Are Terrorists Taking Advantage of the Asylum System?

by Jason Dzubow

In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States.  This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.” 

The asylum seekers leave Somalia for Kenya, where they obtain false passports.  From there, they travel to Cuba and then Central America, where they make their way to Mexico.  In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico.  The Somalis then enter the U.S. illegally and file for asylum.

According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum.  The fear, of course, is that these Somalis are terrorists coming here to attack our country.  Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”

I have represented many Africans who have traveled to the U.S. in a similar fashion.  The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States.  They use one or more false passports and meet several different smugglers along the way.  The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).

Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued).  In my experience, the Mexican document does not–as the article states–prove the alien’s identity.  To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.

Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them.  This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally.  Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum.  Why initiiate contact with government authorities if you plan to engage in criminal activity? 

I can imagine scenerios where a terrorist would come here and falsely claim asylum.  However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country. 

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Riding for Refugees

by Jason Dzubow

Next month, thousands of bikers in Canada and the U.S. will be riding to raise money for refugees.  The event, called Ride for Refuge, takes place in more than a dozen locations in the two countries (and at least one location in Australia), and will raise money to assist refugees and others in need of refuge both locally and overseas.  The proceeds will be distributed to more than 200 churches and charities. 

Biking for refugees - Please, if you are not divine, wear a helmet.

The Ride was begun in 2004 by members of International Teams Canada, a Christian missionary group, and has thus far raised over $1.5 million.  This year, they hope to have 7,000 riders and raise an additional $1.5 million.

The Ride for Refuge is not the only Christian organization riding to help refugees.  The South West Times reports that on October 3rd, parishioners from the First Christian Church (Disciples of Christ) in Liberal, Kansas will be traveling 900+ miles to Texas to deliver goods and money to refugees there (though it does not appear they will covering the 900 miles by bike!).  The fund raiser was begun in 1979 by Feliberto Pereira, a Cuban refugee who wanted to help others in his predicament.  According to the South West Times, this will be the last year for the refugee ride, which ends at the Southwest Good Samaritan Ministries, a refugee center located near the Mexican border.

The fund raising by these groups (and other religious charities) recalls Matthew 25:  Jesus said, “For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.”  Then the righteous [people asked] him, “Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?”  Jesus replied, “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.” 

In an age of increasing anger and xenophobia, it’s nice to see people who take the gospel seriously and who walk the walk.  And pedal the bike.

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Asylum for Nazis?

by Jason Dzubow

The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway.  Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country’s law on gun ownership and having possible links to organized crime.  Mr. Datsik’s asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.

In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years.  In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing “race-hate” by the Leeds Crown Court in England.  After receiving bail, the two men fled the UK for Los Angeles.  On arrival at LAX, immigration officials took the two men–now dubbed the “heretical two”— into custody.  The men filed for political asylum in the United States. 

The Heretical Two

The heretical two believe that their government is unjustly curtailing their right to freedom of speech.  Indeed, many European governments—in particular Germany—have made neo-Nazi activities and Holocaust denial illegal.

Claims for asylum by European neo-Nazis raise some interesting questions.  For one, can a person receive asylum in the United States for hate speech that is illegal in his home country?  Such speech would be legal in the United States, but can be punished by jail time in Europe.  Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted “on account of” political opinion.  Whether or not the government action against the individual rises to the level of “persecution” might be a more difficult case to make.  But recently, an Immigration Judge granted asylum to some German home schoolers who faced “persecution” because they refused to send their children to public school (the DHS appeal of this decision is currently pending).  If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well. 

Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum.  Our asylum laws, to some extent, reflect our values.  We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary—even crucial—by the Chinese government.  Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant.  Do we think that people arrested for political statements should be granted asylum?  Does the imprisonment of such people rise to the level of persecution? 

If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum.  Whether they qualify as a matter of discretion is another matter.

As for the heretical two, their applications for asylum were denied and they declined to appeal.  After removal to England, they were each convicted of crimes related to racial hatred.  Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months. 

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The Silence Between the Notes Makes the Music

by Jason Dzubow

I was never quite sure what that meant, but it somehow seems appropriate to preparing asylum cases.  There is a temptation when preparing a case to include everything the applicant brings you: school and work records, letters from witnesses, police documents, medical documents, news articles.  But sometimes in asylum, less is more, and the more asylum cases I do, the more I feel comfortable leaving things out. 

