Lawyers Association, but it is unclear how many other attorneys practice immigration law.  Assuming (and it is a big assumption) that AILA represents 50% of all immigration attorneys; there are about 20,000 immigration attorneys nationwide.  If 400 of them had been suspended, that means that about 2% of all immigration attorneys have been seriously disciplined. 

Even these guys would have a hard time getting suspended.

Depending on your point of view, maybe 2% is a lot, or maybe it is a little.  Call me a pessimist, but if I hire someone to assist me with one of the most important endeavors in my life, and there is a 2% chance that that person is a crook, I would feel a bit uneasy.  If 2% of pilots were incompetent, I doubt many people would fly.

But my guess is that the problems are worse than the numbers reveal.  For one thing, it’s not easy to get suspended or expelled from the practice of law.  I once filed a bar complaint against an attorney for lying to my client, stealing his money, and getting him ordered deported (the complaint was a required part of the process to get the case reopened).  We had all sorts of documentation proving this attorney’s incompetence and maliciousness.  The Bar Association found that she had violated the Rules of Professional Conduct, but declined to punish her because there were “special circumstances.”  Ironically, the “special circumstances” were that she had already been punished for destroying the cases of two other people.  So, in other words, she was saved from punishment by her own prior bad acts.  It’s ridiculous, but it helps illustrate how difficult it is to get suspended.  Nevertheless, 400 of my fellow immigration attorneys have managed to do so.

Another problem is that immigrants–particularly illegal immigrants–are unlikely to report bad attorneys.  Many immigrants do not speak English and are not familiar with their rights.  They do not know how to report attorneys.  Also, they might be afraid to report attorneys. 

For these reasons, my guess is that the 400 attorneys on the EOIR list represents only a fraction of the incompetent and/or dishonest immigration attorneys who are practicing law today. 

Of course, the vast majority of immigration attorneys are caring, competent, and honest.  Most (if not all) attorneys I know have worked long hours for little or no pay to help clients in need.  Immigration law is usually not the most lucrative field, and most attorneys practice in this area because we want to help people fleeing persecution or reuniting with family or making a better life.  I do think we have a responsibility to report bad conduct when we see it, and to encourage people who have been harmed to file complaints where appropriate.  Bar associations should also be more aggressive in enforcing the rules.  In this way, we can protect our clients and improve the profession. 

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Amicus Brief on Sexual Violence as Torture in Argentine Case

by Jason Dzubow

Earlier this month, the European Center for Constitutional and Human Rights submitted an Amicus Brief titled Sexual Violence as Torture in several cases stemming from the military dictatorship in Argentina.

In a 1976 coup, the Argentine military seized power and ruled until 1983.  During those years, the government violently suppressed dissent.  As part of the repression, government officers committed sexual violence against women (and men).  These crimes were generally committed in clandestine detention centers as part of a systematic and deliberate plan, orchestrated within the highest government levels.  The Amicus Brief argues that these actions are crimes against humanity.  From the brief:

This amicus curiae brief is submitted in order to call the Court’s attention to the universal acceptance of sexual violence and rape – as a special form of it – as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression.  It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and international human rights law.

The brief states that in the present case, Argentina has the opportunity to “develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.”

The brief notes that international law concerning sexual violence is a relatively recent development: “When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.”

The following principles have emerged from international humanitarian law: (1) Sexual violence is not limited to the sexual act of penetration, but could include other behaviors; (2) Rape may be understood as a serious crime of sexual violence; (3) Women as well as men can be victim of these crimes given that the established elements are gender neutral; (4) Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength; and (5) Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.

While the ECCHR Amicus Brief has been filed in a criminal case, the principles could be applied to asylum and Convention Against Torture claims, and help to establish that sexual violence is a form of torture.

I have a copy of the brief (English version), but it is not available on-line.  Feel free to contact me if you would like a copy.

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Actor Randy Quaid Seeks Asylum in Canada

by Jason Dzubow

Carl Jung said, “There are no coincidences.” 

