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Jason Dzubow on Political Asylum


  1. Refugees Have a Harder Time Attaining Self Sufficiency

    Officials from the State Department, USCIS, the Department of Health and Human Services, and others have begun the process of recommending the refugee numbers-i.e., the number of refugees our country will accept-for Fiscal Year 2011.  The annual ceiling has been 80,000 refugees per year for the last three years, though we have never actually reached the ceiling: In FY 2008, we admitted 60,191 refugees and in FY 2009, we admitted 74,654 refugees.  Officials expect to admit about 73,000 refugees in FY 2010.
    Because of the troubled economy, those refugees who are resettled in the United States are having a more difficult time achieving self sufficiency.  Government Executive reports:
    Every refugee arriving in the country is provided with a sponsor affiliated with one of 10 national volunteer agencies that work to help refugees adjust to life in the United States. They provide a litany of services, including help finding work, enrolling children in schools and adults in English language classes, and finding medical care.  Refugees are eligible for public assistance and medical care for at least eight months, and sometimes longer, depending on family status and the state they live in.  They also receive about $1,100 in direct financial assistance after they arrive in the country.

    Under a new government employment program, all refugees entering the U.S. will receive a free t-shirt.
    The agencies are finding it more difficult to place refugees in jobs.  The State Department even claims to be informing refugees overseas about the difficult economy in the U.S., so they can make an informed decision about whether to resettle here or in another country.
    Before I went to law school, I worked as a job developer at an agency that helped resettle refugees in Philadelphia.  I would travel around the city visiting employers, looking for job openings for my clients.  The jobs were often less than exciting.  I remember one man who worked as a parking lot attendant.  He had been the Minister of Finance for the Ethiopian army.  Another man had designed complex radar systems in the Soviet Union.  In America, he worked in a machine shop.  Such people have fled their countries to save their lives and their families' lives.  The transition to a new culture often sets them back in ways that can never be overcome.  The plight of such refugees is not easy.  I am proud that my country accepts them and tries to help them live better lives.
  2. Remembering the Golden Venture

    It's been 17 years since the Golden Venture ran aground off New York.  The Epoch Times remembers that fateful day in an interview with a Chinese fisherman who survived the ordeal, gained political asylum, and built a life for himself and his family in the United States:
    "Jump! Jump! Hurry Up! Jump into the sea! You are in America. Or they will send you back to China," a man shouted hastily. Hundreds of Chinese men and women jumped from a rusty freighter into the cold water, swimming, struggling, crying, and gasping.

        Liu Ping
    Ten people died as they struggled to swim to shore. After getting so close to the American dream, chased so painstakingly, they hit America's shoreline at the end of their lives.
    "The water was freezing and my body was weak. I didn't know whether I could make it. I thought I was dying. I asked 'God help me'," recalled Liu Ping, 44, one of the survivors of 298 passengers on the Golden Venture that ran aground off New York at 2:00 a.m. on June 6, 1993.
    Liu was one of the lucky survivors, and he was among the dozens who were granted asylum. Of the 298 people, 110 were deported to China, 53 were detained until 1997 when they were pardoned under a bill signed by President Clinton.
    Now a permanent resident, Liu leads a peaceful and content life in Philadelphia with his wife and three children. Two of his children are U.S. born citizens. His other child was born in China and later became a naturalized American citizen. His wife, whom he married before coming to the U.S., also became a naturalized U.S. citizen.
    A Survivor's Story
    He'll never forgets how he made it - the Golden Venture experience.
    Speaking with a thick Fujianese accent, Liu was emotional when recalling his 26-month journey from China to America. It was over land, mountains, across rivers, through a jungle, and finally over the ocean, using all possible method of travel imaginable.
    The first words that he uttered on U.S. soil were "Thank you" to an American police officer.

