Advice from a Court Interpreter

by Jason Dzubow

Without interpreters, the Immigration Court system could not operate.  One of the best interpreters I’ve worked with is Maria Raquel McFadden.  She is 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.  She is registered with the State of Maryland and can be reached at: (202) 709-3602 (office) or (202) 360-2736 (cell).  Her email address is mcfadden.maria@gmail.com.  Ms. McFadden offers some advice on how best to utilize an interpreter:

Nicole Kidman makes interpreting cool

Many people who are scheduled for interviews before the asylum office or immigration court speak little or no English. Often they have never used the services of an interpreter before.

Being aware of the function of an interpreter can help the process go along more smoothly. The interpreter’s role is to remove the language barrier to the extent possible, so that the access to justice for a person with non- or limited English skills is the same as that of similarly situated English speakers for whom no such barrier exists.

When speaking through an interpreter, people should continue to speak directly to each other.  The interpreter serves merely as a mouthpiece. Interviews and conversations should flow as if the interviewer/judge, lawyer(s), and the asylum applicant are the only ones participating. Experienced interpreters know to use only the third person when referring to themselves.

In court, it is the job of the interpreter to interpret the questions asked into the alien’s language and interpret the answers into English.  At an interview, the interpreter will likewise interpret all questions and answers given.

Some interpreters are better than others and it’s necessary that both lawyers and clients learn how to best use an interpreter. Here are some tips to keep in mind:

1. Before the interview, the asylum seeker and interpreter should talk to each other to make certain that they speak the same dialect and/or understand each other.

2. Try to speak in short, very clear sentences. This will help because it can be difficult for an interpreter to accurately interpret more than a couple of sentences at a time.  

3. Look at and speak directly to the person to whom you are responding. Do not address the interpreter.

4. If you do not understand the interpreter, notify the judge/interviewing officer immediately.

5. Remember that the interpreter must keep all the information he/she learns during the interview/hearing confidential and may not share it with anyone. 

One should bear in mind that when an asylum-applicant goes before a judge, it is the court that will be make an interpreter available. However, asylum applicants must provide their own interpreter when interviewing before USCIS or the Asylum Office.  When hiring one’s own interpreter, one should take into account that a person related to the asylum-seeker may not interpret for them. It is better to have a neutral/disinterested party. The interpreter must take his/her government issued ID and be prepared to stay the entire duration of the interview. Sometimes, appointments are delayed and all parties should be prepared for long waits. 

By taking all the above factors into consideration, the asylum interview/hearing can be more manageable when working with an interpreter.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:

(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.

(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group.  On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.” 

Mazel Tov to all on these successful outcomes.

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A Short “Wish List” for the Refugee Protection Act

by Jason Dzubow

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

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Immigration Court Backlog Keeps Getting Worse

by Jason Dzubow

A new report by TRAC, a group that collects information on immigration cases, finds that the backlog in Immigration Courts is worse than ever: 

The number of cases awaiting resolution before the Immigration Courts reached a new all-time high of 242,776 at the end of March 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The case backlog has continued to grow — up 6.3 percent — since TRAC’s last report four months ago, and nearly a third higher (30.4%) than levels a mere 18 months ago.

"Is it time for my immigration hearing yet?"

The backlog has resulted in longer delays in Immigration Court:

Wait times have also continued to inch upward. The average time these pending cases have been waiting in the Immigration Courts of the Executive Office for Immigration Review (EOIR) is now 443 days.

The longest delays are in California, where the average wait time is 627 days.  TRAC blames the delays mainly on an insufficient number of IJs.  I’ve discussed that issue before (We Need More Judges).  In a recent exchange with the Federation for American Immigration Reform (FAIR), that group argued that aliens are largly to blame for delays since they abuse the system to prolong (or completely avoid) removal.  Maybe I will devote a future blog post to the reasons for delay, but for now, it seems the wait times are longer than ever and there is little relief in sight. 

