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Jason Dzubow on Political Asylum


  1. Sudanese Lost Boy Will Run for Gold with Team USA

    A dozen years ago it seemed impossible that Lopez Lomong would be running as a member of the United States Olympic team.* In 2000, he was 15 years old and living in Kenya.* Most of his life had been spent in refugee camps.

    Lopez Lomong: Living the Dream.

    Mr. Lomong grew up in rural Sudan, without running water or electricity.* When he was still a boy, rebel soldiers kidnapped him and other children, intending to turn them into soldiers.* The rebels drove the children to their camp in a truck-it was the first time Mr. Lomong had ridden in a vehicle.* He escaped from the camp with other boys and ultimately arrived in Kenya, where border guards sent them to a refugee camp.
    Life in the camp was difficult-there was not enough food and nothing to do.* Mr. Lomong began running as a form of escape: "When I ran, I was in control of my life," he writes. "I ran for me."* He got into the habit of running the perimeter of the camp-18 miles-in bare feet.
    In 2000, he walked five miles with some friends to watch the Olympics on a small black and white television.* Inspired by American runner Michael Johnson, his dream was born: To run in the Olympics for the United States of America.
    In 2001, the U.S. brought 3,800 "lost boys" to the United States for resettlement.* Among them was Lopez Lomong.* In the U.S., he continued running-it was something familiar to him in his new country.
    In 2007, Mr. Lomong became a United States citizen.* "Now I'm not just one of the 'Lost Boys,'" he told reporters. "I'm an American."* He went to Beijing with the U.S. Olympic team in 2008, but he did not qualify for the final round due to an injury.
    Since he has been in the U.S., Mr. Lomong wrote a book about his experience, Running for My Life, and established a foundation to help people in his native South Sudan.
    Now, he is again competing with Team USA.* (As a side note, more than 40 athletes on our national team are foreign-born.)
    This time around, Mr. Lomong has a chance for gold.* He has qualified for the finals of the men's 5,000 meter race, which is scheduled for tomorrow.* Hopefully, we'll see him on the podium.* It would be another remarkable achievement in an extraordinary life.
    Originally posted on the Asylumist:
  2. Citing the Beatles, Ninth Circuit Determines that Only the Attorney General Can Terminate Asylum

    A few days before Yesterday, the Ninth Circuit ruled that only the Attorney General-not DHS-can terminate asylum.* In Nijjar v. Holder, No. 07-74054 (9th Cir. 2012), the Department of Homeland Security, through the Asylum Office, terminated Gurjeet Singh Nijjar's asylum approval In Spite of All the Danger in his country.*
    Mr. Nijjar received asylum in 1995, based on political persecution he claimed to have suffered in India.* Before he left India, he was advised to Run for Your Life.

    The Beatles: Great music AND binding precedent.

    In 2003, DHS notified Mr. Nijjar that it intended to terminate his asylum status for fraud and order him to Get Back to India.* DHS wrote that it had information indicating that Mr. Nijjar was in the United States at the time he claimed to have been Across the Universe being persecuted in India and that Every Little Thing about his case was false.* The DHS letter instructed Mr. Nijjar to Come Together for a termination interview with an asylum officer to see whether We Can Work It Out or whether they would tell him, Hello, Goodbye.* However, Mr. Nijjar was a Nowhere Man and failed to appear.* After he failed to Help himself, DHS terminated his asylum status and referred his case to Immigration Court.
    After a Long and Winding Road, the IJ (a Woman) concluded that she did not have jurisdiction to review the termination and gave Mr. Nijjar a Ticket to Ride to India.* After She Said She Said he is deported, the BIA Let It Be.* Mr. Nijjar then filed a petition for review with the Ninth Circuit Like Dreamers Do.* There, he asked the Court to Please Please Me.
    On review, three Ninth Circuit judges noted All Together Now that the regulations, 8 C.F.R. § 208, provide as follows-
    [An] asylum officer [of the DHS] may terminate a grant of asylum . . . if following an interview, the asylum officer determines that... There is a showing of fraud in the alien's application such that he or she was not eligible for asylum at the time it was granted.
    The problem, however, is that the statute (the INA) does not give DHS the authority to issue such regulations-
    Congress [a/k/a The Fools on the Hill] did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.
    Congress expressly provided that "the Secretary of Homeland Security or the Attorney General may grant asylum . . . ." But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The "termination of asylum" subsection of the statute says that asylum "may be terminated if the Attorney General determines" that any of several conditions are met.
    The Government attorney countered that Because the Asylum Office had the power to grant asylum, it must also have the power to take asylum away Any Time at All.* The Court called this argument "euphonious but not logical," and held that popular songs are full of euphonious lyrics that make false statements, such as the Beatles' lyrics:
    There's nothing you can know that isn't known,
    Nothing you can see that isn't shown,
    Nowhere you can be that isn't where you're meant
    to be...
    In other words, don't Ask Me Why, but "there is no general principle that what one can do, one can undo."* Because the statute specifically gives DHS and DOJ the power to grant asylum, but only DOJ the power to terminate asylum, the Court concluded that only the Attorney General can terminate asylum.* The regulations allowing DHS (through the Asylum Office) to terminate asylum are invalid.
    I Want to Tell You, the Ninth Circuit's logic seems sound.* I Imagine that unless Congress changes Something in the statute, future asylum terminations by the Asylum Office will face strong challenges from asylees Here, There and Everywhere.* Rather than waste resources litigating this issue Helter Skelter every time the government seeks to terminate, I'm Down with the regulations being amended to reflect the statute-only DOJ has the power to terminate an asylum grant.* In the future, when DHS wants to declare The End of an alien's asylum status, it will need to issue a Notice to Appear, and then allow the IJ to make the initial decision concerning termination.* Dig It?
    Originally posted on the Asylumist:
  3. The Asylum Affidavit, Part 2: Details, Details…