    "They [American police] got me out of the water, wrapped me in blanket. I was lying in the sand face down. The sand was warm and dry to me. I gained my consciousness."
    "I opened my eyes, saw two white American policemen standing beside me. Looking into their eyes, not knowing what they would do to me, I said 'thank you'."
    Making headline news on international media through an AP photo, Liu looked like an injured eagle captured in a cage severely fatigued.
    The front-page stories in the media quickly reached his hometown, a fishing village on a remote island called Tsoo Loo in Fujian province. The news brought excitement, tears and hope to Liu's entire family, which hadn't heard from him nor had Liu means to contact them for more than 26 months since he left home for America.
    Liu's father, a fisherman, had scraped together every penny he could possibly find to fund his son's journey to the U.S. - using his savings, borrowing from families and friends. He paid $30,000 upfront to the smuggler - an astronomical figure for an average Chinese villager, whose annual income was a few hundred dollars at the time.
    Liu's wife, two years younger than Liu, is a fisherman's daughter from the same village. The couple had a 2-year-old son when Liu left home for U.S. In Liu's absence, his wife worked day in and day out repairing fishing nets to support the family, caring for the young child and old parents from both sides of the family with a meager income.
    The smuggler promised Liu and his family, "We'll get you to America in three months." Liu's voyage to America turned out to be 26 months.
    From Tsoo Loo Island to Queens, New York
    One afternoon this February, in a small cafe in Philadelphia Chinatown's Galleria, Liu walked me through his long haul from the Tsoo Loo Island in Fujian province China to Queens, New York.
    It started on Oct. 10, 1991. Liu was flown to the city of Kunming, capital of Yunan province, located on the far southwest of China bordering Burma, Laos, and Vietnam. He was put into a local motel to wait for more people to join. After 3 weeks of waiting, he was loaded into a military vehicle together with 46 other people, mostly from his home province of Fujian. Fully covered with army green canvas, the vehicle took the passengers on bumpy mountainous road to Yunnan and the Burmese border.
    Then they began to hike a forestry mountain to enter Burma. After getting lost in the jungle, a local villager found them and turned them into local police. The police took them into custody and took their money and other valuables. They made phone calls asking local smugglers to bail them out. Liu quickly realized that the local police were part of a lucrative underground business.
    The captives escaped police custody while the police were asleep. They ran to the banks of the Malika River at the Sino-Burmese border. They desperately waved hands and shouted to people across the river for help. A boat came and they were taken in by soldiers of Burma's military government.
    A Burmese military officer said to them, "We have a profitable business if you are interested. You can get 100,000 Chinese Yuan (equivalent of $15,000) upfront. Then you get a share of the profit every time a transaction is successfully completed." It was a heroin business.
    Some passengers were tempted. Liu refused. "I didn't want to do bad things." Liu was a Christian, as his grandmother was. As a devout Christian, she took Liu and other family members with her to a private home every weekend, to a place known as "house church" or "underground church," which operates independently of the Chinese communist government-run churches. Members and leaders of underground churches are main targets of the Chinese regime's religious persecution.
    Liu and friends managed to escape from the Burmese military base. They crossed the Burmese-Thai border and arrived in Thailand three months later. They were quickly connected with Thailand-based smugglers who can put people on a boat to America. "Those who have cash on hand can get on the boat almost immediately. People like myself, who did not have money had to wait," Liu said.
    After about 6 months of waiting, Liu was finally put on a freighter setting out for America. About 290 people were on the freighter. Most of them were men, in their 20s, 30s, and some 40s from Fujian province.
    The passengers elected leaders based on seniority, likeability, and public trust. The elected "officials" were responsible for safeguarding and distributing food, water, and medicines. There was theft of these "public goods" on the freighter, and fights erupted over them. The leaders had guns to maintain order among the passengers.
    "There were often fights amidst the endless boredom. Besides lying down, eating, you had nothing to do. Any small dispute or quarrel could turn into a gang-style fight," Liu recalled.
    A few months later, passengers were routed to Kenya to change vessels. They ended up staying in Kenya for 8 months waiting for the smuggler to dispatch another freighter to pick them up. Baking in Kenya's scorching sun and drought, the Chinese visitors' only pastime was to play Chinese gambling games.
    Finally, a rusty freighter came. It was the Golden Venture. Some 300 people rushed in and began the sea journey to America. The passengers lived in the lower bottom of the freighter. It was like a dim sum bamboo steamer - human bodies were stacked on top of each other on the wooden beds. Rotten food smell, human waste, body odor all mixed together in the air. Due to malnutrition and lack of hygiene, passengers became pale and weak. Dysentery, diarrhea, vomiting, fever were common among the passengers. Liu remembered a 26-year-old man, a college graduate, died of septicemia.
    Among other life-threatening events, a storm at the Cape of Good Hope while on the freighter was most unforgettable to Liu. The confluence of currents from the Atlantic and Indian Oceans create the world's most dangerous sailing waters. Unpredictable and rough swells, stormy tides, and freak waves have claimed countless lives in marine disasters.
    When water started creeping into the lower bottom of the vessel, sinking the body of the ship, people were crying. "We were scared to death," Liu said. Amidst the chaos, the captain was seen preparing to abandon the freighter. The leaders quickly surrounded him and held a gun to his back demanding that he remain at his job.
