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Jason Dzubow on Political Asylum

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  1. BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

    Earlier this month, the Ninth Circuit held that DHS does not have the
    authority to terminate an alien's asylum status (I wrote about this here). 
    The Court reasoned that although the regulations allow for DHS to
    terminate asylum, the statute (upon which the regulations are based)
    grants authority to terminate exclusively to the Attorney General (and
    through him to the Immigration Judges).  Now the BIA has weighed in, and
    they have reached the opposite conclusion-the Board held that DHS has
    the authority to terminate asylum, and that the IJ has no authority to
    review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

    A BIA Board Member addresses the Ninth Circuit.

    First, it strikes me as a strange coincidence that the Ninth Circuit
    ruled on asylum termination a few weeks ago and now the BIA is
    publishing a decision on the same issue.  The BIA publishes only about
    40 decisions per year, and so it seems odd that they would publish a
    decision on this same issue at the same time as the Ninth Circuit.  Call
    me paranoid, but I feel like we should contact Oliver Stone about this
    one (though perhaps the more prosaic explanation is that the BIA knew
    about the Ninth Circuit case and was waiting for a decision there before
    it issued its own decision on the matter).
    In essence, the Board held that under the applicable regulations,
    both the IJ and DHS have authority to terminate asylum in certain
    circumstances.  However, these are two independent tracks.  According to
    the BIA, the regulations do not give the IJ authority to review an
    asylum termination by DHS.
    The Board framed the issue as follows: "[W]hether an Immigration
    Judge has jurisdiction under 8 C.F.R. 1208.24(f) to review the DHS's
    termination of an alien's asylum status pursuant to 8 C.F.R.
    208.24(a)."  The Board drew a bright-line distinction between the
    regulations in section 1208 (which the Board held are for EOIR) and the
    regulations in section 208 (for DHS).  The BIA concludes that
    [T]he regulations for termination of
    asylum status provide for either (1) USCIS adjudication, with the
    possibility of the alien asserting a subsequent claim for asylum before
    the Immigration Judge in removal proceedings or (2) Immigration Judge
    jurisdiction to conduct an asylum termination hearing or to reopen the
    proceedings for the DHS to pursue termination of asylum status.  The
    regulations do not confer jurisdiction on the Immigration Judge to
    review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).
    What this means is that although the IJ does not have the authority
    to review termination of asylum by DHS, the alien may re-apply for
    asylum anew before the Judge.  The IJ does not have to accept the
    determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien's eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.
    The dissenting Board Member points out that section 208 of the
    regulations discusses the IJ's authority to terminate asylum, and so "it
    is logical to infer that he also has the authority to restore asylum
    status terminated by the DHS."  Although this would make sense from a
    practical point of view-it would be more efficient to allow the IJ to
    review a DHS termination rather than force the alien to re-apply for
    asylum in Immigration Court-I am not so sure that it is "logical to
    infer" that the IJ has the power to review a DHS termination,
    particularly given that in other instances, the regulations specifically
    grant such authority to the IJ.
    Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc
    before the BIA).  Although asylum termination is fairly uncommon (as
    far as I can tell), the issues of who has the authority to terminate a
    grant of asylum and how that decision is reviewed are important.  I
    expect we will see much litigation about these issues over the next few
    years.
    Originally posted on the Asylumist: www.Asylumist.com.
  2. Asylum Seekers as Law Breakers

    I recently litigated an Eritrean asylum case where my client traveled
    through various countries to reach the United States.  He passed
    through each country illegally--sometimes with a false South African
    passport; other times, he just crossed the borders without inspection. 
    From the beginning to the end of his journey, smugglers assisted him
    (for a price--the average cost for such a trip is around $15,000.00).  My
    client did not ask for asylum in any of the countries he passed
    through, even though he remained in some countries for several months
    and even though such countries (theoretically at least) offer asylum to
    refugees.

    Asylum seekers or asylum sneakers?

    From my client's perspective, he was fleeing an extremely repressive
    regime, and he dreamed of starting a new life in the U.S., where he
    would be safe and enjoy freedom.  (It's said that in art, imitation is
    the highest form of flattery; I'd say that in international affairs,
    immigration is the highest form of flattery).
    The Immigration Judge was not pleased with my client's illegal
    journey or with his failure to seek asylum in any country along the
    route, and he had some strong words for the client at the end of the
    hearing.  While I don't agree with all that the Judge had to say, I
    think his words are important, and I wanted to share them here:
    First, the Judge told my client that asylum exists to help people who
    are fleeing persecution.  It is not an alternative for those without a
    better immigration option.  When a person flees her country, she should
    seek asylum in the first country of safety; she should not shop around
    for the country where she would prefer to live.  To use asylum as an
    alternative to immigration is an abuse of the system, and takes
    advantage of our country's generosity.  If enough people abuse the
    system, we might change the law to make asylum more restrictive.
    Second, smuggling is a criminal activity and when an asylum seeker
    pays a smuggler, he is complicit in that activity; he is not an innocent
    bystander.  Each smuggled person pays thousands of dollars to
    smugglers.  Collectively, this is big--and illegal--business.  It violates
    the sovereignty of nations and possibly supports a network that might
    be used for more nefarious purposes, like facilitating the transport of
    terrorists, criminals, and drugs.
    Third, each asylum seeker who enters the U.S. in the manner of my
    client makes it more difficult for legitimate asylum seekers who follow
    him.  As more people enter the U.S. this way, a reaction becomes more
    likely.  Maybe the law will be changed to deny asylum claims where the
    applicant passed through other countries without seeking asylum.  Maybe
    other restrictions will be put into place.  In any case, if there are
    new restrictions, legitimate refugees will suffer.
    Finally, the Judge warned my client against encouraging his fellow
    countrymen by his example.  He noted that such encouragement might
    violate criminal and immigration laws, and this could cause problems for
    my client.  It could also be dangerous for any future asylum seekers,
    as people have been harmed and killed on the journey to the U.S.
    I think the Judge said all this to try, in a small way, to stem the
    flow of asylum seekers across the Southern border.  I am not sure
    whether his words will have any effect, but I believe they are worth
    hearing.  And while his points are legitimate and important, there are
    convincing (to me at least) counterpoints to each.  But I will leave
    those for another time. 
    Under the current asylum law, illegal travel through various
    countries is a discretionary factor, but without more, it is generally
    not a basis for denying an asylum claim.  Despite his concerns, the IJ
    granted my client's application (and DHS did not appeal).  How many more
    people will follow him and receive asylum in the United States remains
    to be seen.
    Originally posted on the Asylumist: www.Asylumist.com.
  3. Bill Linking Palestinian and Jewish Refugees Sets a Dangerous Precedent

