Remembering Those Who Sought Freedom

by Jason Dzubow

Last December, I attended a funeral for a close friend at the Hebrew Free Burial Association on Staten Island.  The HFBA provides burial services to indigent Jews.  They assist hundreds of grieving families every year.  They also ensure that people without family or friends have a proper funeral under Jewish law.  In the Passover issue of the HFBA newsletter, the Association pays tribute to Jews who fled the Soviet Union in search of freedom: 

The Former Soviet Union reserved its most oppressive measures for religious minorities, especially Jews. As we celebrate Passover, the Festival of Freedom, it is appropriate to recount the following end-of-life stories of some who fled for freedom in the United States.

Iosif [not his real name] was a Russian veteran of World War II and subsequently was an active dissident against the Soviet government. Prior to leaving the USSR for the United States, he was beaten by authorities and his kidneys were severely damaged. In New York, despite ill health, he participated in the campaign to free Soviet Jewry and to educate efforts of Yad Vashem to identify victims of the Holocaust. As his kidneys failed, we were contacted by his old friend to arrange for his eventual burial next to the brother who had followed him to New York and pre-deceased him. Iosif who remained true to his Jewish values during a difficult life, received the proper Jewish burial he wanted and deserved.

Mikhail [not his real name] was referred to HFBA by a social worker in the JASA-sponsored building in which he lived. He had emigrated from the former Soviet Union to New York at the same time that his daughter Larisa had moved to Bulgaria. Although highly educated, Mikhail was unable to make a living in the United States and relied on government assistance. When he died, HFBA contacted his daughter who was distraught that she had no funds for the burial. We put her mind at east about the burial arrangements. HFBA’s Rabbi Plafker patiently educated Larisa who knew nothing of her Jewish heritage, about Jewish funeral procedures. We also arranged for Larisa to have access to her father’s apartment so she could retrieve precious mementos.

I was struck by both stories.  In the first, after Iosif came to the United States, he continued his political activism and tried to help others who remained behind.  I sometimes see this in my asylum clients, who have come to the United States, but remain politically active in organization devoted to improving their homelands. 

In Mikhail’s case, we have someone who fled persecution and reached safety, but was never able to fulfill his potential and had to rely on government assistance to survive.  These days, there are many organizations that help refugees and asylum seekers adjust to their new lives.  One organization that I find particularly helpful is CLINIC, the Catholic Legal Immigration Network, Inc., which has a referral line to assist asylees:

CLINIC’s National Asylee Information and Referral Line refers asylees to more than 500 local providers of resettlement services such as English language classes, job placement assistance, temporary cash assistance, and health care.

This excellent program has assisted over 30,000 asylees since its inception in 2001.  The telephone number is 1-800-354-0365.  I refer my clients there, and they report that it is very helpful.

Happy Passover.

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Criticizing the DOS Critics

by Jason Dzubow

Now that the State Department Report on Human Rights Practices is out, the critics are weighing in.  Mark Weisbrot writes in the Guardian that “After Abu Ghraib, Gitmo and extraordinary renditions, other countries now challenge America’s standing on human rights.”  In his piece, “Who is America to Judge?,” Weisbrot writes:

Clearly, a state that is responsible for such high-profile torture and abuses as took place at Abu Ghraib and Guantánamo, that regularly killed civilians in Afghanistan and Iraq and that reserved for itself the right to kidnap people and send them to prisons in other countries to be tortured (“extraordinary rendition”) has a credibility problem on human rights issues.

In other words: Who are we to cast the first stone?  I suppose I don’t quite get his point.  The report speaks for itself.  Whether our own human rights record is spotless or horrible is not the issue.  The issue is whether the report is accurate.  If there exists inaccuracies in the report (which undoubtebly there are), those inaccuracies can be examined.  But the fact that America is imperfect is not a valid basis to reject the State Department’s conclusions.