    When the Golden Venture survived the storm, passengers were exalted, jumping and dancing with the sound made of bowls and plates using chopsticks. When the ship approached America, they turned off the radar on the freighter. "We feared being discovered by the American border patrol," Liu said. But the precaution as to no avail, U.S. border patrol was prepared to receive them.
    Landing in America
    Golden Venture passengers were greeted with helicopters, border patrol police and TV camera cars at about 2 a.m. on June 6, 1991.
    After being detained by U.S. Immigration for five months, Liu was granted asylum by a Virginia court in Nov. 1991. The asylum program provides protection to qualified individuals who are already in the U.S. or who are seeking entry at a port of entry. Individuals must establish past persecution or a well-founded fear of future persecution by the home country's government.
    As the world's largest totalitarian society, under the Chinese Communist Party, China is the largest exporter of political asylums to U.S. Based on a U.S. Department of Homeland Security's 2008 report, more than 20 percent of those who were granted asylum in the U.S. were from China. A distant second place is Columbia.
    On the other hand, U.S. Customs and Border Protection data showed China accounts for only 0.2 percent of the total apprehension of illegal immigrants by Department of Homeland Security, far behind Mexico, which accounts for about 88 percent of the total apprehension. The gap can be well attributed to the much higher cost, greater risk, and far longer distance that Chinese have to travel.
    It is reported that illegal immigrants from Mexico pay smugglers up to $3,000. According to Liu, the price for Chinese is now $80,000.
    When asked if he would want to do it again, knowing the great risks and ordeal that he had gone through, Liu said yes. He enjoys living in the U.S., even though he speaks no more than 50 words of English. (His children read letters, bills, and paperwork for him.)
    As a fisherman who didn't have Guan Xi (connections) with local Communist Party officials, Liu said he would never have a chance for a decent life in China.
    When he was in China, he worked 14 to 18 hours a day, catching fish and earned about $300 per year. The first month he worked in a Philadelphia Chinatown restaurant, he earned more than $700.
    Within five years of his landing in the U.S., he had two small businesses, a restaurant and one dry-cleaner. Liu said as a fisherman without connection, he would never have dreamed owning his own business in China.
    He couldn't have had a second child in China. Forced sterilization, having the house torn down, and paying huge fines are part of what Chinese people go through for attempting to have a second child. He and his wife had two more children in the US: a girl and a boy, now 12 and 10 years old, respectively.
    Liu is most grateful for his eldest son Michael. Michael lost his hearings to high fever and infection at the age of two when he was in China. The hospital refused to treat him because the family didn't have money to pay for the medical treatment.
    "He is 20 and attends college in South New Jersey on a government subsidy. A son of a fisherman, he would never have the chance in China, let alone being deaf," Liu said.
    Liu said he often told his countrymen, "I'd pay you $100,000 to go back to China if they complain [about the US]." He said, "I like America. If you are willing to work hard, you can have a happy life." He worked ten plus hours a day, seven days a week in the first several years in Chinatown restaurants, doing everything from dish washing, cooking to delivery. He saved every penny and brought his wife and his son to the U.S. in 1996.
    "They all passed the [citizenship] tests and are now American citizens," Liu said happily and proudly, "except me. I failed the test the first time and haven't tried again ... But as long as they are Americans, I am happy."
    When speaking about his wife, his Tsoo Loo Island sweetheart, Liu is proud. "She works at the Philadelphia International Airport. It is the Asian Chao restaurant, at Terminal F. You can't miss it. Many people eat there."
    Living the American Dream
    Stories like Liu's are hardly reported by the state-run media in China.
    The Chinese government detests people like Liu, a Chinese with political asylum, and regards them as "sheer shame" that dishonor China and disgrace the Chinese people. The Golden Venture story is no doubt an embarrassment, a PR fiasco that run counter to Chinese government's propaganda: "A promising economy, world's super power, China is in its best shape on human rights and condition throughout the history."
    After Golden Ventures news broke, Liu's hometown village began seeing large posters in the streets and public venues. The government sent a clear message: "With pride and honor, you obey the law and can become rich here. With shame and disgust, your being smuggled brings disgrace to the country."
    The Chinese government promotes nationalism and wants people to feel proud of China's super power status. Yet it seems hard to reconcile a super power image with miserable stories of lawful citizens willing to take life-threatening risks, prohibitively high cost, grave human consequences and tremendous ordeals just to pursue a life that millions in the West have taken for granted.
    "I just want my family to have good life and my kids to have education and a future."
    Liu sends his children to Philadelphia Chinatown Church School every weekend. He wants his offspring to inherit his family's tradition in Christian faith and Chinese culture.
    "Can you please give me a copy of the newspaper once it's published in English? I want to show to my American neighbors and friends." Speaking little English, Liu hopes to share his life and his American dream with others.
    Liu said he was happy to hear what his children told him one day about American history that they studied at school: "America was actually founded by people like dad who was unhappy with his home country and decided to take a boat to come to America."
    Then Liu said, "I heard their boat was called the May Flower. Mine was called Golden Venture."
  3. Briefing in Advance of World Refugee Day

