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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Pre-election Leak Led to Aunt Zeituni’s Asylum Grant

by Jason Dzubow

In May 2010, an Immigration Judge in Boston granted asylum to President Obama’s aunt, Zeituni Onyango.  The decision sparked protests from some who claimed (without evidence) that the President used his influence to help his relative.

Now, the Boston Globe reports that the IJ’s decision has been released in response to a Freedom of Information Act Request.  The 29-page decision is largely redacted, but the IJ’s reasoning seems clear.  On November 1, 2008, shortly before the presidential election, the Associated Press reported that Barack Obama’s Kenyan aunt was living in the U.S. illegally.  Regarding the source of this information, the AP wrote:

Information about the deportation case was disclosed and confirmed by two separate sources, one of them a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release.

Based on this statement, the IJ found that “an official of the United States government disclosed the Respondent’s status as an asylum applicant… to the public at large.”  The IJ found that this disclosure–which clearly violated federal regulations–was a “reckless and illegal violation of her right to privacy which has exposed her to great risk.”  He further found that this exposure distinguished the aunt from President Obama’s other relatives living safely in Kenya because her asylum case was revealed in a “highly politicized manner.”  (According to a recent AP article, DHS is investigating the leak.)

Given the country conditions in Kenya, the IJ found that Ms. Zeituni would be a target and that she had “at least a 10% chance of future persecution.”  The IJ granted asylum, but declined to rule on her applications for withholding of removal or relief under the UN Convention Against Torture.

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Refugee Success Stories

by Jason Dzubow

The largest group of asylum seekers in the Washington, DC area–and the majority of my asylum cases–are from Ethiopia, so a recent story in the Washington Post caught my attention (ok, it actually caught my wife’s attention and she emailed it to me, so she gets credit for this one).  Henok Tesfaye is an Ethiopian immigrant who started his own very-successful parking business, U Street Parking.  In some ways, Mr. Henok’s story is typical of Ethiopian immigrants and asylees that I see my daily work.  Also, his story points to some universal lessons in refugee (and immigrant) resettlement and integration.

Mr. Henok’s story is typical because he came here at a young age with little money and few contacts, but with a strong desire to achieve success.  Many of the refugees I have met (and represented) have suffered severe traumas.  Nonetheless, they are optimistic people.  They have left the past behind and have come to the United States to build their future.  They come here with the same attitude as their predecessors, be they Puritans in search of religious liberty, Russian Jews fleeing the Cossacks, or Vietnamese boat people escaping a Communist regime.  Of course they sometimes carry with them baggage from the old country–traditions that don’t always square with American values can be a problem–and they usually don’t speak fluent English.  But the refugees I have known generally contributed greatly to our community.  It is impressive that such people, who arrive here with so little, are able to accomplish so much.

Mr. Henok’s story also points to some of the challenges faced by refugees (and immigrants) in the United States.  He was struggling until he finally obtained a loan from the Ethiopian Community Development Counsel, an organization that assists new Ethiopian arrivals in the Washington, DC area:

ECDC serves as a welcoming presence as well as a bridge for dialogue and education. Through our programs, ECDC seeks to empower African newcomers; giving hope for their future and helping them quickly become self-sufficient, productive members of their communities in their new homeland.

Groups like ECDC make it possible for refugees and immigrants to adjust more quickly to the United States.  Not all refugees have community-based groups they can turn to, but there are resources available, such as the Catholic Legal Immigration Network and the Hebrew Immigration Aid Society.

Our country has a generous policy towards refugees and asylum seekers.  We should be proud that we help people fleeing persecution.  At the same time, however, we should remember that the refugees and immigrants who come here have helped enrich our nation.  Mr. Henok reminds us that this is true.

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EOIR Makes Court Information Line More Secure and More Annoying

by Jason Dzubow

From an EOIR press release issued earlier today:

The Executive Office for Immigration Review (EOIR) announced today the launch of a new, upgraded automated case information system, which is designed to assist respondents and their representatives and families in learning the current status of their proceedings. The toll-free number, 1-800-898-7180, has not changed, but a new local number, 240-314-1500, is in service. The system becomes effective August 23, 2010, and callers will need to be prepared to enter both the alien registration number and the date of the respondent’s charging document.

This development–at least on the immigration lawyer list serve I read–has been universally panned.  The problem is, aliens and their representatives often do not have the date of the charging document.  And if you do not have the charging document, it is not easy to get one.  You can file a FOIA request, which takes months (I think the “F” in FOIA stands for “Forever”).  You can call up DHS counsel, but they are often not very responsive.  You can go to the Immigration Court to look at the file, which is too time-consuming for most advocates, especially those who work for not profit organizations.  Also, sometimes there is more than one charging document, and they might have different dates.

"I said I don't have the dang charging document!"

I suppose EOIR’s intention–to make the court information more secure–is laudable (though I have never heard of anyone having a problem with the current level of security).  But by requiring information that may not be available to the alien, the agency is creating a situation where it will be more difficult for aliens and their attorneys to know their court dates.  This could cause aliens to miss their court dates, which would result in a removal order.  In short, it is another bureaucratic barrier thrown in front of the alien. 