    This is the second part in a short series about helping asylum seekers prepare good affidavits.* The first posting dealt with the overuse of the passive voice.* Today, I want to discuss the appropriate level of detail that should be included in the affidavit.
    One problem that I've encountered in many affidavits is that they contain too little detail for important topics and too much detail for irrelevant topics.* One reason for this is that victims of persecution often avoid focusing on the painful or depressing aspects of their cases-they do not want to re-live difficult memories.* Another reason is that the asylum seekers do not always understand what information is legally relevant.

    An IJ enjoys another exciting asylum affidavit.

    When preparing an affidavit, it is important to keep in mind the requirements for asylum-the applicant must demonstrate a well-founded fear of persecution based on a protected ground.* Often, the applicant has suffered past persecution, and this creates a presumption of future persecution.* In some cases, there are other legal issues: Did the applicant file within one year of her arrival in the U.S.?* Is there a material support issue?* Are there changed country conditions in the home country so that it is now safe to return there?* Once you know the legal issues in the case, you can focus on developing the factual record related to those issues.
    The easiest example of this is past persecution.* In most cases, if an asylum applicant demonstrates past persecution based on race, religion, nationality, particular social group or political opinion, he will receive asylum.* To prove past persecution, the affidavit needs to provide sufficient detail about the claimed persecution so that the fact finder can evaluate whether the applicant was, in fact, persecuted.* If the affidavit merely says, "I was tortured" or "I was beaten," that is insufficient.*
    Various courts have defined the term "persecution," and that definition includes "the infliction of suffering or harm."* To demonstrate suffering or harm, the applicant must explain in detail what happened.* For example, instead of "I was beaten," give some detail:
    As soon as I left the opposition political party meeting, three policemen stopped me on the street.* They accused me of supporting the opposition party.* One of the men punched me in the stomach.* The blow was very painful and I could not breath for a few moments.* I fell onto the ground and I was in too much pain to stand up.* When I saw the armed policemen above me, I was afraid they might kill me.* While I was on the ground, another officer kicked me with his military boot in my back.* It felt like he broke my ribs and I cried out.* Afterwards, there was a large bruise on my back.
    The affidavit here emphasizes why the police attacked (political opinion) and describes the details of the beating.* It also mentions that the physical assault was painful (since we are trying to demonstrate suffering).* It is questionable whether one punch and one kick would qualify as "past persecution," but when you provide more details about the event, and explain how painful and frightening it was, you make it more likely that the fact finder will conclude that there was past persecution.
    I like to think about the affidavit in terms of time.* For less important events, time moves quickly and one paragraph of the affidavit may cover days, months or years.* But for legally relevant events, such as a police beating, time slows down.* So one paragraph about a beating might cover only a few seconds.* Remember-the fact finder is not interested in reading a novel.* She just wants to know whether the applicant meets the requirements for asylum.* When the affidavit focuses on the legally relevant facts, it makes the job of the IJ or the Asylum Officer easier.* And a happy fact finder is more likely to grant relief.
    One final point about adding more details to the affidavit.* I find that such details are quite helpful in the event of an appeal to the BIA.* In many cases, there is limited time for testimony, and applicants sometimes gloss over details of the story.* When that happens, the transcript on appeal may be somewhat lacking.* If so, you can use details from the affidavit to supplement the transcript and make a more compelling appeal brief.
    While obtaining legally relevant details can be time consuming, it greatly increases the chance for a successful outcome and is well worth the trouble.
    Originally posted on the Asylumist:
  4. Olympic Athlete Seeks Asylum Prior to Opening Ceremony

    The torch has not yet been lit, but the first Olympic athlete has already requested asylum in Great Britain.* CBS News reports that a Sudanese runner scheduled to compete in the 800-meter race has appeared at a police station in Leeds and asked for political asylum.*

    If Omar Al Bashir is your "president," you better be able to run fast.