Zen and the art of asylum application.

For one thing, I’ve seen too many cases where the client included a piece of unnecessary evidence, only to have that piece of evidence create problems.  For example, I worked on an Ethiopian asylum case that was well supported with letters and other evidence.  The client also included a hospital receipt showing that she was treated for stomach illness shortly after her release from prison.  The document supported her assertion that she was sick while in prison, but we had other evidence for that, including letters from people who saw her after she was released.  DHS investigated the document and found that it was fraudulent.  Ultimately, the client was granted asylum, but not without a whole lot of difficulty and expense that could have been avoided if we left out the hospital receipt. 

The hard part, of course, is how to know what to leave out.  Generally, if I have a document that solidly supports one aspect of the applicant’s claim, I feel comfortable leaving out other documents that do the same thing.  For example, I am representing an Afghan asylum seeker who worked with a well known NATO General in Afghanistan.  We have photos of the two men together, a letter from the General, and letters from other people attesting to the relationship.  If my client’s claim is that the Taliban threatened to harm him because he was seen together with the NATO General, then it would be helpful to prove that my client and the General were actually together (I do not need to prove the substance of their meeting, only that they were together).  The photos alone are enough to prove that the two men met; the remaining evidence is extraneous and has the potential to create problems–maybe a letter is incorrectly dated or the government will suspect that the General’s letter is fraudulent and send it for a time-consuming investigation.  In this scenario, when I submit the additional evidence, I gain nothing for my client and we potentially create problems.  So why submit this additional evidence?

The REAL ID Act requires an asylum applicant to submit supporting evidence or explain the absence of that evidence, so I am not advocating not submitting pertinent evidence.  I merely suggest that an asylum applicant does not need to submit redundant evidence once he has submitted sufficient evidence to prove an aspect of his story.  Submitting the additional evidence may “bulk up” the asylum application, but it also creates the risk of an inconsistency–and inconsistencies can pop up where you’d least expect them.

I think this principle holds true for general country condition information as well.  I’ve worked on several appeals where the underlying case was litigated by someone who submitted copious evidence of country conditions.  Why?  If the New York Times has an article about a particular political rally, you don’t need an additional article from the BBC to prove that the rally occurred.  The second (or fifth) article is completely redundant and so it adds nothing to the case.  However, it does serve to burden the fact-finder.  And worse, it creates the risk of an inconsistency.

I guess the lesson for today is: Prove your case, but not too much.

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“One Central Reason” and Withholding of Removal

by Jason Dzubow

In a decision issued last week, the Board of Immigration Appeals held that the “one central reason” standard for asylum also applied to withholding of removal pursuant to INA § 241(b)(3). See Matter of C-T-L-, 25 I&N Dec. 341 (BIA Sept. 14, 2010).

Under the REAL ID Act, an alien is eligible for asylum only if “one central reason” for the feared persecution is race, religion, nationality, particular social group or political opinion. See INA § 208(b)(i)(B)(I).  Now the BIA has held that the same standard applies to claims for withholding of removal under INA § 241(b)(3).  The Board reasoned that “all indications are that Congress intended to apply the ‘one central reason’ standard uniformly to both asylum and withholding claims:”

Applying this standard to withholding claims has two distinct practical advantages. The first is that it will avoid the application of the different standards adopted by the courts of appeals in “mixed motive” cases….  The second is that the burden of proof standard would be consistent between asylum and withholding of removal claims.

What motivates a persecutor?

The BIA found that “Applying a different standard in ‘mixed-motive’ cases to asylum and withholding of removal would create inherent difficulties because it would require a bifurcated analysis on a single subissue in the overall case.”  “An application for asylum necessarily includes the similar but lesser form of relief of withholding of removal….  applying the same standard promotes consistency and predictability, which are important principles in immigration law.”

The Board concluded:

Considering the language and design of the statute, congressional intent to create a uniform standard, and the inherent difficulties in applying different burden of proof standards on the subissue of the persecutor’s motive, we conclude that an applicant for withholding of removal must demonstrate that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.

With that, the Board dismissed the alien’s appeal.

While consistency is a laudable goal, the fact remains that in the REAL ID Act, Congress amended the standard for asylum and not the standard for withholding of removal.  I imagine that we have not heard the last of this issue.  A petition for review to the Ninth Circuit seems likely, and we will see how that court interprets the statute.