One government that has been particularly sensitive to U.S. criticism is the People’s Republic of China.  After the 2008 Human Rights Report was released, the Chinese government issued a report of its own, discussing human rights in the United States.  The introductory section of the report reveals the report’s main purpose, which seems to be payback for the State Department’s negative comments on China:

The State Department of the United States released its Country Reports on Human Rights Practices for 2008 on February 25, 2009. As in previous years, the reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but mentioned nothing of the widespread human rights abuses on its own territory. The Human Rights Record of the United States in 2008 is prepared to help people around the world understand the real situation of human rights in the United States, and as a reminder for the United States to reflect upon it s own issues.

The Denying Duo: Meles Zenawi and Hu Jintao

The Chinese accusation of U.S. hypocricy rings hollow for several reasons.  First, the Chinese government has issued its human rights report about the United States, but not about any other country.  It seems, then, that the PRC is more concerned with retaliating against the U.S. than promoting human rights.  Second, the Chinese report demonstrates a fundamental misunderstanding of the State Department Report.  The State Department reports on foreign governments, not on the internal situation in the United States.  We have other agencies to do that.  Indeed, much of the Chinese report is culled from United States government agencies that have issued reports on the domestic situation.  The premise of China’s report–that the U.S. criticizes others without looking inward–is simply wrong.  It’s just that the list of agencies that examine human rights inside the United States does not include the State Department.  Finally, the Chinese government has not responded to the substantive accusations in the DOS report.  Rather than examine its own substantial problems, the PRC government has tried to distract attention by shooting the messenger.  On one point, however, I agree with China: We in the United States would do well to reflect on our own human rights record.  Of course, given the myriad reports from different U.S. government agencies, we can do that very well without the help of the Chinese government.

Another government that has been critical of the DOS report is Ethiopia.  The Voice of America (which, by the way, is being jammed by the Ethiopian government) reports:

Ethiopia’s Prime Minister Meles Zenawi has blasted the latest U.S. State Department human rights report, saying it is full of lies and loopholes that expose its authors to ridicule…  The prime minister accused the State Department’s human rights investigators of sloppy work in compiling the 61-page annual report on Ethiopia.

As opposed to China, at least Mr. Meles has pointed to some alleged inaccuracies in the report: “one person listed in the report as ‘disappeared’ could easily have been found alive and well at his workplace,” said the Prime Minister.  “Acting US Ambassador to Ethiopia John Yates said experts had gone to great lengths to ensure the document’s accuracy, and rejected information that could not be verified.”  Having litigated over 100 asylum cases from Ethiopia, I’ve spent considerable time examining different sources on that country’s human rights record.  It’s not just the DOS that has criticized Ethiopia.  Even if there are inaccuracies in the report, my guess is that the report is closer to reality than Mr. Meles cares to admit.

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BIA Asylum Cases to Watch

by Jason Dzubow

AILA reports on two significant asylum cases pending before the BIA:

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief [available to AILA members only] demonstrates that this standard does apply to withholding cases. At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief [ed. note: we cannot comment on the quality of the FAIR brief, since it is not available on the internet].

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Given the glacial pace of the BIA, don’t expect a decision any time soon on these cases.

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UN Asylum Statistics for 2009

by Jason Dzubow

The United Nations has released a new report on Asylum Levels and Trends in Industrialized Countries for 2009.  Some of the report’s key findings:

Afghani Refugee
  • Compared to 2008, the overall number of asylum-seekers remained the same with 377,000 applications, despite significant regional disparities highlighted by the report.
  • Afghans topped the list of asylum applicants with 26,800 submissions representing a 45 per cent increase over 2008. Iraqis dropped to second place with some 24,000 claims, while Somalis moved to third position with 22,600 asylum applications. Among the top countries of origin were also the Russian Federation, China, Serbia, and Nigeria. 
  • In terms of regions of origin, nearly half of the total 377,000 applicants originate from Asia and the Middle East (45%), followed by Africa (29%), Europe (15.5%), and the Americas (9%).
  • The United States stayed the main destination country for the fourth year, with 13 percent of the claims representing an estimated 49,000 people, in particular from China. Second was France, receiving 42,000 new applications in 2009, a 19 percent hike compared to 2008, due to increasing claims from citizens of Serbia originating predominantly from Kosovo. Canada, while still ranking third among receiving countries, saw the number of asylum applications decrease by 10 percent in 2009 down to 33,000 after a drop in Mexican and Haitian claims. Following was The United Kingdom which also registered a drop in claims with 29,800 applications, one of the lowest in 15 years. On the other hand, claims in Germany increased by 25 percent with 27,600 applications recorded in 2009, making it the fifth largest receiving country. Together, these five top destination countries received 48 percent of the total claims recorded in 2009.

