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The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.
"I didn't do it!" Why lie about something that you can't get away with?
Mr. Wenger's client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client's family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger's troubles stem from the client's decades-old conviction for criminal sexual misconduct.
It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn't work.
Now, Mr. Wenger is going to jail and the client--while still in the United States--faces an uncertain future.
Mr. Wenger's tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as "sad," and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I've known criminal defense lawyers, for example, who say that if you don't go to jail for contempt once in a while, you're not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job--and our duty--as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger's story reminds us.
So I suppose I understand Mr. Wenger's motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don't see the point of lying about something that the government knows already.
The temptations faced by Mr. Wenger are amplified in my practice area--asylum--where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client's own testimony. I've encountered this myself a few times when clients have asked me to help them lie ("Would my case be stronger if I said X?"). How to handle such a request?
The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client's goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.
For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported--possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner's disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.
When all is said and done, I will not lie for a client. I don't think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer--and thus my ability to be an effective advocate--in all my other cases. I also feel that it damages the system, which hurts honest applicants.
In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer's zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.
Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.
Originally posted on the Asylumist: www.Asylumist.com.
It's Autumn, which means that it's time again for the Diversity Visa Lottery. The Lottery was created by Congress to increase immigration from countries that have traditionally sent us few immigrants. Every year, 50,000 people "win" the lottery and are then (probably) able to immigrate to the U.S.
The only problem with winning the DV Lottery is that it's hard to fit the green card in your wallet.
Given the current state of affairs in the asylum world (delay, delay, delay), some people with asylum cases pending are wondering whether they can use the Lottery as an alternative to asylum. The answer: It depends.
First, not all countries are eligible for the Lottery. Countries that have sent us large numbers of immigrants in the past are not included in the Lottery. If you are from one of the following countries, you are not eligible for the DV Lottery:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
For China, please note that persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Even if you were born in one of the above-listed countries, you might be eligible for the Lottery if your spouse's country does not appear on the list, if your parents were not born in one of the countries on the list, or if your parents were not lawful residents of a listed country at the time you were born. You can lean more about these somewhat annoying requirements here.
Besides country-of-origin restrictions, the other requirement for eligibility is that applicants must have a high-school degree or the equivalent, or have "two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform."
If you meet these two requirements, you can apply for the DV Lottery. This is free and actually pretty easy. Video instructions are here and you can apply here. You must apply before November 3, 2015. Winners are selected starting in May 2016.
There are also a number (probably a large number) of websites that will "help" you apply for the Lottery, for a fee. In the best case, this is a waste of money (it is just as easy to apply yourself). In the worst case, it is a complete fraud. You can learn more about these fraudsters and report scams to the U.S. government here.
Unlike most applications, I recommend that people do not use a lawyer for the Lottery and do not use a service. It is best to do it yourself.
However, if you win the Lottery, it is very wise to hire a lawyer to guide you through the green card process. Winning the Lottery does not guarantee that you will get a green card, and whether you can successfully take advantage of winning the Lottery depends on many factors and can be complicated--especially for people with asylum cases pending.
So let's say you have an asylum case pending, should you try the Lottery? The easy answer here is "yes," there is no harm in trying the Lottery. If you happen to win, then things get complicated (the odds of winning are hard to come by, but appear to be less than 1%).
If you win the Lottery while your asylum cased is pending, you can potentially obtain your lawful permanent residency (your green card) and close out your asylum case. Your spouse and minor children can also get their green cards as your dependents. The problem is that not all asylum applicants will be eligible to "adjust status" and become residents of the United States, and this is where it gets tricky.
A DV Lottery winner who filed for asylum while she was still "in status," meaning she was lawfully present in the U.S. at the time of filing, and who is still lawfully present here, can "adjust status." "Adjusting status" means changing from a non-immigrant status to a lawful permanent resident without leaving the U.S.
Most asylum applicants will not be "in status" for long enough to take advantage of the Lottery. For example, if you came here on a B visa and filed for asylum, the B visa was probably valid for only six months, which means that you will be out of status after the six month period ends. The fact that you filed for asylum does not change the expiration date of your visa (the expiration date of your stay is not written on the visa itself; you can look it up on-line here). Since the Lottery process takes much more than six months, you will be out of status by the time your green card is available, which means you cannot "adjust status." Instead, you would have to leave the United States and get the green card overseas.
Certain asylum applicants--those with long term visas, like F-1 students or H1B workers, who do not violate the conditions of their visas--might be able to remain in status long enough to adjust status and become lawful permanent residents without leaving the United States.