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The Center for Immigration Studies Latest Comments on Asylum

by Jason Dzubow

David North recently posted a blog entry, the Uses and Abuses of the Asylum System, on the Center for Immigration Studies website.  Normally, I disagree (sometimes vehemently) with postings on the CIS website.  But this time, I’m pretty much in agreement with Mr. North.

In his posting, Mr. North describes the refugee system and the asylum system.  Apparently, he previously prepared a comparison between refugees and asylees, examining the use of public benefits by each group (he references his study, but I did not notice a link to it).  He found that asylees generally use less pubic benefits than refugees.  He posits that asylum seekers tend to be wealthier and better educated than refugees–asylum seekers make (and pay for) their own way to the United States; refugees are selected overseas from people in camps or otherwise outside their countries. 

His assessment certainly comports with my experience.  My clients these days are asylum seekers; many of them are educated people who are reasonably well off.  In the early 1990’s, I worked in refugee resettlement.  My clients then were a mixed bag–Jewish refugees from the former Soviet Union tended to be well educated, but poor.  Amerasians and other refugees from Indochina were generally less well educated, and many were indigent.   

Mr. North also notes that asylum seekers from some countries have filed meritless cases in an effort to delay their removal from the United States.  I agree that this is a problem, though it is not really anything new.  Indeed, the asylum system was reformed in 1996 to reduce the incentive to file meritless claims.  Before 1996, asylum seekers received a work permit shortly after they filed for asylum.  Now, they must wait 150 days before they can apply for a work permit.  Of course, some people still file meritless claims in order to delay their removal.  Unfortunately, Mr. North does not suggest what could be done about this.  If we offer asylum to people with a genuine fear of persecution, it is difficult to prevent others from taking advantage of our generosity. 

I do have one minor quibble with Mr. North’s posting.  He notes that during FY 2008-2010, asylum seekers from Iraq were the group most likely to receive political asylum in Immigration Court (only 13% of Iraqi cases were denied).  He writes:

The sad irony is that the U.S. government, after spending billions of dollars and thousands of lives to make life better in Iraq, has done so little good there, in the eyes of its own Immigration Judges, that when it comes to arguing that one is persecuted in one’s own country, those from Iraq are the ones most likely to win.

I don’t know if this is exactly correct.  By the time a case reaches the decision stage in court, it is usually at least one year old, and often two or three years old.  This means that any past persecution occurred probably two to five years earlier.  During that time, conditions were much worse in Iraq.  Mr. North may be correct–maybe IJs think we have not done much good in Iraq–but it is just as likely that the cases before them originated at a time when conditions in Iraq were less secure.  My guess is, we will see the grant rate for Iraqi cases dropping over the next few years (unless of course the country falls apart again). 

In any case, it is nice to agree with the Center for Immigration Studies for a change.

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Venezuelan Accused of Embassy Bombings Seeks Asylum

by Jason Dzubow

A Venezuelan man accused in the 2003 bombing of Spanish and Colombian diplomatic missions in Venezuela has fled his country and is seeking asylum in the United States.  The Miami Herald reports that Raul Diaz escaped from prison while on a daytime furlough.  He traveled by boat to Trinidad and then flew to Miami. 

 Mr. Diaz denies involvement in the embassy bombings, which injured four people.   He claims that there were irregularities in his criminal proceedings and that he was detained in inhumane conditions.

Memorial to Victims of Cuban Flight 455

Since arriving in the U.S., Mr. Diaz has garnered support from the Venezuela Awareness Foundation, a human rights organization that opposes the Hugo Chavez regime.  He has also met with U.S. representative Ileana Ros-Lehtinen, who is supporting his bid for asylum and who issued a press release stating that Diaz’s case was an example of the human rights violations carried out by Chavez.

While there is good reason to oppose Hugo Chavez and his dictatorial tendencies, it seems premature to embrace Mr. Diaz as deserving asylum in our country.  He has been accused of a serious crime–planting bombs that injured four people, including the wife and young daughter of a security guard.  This reminds me of the bombing of Cuban flight 455 in 1976, a terrorist attack that killed 73 people.  At least two of the men responsible for the attack are now living freely in the U.S., supported by various politicians, including Rep. Ros-Lehtinen, who is originally from Cuba and who is strongly opposed to the Castro government.  I guess I do not understand the logic of supporting terrorists who kill innocent people, just because we oppose the governments of the countries they attack. 