    The Bureau of Population, Refugees and Migration of the Department of State and the U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security co-hosted a background press briefing on June 3, 2010 on U.S. refugee and asylum-seeker resettlement programs. The discussion was held in advance of World Refugee Day, June 20, 2010.
    The speakers gave basic background information on refugee and asylum issues and answered journalists' questions (for purposes of this briefing, your humble blogger was considered a journalist).  The speakers explained that refugees were people outside the United States who had suffered past persecution or who had a well-founded fear of future persecution based on race, religion, nationality, political opinion or particular social group.  Asylum seekers are people who are in the United States (or at the border) who claim that they are refugees.  A few points that I thought were interesting:
    Most refugees come to the U.S. from Iraq, Bhutan (via Nepal), and Burma (via Thailand and Malaysia).  The top three countries that accept refugees are the United States, Canada, and Australia.  The number of refugees resettled in the U.S. has increased 25% from last fiscal year.
    For cases heard at the eight Asylum Offices in the U.S., a supervisor reviews every case.  Certain sensitive cases are reviewed by headquarters.  Asylum Officers receive an initial six weeks of training and then four hours of training each week.  Officers are trained to identify fraudulent documents. 
    USCIS is working on a system to share biometric data with other countries; Canada in particular.  Presumably, the purpose of this is to determine whether the asylum applicant previously filed for asylum in another country and was rejected.
    Violence along the Mexican border has caused some Mexicans to seek asylum at the border (though over the past few years, the number of Mexican asylum seekers has been dropping).  In the first six months of FY 2010, 233 Mexican nationals expressed a fear of persecution at the border.  Of those, 84 were deemed to have a "credible fear" and were referred to an Immigration Judge for an asylum hearing.  We can assume that the other 149 people were found not to have a credible fear of persecution and were removed under the expedited removal rules.
    If you are wondering, I asked about a problem I have heard about from a number of clients and clients' family members.  When an alien expresses a fear of return to her country, the ICE or CBP officer is supposed to refer the person for a credible fear interview with a USCIS Asylum Officer.  Apparently in some cases where a detained alien, or an alien at the border, expresses a fear of persecution, the ICE officer tries to convince the alien to sign papers agreeing to removal, and to not make a claim for asylum.  I have heard about this from different sources, though many of the people involved are expressing a fear of persecution by criminal gangs in Central America.  The USCIS spokesperson was not aware of the problem and indicated that ICE and CBP officers are supposed to refer such cases for credible fear interviews.
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  4. Fraud and Asylum

