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Jason Dzubow on Political Asylum


  1. The Refugee Protection Act and the One Year Asylum Bar

    The Refugee Protection Act of 2010 is currently working its way through Congress.  The proposed law makes some pretty significant changes to the asylum laws of the United States.  Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media.  As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law.  The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss.  So this will be the first part in a series of posts about the RFA.  Today's topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.  
    INA 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by "clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien's arrival in the United States."  If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA 241(b)(3) or relief pursuant to the UN Convention Against Torture ("CAT").
    For aliens represented by competent counsel, it is often possible to demonstrate "changed circumstances" or "extraordinary circumstances," either of which can excuse the one year filing deadline. See INA 208(a)(2)(D).  In my own practice, I have encountered many cases where the alien has not filed within one year of arrival.  In most cases, we have been able to demonstrate "changed circumstances" or "extraordinary circumstances," and the alien has qualified for asylum.
    For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims.  The purpose of the bar is to help eliminate fraudulent claims.  However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country.  Some examples:
    Avoidance - I had one case where a political activist from Zimbabwe was arrested and then raped by the police.  After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application).  As a result, she did not complete the asylum application within one year.  The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge ("IJ").  The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien's failure to file within one year was due to "extraordinary circumstances," i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events.  Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.
    Alternative Relief - I represented a man from a prominent family in Peru.  After a change in government, the man received anonymous death threats and was followed by unknown people.  He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen.  The marriage did not succeed, so he applied late for asylum.  He was not represented by counsel.  The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement.  As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA 241(b)(3).  As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment.  If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.
    Changed Circumstances & Other Obligations - In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine.  The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case.  Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office.  My client's case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.    
    In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers.  Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation).  Thus, these aliens--who were later determined to be legitimate refugees--were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum.  Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution. 
    The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.
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  2. President Obama's Aunt Granted Asylum

    An Immigration Judge in Boston granted asylum to President Obama's aunt Zeituni Onyango, a Kenyan national who has been in the U.S. since 2000.  Ms. Onyango first applied for asylum in 2002.  She was initially denied, but then either appealed or reopened her case (I have found nothing definitive about the course of the litigation).  Yesterday, the IJ granted her application for asylum. 
    At least as far as I can tell, the basis for Ms. Onyango's claim has not been made public.  My guess is that after Obama was elected president (or at least after he became nationally and internationally known), Ms. Onyango filed a motion to reopen her case and asserted that she would face persecution from people who wished to harm her family (the Obama family).  Given the various threats to our country, this seems a reasonably claim.  Although perhaps the possibility of her facing harm in Kenya is remote (Obama's grandmother is living there peacefully), it's easy to understand why an IJ would be reluctant to send her back.  She would make a tempting target for extremists, and it would be a blow to the U.S. if she were harmed.  Under these circumstances-and given the fairly low threshold for asylum-it's not a surprise that the IJ granted Ms. Onyango's claim.
    Professional Obama-hater Michelle Malkin and others have raised the question of whether Ms. Onyango received special treatment because of her relationship with the President.  Of course, I have no idea (and neither do they), but special treatment hardly seems necessary in a case like Ms. Onyango's.  I once represented an Afghani woman who received a fellowship to study in the United States.  A university brought her here and supported her, and the local press covered her progress for four years.  Towards the end of her fellowship, extremists in her country threatened her, and we applied for asylum.  I argued that she was a prime target for anti-American extremists because of her relationship with the our country-had she been harmed in Afghanistan, it would have been seen as a major victory for our enemies.  The Asylum Office granted her application.  Ms. Onyango's situation was similar to my client's, in that our enemies would view an attack against her as an attack against the United States.  Not surprisingly, the IJ was not willing to take that risk.
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  3. Senate Hearing on the Refugee Protection Act

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

    An 88-year-old Hmong man from Laos who requested political asylum in 2007 has filed suit against the Department of Homeland Security seeking to have DHS return his passport so he can go home.  According to KMPH News in Fresno, California, Mr. Xiong-who has not revealed his full name in order to protect his identity-is a veteran who fought alongside U.S. forces during the Vietnam War:
    Xiong's attorney describes his client as a war hero.  He says the Hmong veteran can't return to his native country without his passport.  It was confiscated when he filed for political asylum in the U.S. and until the process is complete he won't be able to go home. "He's an old man," Attorney Ken Seeger said.  "He's been in poor health over the past year or so."
    The veteran filed for political asylum in 2007.  "But, he's changed his mind and he's willing to take a risk back in Laos just because he's really old and in bad health and thinks the end is near and he wants to die in his homeland," Seeger said.
    DHS has refused to return the passport, so Mr. Xiong filed suit to get it back.  DHS routinely keeps travel documents (and other original documents) that belong to asylum seekers.  Even after a case is completed, it is often difficult or impossible to retrieve documents.  In Mr. Xiong's case, it would seem that DHS has every incentive to return the passport.  Let's hope that they do.
  5. USCIS Asylum Division Stakeholders Meeting

    USCIS Asylum Division will hold its quarterly stakeholders meeting in Washington, DC on June 8, 2010 at 2:00 PM.  For details about attending the meeting, RSVP information, and how to submit questions, view the USCIS Memo.  Questions are due by close of business on May 21, 2010, and RSVPs are due by close of busines on June 4, 2010.
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