Yesterday, I wrote about American citizens who seek asylum overseas (American Citizens Seek Asylum in Great Britain).  Now, we learn that Randy Quaid and his wife Evi are seeking asylum in Canada. 

Randy Quaid in Independence Day - Just because you're paranoid doesn't mean they're not out to get you.

It seems that the couple had legal trouble in the U.S., stemming from a property dispute.  As a result of the dispute, the couple was arrested in California and released on $50,000.00 bond each.  They then traveled to Canada where Mr. Quaid was scheduled to receive an award from a Canadian film critics group.  When they failed to appear at a hearing in California, they were arrested in Canada.  Rather than quietly returning to the U.S., the couple has sought refugee status in Canada.

The basis for the claim is not entirely clear.  Mrs. Quaid says that eight of their friends, including actors David Carradine and Heath Ledger, have been “murdered” under mysterious circumstances and she’s worried something will happen to her husband next.  “We feel our lives are in danger,” she said.

According to my favorite website, TMZ, the Quaids have had a troubled history and have made some pretty outrageous claims involving different conspiracies against them.  Although the Immigration and Refugee Board of Canada has released them, they are being kept on a pretty tight leash, and will have to appear again for a hearing later this week.  Whether they follow through with their asylum claim, we will have to wait to see.  If they succeed on the claim, they will become two of the handful of U.S. citizens who have successfully claimed asylum in another country. 

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American Citizens Seek Asylum in Great Britain

by Jason Dzubow

We usually think of the United States as a country where people fleeing persecution come to seek asylum.  But sometimes, American citizens flee their country in search of safety elsewhere. 

The British Daily Mail reports that five Americans currently have asylum cases pending in the UK.  The cases came to light earlier this month when a whistleblower, Rory Clarke of the National Asylum Support Service, made the information public.  According to Mr. Clark, the Americans are in Great Britain to take advantage of the posh benefits available to asylum seekers.  These benefits include free housing and healthcare, and £35 per week.  In some cases, asylum seekers can receive benefits for years before their claims are rejected.  Mr. Clarke says that he was so shocked by this abuse of the system that he resigned his job.

Asylum Seekers in the UK enjoy government-sponsored meals and accommodation.

The five Americans are not the only U.S. citizens to seek asylum abroad.  The Guardian reports that between 2004 and 2008, 45 Americans (and 15 Canadians) filed for asylum in the UK.  All 60 cases were rejected.

The basis for most claims was not revealed.  However, a US government source said the American applications pokies online were most likely submitted by self-declared “political refugees” claiming they faced discrimination under the administration of President Bush.  An on-line posting by an alleged American refugee claimed that he was seeking sanctuary in Scotland because he had been “persecuted as a political dissident against US government war-mongering.”

According to the Guardian:

A small number of Americans have successfully claimed asylum abroad over the past few decades. In 1997 the Netherlands granted asylum to Holly Ann Collins, together with her three children, when they claimed to be fleeing domestic abuse. The family had spent three years living in four different Dutch refugee camps before their application was approved [she returned to the U.S. in 2008 where she pled guilty to contempt of court].  In June 2008 Texan mother Chere Tomayko and her two daughters were granted asylum in Costa Rica, also on the grounds of abuse.

There also have been cases recently of Americans seeking asylum in Canada in order to avoid service in Iraq and Afghanistan.  In fact, there is a website devoted to war resisters in Canada.

While the idea of U.S. citizens seeking asylum abroad seems a bit suspect, I suppose I agree with Donna Covey, the chief executive of the Refugee Council in the UK, who says: “No country is safe for every person all of the time. Those with a genuine need for protection, whatever country they are from, should have the right to claim asylum in a place of safety.”

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Missouri Senate Candidates Vie for Who Hates Asylum Seekers More

by Jason Dzubow

Asylum tends to be one of the less controversial areas of immigration law, and rarely attracts the kind of anger associated with the broader immigration debate.  However, a 20-year old asylum case has become an issue in the Missouri Senate race. 