    • The overall stability in the number of asylum seekers belies regional increases and decreases.  For example, countries in southern Europe (like Italy, Turkey, and Greece) experienced a 33% decrease in the number of asylum seekers from 2008 to 2009.  The Nordic countries experiences a 13% increase and Australia and New Zealand reported increases of 30% over the previous year.  The United States experienced a small decrease (49,600 in 2008 compared with 49,000 in 2009), and Canada reported a 10% decrease.

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    BIA Grants CAT to Mexican Drug Informant

    by Jason Dzubow

    In Matter of Ramirez-Peyro, an unpublished decision dated March 18, 2010, the BIA finalized a grant of Convention Against Torture relief for a Mexican drug informant, Guillermo “Lalo” Ramirez-Peyro.  The BIA held:

    In the absence of a showing that the Mexican government has succeeded in its efforts to curtail corruption in law enforcement, the respondent has proven that he more likely than not would be tortured upon removal by or with the acquiescence of a public official of the Mexican government.

    Of the successful outcome, Ramirez-Peyro’s attorney, Jodi Goodwin, writes:

    Guillermo Ramirez-Peyro

     The BIA FINALLY dismisses the DHS’ appeal.  The matter was remanded for the purpose of updating law enforcement/ security checks and the entry of an order.  The decision does not leave open any further fact finding and finally is a determination by the BIA of the Department of Justice that Lalo should be granted Convention Against Torture protection.  This is a super-huge victory that has been 5 long years in the making.  At this point, Lalo is protected from being removed to Mexico where he will be tortured and killed.  The next step in Lalo’s legal plight will be to attempt to force the government to finally release him from the solitary confinement he has endured for 5 long years.  Lalo was happy to hear of the decision today when I spoke with him, however does not understand the ultra-huge legal victory as it pales in comparison to the suffering  he has endured at the hands of the [United States] government in solitary confinement over these years.

    A link to the unpublished decision is available here.  Some background on this fascinating case is available from the Washington Times and National Public Radio.

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    Long Delays at Chicago Immigration Court

    by Jason Dzubow

    Chicago Public Radio reports that a record case load at the Chicago Immigration Court is causing hardship for asylum seekers:

    Chicago’s federal immigration court is backed up with a record 8,696 cases. The average wait for a hearing is more than a year. Some immigrants don’t mind, since the backlog buys them time here. But it’s hard on asylum seekers. And it has consequences on other parts of the justice system.

    Attorney Lisa Palumbo of the Legal Assistance Foundation of Metropolitan Chicago says long delays for asylum applicants are the norm.  They have to put off decisions like buying a home and accepting a job out of state.  Palumbo points out that many can’t get work authorization or student financial aid.  Worse, many are separated from family members in their home countries, and sometimes those family members face potential persecution.

    Here’s what’s causing the logjam: The government has added more agents and prosecutors to arrest and deport undocumented immigrants. But it hasn’t added enough judges to hear the cases. At the Chicago court, the number of judges since 2006 has actually dropped from eight to five.

    The Asylumist reported on this problem in recent post, We Need More Judges.  EOIR has stated that additional immigration judges are on the way.  For asylum seekers stuck in the system, the new judges cannot arrive soon enough.

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    The $111K Freedom of Information Act (FOIA) Request

    by Jason Dzubow

    The Transactional Records Access Clearinghouse (TRAC) of Syracuse University recently received a fee request from USCIS for a whopping $111,930.00 for Freedom of Information Act expenses. 

    TRAC is a “data gathering, data research and data distribution organization” whose mission is to “provide the American people — and institutions of oversight such as Congress, news organizations, public interest groups, businesses, scholars and lawyers — with comprehensive information about staffing, spending, and enforcement activities of the federal government.”  Indeed, TRAC’s website is the most comprehensive source for statistical data related to asylum cases and Immigration Judges. 