Perhaps Mr. Diaz is innocent, as he claims, but perhaps not.  An Asylum Officer or an Immigration Judge needs to scrutinize the case to determine whether he is eligible for asylum or whether he is barred as a terrorist.

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Gay Saudi Diplomat Fears Return to His Country

by Jason Dzubow

Ali Ahmad Asseri, the first secretary of the Saudi consulate in Los Angeles, has applied for political asylum in the United States, claiming that Saudi officials have terminated his job after discovering that he was gay and was close friends with an Israeli Jewish woman.  MSNBC reports that on a Saudi website, Mr. Asseri recently criticized his country’s “backwardness” and the role of “militant imams” in Saudi society.  He also threatened to expose what he describes as politically embarrassing information about members of the Saudi royal family living in luxury in the U.S.  Mr. Asseri states that he could face persecution or death in his home country.

I suppose this represents some sort of progress.

According to MSNBC, the last time a Saudi diplomat applied for asylum in the U.S. was in 1994 when the first secretary for the Saudi mission to the United Nations was granted asylum after publicly criticizing his country’s human rights record and alleged support for terrorism.

If Mr. Asseri can demonstrate he is gay, he should have a good chance to win his asylum case: homosexuals have been defined as a particular social group and country conditions in Saudi Arabia are dangerous for gays and lesbians–according to the State Department report on Saudi Arabia, sexual activity between two persons of the same gender is punishable by death or flogging.

According to MSNBC, Mr. Asseri was interview by DHS on August 30, 2010.  He should expect a decision in the near future. 

What is curious to me about the case is why Mr. Asseri felt the need to publicize his criticisms of Saudi Arabia on the internet.  His complaint about “militant imams” might be understandable given his circumstances, but it certainly would not improve his situation were he to return home.  I know nothing about Mr. Asseri, but I’ve seen other aliens engage in activities in the U.S. that are possibly designed to bolster their asylum claims–for example, attending political rallies against their government or posting anti-government messages on the internet. 

Such activities present a challenge for the decision maker.  On the one hand, the activities may be legitimate political activities.  On the other hand, they could be designed merely to engineer a stronger case.  Either way, the activities make it more dangerous for the alien to return home.  In Mr. Asseri’s case, his internet postings do not seem to be the primary basis for his asylum claim and may simply be a manifestation of his anger over his treatment.  In any case, if he can demonstrate his sexual orientation and that he was fired from the Saudi embassy, that would likely be enough for a grant of asylum.

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Sex for Asylum

by Jason Dzubow

Two female asylum seekers who were offered asylum in exchange for sex can sue the federal government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), ruled the U.S. Court of Appeals for the Ninth Circuit. See Xue v. Powell, No. 08-56421 (9th Cir. Sept. 2, 2010).  The two women are Chinese nationals who filed affirmative asylum claims and appeared for interviews at the Asylum Office in Los Angeles.  Asylum Officer Thomas A. Powell, Jr. interviewed each woman and requested sexual favors and money in exchange for granting their asylum applications.  Mr. Powell was convicted in 2004 and sentenced to three years and nine months imprisonment.  He died shortly thereafter.

If this is your Asylum Officer, ask for a supervisor, baby!

In 2001, the two asylum seekers sued Mr. Powell, his supervisor, and the U.S. government.  The District Court dismissed the claims against the U.S. government under the FTCA.  Under the FTCA, the United States is only liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [California].” See 28 U.S.C. § 1346(b)(1).  In a split decision, the Ninth Circuit reversed in part, holding that, under California law, the plaintiffs could state a claim for infliction of emotional distress and interference with the civil rights of the plaintiffs.  The case will now be remanded to the District Court for trial.

Meanwhile, one of the asylum seekers received asylum based on her fear of persecution as a Christian.  The other asylum seeker’s case was denied; she claimed a fear of persecution on account of China’s one child policy.  According to the San Francisco Chronicle, she faces deportation after the resolution of her lawsuit.

