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Jason Dzubow on Political Asylum


  1. To Brief or Not to Brief

    It seems that every lawyer who represents asylum seekers has their own style of preparing cases.* Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).
    One big divide I've noticed is between lawyers who submit legal briefs with their cases and those who don't.* Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.
    When I first started doing asylum cases, I submitted briefs.* I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum.* As time went on, I ended that practice.* Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.
    The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.
    One advantage is that a brief helps the lawyer organize her thoughts.* It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case.* Briefs are also helpful for cases involving "particular social groups," where the brief can clearly define the social group.* Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal.* When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief.* In addition, for new lawyers or lawyers who don't normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.
    There are also disadvantages to writing briefs.* The main disadvantage is that writing a brief is time consuming.* Lawyers have limited time to prepare cases and we need to be efficient.* Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial.* My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them.* They already know the law, and they will gain a better understanding of the facts by reading the applicant's story and reviewing the evidence.* Again, it is a question of efficiency-Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.
    Also, for normal cases, where the law is not in dispute, a brief can be a distraction.* Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application.* A brief that spends three pages "educating" the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.
    Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim.* If there is a particular social group, I define what that is.* I also include a detailed summary of the client's affidavit and each piece of evidence.* To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.
    All that said, there of course is no "right way" to present an asylum case.* Each lawyer must decide what is best for herself and her client.
    Originally posted on the Asylumist:
  2. Wikileaks’ Julian Assange Might Qualify for Asylum

    Some time ago, I wrote about Wikileaks founder Julian Assange and concluded that he does not qualify for political asylum under international law.
    To win asylum, Mr. Assange would need to demonstrate a well-founded fear of persecution in his home country*based on race, religion, nationality, political opinion or particular social group.* Although Mr. Assange's political activities might be protected under international law, he also would have to show that he faces persecution-as opposed to prosecution-in his home country (or possibly in a third country-see below).* Given Australia's positive human rights record, I felt that Mr. Assange could not show that he would be persecuted in Aussie-land.* Nevertheless, I conclude:
    While Mr. Assange probably does not meet the international law standard for asylum, his*notoriety gives him opportunities not available to other asylum seekers.* Already, Ecuador has (informally) offered him residency.* Other countries might well follow suit, either because they think it is the right thing to do, or because they want to*aggravate the United States and the West.* But if they do grant asylum to Mr. Assange, it won't be because he meets the requirement for asylum under international law.

    Ecuador seems a lot nicer than a U.S. prison.

    I agree with what I wrote back then, but there is a new development.* Mr. Assange fears that if he is extradited to Sweden, he would ultimately be sent to the United States, where he has allegedly been indicted.* From the Huffington Post:
    Assange fears that once extradited to Sweden the local authorities would later hand him over to the U.S. government. Washington in turn could deal harshly with the WikiLeaks fugitive for leaking classified American diplomatic correspondence. The native Australian says that the Obama administration has a secret indictment against him and fears that if he is extradited to the U.S. he could face the death penalty for espionage and sedition.
    First, a person normally would not receive asylum when he fears persecution in a country other than his home country.* Why?* Because he can presumably receive protection from his home government.* In this case, however, it is unclear whether the government of Australia will intervene to protect Mr. Assange.*
    Assuming that Mr. Assange would be extradited to the U.S. and that he would face the death penalty here (and assuming that Australia would do nothing to protect him), he might have a case for asylum under international law.* Asylum is sometimes granted for prosecution where the punishment is extremely severe or amounts to torture.* For instance, as a judicial law clerk, I worked on the case of an Afghan man who committed a petty offense in his country (during the time of the Taliban).* The penalty for the crime was to cut off his hand and his foot.* He received asylum in the U.S.* In the same way, Mr. Assange might qualify for asylum if the penalty for his actions is death.
    However, my guess is that if Mr. Assange is extradited to the U.S., it will be with assurances that he will not face the death penalty (and even Bradley Manning, the United States soldier who supplied Wikileaks with much of its information, is not facing the death penalty).* In that case, he will have a hard time demonstrating any potential punishment amounts to persecution, and he will not qualify for asylum under international law.* But as I wrote previously, Mr. Assange is a special case, and so will have to wait and see what the government of Ecuador is willing to do for him.
    Originally posted on the Asylumist:
  3. UN Report: 4.3 Million Newly Displaced People in 2011

    According to a new United Nations report, 2011 was the worst year for refugees since 2000: 4.3 million people were newly displaced; 800,000 of them fled their countries and became refugees (the remaining people were displaced but did not leave their countries, so they do not meet the definition of "refugee;" rather, they are considered IDPs - internally displaced persons).*
    At the end of 2011, there were 42.5 million displaced people worldwide.* That is more than the entire population of Canada.* The numbers break down as follows: 15.2 million refugees; 26.4 million IDPs; and 895,000 people in the process of seeking asylum. According to the UN:
    "2011 saw suffering on an epic scale. For so many lives to have been thrown into turmoil over so short a space of time means enormous personal cost for all who were affected," said the UN High Commissioner for Refugees António Guterres. "We can be grateful only that the international system for protecting such people held firm for the most part and that borders stayed open. These are testing times."

    There are more displaced people in the world than the entire population of Canada, though the Canadians probably make more noise.