The Kansas City Star reports that Democrats have accused the Republican candidate, Roy Blunt, of “hypocricy” because he employed and tried to assist an “illegal worker” named Dora Narvaez, a Nicaraguan asylum seeker.  Apparently, Mr. Blunt employed Ms. Narvaez as a housekeeper for six months in 1990 and then contacted the head of INS to help her with her asylum case.  At the time, Mr. Blunt was Missouri’s Secretary of State.  Mr. Blunt’s campaign denies the allegations, and states that he forwarded Ms. Narvaez’s request for assistance, just as he did for anyone else from Missouri. 

It’s unclear to me how the Democrats have determined that Ms. Narvaez was an “illegal worker.”  Aliens who filed for asylum prior to 1996 received a work permit quickly and were permitted to remain in the U.S. until their cases were adjudicated.  Thus, if Ms. Narvaez was indeed an asylum seeker, she was most likely legally eligible to work and live in the United States, and so Mr. Blunt could have lawfully employed her.  Whether or not he used his influence and connections to assist her remains an open question, but based on the evidence available, the Democrat’s charge that Ms. Narvaez was an “illegal worker” seems unfounded. 

Not that the Republicans are much better on this issue.  Mr. Blunt currently represents Southwest Missouri in the House of Representatives.  According to his Congressional website, he has opposed “amnesty” and supported an enforcement-only approach to the immigration problem.  Thus, it seems that neither candidate is much of a friend to immigrants.

Mr. Blunt currently leads his opponent, Democrat Robin Carnahan, in the polls. 

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Remembering Louis Henkin – Architect of the 1951 Refugee Convention

by Jason Dzubow

Louis Henkin, a leading scholar in international law and foreign policy, professor emeritus at Columbia Law School, and one of the principal architects of the 1951 Convention Relating to the Status of Refugees, died last week at age 92.

Louis Henkin (November 11, 1917 - October 14, 2010)

Prof. Henkin led a long and eventful life.  He was born Eliezer Henkin in 1917 in Belarus, the son of a prominent rabbi.  He and his family immigrated to the United States in 1923, and he eventually attended Harvard Law School. 

After law school, Prof. Henkin clerked for Judge Learned Hand before enlisting in the United States Army during World War II.  He served in the European Theater and was awarded a Silver Star for his efforts. 

After completing his military service, he clerked for Supreme Court Justice Felix Frankfurter.

Beginning in 1948, Prof. Henkin worked for the U.S. State Department in the United Nations Bureau.  There, he helped author the 1951 Refugee Convention, the key legal document defining who is a refugee, their rights, and the legal obligations of states.

Prof. Henkin left the State Department in 1956 and began a long academic career, mostly at Columbia University where he founded the university’s Center for the Study of Human Rights in 1978 and created the Human Rights Institute in 1998.  Prof. Henkin was considered by many one of the “founding fathers” of human rights law. 

Volker Türk, director of UNHCR‘s Division of International Protection, saluted Professor Henkin for his “fundamental contribution to the early development of international refugee law and his unwavering commitment to the protection of human and refugees’ rights.”  “It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou,” said Elisa Massimino, the president and chief executive officer of Human Rights First, an organization Professor Henkin helped found in 1978 under the name Lawyers’ Committee for Human Rights.  “He literally and figuratively wrote the book on human rights,” she said.

According to the New York Times, Prof. Henkin took a lofty view of his own government’s international responsibilities, but he often felt let down: “In the cathedral of human rights,” he wrote, “the United States is more like a flying buttress than a pillar — choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.”

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Amicus Brief on Protecting Mentally Disabled Respondents

by Jason Dzubow

Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

Our view of the mentally ill continues to evlove, but we've still got a way to go.

In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 

“‘The [incompetency] doctrine [where a defendant can not stand trial if he can’t comprehend the charges against him, can’t effectively consult with counsel, and can’t assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'”  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person’s rights and is the hallmark of a functioning justice system. 