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It’s Getting Easier to Win Asylum

by Jason Dzubow

A recent report from TRAC Immigration reveals that the nation-wide asylum denial rate in Immigration Court has reached a 25-year low.  That means that a higher percentage of asylum seekers are receiving asylum than ever before.

The statistics show that in Fiscal Year 1986, 89% of asylum applications in Immigration Court were denied.  For the first nine months of the current fiscal year, only 50% of asylum cases in court were denied. 

The most obvious explanation for the higher grant rate is that a larger proportion of asylum seekers are now represented by attorneys–for FY 2010, 91% of asylum seekers were represented by attorneys; in 1986, only 52% of asylum seekers were represented. 

For those not represented by counsel, the difference in grant rate is stark: For FY 2010, only 11% of unrepresented asylum seekers received asylum in immigration court.  While this demonstrates the importance of legal representation, I suspect it also reflects the fact that aliens with weak claims often cannot find pro bono representation (law firms won’t take cases that are not meritorious).  Thus, this statistic may not be quite as bad as it seems.

Another reason for the improved grant rate may be that aliens are applying for asylum less frequently than in the past.  Since FY 2003, when Immigration Judges decided 35,782 asylum cases, the number of asylum cases has dropped to a projected 19,937 for FY 2010.  Perhaps aliens have become more savvy about what constitutes a bona fide claim, and they are more selective in making their applications for asylum. 

Finally, the TRAC report shows that the asylum grant rates for individual IJs continues to vary widely, though there seems to have been a slight improvement.  I have always felt that more guidance from the BIA–in terms of more published decisions–would help to reduce these disparities.  

The best news from the TRAC report is that most asylum seekers are now represented by legal counsel.  Hopefully, this means that their claims are being presented properly and that few aliens with meritorious claims are being denied.

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Full Disclosure: What Your Lawyer Doesn’t Know Can Hurt You

by Jason Dzubow

My friend, who is a keen observer of the Immigration Court and USCIS (and who wishes to remain anonymous), has noticed that clients often hide or forget information that effects their cases:

There are surprises in life we all wish we could avoid. Finding a hair in your meal at your favorite restaurant comes to mind, but for lawyers there is an even worse scenario: Showing up to court (or an immigration interview) only to find out that YOU (the client) have failed to tell the lawyer the most important information about your case. Imagine being “surprised” by the government’s trial attorney or an immigration officer with (for example) the revelation that his/her clients has an aggravated felony conviction and is not eligible for the relief sought.

Tell your lawyer everything and you will increase your chances of success.

Though the above example above might seem extreme, it never ceases to amaze me the information that clients seem to “forget” to share with their lawyer: from the fact that they are awaiting trial for two or three misdemeanors (which occurred within three months of the client’s immigration hearing) to changes in domicile that can cause the case to change venue (move to
another location) at the last minute.

The failure to share crucial information with your lawyer is akin to not telling your doctor you have clotting problems as he prepares to do surgery on you. Imagine the complications that would arise in the operating room!

Not having all the facts of the case could be worse than being lied to, (which most seasoned professionals can spot a mile away) since it makes the lawyer look unprepared and negates all the work and effort he/she might have put into the case! As the saying goes, “Forewarned is forearmed”: If a lawyer knows what the issues are, he/she can prepare accordingly and present the best possible case.

Perhaps what’s even more shocking is the fact that clients often “forget” to mention facts that can help their attorney build a stronger case and present a more convincing argument. There are even times when information not shared might have opened the door to more options when it comes to relief before the court or CIS. When presented too late, this information is of no help to the applicant.

Some information you should always share with your attorney (but that routinely seems to be overlooked) is:

– Arrest: No matter when or where they took place. Whether you live on the East or West Coast. Arrest that happened ANYWHERE in or outside the country do count!!! DUI and DWI should always be mentioned! Even if you were not convicted and someone told you the case would be purged.

– Convictions: Once again, no matter when or where these happened. All of the above information regarding arrests applies here.

– Stays in a third country (a country that is not your home country and that is not the United States) no matter what the length.

– Previous applications that you might have filed before USCIS (including INS), the Asylum Office or the Immigration Court.

– Witnesses: The availability or absence of witnesses might be crucial to a case.

– Medical Conditions: Whether they are yours, a family member’s or a witness’s.

– The number of ALL people living in your house and their relationship to you.

– The immigration status of all your relatives living in the United States. If you have relatives who previously lived here and left, you should tell your attorney about them as well.