    On July 17, 2006, TRAC requested information related to naturalizations.  Almost four years later, USCIS has responded, but not with any information. Instead, in a March 4, 2010 letter to TRAC, USCIS states that the FOIA request will require 861 man hours, billed at $130 per hour, for a total of $111,930.00.  The agency has required a “deposit” of $55,965.00 before it will begin work on the request.  The amount seems high give the Justice Department’s posted FOIA fees: “After the first 100 pages, a fee of $.10 per page is charged. Search fees are charged per quarter hour; $4.00 (clerical), $7.00 (professional/computer operator), and $10.25 (managerial).”  The directors of TRAC filed a protest with USCIS in which they wrote:

    We wish to remind you that on December 8, 2009, the White House issued an historic Open Government Directive, instructing the Executive Departments to take concrete steps to provide improved public access to public information…. It is striking that given this sweeping government openness directive, USCIS has chosen to move in precisely the opposite direction — placing an outrageous price tag on public access to information even about the databases the agency holds.

    On his first full day in office, President Obama called on all government agencies to adopt a “presumption of disclosure” when administering the FOIA.  A new report from the National Security Archive finds that the administration “has not conquered the challenge of communicating and enforcing that message throughout the Executive Branch.”  If FOIA requests take 4+ years and cost more than $100,000.00, it appears that the open government initiative still has a way to go.

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    More Asylum Seekers Detained

    by Jason Dzubow

    According to a column in the Minnesota Daily, the number of asylum seekers who are detained by the U.S. government has increased dramatically in the last 10 years.  I have some questions about the statistics cited in the article, which states:

    Ten years ago, the number of detained asylum seekers in the United States was 10,000. By 2009, the number had reached 400,000, according to Michele Garnett McKenzie, legal counsel for the Advocates for Human Rights…. Why the number has reached such a height is difficult for experts to explain. However, they do tend to hold responsible the existing “flawed U.S. policies that have led to the extended detention of asylum seekers….”

    The 400,000 figure likely represents all detained immigrants, not just detained asylum seekers.  Detention Watch Network, (“DWN”) which tracks detained immigrants, states that 440,000 aliens were detained at the end of 2009, three times as many as were detained 10 years ago.  A 2009 report from Human Rights First indicates that there are about 10,000 new asylum seekers detained each year.  A link to that report is available here. 

    The figures indicate a significant increase in the number of detained aliens.  According to ICE, “Detention and removal of illegal aliens is a priority of U.S. Immigration and Customs Enforcement (ICE).”  Information on many of the various detention facilities is available on the ICE website. 

    Conditions in the various detention facilities vary.  The ACLU has studied conditions in Massachusetts, and has issued a report: Detention and Deportation in the Age of ICE.  Documented problems include inadequate medical care, harassment, and overcrowding.  According to DWN, since 2003, “there have been at least 90 reported deaths in immigration detention.”  “Many of these deaths have been caused by a lack of timely and thorough medical care, and nearly one fifth of them have been suicides.”  Mental health concerns would be particularly acute for detained asylum seekers.  The recently introduced Refugee Protection Act would help to alleviate some of the problems faced by detained asylum seekers.

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    Rights Groups Support Refugee Protection Act

    by Jason Dzubow

    Immigrant rights groups continue to come out in favor of the Refugee Protection Act of 2010, introduced last week by Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.  The American Immigration Lawyers Association issued a statement:

    “This is a significant piece of legislation that comes at the right time given the global unrest that troubles our world,” said Bernie Wolfsdorf, President of AILA. “America has stood as a beacon of hope for so many and this bill gives hope to those who are in most need – refugees and asylum seekers. The bill would grant much needed protections to those fleeing persecution and brings about much needed reform in the adjudication system. I am hopeful Congress will act swiftly and in a bipartisan manner to fix the immigration process for refugees and asylees.”