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FAIR Asks EOIR to Violate the Law in Aunt Onyango’s Case

by Jason Dzubow

The Federation for American Immigration Reform is calling upon the Justice Department and the Executive Office for Immigration Review (“EOIR”) to violate the law and make public the record in the recently-decided asylum case of President Obama’s aunt.  PR Newswire reports:

Today’s decision granting President Obama’s aunt, Zeituni Onyango, political asylum provides a case study in how those seeking to evade U.S. immigration laws can manipulate the system, charged the Federation for American Immigration Reform (FAIR).  FAIR also demanded that the entire record of her case, which was rendered after years of delay and after Ms. Onyango refused to comply with a deportation order, be made public.

Judge Leonard Shapiro did not reveal the basis for his decision to grant asylum to Ms. Onyango and Ms. Onyango’s attorney has declared that his client wants to keep the decision confidential.  “Given Onyango’s relationship to the president, the American people have a right to know on what grounds Ms. Onyango’s asylum was granted,” [FAIR President Dan] Stein said.  “Illness and political turmoil in one’s homeland are not recognized as grounds for being granted asylum.  Defining asylum so broadly not only exceeds any reasonable interpretation of the law, but would make countless millions of people around the world eligible for asylum in the U.S.   Americans deserve to know whether the system worked.”

Of course Mr. Stein has no idea why Ms. Onyango was granted asylum, but that clearly did not stop him from forming an opinion.  Worse, his “demand” that the decision be made public directly contradicts the law.  From the EOIR Practice Manual:

Evidentiary hearings involving an application for asylum or withholding of removal (“restriction on removal”), or a claim brought under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, are open to the public unless the respondent expressly requests that the hearing be closed.  In cases involving these applications or claims, the Immigration Judge inquires whether the respondent requests such closure. 

Ms. Onyango has requested that the hearing be closed and that should be the end of the matter.  Confidentiality in asylum cases is important to protect asylum seekers and their families.  While there are legitimate issues to be raised concerning the asylum process, Mr. Stein’s “demand” demonstrates his callous disregard for the rights and safety of asylum seekers.   

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Senate Hearing on the Refugee Protection Act

by Jason Dzubow

The Senate Judiciary committee held a hearing yesterday on the Refugee Protection Act.  I wasn’t able to attend, but the Senate conveniently records such hearings, and you can view it here. 

Doggone it, people like the RPA

My friend who attended thought it did not go very well for supporters of the bill.  I can’t say I agree, though the last five minutes, when neither of the pro-RPA witnesses could answer Senator Franken’s softball questions and each tried to defer to the other, was not a shining moment.  Here are some other moments worth mentioning:

The ranking Republican, Senator Sessions from Alabama, raised some legitimate (and some not-so-legitimate) concerns that will probably need to be addressed if the bill is ever to become law.  Of course, the first issue was national security.  He felt that the RPA would allow Osama Bin Laden’s wife (wives?) and children to claim asylum in the United States, as the law relaxes barriers for family members of terrorists.  Given the limited number of people we can admit each year, he argued, we would be better off admitting people without close ties to terrorists.  He also stated that the RPA would broaden the definition of “asylum seeker,” and thus encourage more fraudulent claims.  He questioned how many people we could realistically allow to enter the United States as refugees and asylees.  He argued that we could not admit everyone who meets the definition of a refugee, and said that if things fell apart in Afghanistan or Iraq, we could not take in all the people who sided with us in those wars.

There were two pro-RPA witnesses, Dan Glickman of Refugees International and Patrick Giantonio of Vermont Immigration and Asylum Advocates.  They argued that the one-year filing deadline does not serve its intended purpose of reducing fraud.  Mr. Giantonio noted that many asylum seekers who fail to file within one year of arrival receive withholding of removal or relief under the UN Convention Against Torture.  Both forms of relief have a higher burden of proof than asylum.  Thus, if the one year deadline were not an issue, such people would have qualified for asylum (I agree with this point).  From the alien’s point of view, asylum is a more desirable outcome than the other forms of relief, but the witnesses did not mention the benefits of asylum.  The pro-RPA witnesses also emphasized that the bill would not compromise national security because refugees and asylum seekers would remain subject to all the same background checks that are currently required.  Mr. Giantonio also briefly mentioned some of the deleterious effects of immigration detention on asylum seekers.

Igor V. Timofeyev, a former DHS official and a Soviet Jewish refugee, testified in his personal capacity.  He appeared as the anti-RPA witness, though his criticisms were fairly tame (refreshing given the normal discourse on most immigration-related issues).  His concerns were national security, national security, and national security.  He also mentioned that federal appeals courts are overburdened with immigration cases.