There are alternatives.  My favorite alternative is to leave the system alone.  As I mentioned, I have not heard about problems with the current system.  Another alternative is to remove the alien’s name from the computer system (the current system spells the alien’s name after you type in his A-number).  This would provide some level of security.  A third possibility would be to require some other information that the alien would know, like her birth date or her country of origin. 

At this time, it is unclear whether EOIR vetted the new system with AILA or other advocacy groups.  Perhaps a short pause to consider alternatives and have a conversation with immigration attorneys would be in order.

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Mexican Woman Receives Asylum on Account of Domestic Violence

by Jason Dzubow

The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence.  Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death.  In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision.  That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.”  According to the brief:

DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship….  A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”  DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…

DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her.  These factors will be determinative in most domestic violence asylum cases.

In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.”  L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.”  Thus, there was compelling evidence that the government would not protect her.  There was also compelling evidence and expert testimony that she could not relocate within Mexico.

The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant.  It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case.  However, L.R.’s case has established a framework for asylum based on domestic violence.  Now, at least, such women have a chance to gain protection in the United States.

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Second Circuit Denies Chinese Asylum Cases En Masse

by Jason Dzubow

The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:

Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.

The Court’s Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?

First, some background.  In response to the “one family, one child” population control measures in China, Congress passed a law modifying the definition of “refugee” to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child–which is not allowed under Chinese law–they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 

Sometimes one is enough.

Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA’s ruling unless it concluded that “no reasonable fact-finder could have failed to find in favor of petitioner.”

Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.

Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court’s decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant’s claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.

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Hundreds of Refugees Set to Lose Benefits

by Jason Dzubow

In a recent editorial, the New York Times called on Congress and the President to protect welfare benefits for elderly and disabled refugees living in the United States.  Unless Congress acts, on October 1, 2010, about 3,800 refugees–elderly and disabled people who have suffered persecution in places like Iraq, Somalia, and Cuba–will lose welfare benefits such as Supplemental Security Income and cash assistance.  These benefits are critical for the refugees who often have no other means of support.

Save the Bubbes!

Currently, refugees are eligible for up to seven years of benefits.  After five years in the U.S., refugees can apply for United States citizenship, and once they are citizens, continue to receive benefits.  However, many refugees are unable to become citizens because they cannot meet the English language requirement or their naturalization applications are delayed.

The Times editorial concludes:

If any shreds of bipartisanship still exist in Washington, along with the belief that the United States should remain a true haven for those fleeing persecution, then Congress and President Obama will renew their support for a bill to extend benefits to elderly and disabled refugees. In time, they should adopt the permanent solution: finally delinking naturalization and artificial time limits from the granting of lifesaving assistance to these refugees.    

In difficult economic times, Congress may have a hard time justifying the (relatively small) cost of assisting these needy refugees.  However, we have already committed to resettling them, and they have been part of our community for some years.  As the editorial opines, the appropriate solution is to delink citizenship from financial assistance.  Until that happens, Congress should fulfill our commitment and protect these vulnerable individuals.

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BS from CIS

by Jason Dzubow

The Center for Immigration Studies never seems to let the facts get in the way of attacking immigrants and those who advocate for them.  Most recently, Jessica Vaughan, CIS Director of Policy Studies, criticized Immigration Daily for holding a training on gang-based asylum claims.  Instead of discussing the actual subject of the training, which is not particularly controversial, Ms. Vaughan simply made up her own version of the event in order to attack Immigration Daily.  Of the training, she writes:

Learn how to establish that your gangster clients are “members of a particular social group,” that they deserve humanitarian protection due to their “political opinions” or “religion” (such as La Familia, the murderous Mexican cult-like cartel), and what the UN guidelines are on these oppressed individuals. This e-learning session was preceded by one on how to help your client get a waiver if they are denied a green card or refugee status because of their links to terrorist groups. No, this wasn’t in The Onion, it was in Immigration Daily, the leading e-newsletter of the immigration bar.

Ms. Vaughan did not find this description on the Immigration Daily website.  Rather, she made it up.  Gang-based asylum does not involve helping gang members enter the U.S.  Rather, it is about helping people who have been threatened by gangs.  But, Ms. Vaughan’s goal apparently is not to engage in intelligent debate or education; it is simply to denigrate and discredit those who advocate for people fleeing persecution. 

The Southern Poverty Law Center says of CIS: “it has always been part of a broad-based and well-planned effort to attack immigration in all forms.”  By making up phony arguments to influence the uninformed, Ms. Vaughan seems to be making their point for them.  If CIS wants to be taken seriously, maybe it should demonstrate a little integrity.  It can start by telling the truth.

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Help for Afghanis “Outed” by Wikileaks

by Jason Dzubow

The website Wikileaks, which exists to make public “sensitive material,” recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan.  Among the information released are names and villages of Afghanis who assisted the United States.  Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed “collaborators.”  A few days after Wikileaks published the documents, numerous tribal elders received threatening letters.  One elder was murdered.  The magazine reports:

The frightening combination of the Taliban spokesman’s threat, [Tribal Elder] Abdullah’s death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past….  [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.