    The Hebrew Immigrant Aid Society strongly supports the new legistlation, which it deems necessary to correct changes that have eroded protection for refugees and asylum seekers in the United States:

    While the provisions of the Refugee Act have resulted in the protection of countless refugees and asylum seekers during the 30 years it has been in effect, in recent years, protections for asylum seekers have eroded. Laws have been enacted containing provisions that threaten the rights and safety of asylum seekers, including a harsh expedited removal system, arbitrary deadlines for filing asylum claims, and other limitations on asylum seekers’ ability to obtain protection in the U.S. Even after asylum seekers have proven their credible fear of persecution, many are detained, and less restrictive alternatives to detention rarely are provided to asylum seekers who are found not to be threats to society. The Refugee Protection Act proposes thoughtful and effective solutions to these problems and will ensure that fairness is restored to the asylum system.

    Immigration Equality, an immigrant rights group that has been “fighting for equality under U.S. immigration law for lesbian, gay, bisexual, transgender, and HIV-positive individuals” since 1994 also endorses the bill:

    “We have always believed that LGBT asylum seekers are disproportionately affected by the one year filing deadline for asylum applications, because so many of them simply don’t know that the persecution they faced as sexual minorities could be grounds for asylum here,” said Rachel B. Tiven, the group’s executive director. “Eliminating this unfair deadline will help many LGBT and HIV-positive victims of persecution obtain safe haven in the United States.”

    The Church World Service, which has been assisting refugees since 1946, and the International Rescue Committe, which has been assisting refugees since 1933, have both issued statements supporting the proposed law.

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    BIA Appeals in Federal Courts Are a Long Shot

    by Jason Dzubow

    The reversal rate for BIA cases in all federal circuit courts for 2009 averaged 11.12%, according to the EOIR Immigration Law Advisor, vol. 4, no. 2.  The reversal rate has dropped every year for the last four years: 2009 (11.12%), 2008 (12.6%), 2007 (15.3%), and 2006 (17.5%). 

    For aliens appealing adverse BIA decisions, the most difficult circuit court for 2009 was the Tenth Circuit, with a reversal rate of 1.8%–down from 18.0% in 2006!  The next most difficult court for immigrants was the Fourth Circuit (3.3%), followed by the Fifth Circuit (4.0%), the Second Circuit (5.5%) and the First Circuit (5.6%).  The courts with the highest reversal rates in 2009 were the Ninth Circuit (17.2%), the Third Circuit (16.4%), and the Seventh Circuit (14.3%).  Reversal rates for the remaining courts are: Sixth Circuit (8.6%), Eighth Circuit (7.7%), and Eleventh Circuit (7.1%).

    There may be reason to question the accuracy of EOIR’s numbers:  The report separately lists reversals in federal circuit courts for the month of November 2009.  For the Fourth Circuit, the report states that the court decided 16 BIA appeals in November, and that all 16 were affirmed.  However, in at least one case–Baharon v. Holder, decided on November 24, 2009–the Court reversed the BIA’s decision.  This oversight might raise questions about the accuracy of EOIR’s reporting.  

    Assuming that the overall EOIR numbers are accurate, there are different possible explanations for the varying reversal rates.  The most obvious reason is that some courts are more conservative than others on immigration issues.  Another possibility is that the quality of the immigration courts varies from jurisdiction to jurisdiction.  It is certainly true that some courts are more likely to grant asylum than others (for example, according to the TRAC database, New York IJs, on average, denied asylum in 31.2% of asylum cases; in Atlanta, IJs denied 85.7% of asylum cases).  This discrepancy could, in turn, be explained in different ways–the philosophy of the individual judges, the varying degrees of attorney representation in different regions of the country, the country of origin of applicants in the different jurisdictions.  The bottom line is this: In juridictions where the IJs make better (i.e., more legally proper) decisions, reversal rates in the federal courts should be lower. 

    Theoretically at least, the BIA should mitigate discrepancies originating with the Immigration Judges.  So all things being equal, we should be able to attribute the varying reversal rates at the circuit level to the circuit courts themselves.  Of course, all things are rarely equal, and the BIA does not do enough to correct aberrant IJ decisions.  I think that the different reversal rates may be attributed both to the circuit courts and the Immigration Judges.  Maybe I am biased (I used to clerk for the Arlington, Virginia Immigration Court, located in the beautiful Fourth Circuit), but I believe the low reversal rate in the Fourth Circuit is partly due to the high quality of judges in Arlington and Baltimore.  Both those courts are relatively small and close to EOIR headquarters, and judicial appointments in both cities are coveted.  Not that I’m saying a 3.3% reversal rate is a good thing.  It’s just that I can’t totally blame the Fourth Circuit for it.