So if you are an asylum seeker who is out of status, can you leave the U.S. and collect your residency overseas? Maybe.
The key here is something called "unlawful presence." Once your lawful stay in the U.S. expires, each day here is considered one day of unlawful presence. If you accrue more than 180 days of unlawful presence and then leave the U.S., you are barred from returning here for three years. If you accrue one year or more of unlawful presence and you leave, you cannot return for 10 years. This is known as the 3/10 year bar. A person who has an asylum case pending does not accrue unlawful presence. So for example, if you came on a B visa that was valid for six months, you overstayed your visa, and you filed for asylum four months after the visa expired (10 months after you arrived in the United States), you will have four months of unlawful presence. Once you file for asylum, you stop accruing unlawful presence, so even if your case takes two more years, you will still only have four months of unlawful presence, and you will not be subject to the 3/10 year bar if you leave (though you might be subject to other bars).
Assuming you are not subject to the 3/10 year bar, it may be possible to leave the U.S. and obtain your residency overseas based on the DV Lottery. However, for asylum seekers, this might mean returning to the country of feared persecution, which can be dangerous and might also raise suspicion at the U.S. consulate that your asylum case was not legitimate (if you can return to your country for the Lottery, maybe you never really feared persecution there). For asylum seekers (and others), it may be possible to leave the U.S. and pick up the green card in a third country, which would be the safer option.
If you are an asylum seeker who is subject to the 3/10 year bar and you leave to collect your residency, you will then need special permission to return (this is called a waiver). Such permission will be difficult--if not impossible--to obtain for most asylum seekers, and so people subject to the bar will most likely be unable to obtain their residency based on the DV Lottery.
Finally, asylum seekers who entered the United States without inspection are ineligible to adjust status and thus cannot take advantage of the DV Lottery (there may be a very narrow exception to this rule for people who meet certain conditions, including having been present in the U.S. since December 2000).
The bottom line here is that if you win the Lottery, you need to consult with a competent attorney. For asylum seekers, the ability to adjust status--or possibly leave the U.S. and return with residency--is crucial. It is very difficult to navigate these waters without the advice of someone who knows what he is doing. It makes sense to apply for the Lottery on your own, but if you win, it's time to hire a lawyer.
Originally posted on the Asylumist: www.Asylumist.com.
A recent Board of Immigration Appeals ("BIA") decision upheld an Immigration Judge's adverse credibility finding where the respondent's affidavit was "substantially similar, and in some regards identical, to an asylum application previously filed by respondent's brother in a different proceeding." Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).
The BIA should think of more creative ways to prevent cheating.
In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times--in 2004 and 2006--and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times--in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother's case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.
After informing R-K-K- of the problem, the Immigration Judge ("IJ") gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers' "common backgrounds and experience," and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.
The IJ did not accept R-K-K-'s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.
The BIA affirmed the IJ's decision and issued a published decision in order to set forth a "procedural framework under which an Immigration Judge should address... inter-proceeding similarities." The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent's credibility based on the totality of the circumstances. The shorter answer is, Who cares?
I do not know how often "inter-proceeding similarities" are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person's case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.
But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it's nice to have a framework to assess credibility when this issue comes up. But what about the missing "transcriber"? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.
Frankly, the BIA's decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.
Some--perhaps most--of the fraudsters' clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these "clients" are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand "the system," and who have no support network in the United States.
So is R-K-K- a victim or a villain? We don't know, and given the BIA's "framework" for analyzing similar cases, I guess we never will.
How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.
There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don't like it, but I'll file a complaint when it's justified. And--so the reasoning goes--if the offending attorney is barred from practice, his future clients/victims will be protected.
The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel--this ranges from a benign screw-up (which can--and does--happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else's case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 09-11-2015 at 12:11 PM by JDzubow
Earlier this week, Rasmea Odeh, the associate director of the Arab American Action Network in Chicago, was convicted of one count of Unlawful Procurement of Naturalization. She faces up to 10 years in prison, a fine, and possible deportation from the United States.
Convincing Ms. Odeh's supporters proved easier than convincing a jury.
Ms. Odeh is a Palestinian who was convicted in Israel in 1970 for involvement in two bombings, one of which killed two university students in a supermarket. She was sentenced to life in prison, but she was freed in 1979 as part of a prisoner exchange between Israel and the Popular Front for the Liberation of Palestine. Ms. Odeh maintains that she is innocent of the crime, and that she was coerced into confessing under torture by the Israeli authorities.