(To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference.  Some argue that the Taliban already know the “collaborators.”  Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents.  Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)

A Taliban fighter checks out Wikileaks.

What then can be done about Afghanis who have been “outed” by Wikileaks?  One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis “who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.”  Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question.  If not, this law will not help them. 

If it turns out that the Taliban’s threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act.  It’s good policy to show our allies that we protect them, especially when they were endangered by our own security failing.  More than that, protecting such people is the right thing to do.

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As Virginia AG Targets Immigrants, What About Asylum Seekers?

by Jason Dzubow

Virginia’s Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth “may… inquire into the immigration status of persons stopped or arrested.”  The AG had previously determined that “law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws.”  Last week’s opinion effectively expands law enforcement’s power to inquire about a person’s immigration status:

So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.

It's not "American" Gothic unless you have the ID to prove it.

It’s a little unclear to me what this means.  The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both. 

It’s also unclear how this advisory opinion will impact asylum seekers.  Many people in Virginia–including many of my clients–have pending asylum cases.  Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S.  At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien’s status is terminated, but he remains in possession of his work permit).  Other times, the alien will have only a printed paper from the Immigration Court or the asylum office.  Anyone with a printer could create such a document, so it is weak proof of status. 

How then will Virginia law enforcement officers deal with asylum seekers?  Will they detain them until their status can be determined?  Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke.  Or will the police simply take an alien’s word for it when she claims to be an asylum seeker?  I doubt such an “honor system” would be acceptable to the AG’s supporters.  Or maybe the police will be trained in the various documents that accompany asylum cases.  But this would be a poor use of time for officers who are already overburdened.

One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum.  At least this would help such people avoid running afoul of local law enforcement.  As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.

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European Court Fines Switzerland for Violating Asylum Seekers’ Rights

by Jason Dzubow

Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.

The applicants–Ms. Mengesha Kimfe and Ms. Agraw–and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there.  In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons.  The couples were not married at the time.

It's a tough job keeping those feisty European states in line.

After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation.  They remained in Switzerland, however, because the Ethiopian authorities prevented their return.

The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that “unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton.” 

After her marriage, Mengesha Kimfe mainly lived with her husband, illegally.  After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed.  Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband.  As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father.  Her application for a residence permit for her husband’s canton was finally granted in 2008 on the grounds of family unity.

The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively.  They did not contest their deportation.  Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples.  The Court observed that the possibility of leading a life as a couple was one of the essential elements of the “right to respect for family life,” as protected under the European Convention on Human Rights.  The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate.  Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples’ right to live together), and found that the private right outweighed the state interest.  Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe’s case and 5,526 Euros in Ms. Agraw’s case.

While a supra-national court is vital in countries where the rule of law is weak, it’s hard to imagine the United States ever submitting to international review of its legal decisions.  I for one trust our own courts more than I trust most international bodies in such matters.  Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive.  The idea, of course, is to bring international courts up to (at least) the level of American courts.  If that happens, it will be easier to make the argument for international review in cases such as the one here.  I just don’t expect that to happen anytime soon.

The European Court’s press release and links to its decisions (in French only) are available here.

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Third Circuit Grants Relief to Mentally Ill Respondent

by Jason Dzubow

In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA’s denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).

Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident.  He was eight years old.  Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings.  Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity.  His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture (“CAT”).  He also asked for an indefinite continuance so that his competency could be determined. 

The IJ (in York, Pennsylvania) denied the motion for a continuance.  The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution “on account of” a protected ground.  However, he granted Ms. Soobrian’s application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.

The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was “no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture.”  Mr. Soobrian filed a Petition for Review in the Third Circuit.  Based on an unopposed motion, the case was remanded “for consideration of whether the class of mentally ill persons is a ‘particular social group’ for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was ‘more likely than not’ to be tortured if removed.”

On remand, the IJ held that “mentally ill persons” could constitute a particular social group.  However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources.  He also found no evidence that the government could not or would not protect such people.  As such, he denied Withholding of Removal.  Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.

On appeal, the BIA again affirmed the IJ’s finding vis-a-vis Withholding of Removal.  The Board did not rule on whether “mentally ill persons” constitute a particular social group.  Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness.  The BIA again reversed the CAT grant, holding under a de novo standard of review that “the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering.” 

In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ’s decision on Mr. Soobrian’s CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.

As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo.  Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact.  Under those circumstances, “the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components.”  Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian’s Petition concerning the CAT claim.

The Court also held that Mr. Soobrian’s due process rights were not violated when the IJ refused him a continuance due to his mental health issues.  The Court reasoned:

Under our immigration laws, there is only a passing reference to an alien’s mental competency at a removal hearing.  If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

The Court ultimately found that Mr. Soobrian had received sufficient procedural protections.  In dicta (and relying on a Tenth Circuit decision), the Court also found that “the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding.” 

Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel.  Most mentally ill respondents will not be so lucky.  For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.

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