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    Refugee Protection Act of 2010

    by Jason Dzubow

    Senators Leahy (D-VT) and Levin (D-MI) introduced the Refugee Protection Act of 2010 (S. 3113) on Monday.  The new bill seeks to ensure that legitimate refugees and asylum seekers are protected by the United States.  Key provisions of the bill:

    Increased Protections for Asylum Seekers:

    • Eliminates the requirement that asylum applicants file their claim within one year of arrival.
    • Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even where their persecution was not socially visible.
    • Ensures fair process by requiring an immigration judge to give notice and an opportunity to respond when the judge requires corroborating evidence of the asylum claim.
    • Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
    • Enables minors who seek asylum to have an initial interview with an asylum officer in a non-adversarial setting.
    • Allows the Attorney General to appoint counsel where fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.

    Reforms to the Expedited Removal Process:

    • Requires the referral of asylum seekers to an asylum officer for a credible fear interview, and, if credible fear is found, for an asylum interview. 
    • Authorizes the United States Commission on International Religious Freedom to conduct a new study on the effects of expedited removal authority on asylum seekers.

    Parole of Asylum Seekers:

    • Codifies the current DHS policy that asylum seekers be considered for release (“parole”) and requires DHS to issue regulations establishing criteria for parole.
    • Establishes a nation-wide, secure “alternatives to detention” program.
    • Requires changes in the immigration detention system to ensure asylum seekers and others have access to counsel, medical care, religious practice, and visits from family.

    Terrorism Bar to Admissibility:

    • Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars in the law, while ensuring that those with legitimate ties to terrorist activity will continue to be denied entry to the United States.

    Protection for Refugees and Asylees:

    • Eliminates the one year waiting period for refugees and asylees to apply for a green card. 
    • Allows certain children and family members of refugees to be considered as derivative applicants for refugee status.  All such applicants must pass standard security checks. 
    • Authorizes the Secretary of State to designate certain groups as eligible for expedited adjudication as refugees. 
    • Prevents newly resettled refugees from slipping into poverty by adjusting the per capita refugee resettlement grant level annually for inflation and the cost of living. 

    The bill was praised by immigrant advocacy groups such as the National Immigration Forum, the International Rescue Committee, and the ACLU.

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    Recommendations Regarding Detained Asylum Seekers

    by Jason Dzubow

    From the Heartland Alliance’s National Immigrant Justice Center:

    Heartland Alliance’s National Immigrant Justice Center and 30 other national and international immigrant and human rights organizations, think tanks, and academics have petitioned the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) to issue regulations allowing the release of detained asylum seekers who pose no danger to the community and would face persecution if returned to their home countries.

    According to the report, in 2006, “of the 5,761 asylum seekers who were detained, 1,559 (27%) were detained for more than 180 days.”  The report continues: “On average, arriving aliens who eventually obtain asylum spend 10 months in detention.”  The report discusses the mental and physical effects of detention on asylum seekers, and also notes that the cost of detaining asylum seekers averages $95 per person per day–from 2003 to 2009, we spent more than $300 million to detain asylum seekers.  The report recommends regulatory changes to allow more detained asylum seekers to be released prior to their final hearings. 

    As usual, this problem is also a question of the asylum seeker’s financial situation and access to counsel.  Represented asylum seekers who are eligible for release (and who can afford to pay the bond) will almost always be released in a month or two.  The poorest and most vulnerable asylum seekers are the most likely to remain detained.  Case in point: I received a call today from a woman whose sister was threatened by gang members in El Salvador.  She fled the country, crossed the border illegally, and was detained.  She is currently being held in Eloy, Arizona, and has already made a claim for asylum.  The sister is looking for an attorney in Arizona to prepare an application for bond.  I referred her to the Florence Project, an excellent legal services organization that assists immigrants detained in Arizona.  If the woman can secure a bond, the chances of her asylum claim succeeding will be much improved.  If she remains detained, she will have to prepare her case and gather evidence–such as letters from witnesses, police reports, and medical reports–from behind bars.  Under those circumstances, I imagine the chances for her to succeed are pretty slim.