    A recent report from Ireland found that almost two thirds of asylum seekers who claimed to be from Somalia were lying.  The investigation found that the "Somalis" were from other countries, such as Tanzania, Kenya, and Yemen.  Apparently, some of the asylum seekers were found out based on language or a lack thereof; others had previously applied for visas to the UK using different nationalities.  There may be some reason to doubt whether these techniques for outing "Somalis" are valid.  For example, some Somali nationals may have been refugees for many years, raised in other countries without knowledge of Somali languages.  Others may have used false passports from other countries to travel to Europe.  Nevertheless, the high percentage of cases that are likely fraudulent presents a problem for the "system" and for those who represent asylum seekers. 
    Of course, the problem is not confined to Europe.  In 2007, the U.S. Embassy in Ethiopia issued a cable (I have not been able to find it online) entitled: Report on fraud trends in Ethiopian asylee claims: A guide for DHS adjudicators.  The cable talks about "following to join" cases where an alien has been granted asylum in the United States and has filed a form I-730 for his relatives to join him in the U.S.  From August 2005 to May 2006, the Embassy reviewed 1,449 following-to-join cases, which represented 288 asylum grants in the United States.  The Embassy writes that "Almost every [following-to-join] interview at Post uncovers information that calls into question the petitioner's original claim."  In addition, the Embassy has found that "more than 75 percent of documents investigated were fraudulent" and consular officers "suspect that the fraud rate is well over 50 percent."  Again, there may be problems with the Embassy's methods of investigating fraud, but the cable certainly presents evidence of a problem. 
    The U.S. Embassy in Cameroon has issued a cable similar to the Ethiopian cable.  It states that asylum claims have increased dramatically since 1992.  The Embassy knows of no corresponding increase in political problems, though the economy has gotten worse, leading to the conclusion that many asylum seekers are economic migrants (the State Department Report on Human Rights conflicts somewhat with this view, listing human rights abuses such as torture, arbitrary arrest, and life-threatening prison conditions).  The Embassy also reports that Cameroonians have been detained entering the United States with all sorts of fake documents that could be used to create fraudulent asylum claims.  Relatives following to join frequently know nothing about the asylees' political activities or persecution.  As a result of this fraud, non-immigrant visa refusal rates have increased from 35% in 2001 to 60% in 2004.  Further, the Embassy complains that fraudulent applications and following-to-join applications have dramatically increased its workload.  It recommends that Cameroonian asylum cases be viewed skeptically. 
    Other evidence is more anecdotal.  A recent report from the blogosphere-I cannot vouch for the report's credibility-indicates that an Ethiopian diplomat at the Embassy in Washington, DC quit his job, claimed asylum, and then returned to work at the Embassy as a public relations officer.  He was even listed on the Embassy website.  The report states that the diplomat's asylum claim was false, and urged the U.S. government and the Ethiopian government to investigate.  
    The problem of fraud presents a dilemma for attorneys who specialize in asylum and a challenge to the "system." 
    Attorneys who specialize in asylum have generally entered the field to assist those who genuinely fear persecution (we certainly don't specialize in asylum for the money!), not to help facilitate fraud.  However, for the most part, we can't know which cases are genuine and which are not, and it's sometimes dangerous to judge.  I remember one Ethiopian woman whose case I doubted.  We won, and a few months later she returned to my office and asked whether I could help her find a doctor.  Ever since her detention and beating, she said, she had been suffering pain on one side of her body.  Although I don't know whether this was true or not, she had no reason to lie.  Experiences like this make me cautious about judging my client's veracity.  Instead, it's better to represent my clients to the best of my ability and to let the Immigration Judge decide the case.
    The problem of fraud also presents a challenge to the legal system.  Our country has-I think quite properly-taken a generous approach to asylum.  We would rather allow some fraudulent cases to succeed than turn away genuine asylum seekers.  Of course, if fraud becomes too pervasive, it might cause us to re-consider how we evaluate asylum claims.  The Australia government recently initiated a six-month freeze on processing asylum applications filed by Afghani and Sri Lankan asylum seekers who arrive by sea.  The system was becoming overwhelmed by applicants, and the government reacted with a heavy hand.  Such a broad brush approach is questionable under international law, and would obviously affect legitimate and illegitimate asylum seekers. 
    So what can be done to reduce fraudulent asylum claims?
    The U.S. Embassy in Cameroon suggests that DHS check asylum applications with records obtained at the Embassy to determine whether family members listed on the asylum form were also mentioned at the Embassy.  This would avoid the problem of asylum seekers "adding" family members in order to bring them to the U.S. after they win asylum.  If "false family members" could not follow to join, the incentive for seeking asylum might be reduced. 
    Also, more generally, documented information at the Embassy could be compared with information in the asylum application.  Theoretically, this should happen already, but DHS has limited resources, and this method seems to have limited value, as most biographical information is consistent between the Embassy and the asylum application.
    In many cases, friends and relatives in the home country submit letters in support of an applicant's claim.  Such people could be called to the Embassy for questioning.  It is more difficult to create a fraudulent case if people in the home country are required to testify about the claimed persecution.  Of course, this would have to be done while maintaining confidentiality, but this should be possible given that such people already know about the asylum claim (having written letters in support of the claim).
    Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the "client" engage in fraud, the attorney could be charged with a crime (that is exactly what happened to a Washington State couple who helped create fraudulent asylum cases).  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.
    The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.
  5. A Short “Wish List” for the Refugee Protection Act

    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 
    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.

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