Finally, it bears mentioning that Senator Leahy included in the record a letter signed by 89 faith-based, human rights, legal services and refugee assistance organizations and 99 individual asylum law practitioners, pro bono attorneys, law professors and other experts in the field (including this humble blogger).    

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The Refugee Protection Act and Asylum Interviews

by Jason Dzubow

Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed.  The Refugee Protection Act would require DHS to record these interviews.

A DHS employee demonstrates the agency's latest recording equipment

Currently, asylum interviews at the border (or the airport) are generally not recorded.  As a result, there are often disputes about what the alien said at the interview.  For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border.  He was immediately detained and requested asylum.  His friend and traveling companion served as my client’s interpreter.  The Border Patrol agent wrote down the client’s responses to the agent’s questions.  The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum.  On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border.  Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.

IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes.  Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews).  Thus, the accuracy of the prior statements is frequently an issue.  If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations.  The RPA provides for recorded interviews at the border.  It should also provide for recorded interviews at the Asylum Office.

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President Obama’s Aunt Wins Asylum

by Jason Dzubow

An Immigration Judge in Boston granted asylum to President Obama’s aunt Zeituni Onyango, a Kenyan national who has been in the U.S. since 2000.  Ms. Onyango first applied for asylum in 2002.  She was initially denied, but then either appealed or reopened her case (I have found nothing definitive about the course of the litigation).  Earlier today, the IJ granted her application for asylum. 

Obama's aunt holds a photo of herself and a little-known state senator

At least as far as I can tell, the basis for Ms. Onyango’s claim has not been made public.  My guess is that after Obama was elected president (or at least after he became nationally and internationally known), Ms. Onyango filed a motion to reopen her case and asserted that she would face persecution from people who wished to harm her family (the Obama family).  Given the various threats to our country, this seems a reasonable claim.  Although perhaps the possibility of her facing harm in Kenya is remote (Obama’s grandmother is living there peacefully), it’s easy to understand why an IJ would be reluctant to send her back.  She would make a tempting target for extremists, and it would be a blow to the U.S. if she were harmed.  Under these circumstances–and given the fairly low threshold for asylum–it’s not a surprise that the IJ granted Ms. Onyango’s claim.

Professional Obama-hater Michelle Malkin and others have raised the question of whether Ms. Onyango received special treatment because of her relationship with the President.  Of course, I have no idea (and neither do they), but special treatment hardly seems necessary in a case like Ms. Onyango’s.  I once represented an Afghani woman who received a fellowship to study in the United States.  A university brought her here and supported her, and the local press covered her progress for four years.  Towards the end of her fellowship, extremists in her country threatened her, and we applied for asylum.  I argued that she was a prime target for anti-American extremists because of her relationship with our country–had she been harmed in Afghanistan, it would have been seen as a major victory for our enemies.  The Asylum Office granted her application.  Ms. Onyango’s situation was similar to my client’s, in that our enemies would view an attack against her as an attack against the United States.  Not surprisingly, the IJ was not willing to take that risk.

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Senate Hearing on the Refugee Protection Act

by Jason Dzubow

The Senate Committee on the Judiciary has scheduled a hearing on “Renewing America’s Commitment to the Refugee Convention: The Refugee Protection Act of 2010” for Wednesday, May 19, 2010 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.  The scheduled witnesses are: (1) The Honorable Dan Glickman, President, Refugees International; (2) Patrick Giantonio, Executive Director, Vermont Immigration and Asylum Advocates; and (3) Igor V. Timofeyev, Paul, Hastings, Janofsky & Walker LLP

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The BIA on Frivolous Asylum Applications

by Jason Dzubow

Biao Yang probably isn’t the first man to tell an exaggerated story about his courage in defense of a woman’s honor. Similarly self-aggrandizing stories have no doubt been told in countless bars and around hundreds of water coolers.

Narrative license of this sort usually carries little risk. A drinking buddy or co-worker might express disbelief by making reference to bovine excrement.

