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Jason Dzubow on Political Asylum


  1. Advice from a Court Interpreter

    Without interpreters, the Immigration Court system could not operate.  One of the best interpreters I've worked with is Maria Raquel McFadden.  She is a freelance business, legal, and immigration interpreter with 10 years experience.  She has interpreted in various forums, including courts, immigration interviews, depositions, and business meetings.  She is registered with the State of Maryland and can be reached at: (202) 709-3602 (office) or (202) 360-2736 (cell).  Her email address is  Ms. McFadden offers some advice on how best to utilize an interpreter:
    Many people who are scheduled for interviews before the asylum office or immigration court speak little or no English. Often they have never used the services of an interpreter before.
    Being aware of the function of an interpreter can help the process go along more smoothly. The interpreter's role is to remove the language barrier to the extent possible, so that the access to justice for a person with non- or limited English skills is the same as that of similarly situated English speakers for whom no such barrier exists.

    Nicole Kidman makes interpreting cool
    When speaking through an interpreter, people should continue to speak directly to each other.  The interpreter serves merely as a mouthpiece. Interviews and conversations should flow as if the interviewer/judge, lawyer(s), and the asylum applicant are the only ones participating. Experienced interpreters know to use only the third person when referring to themselves.
    In court, it is the job of the interpreter to interpret the questions asked into the alien's language and interpret the answers into English.  At an interview, the interpreter will likewise interpret all questions and answers given.
    Some interpreters are better than others and it's necessary that both lawyers and clients learn how to best use an interpreter. Here are some tips to keep in mind:
    1. Before the interview, the asylum seeker and interpreter should talk to each other to make certain that they speak the same dialect and/or understand each other.
    2. Try to speak in short, very clear sentences. This will help because it can be difficult for an interpreter to accurately interpret more than a couple of sentences at a time.  
    3. Look at and speak directly to the person to whom you are responding. Do not address the interpreter.
    4. If you do not understand the interpreter, notify the judge/interviewing officer immediately.
    5. Remember that the interpreter must keep all the information he/she learns during the interview/hearing confidential and may not share it with anyone. 
    One should bear in mind that when an asylum-applicant goes before a judge, it is the court that will be make an interpreter available. However, asylum applicants must provide their own interpreter when interviewing before USCIS or the Asylum Office.  When hiring one's own interpreter, one should take into account that a person related to the asylum-seeker may not interpret for them. It is better to have a neutral/disinterested party. The interpreter must take his/her government issued ID and be prepared to stay the entire duration of the interview. Sometimes, appointments are delayed and all parties should be prepared for long waits. 
    By taking all the above factors into consideration, the asylum interview/hearing can be more manageable when working with an interpreter.
  2. Two Unpublished BIA Victories for Mentally Ill Respondents

    Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:
    (1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board's decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.
    (2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether "Peruvians with serious chronic mental disabilities" constitutes a particular social group.  On remand, the BIA held: "Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner." 
    Mazel Tov to all on these successful outcomes.
  3. The Refugee Protection Act and Improved Access to Legal Services

    This is the fifth part in an ongoing series about the Refugee Protection Act.  The RPA contains many provisions to improve legal services and legal access for asylum seekers.
    The root cause of many problems in the asylum system is that aliens are not provided with counsel.  According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court.  That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court).  Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower--such aliens have limited access to attorneys and resources to help them with their applications.  The RPA would improve this situation.
    The RPA provides improved access to attorneys in several ways.  First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel "if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel."  Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases.  This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel.  The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed.  Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary.  The RPA as written does not provide for an independent decision concerning the need for counsel.
    Second, the RPA provides detained asylum seekers with improved access to legal services and resources.  It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge.  The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship.  Under the RPA, all new detention facilities must be located within 50 miles of a "community in which there is a demonstrated capacity to provide free or low-cost legal representation," and by January 2014, all detention facilities must comply with this location requirement. 
    Third, the RPA establishes a National Legal Orientation Support and Training Center to "ensure quality and consistent implementation of group legal orientation programs nationwide."  The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and "know your rights" presentations to detained aliens.  The RPA would also provide grants to the non-profit agencies.
    By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.
    Finally, Some Media Attention
    The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, "The Immigration Bill No One Is Talking About."  Hopefully the article adds some momentum to the push for this worthy piece of legislation.
  4. Immigration Court Backlog Keeps Getting Worse

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

    "Is it time for my immigration hearing yet?"
    The backlog has resulted in longer delays in Immigration Court:
    Wait times have also continued to inch upward. The average time these pending cases have been waiting in the Immigration Courts of the Executive Office for Immigration Review (EOIR) is now 443 days.
    The longest delays are in California, where the average wait time is 627 days.  TRAC blames the delays mainly on an insufficient number of IJs.  I've discussed that issue before (We Need More Judges).  In a recent exchange with the Federation for American Immigration Reform (FAIR), that group argued that aliens are largly to blame for delays since they abuse the system to prolong (or completely avoid) removal.  Maybe I will devote a future blog post to the reasons for delay, but for now, it seems the wait times are longer than ever and there is little relief in sight.
  5. The Refugee Protection Act and the “Central Reason” for Persecution

    This is part four in a series of posts about the Refugee Protection Act ("RPA"), a bill introduced by Senators Leahy and Levin in the United States Senate.  The RPA would modify the requirements for asylum by changing the requirement that a "central reason" for the persecution is a protected ground.
    In order to qualify for asylum, an applicant must demonstrate a well-founded fear of persecution based on a protected ground (race, religion, nationality, political opinion, particular social group).  The REAL ID Act (effective May 11, 2005) modified this definition, and the law now requires that "at least one central reason" for the persecution must be a protected ground.  The BIA found that this new requirement did not "radically alter[]" existing law. See In re: J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007). 
    While the law may not have been radically altered, the REAL ID Act makes it more difficult for asylum seekers to obtain relief.  I worked on a case in the Fourth Circuit (ably litigated at the agency level by the University of Maryland Law School Clinic) where an El Salvadoran man had been repeatedly harassed and beaten by members of the MS-13 gang.  The gang attacked him for several reasons: (1) they did not want him to date a certain girl; (2) they wanted to steal his money; and (3) they did not want him to attend the Seventh Day Adventist Church.  The Immigration Judge ("IJ") specifically found that the harm faced by the asylum seeker rose to the level of persecution, and she told him: "I think you are in a terrible situation and I could not have more sympathy for you."  However, both the IJ and the BIA found that the "central reasons" for the persecution were that the gang did not want my client to date the girl and the gang wanted to rob him-these are not protected grounds.  The BIA found that "even assuming... religion was one motive, we do not find his religion to be 'at least one central reason' for the persecution."  The Fourth Circuit agreed and denied our Petition for Review. See Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009). 
    The difficulty in Quinteros-Mendoza was that the IJ had to determine the motivation of the gang members.  It is difficult enough to establish the motivation of a persecutor, let alone to rank that motivation as "one central reason" for the persecution.  The RPA would relax this requirement.  The law would be changed so that the applicant must prove only that a protected ground is "a factor in the applicant's persecution or fear of persecution." 
    Where an asylum applicant faces persecution, he should not be required to demonstrate the motivation for his persecutor's actions with such specificity.  The RPA would correct this problem.
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