To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent’s right to counsel, (2) the Immigration Judge’s (“IJ”) ability to terminate proceedings, (3) the IJ’s power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 

In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 

U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 

If this case is anything like the cases I’ve litigated in the BIA, we won’t have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA. 

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Wonderful State Department Publication on Refugees

by Jason Dzubow
Eric P. Schwartz, U.S. Assistant Secretary of State for Population, Refugees and Migration

Since 1975, the United States has resettled almost 3 million refugees and asylum seekers, more than all other resettlement countries combined.  The most recent edition of the U.S. State Department’s eJournalUSA is entitled, Refugees: Building New Lives in the USA.  It presents a number of moving stories about refugees and the Americans who assist them.  From the introduction:

This eJournal USA chronicles lives of desperation and struggle but also offers examples of friendship and hope. In this issue:

• a boy is separated from his family and spends his childhood trying to elude the carnage of the Second Sudanese Civil War;

• a Cuban family of 10 faces persecution for their political beliefs in their home country;

• a young girl flees war and takes an uncertain journey across the Pacific;

• a man escapes ethnic violence in Rwanda and subsists on the street and in a refugee camp for 10 years.

All these people left their homelands and came to the United States as refugees, and all were met by American sponsors who helped them build new lives in the U.S. Through interviews and first-person accounts, our journal tells the stories of refugees who are building new homes and lives in the United States — and of those Americans who guide and help them.

Diversity and plurality are among the United States’ defining national characteristics. These national values inspire individual Americans to strengthen the country’s social fabric by welcoming and helping integrate refugees into U.S. communities. The resettled refugees in turn enrich American culture as well as the nation’s social, economic and legal framework.

The stories and articles in these pages explain the U.S. government’s commitment to help refugees and illustrate how that commitment is embodied by thousands of Americans who extend a hand to aid and befriend some of the nation’s newest — and bravest — residents.

The articles in the State Department journal highlight America at its best and remind us that our country has been greatly enriched by the refugees we have helped.  I also learned that Gloria Estefan came to the U.S. as a refugee (p. 18) and that a church in my old neighborhood helped welcome Turkish refugees from Georgia and Uzbekistan (p. 21).

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Presidential Memo on Refugees, but What About IDPs?

by Jason Dzubow

In a Presidential Memorandum issued last Friday, President Obama has authorized the admission of up to 80,000 refugees in Fiscal Year 2011, which is pretty similar to the admissions numbers for recent years.  “Refugees” are defined as people who are outside their country of origin and have a well-founded fear of return to their homeland.  Internally displaced persons (IDPs), who have been forced from their homes but are still within the borders of their own country, do not qualify as refugees, and–with some exceptions–cannot come to the U.S. as refugees.

The distinction between refugees and IDPs has always struck me as somewhat arbitrary.  For example, it doesn’t get much attention, but according to UNHCR, there are over 3 million IDPs in Colombia.  This is significantly more than the number of IDPs displaced from more well-known conflict areas like Darfur (2 million) and Iraq (2.6 million).  The refugee admissions numbers do almost nothing to assist IDPs. 

My left foot is an IDP; my right foot is a refugee.

The only exceptions actually written into the law are for IDPs from Iraq, the former Soviet Union, and (surprise, surprise) Cuba.  Also, U.S. embassies are authorized to designate certain IDPs as refugees, but only in “exceptional circumstances.”  This means that–for example–Tutsis in Rwanda in 1994 would not qualify for admission to the U.S. as refugees by virtue of the fact that they are still in their home country.  Ditto for Jews in Germany during World War II.

I’m not necessarily advocating increasing the number of refugees admitted into the U.S. every year (though I do think we can probably admit more than 80,000, which is less than 0.02% of the 42 million people displaced by conflict).  That should be a function of world-wide need and our ability to pay for and absorb the refugees.  It is determined by Congress and the President.  However, I do think we should consider including IDPs in the pool of potential refugees that will be admitted into our country.  If a person really can demonstrate a well-founded fear of persecution in his country, he should not be prevented from resettling in the U.S. merely because he has not managed to escape from his home country.  IDPs and refugees should be treated the same for purposes of resettlement.