    The UN reports that Afghanistan remains the biggest producer of refugees (2.7 million) followed by Iraq (1.4 million), Somalia (1.1 million), Sudan (500,000) and the Democratic Republic of the Congo (491,000).* This is particularly sad given that the top two countries producing refugees are places where we went to war.* Obviously, our efforts have not made Iraq and Afghanistan safe, at least not in the minds of the millions of people who have decided that they cannot return home.*
    Viewed on a 10-year basis, the UN report shows several worrying trends: "One is that forced displacement is affecting larger numbers of people globally, with the annual level exceeding 42 million people for each of the last five years."* "Another is that a person who becomes a refugee is likely to remain as one for many years - often stuck in a camp or living precariously in an urban location."* "Of the 10.4 million refugees under UNHCR's mandate, almost three quarters (7.1 million) have been in exile for at least five years awaiting a solution."
    The news was not all bad:
    Despite the high number of new refugees, the overall figure was lower than the 2010 total of 43.7 million [displaced] people, due mainly to the offsetting effect of large numbers of IDPs returning home: 3.2 million, the highest rate of returns of IDPs in more than a decade.
    However, among refugees, "2011 was the third lowest year for returns (532,000) in a decade."
    Despite the high number of refugees, the U.S. resettled less refugees in 2011 than in any year since 2007.* In 2011, we resettled 56,419 refugees, which is far less than the proposed ceiling of 80,000 people.* For the years before 2011, the figures are as follows: 2010 - 73,311; 2009 - 74,656; 2008 - 60,193; and 2007 - 48,281.* According to the Obama Administration:
    [The admissions total for FY 2011 were] lower, however, due largely to the introduction of additional security checks during the year, including pre-departure checks shortly before refugees travel to the U.S., instituted mid-year, that enhance the vetting of applicants against intelligence and law enforcement information.
    The proposed ceiling for FY 2012 is 76,000 refugees.* We will see how many people are actually resettled in the U.S.* Given the high number of displaced people worldwide-and considering how many of them are displaced directly as a result of our wars in Afghanistan and Iraq-it seems to me that this is the least we can do to assist such people.
    Originally posted on the Asylumist:
  4. Lawyers Can Help, Even When They Can’t Help

    It happens two or three times each week.* Someone contacts me for help with an immigration issue and after talking to the person for a few minutes, it becomes obvious that there is nothing to be done.* The person does not qualify for adjustment of status, Cancellation of Removal, asylum, VAWA or any other form of relief.* Besides commiserating, what's a lawyer to do in this situation?* I suppose you could sing them a verse of Shana na na, na na na na, hey hey, goodbye and show them the door.* But probably the more responsible course is to give the person some advice about where they stand.* Here are some issues I usually discuss with these unfortunate souls:

    If nothing else, you can help your clients buy an airplane ticket.

    - I often tell them that since (contrary to popular belief) I am not infallible, they might want to speak to other lawyers.* However, I caution them that some lawyers will take advantage of people in their situation and charge money when there is no way to help.* I suggest that if another lawyer offers to help them, they can ask what the lawyer will do, and then call me and tell me.* I won't charge them anything, but I will tell them whether I think the lawyer is trying to rip them off.* I figure this is a win-win.* Either the person will avoid a potential scam, or I will learn about a new form of relief.
    - Recently, I have been discussing the new rule on waivers.* In case you did not hear about this rule, starting in January 2013, instead of leaving the county to apply for a waiver, eligible aliens will be able to apply for a waiver in the U.S. and, if it is approved, leave the United States, process their case at the consulate, and quickly return to the U.S.* This new rule will potentially save people years of separation from their families (unless it is blocked by Congressional Republicans).
    - I also advise people about the consequences of remaining in the U.S. illegally.* Such people face detention and deportation.* I tell them that a traffic stop or any type of criminal arrest can result in an ICE detainer.* Once detained, it is very unlikely that the person will be released before being deported, so it is important to have someone to look out for family members and property in case of an arrest.
    - If the person is already in proceedings, I discuss Prosecutorial Discretion and Deferred Action.* PD is where DHS agrees to terminate proceedings, leaving the alien in limbo.* At least the government will end its efforts to deport the person-for the time being.* Deferred Action may be requested before a person has been placed into removal proceedings or once they have been ordered removed.* It is simply a request that DHS not deport the alien.* People granted Deferred Action can apply for a work permit.*
    - Finally, I often have to explain away false rumors.* It seems that every time there is a policy change, desperate people are led to believe that it is some type of amnesty.* Those responsible for these rumors include unscrupulous lawyers and notarios, who want to make money, and the conservative press, which interprets anything the Obama Administration does as an "amnesty."* I explain that there has been no major change in the law and that there is no amnesty.
    Although we can't always help our clients resolve their immigration problems, at least we can educate them about their situation and help them avoid scams.* This is an important service, and your clients will (hopefully) thank you for it.
    Originally posted on the Asylumist:
  5. Florida Congressman Moves to Limit the Cuban Adjustment Act

    Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:
    The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.
    Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

    Reforming the CAA is like upgrading your 8-track.

    It is interesting that a politician from Florida-particularly one with the anti-Castro bona fides of Mr. Rivera-would have the chutzpa to challenge the Cuban American community on this issue.  It doesn't strike me as a particularly wise move politically, even if it makes sense from a policy point of view.
    Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera's proposed reform-which is ostensibly to help preserve the CAA-seems pointless given that the law is simply not worth preserving.
    Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don't see what this propaganda victory has achieved.  The CAA was passed in 1966 and-45 years later-the Castro brothers are still in charge.
    Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:
    "No matter what the reason for stepping foot in Cuba, you lose your status," Lofgren said. "If you go to visit family members you haven't seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status."
    Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee's immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.
    In any case, it seems Mr. Rivera's proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.
    Originally posted on the Asylumist:
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