In the mid-1990s, she immigrated from Jordan to the United States, and in 2004, she became a U.S. citizen. By all accounts, she did well in her adopted country:
Rasmea Odeh has been with the Arab American Action Network (AAAN) since 2004 and is the Associate Director and Community Adult Women Organizer.... She has worked as a teacher and then a lawyer after she completed her law degree. She gained valuable community experience through her work and service in various associations including women’s and workers’ unions, family and domestic violence groups, human right centers and the Red Cross. She created a successful community writing group at the AAAN to encourage women to tell their colorful stories and experiences while living in the United States in a creative and exciting way.
Ms. Odeh's current troubles stem from her failure to report her conviction and sentence on her immigration and naturalization forms. Those forms ask such questions as "Have you ever been arrested, cited, or detained by any law enforcement officer... for any reason?" and "Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense?" (emphasis in original). In response to these questions, Ms. Odeh answered "no."
In a sense, this is an open-and-shut case. Whether or not Ms. Odeh is guilty of the underlying crime (the bombing), she certainly provided false information on the immigration forms. But of course, nothing connected to the Israeli-Palestinian conflict can ever be simple, and Ms. Odeh's case is no exception.
The first complicating factor is Ms. Odeh's alleged torture by Israel. This became relevant because the defense hoped to prove that Ms. Odeh did not "knowingly" lie on the immigration forms; rather, her "post-traumatic stress disorder" somehow caused her to answer the questions incorrectly. The judge disallowed this defense in a pre-trial order, and it will no doubt be one of the claims raised on appeal. To me, the PTSD defense is simply not believable. Many of my clients are torture victims and possibly suffer from PTSD, but I've never seen a case where the client isn't able to answer a yes-or-no question about whether she was arrested. Maybe she does not want to talk about the arrest, but she knows it happened and can complete the form properly. Even if the judge had allowed this defense, I doubt that the jury would have accepted it.
Deprived of her PTSD defense, Ms. Odeh argued that she misunderstood the questions related to her criminal convictions. She said that she thought the questions were about her time in the U.S., and that she had nothing to hide and did not need to lie. She apparently testified about her alleged torture at the United Nations in 1979, and as her lead attorney said, “It was well known that she was convicted, and traded [in a prisoner exchange]. The U.S. Embassy knew it, the State Department knew it, and Immigration should have known it.” Neither of these points is very convincing. First, Ms. Odeh clearly had a very good reason to lie--if the U.S. government knew about her conviction on terrorism charges, she would likely have been denied a visa and citizenship. Second, her attorney's claim that she did not have to answer the questions truthfully since the U.S. government was already aware of her conviction is simply bizarre (as if some USCIS bureaucrat in 2004 would magically be aware of Ms. Odeh's testimony before the UN in 1979).
The most (and to me, only) convincing argument made by Ms. Odeh is that her prosecution stems from an improper government investigation that targeted Palestinian activists and others who were exercising their First Amendment rights. Ms. Odeh filed an unsuccessful motion to dismiss relying on this theory. The investigation in question was brought against 23 anti-war and Palestinian activists, and after 3+ years, has not resulted in any indictments. During the course of the investigation, the government of Israel turned over documents to the United States. It is these documents that purportedly led to the discovery of Ms. Odeh's imprisonment (and hence the discovery that she lied on her immigration forms). The failure of the underlying investigation to reach any conclusion suggests that it might have been improper and, if so, perhaps the discovery related to Ms. Odeh was unlawful (fruit of the poison tree and all that). I suppose we will see what comes of this argument on appeal. But of course, even if Ms. Odeh is correct about the improper investigation, and even if she ultimately wins with this issue on appeal, that does not change the fact that she lied on her forms.
Finally, it is interesting to see how people’s views of the Israeli-Palestinian conflict affect their views of Ms. Odeh’s case. To her supporters, this case is about Israeli torture of Palestinians. They seem to accept Ms. Odeh’s explanation that she is innocent, that she was tortured into confessing, that any mistakes on the form were either a misunderstanding or a result of her PTSD, and that the whole case is an effort by the U.S. government to undermine the Palestinian cause.
While I largely sympathize with the Palestinian side, I find Ms. Odeh's explanations hard to accept. To me—and apparently to the jury—the case is much simpler than all that. The question is, Did Ms. Odeh knowingly lie on her immigration and naturalization forms? The jury found that she did. Despite all the craziness surrounding her case, and whether she is a victim or a villain, the simplest and most likely explanation here is that Ms. Odeh lied about her imprisonment in order to obtain an immigration benefit from the United States. If so, she received the conviction she deserved.
Originally posted on the Asylumist: www.Asylumist.com.