    It is not surprising that a Sudanese man would seek asylum-his country is run by an indicted war criminal, Omar Al Bashir, who is responsible for many thousands of deaths.* As the games continue, it will be interesting to see how many more Sudanese (and athletes from other countries) seek protection in Great Britain.* The New York Times has listed several noteworthy instances of athletes seeking asylum at previous Games:
    In August 1948, London was the scene of one of the earliest reported asylum requests by someone associated with the Olympic Games. Marie Provaznikova, 57, the leader of the Czechoslovakian women's gymnastics team and one of the most popular women in her country, sought asylum in the United States rather than support a purge in the Sokol national fitness organization, of which she was a leader.
    At the 1996 Atlanta Olympics, an Iraqi weight lifter, Raed Ahmed, ran from the athletes' village into a waiting car and sought asylum from Saddam Hussein's government. He was allowed to stay in the United States after he cited a fear of execution upon his return. Persistent rumors from Iraq suggested that Mr. Hussein's son Uday used beatings and other torture to punish those who did not perform to his liking at international sporting events.
    Before the 2008 Olympics, seven members of the Cuban soccer team sought asylum after a qualifying game against the United States in Florida. At the time, one of them, Yenier Bermudez, told The Miami Herald that the players were "feeling hopeful about our new lives."
    The entire Eritrean national soccer team fled during a 2009 competition in Kenya. Only a coach and an official emerged from the team's plane when it returned home. It was the third time that players had failed to return, soccer officials said. Eritrean athletes are now asked to pay a bond before leaving the country for sporting events, the BBC reported.
    Frankly, I think it is wonderful when high-profile athletes defect from repressive regimes.* It serves as a visible repudiation of those regimes and perhaps provides some succor to the regimes' opponents.*
    While one athlete defecting from Sudan will probably not bring down the government, it does serve as a powerful reminder that the government of that country represses and murders its own people.* And sometimes the actions of one person capture the moment and cause great change.* Witness Mohamed Bouazizi, the fruit vendor whose suicide launched the Arab Spring.* I do not know whether the Sudanese athlete's defection will have any larger effect on his country, but we can always hope.
    Originally posted on the Asylumist:
  5. When Service Centers Attack

    Asylum applications are initially submitted to one of the USCIS Service Centers.* After an initial review, the Service Center forwards the application to the appropriate Asylum Office for an interview.* Unfortunately, the Service Centers reject a fair number of applications and mail them back to the applicants (or their lawyers).* Based on my own experience, it seems that many of these rejections are frivolous or at least unwarranted, and this raises concerns about access to justice for asylum seekers.
    Where I live (in the civilized part of the country), we submit our asylum applications to the Texas Service Center.* Maybe I've just been on a losing streak, but in recent months, I have had three applications rejected and returned to me by the TSC.* Each one was rejected for an illegitimate reason (at least as far as I am concerned).* The first application was rejected because we failed to list the applicant's siblings on the form.* But the applicant has no siblings, so there was nothing for us to list.* After this rejection, I have taken to writing "n/a" in any space on the form that would otherwise be left blank.* The second rejection occurred because USCIS wanted additional information that the Alien number we listed belonged to the applicant.* However, the applicant's Alien number had been assigned to him by USCIS.* Why they simply couldn't look up the number that they previously assigned to the applicant is beyond me.* The most recent rejection was because the applicant purportedly failed to include an additional copy of the I-589 for her dependent child, whose application was attached to her's.* Also, supposedly, we did not include evidence (like a birth certificate) establishing the relationship between the parent and the child.* The only problem here is that we did include an extra copy of the I-589 form and a copy of a document showing that the applicant was the parent (there are no birth certificates in the applicant's country).* I even clearly listed these documents on the cover page.* For this one, I have no idea why the application was rejected.* Before mailing it back, I highlighted some documents in bright pink and attached some sticky notes.* I'll hope for the best.

    If only the Service Centers were this helpful.

    I imagine that if the Service Centers regularly reject applications prepared by someone familiar with the process, they must reject a good portion of the applications they receive.* For pro se asylum seekers, this creates a barrier that might prevent them from presenting their cases.* So what's to be done?*
    The basic problem, I think, is that the criteria for rejecting asylum applications is too stringent.* Forget to check the box indicating whether you received a list of attorneys who can represent you at low or no cost?* Rejected.* Fail to indicate whether you are fluent in English?* Rejected.* Forget an extra copy of the I-589 for the dependent?* Rejected.*
    I recognize that the Service Centers are bureaucracies with limited resources.* However, in some cases, it would seem easier to either contact the applicant and ask for an explanation of the problem or let the Asylum Officer deal with the problem at the interview.* In cases of minor errors, these solutions would be easier and less expensive than reviewing the application, deciding to reject it, addressing the return envelope, paying for the return envelope, and repeating the process once the application is re-submitted.* It would also be less frustrating for attorneys (i.e., me) and it would better ensure access to justice for pro se applicants.
    On September 13, 2012, two Service Centers will hold their Fall Asylum and Refugee Conference to discuss issues related to asylum:
    The TSC is partnering with the Nebraska Service Center (NSC) to provide an opportunity to meet staff and share information on asylum- and refugee-related topics through presentation and open dialogue. The conference will include a panel discussion with representatives from the Refugee, Asylum and International Operations (RAIO) and Service Center Operations (SCOPS) directorates, the director of the National Visa Center (tentative), as well as TSC and NSC employees. Immigration Services Officers will also be available in the afternoon to answer your case-specific questions.
    I certainly hope that one topic of conversation will be how to reduce the rejection rate for asylum applications.*
    Originally posted on the Asylumist:
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