But the personal consequences of Yang’s embellishments are far more serious, as they will likely result in his deportation and the imposition of a lifetime bar to future immigration benefits. The consequences of Yang’s narrative excesses also had a broader effect, as they were the focus of a recent BIA decision that added to the administrative corpus of immigration law by clarifying the standards under which asylum claims are determined to have been made frivolously.

TOUGH GUY

Yang, a Chinese national, arrived in Chicago in 2002. After touching down, he told immigration officials at O’Hare that he had fled his country because “family planning authorities” – bureaucrats tasked with enforcing the country’s “One Child” policies – had forced his girlfriend to abort her pregnancy and that they wanted to arrest him.

Poster extolling the virtues of the one child policy

The embellishments would come in an asylum application filed 18 months later. In that application, Yang asserted that he got into a scuffle with and injured one of the abortionist bureaucrats who had come to his house to escort his girlfriend to the hospital. He further claimed to have been beaten and detained for his fearless acts. And then he claimed that he made a prison break and left the country.

IJ DECISION AND SECOND CIRCUIT REMAND

None of these details had been mentioned during the airport interview, however. This and other suspicious aspects of Yang’s story – including chronological discrepancies , “rank inconsistencies” within his testimony, and the sheer “implausibility” of his prison-break story – led an immigration judge to render an “adverse credibility determination.”

The result was denial of Yang’s asylum claim. But the IJ further held that these inconsistencies indicated that Yang’s asylum claim had been filed frivolously – which resulted in the imposition of a lifetime bar to future immigration benefits.

The IJ’s decision was affirmed by the BIA.  However, the U.S. Court of Appeals for the 2nd Circuit remanded because the case exposed vagueness in the existing BIA standard for making a “frivolousness” determination. Those standards included:

[A] specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application … [and] … sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated

The Second Circuit examined:

to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination.

BIA CLARIFICATIONS

On remand, Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010), the BIA made the following clarifications:

Factual findings made in reaching an adverse credibility determination can be incorporated into the findings made in reaching a frivolousness determination … but will not be sufficient … the frivolousness determination requires additional, explicit findings of “materiality” and “deliberate fabrication.” 

The BIA stated:

In this case, as is often the situation, fact-finding regarding credibility overlaps with fact-finding as to whether an asylum application was frivolously filed. Both determinations involve the identification of inconsistencies and discrepancies in the asylum claim and consideration of any explanations offered for them. There may be circumstances where the pertinent facts do not overlap, and separate factual findings by an Immigration Judge will be necessary.

However, neither fairness nor clarity requires an Immigration Judge to separate and repeat those aspects of the credibility determination that overlap with the frivolousness determination.

… The frivolousness determination, however, requires explicit findings as to “materiality” and “deliberate fabrication” that are not required for an adverse credibility determination. As we indicated in Matter of Y-L-, 24 I&N Dec. at 156, “[T]he Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”

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Laotian Asylum Seeker Just Wants to Go Home

by Jason Dzubow

An 88-year-old Hmong man from Laos who requested political asylum in 2007 has filed suit against the Department of Homeland Security seeking to have DHS return his passport so he can go home.  According to KMPH News in Fresno, California, Mr. Xiong–who has not revealed his full name in order to protect his identity–is a veteran who fought alongside U.S. forces during the Vietnam War:

Xiong’s attorney describes his client as a war hero.  He says the Hmong veteran can’t return to his native country without his passport.  It was confiscated when he filed for political asylum in the U.S. and until the process is complete he won’t be able to go home. “He’s an old man,” Attorney Ken Seeger said.  “He’s been in poor health over the past year or so.”

The veteran filed for political asylum in 2007.  “But, he’s changed his mind and he’s willing to take a risk back in Laos just because he’s really old and in bad health and thinks the end is near and he wants to die in his homeland,” Seeger said.

DHS has refused to return the passport, so Mr. Xiong filed suit to get it back.  DHS routinely keeps travel documents (and other original documents) that belong to asylum seekers.  Even after a case is completed, it is often difficult or impossible to retrieve documents.  In Mr. Xiong’s case, it would seem that DHS has every incentive to return the passport.  Let’s hope that they do.   