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When Silence is Golden: Interpreters and Asylum

by Jason Dzubow
This blog entry is by ace reporter Maria Raquel McFadden.  Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience.   She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings.  Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736; mcfadden.maria@gmail.com.          
Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied.  It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.

Like many other professionals, interpreters must follow certain standards of practice while on the job.  Despite the fact that the number and order of cannons in the interpreters’ “Code of Ethics” can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.  

Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told  directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 
Interpreters often have access to protected, restricted, private and/or sensitive information.  The oath taken by professional interpreters to adhere to  confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.  
No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding. 
From time to time, for educational purposes, interpreters do and should share language issues that arise.  However, it is important they never share any identifying information which can include the name of the  asylum seekers, the judge, officer, or representing attorney.
Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional “interpreters” are used.  Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality. 
When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.

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Cuban Exiles in Spain Coming to the U.S.

by Jason Dzubow

In August, we reported that Spain and the Catholic Church had brokered a deal with the Cuban government to secure the release of dozens of Cuban political prisoners.  The Cubans were to be resettled in Spain.  The only problem: They wanted to come to the U.S., not Spain.  Now, it seems they will get their wish.

The AP reports that the Cuban dissidents will be coming to the United States where they will receive asylum:

The State Department is working to bring to the USA most of the 39 Cuban political prisoners exiled to Spain this summer… More than 100 family members would join them. [The] first case has been processed and nearly all are likely to accept the offer. [The] plan gets around a Catch-22 whereby Cubans who left the island were no longer considered in harm’s way, and thus not eligible for traditional asylum requests in the U.S.

Apparently, the Cubans preferred the United States because they had family and community ties here.  While I understand the desire to resettle in a country where you have connections, this is a deal that would likely not be available to asylum seekers from other countries.  Normally, once a person has asylum in one country, he is not eligible to receive asylum in the U.S.  This case reminds us that politics (here, our dislike of the Cuban government) can play a role in the asylum system. 

I have a case similar to this, where the United Nations resettled my client as a refugee in a country where the client had no community ties or friends, no knowledge of the language or culture, and no prospects for a job.  The client came to the U.S. and is now seeking asylum here.  We’ll see if the Immigration Court is as generous to my client as the State Department has been to these Cuban exiles. 

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The Eleventh Circuit Rules on Impermissible Gay Stereotypes

by Jason Dzubow

Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that an Immigration Judge improperly relied on gay stereotypes to reach an adverse credibility determination. See Todorovic v. Attorney General, Case No. 09-11652 (11th Cir. Sept. 27, 2010). 

Mladen Todorovic is a gay man from Serbian who came to the United States in 2000.  He applied for asylum in 2003, claiming to have endured several acts of persecution in Serbia on account of his sexual orientation.  Some of the persecution was perpetrated by government officials.  Mr. Todorovic was also persecuted by private individuals, but the government would not protect him.  His asylum claim was filed late, and his case was referred to the Immigration Court.

The Eleventh Circuit rules against offensive gay stereotypes. Sorry Bruno.

In his decision, the IJ stated, “[t]he Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay.”  The IJ continued, “it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual.”  In reaching his conclusion, the IJ again noted that Mr. Todorovic “is not overtly homosexual,” and, therefore, that there was no reason to believe he would be “immediately recognized” as gay.

The Eleventh Circuit first noted that “One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence.”  A number of other circuits have “rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear.”

The Court held:

As we see it, this so-called “demeanor” determination rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to “other trait[s]” that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look… The IJ’s comments elevated these ungrounded assumptions to demeanor evidence, and the IJ drew adverse inferences about the petitioner’s credibility and legal conclusions from them… These stereotypes most assuredly are not substantial evidence. They “would not be tolerated in other contexts, such as race or religion.” … We see no reason to tolerate them here.

The Court vacated the agency’s decision and remand the matter for a new hearing, “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.”

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