In short, the more you tell your lawyer, the more he/she can help you with your case. Finally, remember that everything you tell your attorney is confidential—the attorney is not allowed to reveal this information to anyone.  By giving your attorney all the information, you increase your chance for a successful outcome in your case.

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How Safe Are Immigration Judges?

by Jason Dzubow


Government Executive reports on a recent event at the National Press Club featuring Judge Randall Frye from the Social Security Administration and president of the Association of Administrative Law Judges, and Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges.  The pair described threats to judges involving guns, baseball bats, cut brake lines, and broken legs.

A safe judge is a happy judge.

“Between March 2009 and February 2010, SSA offices that handle disability claims received 49 threats; individual Social Security judges received 20 threats,” reported Government Executive.   “At a Las Vegas federal courthouse in January, a man believed to have been irate over a reduction in his Social Security benefits gunned down a courthouse official and injured a U.S. deputy marshal.”  There are no statistics available from the Department of Justice concerning threats to immigration judges or court personnel, but given the high-stakes nature of proceedings, it would not be surprising if threats have been made. 

The main concern is lack of security at certain immigration and SSA courts.  Many such courts are not housed in government buildings and do not have rigorous screening procedures.  Immigration courts also often lack secure parking lots, elevators, and entryways.  At the Press Club event, Immigration Judge Marks pointed out that “she could ride the elevator with someone whom she decided to deport.”  That is certainly the case in the courts where I litigate. 

Suggestions for improvements included increasing the number of security guards in the reception area, stationing a bailiff in every active courtroom, higher railings in front of judges’ benches, and creating secure entrances, exits, and parking lots for judges.  At the minimum, the Justice Department should make available data on threats to immigration courts.  Then, at least, we could have a sense of the problem.

Of course, improvements to security cost money, which seems to be in short supply.  As the number of cases (and level of frustration) in immigration courts increase, we should not forget to ensure the safety of those who enforce and adjudicate our immigration law.  Let’s hope we don’t have to wait for a tragedy to realize the importance of protecting our public servants.

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Mexican Asylee Sues His Home Country

by Jason Dzubow
Rodolfo Montiel

In the 1990’s, Rodolfo Montiel worked to prevent logging companies and land barons from destroying the ecology of his home state of Guerrero, Mexico.  For his trouble, he was arrested and tortured by the Mexican military.  Eventually, he made his way to the United States, where he received political asylum in 2005. 

Now, Mr. Montiel has a lawsuit that is currently before the Inter-American Court of Human Rights.  He is seeking reparations from the Mexican government and punishment of those responsible for torturing him.  He also hopes to clear his name.  In a telephone interview with the Los Angeles Times, Mr. Montiel said he was optimistic that the court would find in his favor, though not so sure the Mexican government would heed the judgment, even though Mexico recognizes the authority of the court and its rulings are binding.

Mr. Montiel’s case is the fifth case brought against Mexico in the past 18 months.  Four of those cases claimed that the Mexican army was responsible for human rights abuses.  In the two cases decided so far, Mexico lost.

According to the LA Times, these cases demonstrate a “pattern of abuse by the military that far predates Mexican President Felipe Calderon’s drug war, in which the number of allegations of human rights violations has soared.”  “And the case highlights flaws in the judicial system that persist today… including the use of confessions obtained under torture, the denial of basic rights to detainees and the refusal of authorities to seriously investigate allegations of mistreatment by the army.” 

It’s rare that an asylee sues the government that abused him.  Soon we will see whether the Human Rights Court grants him the vindication that he seeks.

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The BIA Rules on Frivolous Asylum Claims

by Jason Dzubow

The Board of Immigration Appeals earlier this week held that an Immigration Judge can make a determination that an asylum application is frivolous even in the absence of a final decision on the merits of that application. See Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).  The Board also held that withdrawal of the alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.

In Matter of X-M-C-, the alien filed an affirmative asylum application that contained false information.  After an interview at the Asylum Office in California, the case was referred to an Immigration Court.  During a court hearing, the alien admitted that her asylum claim and her testimony before the Asylum Officer were false.  She withdrew her application for asylum and applied for adjustment of status.  She also admitted to submitting fraudulent documents.  The IJ denied the adjustment of status holding that the later recantation of her story did “not waive the fact that a frivolous application has been filed.”  The BIA found:

[An] Immigration Judge’s authority to determine that an alien has knowingly made a frivolous application for asylum is not limited to circumstances in which the Immigration Judge makes a final determination on the merits of the application. The relevant provisions of the Act and the regulations clearly indicate that an inquiry into whether an application is frivolous can be triggered once the application is “made” or “filed.” 