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    We Need More Judges

    by Jason Dzubow

    Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has issued a new report confirming what immigration attorneys already know: the waiting time for cases in the Immigration Courts is longer than ever.  From my experience, a typical case in the over-burdened Arlington, Virginia court takes almost two years.  It turns out, Arlington isn’t the slowest court in the land:

    From the TRAC website:

    Cases awaiting a hearing in the nation’s Immigration Courts reached an all-time high of 228,421 in the first months of FY 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The current number of pending cases is up 23 percent just since the end of FY 2008, and 82 percent higher than it was ten years ago.

    Wait times also vary markedly from one court to the next. At one extreme there are the Los Angeles and Boston Immigration Courts where pending cases have now been waiting for an average of 713 days and 612 days, respectively. At the other extreme, there is the Florence, Arizona Immigration Court with an average wait time of 75 days and the Miami (Krome) Immigration Court with 82 days.

    I imagine that the courts in Florence and Miami are faster because those locations deal primarily with detained immigrants.  The courts make detained cases a priority.  Not, as you might expect, because the alien is in detention, but rather because the alien is in detention at government expense. This is made clear when you view the courts’ files, which are prominently labeled, “Detained at Government Expense.”

    The problem could be alleviated (or at least ameliorated) if the Department of Justice would begin filling some of the 48 immigration judge vacancies.  Indeed, according to TRAC, since 2007, the number of immigration judges has actually gone down (from 229 to 227) while the case load has increased dramatically.  The backlog has resulted in difficult waits for asylum seekers and others caught in the system.

    In a strongly-worded response to TRAC, EOIR Acting Director Thomas Snow calls the report “unbalanced” and states that it fails to acknowledge EOIR’s efforts to fill the vacant positions.  Acting Director Snow points out that 15 judges are in the final stage of the selection process, and EOIR is interviewing hundreds of candidates to fill the remaining IJ openings.  For aliens in the system, the process cannot move fast enough.  To properly enforce the nation’s immigration laws, ensure due process, and fulfill our humanitarian obligations, we need more judges.

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    Immigration “Consultants” and Fraud

    by Jason Dzubow

    When asylum seekers arrive in the United States, they are often unfamiliar with how to file for asylum and how to find help with their cases.  Such people commonly hire “consultants” (or “notarios” in the Spanish-speaking community) to assist them.  The consultants prepare the case and sometimes attend the asylum interview as an interpreter.  They charge a fee–often the same or a little cheaper than a legitimate attorney.  Sometimes these cases succeed and asylum is granted.  More frequently, the case is denied and referred to the Immigration Court.  Other times, the consultant just takes the money and runs. 

    The ABA (American Bar Association) has created a program called Fight Notario Fraud to help report and crack down on consultant fraud.   From the ABA website:

    Unscrupulous “notarios” or “immigration consultants” have become an increasingly serious problem in immigrant communities throughout the United States. Often using false advertising and fraudulent contracts, notarios hold themselves out as qualified to help immigrants obtain lawful status, or perform legal functions such as drafting wills or other legal documents. Unethical Notarios may charge a lot of money for help that they never provide. Often, victims permanently lose opportunities to pursue immigration relief because a notario has damaged their case. The [American Bar Association] Commission is working to provide immigrant communities with information about this dangerous practice, and to support advocates who represent victims.

    Unfortunately, as the ABA notes, consultant “fraud is usually identified after the fact, when an immigrant has already suffered an adverse event as the result of a consultant’s services.”  If you have been a victim of consultant fraud, you can report the fraud to the ABA, and they may be able to assit you.  Submit your contact information and a description of the problem here.

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    How Confidential Is the Asylum Process?

    by Jason Dzubow

    Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

    In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

    Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

    The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

    Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

    Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

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