Traditional Hmong story cloth depicting a modern scene of war and refugees

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The Refugee Protection Act and Improved Access to Legal Services

by Jason Dzubow

This is the fifth part in an ongoing series about the Refugee Protection Act.  The RPA contains many provisions to improve legal services and legal access for asylum seekers.

The root cause of many problems in the asylum system is that aliens are not provided with counsel.  According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court.  That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court).  Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower—such aliens have limited access to attorneys and resources to help them with their applications.  The RPA would improve this situation.

The RPA provides improved access to attorneys in several ways.  First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel “if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.”  Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases.  This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel.  The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed.  Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary.  The RPA as written does not provide for an independent decision concerning the need for counsel.

Second, the RPA provides detained asylum seekers with improved access to legal services and resources.  It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge.  The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship.  Under the RPA, all new detention facilities must be located within 50 miles of a “community in which there is a demonstrated capacity to provide free or low-cost legal representation,” and by January 2014, all detention facilities must comply with this location requirement. 

Third, the RPA establishes a National Legal Orientation Support and Training Center to “ensure quality and consistent implementation of group legal orientation programs nationwide.”  The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and “know your rights” presentations to detained aliens.  The RPA would also provide grants to the non-profit agencies.

By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.

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Lawsuit Challenges USCIS Policy on Asylee Family Reunification

by Jason Dzubow

On May 5, 2010 The New York Legal Assistance Group (NYLAG) filed a class action complaint in the U.S. District Court for the Eastern District of New York.  The lawsuit, styled Tsamcho v. Napolitano, challenged a USCIS policy that threatens to deprive asylees of the opportunity to bring their spouses and children into this country.  

For its bad policy, USCIS gets a wag of the finger.

The plaintiff, Lhakpa Tsamcho, is a Tibetan woman who received asylum in the United States after she fled persecution in the People’s Republic of China.  USCIS approved the petitions to bring her husband and three children to the United States.  However, due to travel restrictions imposed on Tibetans by the Chinese government following unrest in March 2008, Tsamcho’s family members were unable to reach the U.S. consulate.  After they failed to appear for their interviews, USCIS reopened their approved cases and denied the petitions.

Thus, the same persecution against Tibetans that was the basis for USCIS’s grant of asylum to Tsamcho has now lead to USCIS’s refusal to allow Tsamcho’s relatives to join her in the United States.  

“Asylees affected by the [U.S.] government’s new policy have done everything required by law to reunite their families in the United States, yet they may now be permanently prevented from doing so,” said Jason Parkin, one of the NYLAG attorneys on the case.  “It makes no sense to tell an asylee that her relatives are eligible to join her in this country, only to later reverse that decision simply because they weren’t able to appear at an appointment or bring certain documents.”

The lawsuit challenges USCIS’s new asylee family reunification policy, charging the agency with acting in violation of its own regulations, taking actions that are arbitrary and capricious, and implementing a new policy without providing proper notice to the public.

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American Academy of Pediatrics Eases Up on FGM

by Jason Dzubow

The American Academy of Pediatrics has issued a revised policy statement on Female Genital Mutilation (also called Female Genital Circumcision or Cutting).  The new statement reads as follows:

The traditional custom of ritual cutting and alteration of the genitalia of female infants, children, and adolescents, referred to as female genital mutilation or female genital cutting (FGC), persists primarily in Africa and among certain communities in the Middle East and Asia. Immigrants in the United States from areas in which FGC is common may have daughters who have undergone a ritual genital procedure or may request that such a procedure be performed by a physician. The American Academy of Pediatrics believes that pediatricians and pediatric surgical specialists should be aware that this practice has life-threatening health risks for children and women. The American Academy of Pediatrics opposes all types of female genital cutting that pose risks of physical or psychological harm, counsels its members not to perform such procedures, recommends that its members actively seek to dissuade families from carrying out harmful forms of FGC, and urges its members to provide patients and their parents with compassionate education about the harms of FGC while remaining sensitive to the cultural and religious reasons that motivate parents to seek this procedure for their daughters.  

The highlighted language is new, and represents a step back from the AAP’s previous position, which opposed FGM under all circumstances. 

Since the landmark Kasinga case, women and girls have been able to qualify for asylum in the United States based on a fear of FGM.  Whether the AAP’s watered-down position will impact such asylum seekers remains to be seen.

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