“Consequently,” the Board held, “after a determination has been made that an asylum application is frivolous, a separate evaluation of the merits of the application is not necessary.”

The Board also determined that withdrawal of the asylum application does not prevent a determination that the application was frivolous:

The plain language of section 208(d)(6) clearly provides that an asylum application can be deemed frivolous once it is “made” and the required warnings have been given. Allowing the preemptive withdrawal of an application to prevent a finding of frivolousness would undermine both the plain language of, and the policy behind, section 208(d)(6)—as well as the potency of the required warnings. An alien, such as the respondent, who not only filed a frivolous application but also testified falsely in support of that application to an asylum officer could escape the consequences deliberately chosen by Congress to prevent such abuse of the system.

While applicants should be encouraged to recant false statements and withdraw false applications, the Immigration Judge and this Board are not prevented from finding that an application is frivolous simply because the applicant withdrew the application or recanted false statements after the appropriate warnings and safeguards were given, but prior to a decision on the merits.

The paragraph quoted immediately above lays bare the dilemma of cases involving fraudulent asylum applications.  On the one hand, we want to encourage aliens to recant false statements.  On the other hand, Congress has plainly indicated that aliens who make false statements should be punished.  The alien who makes up a claim where there is none has earned such treatment.  But aliens who have legitimate claims often “enhance” their story because they feel (or are told) that they should do so.  Such aliens are–to me at least–much more sympathetic.  In general, IJs seem to distinguish between these two categories of fraudsters, treating the latter better than the former. 

Matter of X-M-C- does not require frivolous findings and does not prevent IJs from distinguishing the different types of fraud.  It does, however, make clear that an alien cannot protect herself from a frivolous finding by withdrawing her asylum application.

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Cuban Dissidents Choose Between Spain and the United States

by Jason Dzubow

Last month, Cardinal Jaime Ortega reached a deal with Raul Castro and the Cuban government to free 52 political prisoners who have been held since a 2003 government crackdown.  Under the agreement, the released Cubans would go to Spain and receive political asylum.  Twenty have already been freed and left Cuba for Spain, along with more than 100 relatives.  More are expected to travel to Spain over the next few months.

WWCheD?

The problem is, many of the Cuban dissidents would prefer to come to the United States, where they have relatives and community ties.  Originally, the political prisoners and their families believed that they could accept exile in Spain and then travel to the United States.  A State Department spokesman last month said that the Cubans would be “absolutely” welcome in the U.S.  Now, however, the State Department has informed dissidents that if they accept exile in Spain (and the legal status that comes with it), they would not be eligible for asylum in the U.S.  Instead, they would have to immigrate based on family or employer petitions, a slow process that may not be available to many of the dissidents.

While such aliens would likely not qualify for asylum in the United States (since they are “firmly resettled” in Spain), they should qualify for permanent residency under the Cuban Adjustment Act.  This would require them to arrive in the United States and remain here for one year.  After a year, they could obtain their permanent residency.  Of course, not all of them would be able to come here, but those who want to live in the U.S. at least have a viable option. 

The case of these Cubans raises a broader question about choosing a country to seek refuge.  Many asylum seekers travel through third countries before arriving in the U.S.  Indeed, I have represented some asylum seekers who have traveled across three continents and a dozen countries before they arrive in the U.S.  Why should we allow such people to seek refuge here when they have skipped over other countries where they could live safely?  It’s a fair question. 

For me, escaping from persecution is only part of the equation.  People are searching for a safe, stable place to re-start their lives.  They may not find that in a country that does not normally accept immigrants or where they have no friends or family.  Refugees also need community support and jobs.  They may need financial assistance, medical care, and mental health care.  Many countries–including many countries that refugees pass through–cannot offer these types of assistance.  For these reasons, some of the Cuban dissidents would rather remain detained in Cuba (while hoping to come to the U.S.) than relocate to Spain, a country where they have no family members or community support.

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