    A new bill
    in the House of Representatives seeks to link resolution of the
    Palestinian refugee situation with the plight of Jews (and Christians)
    expelled from Arab lands.  Both Palestinians and Jews suffered as a
    result of expulsions from their home countries during and after the
    creation of the State of Israel.  Palestinians left and were forced to
    leave Israel (and the West Bank and Gaza).  And most Jews living in
    Muslim countries left or were forced to leave their homes as well.  The
    bill is designed to ensure that these Jews are not forgotten by linking
    resolution of their issues with resolution of the on-going Palestinian
    refugee crisis.  The bill's supporters state:
    Any comprehensive Middle East peace
    agreement can only be credible and enduring if it resolves all issues
    related to the rights of all refugees in the Arab world and Iran,
    including Jews, Christians and others.

    In the chess game of life, Palestinians are everyone's favorite pawn.

    The legislation has bipartisan support in the House and calls on the
    Obama administration to pair any reference to Palestinian refugees with a
    similar reference to Jewish and other refugees.
    While I agree that it is important to remember and address the
    grievances of Jews and others expelled from Arab lands (I recently wrote
    about this issue), linking the resolution of that problem with the
    issue of Palestinian refugees sets a dangerous precedent and undermines
    international law related to the protection of refugees.
    The United Nations Convention Relating to the Status of Refugees (1951) defines a refugee as:
    A person who owing to a well-founded fear
    of being persecuted for reasons of race, religion, nationality,
    membership of a particular social group or political opinion, is outside
    the country of his nationality and is unable or, owing to such fear, is
    unwilling to avail himself of the protection of that country; or who,
    not having a nationality and being outside the country of his former
    habitual residence as a result of such events, is unable or, owing to
    such fear, is unwilling to return to it.
    The majority of Palestinians who fled Israel and now live in various
    Arab countries are "refugees" according to this definition.  They do
    "not [have] a nationality and [are] outside the country of [their]
    former habitual residence as a result of such events."  Of course one
    reason they remain refugees is because the different Arab governments
    have refused to grant them citizenship.  The other reason is that Israel
    does not permit them to return home.
    As opposed to the Palestinians, the large majority of Jews who fled
    Arab countries are not "refugees" as that term is defined in
    international law.  Most (if not all) such Jews have been granted
    citizenship in their new country of residence (be it Israel, the U.S.,
    France or some other country).  Also, for the most part, Jews expelled
    from Arab lands do not wish to return to their home countries.  This
    does not mean that these Jews do not have legitimate claims for
    compensation for lost land, property, and the lives of loved ones.  They
    most certainly do.  But this is not the same as being a refugee.  Thus,
    the new bill is factually incorrect when it refers to such Jews as
    refugees.
    Far worse than the semantics of "who is a refugee" is the problem of politicizing a humanitarian benefit.  Anyone
    who meets the definition of "refugee" is a refugee.  Period.  Such
    people are entitled to protection in the host country because they are
    refugees.  There are no other requirements (though obviously there are
    exceptions for persecutors, criminals, and terrorists). 
    By linking the fate of one refugee population to another, the bill
    adds an external contingency to international refugee law.  We no longer
    protect refugees because they are refugees.  Now, we only protect them
    if some other conditions are met.  Does this mean that we should deport
    legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa's
    1916 invasion?  Can Great Britain deny asylum to all Egyptians unless
    Egypt returns the Suez Canal?  Is Japan permitted to reject all Chinese
    asylum seekers until China returns "Manchukuo?"
    This is not how international refugee law works.  We do not blame the
    victims and hold them hostage until some outside contingency-in this
    case a contingency not of their own making-is satisfied.  In other
    words, it is not the fault of Palestinian refugees that Jews were
    expelled from Arab lands.  So why should the Palestinians' fate be tied
    to compensation for the Jewish "refugees" (something over which they
    have no control)?

    I think the real motivation for this bill is not to help Jews from
    Arab lands.  Rather, it is to justify Israel's refusal to allow
    Palestinians to return to their homeland by demonstrating that there was
    suffering and loss "on both sides."  This seems to me a cynical and
    sinister use of international refugee law.  I hope the bill will be
    soundly rejected.
    Originally posted on the Asylumist: www.Asylumist.com.
  4. Julian Assange: Legitimate Asylee or Propaganda Pawn?

    Ecuador has granted asylum to Wikileaks founder Julian Assange.* Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution-including the prospect of extradition to the United States, where he would not get a fair trial.* "It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty," the Foreign Minister told journalists in Quito, the Ecuadoran capital.* "Ecuador is convinced that his procedural rights have been violated."* Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.* Given the UK's lack of cooperation (including a thinly veiled-and quite shocking-threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

    Could this be Julian Assange escaping from the Embassy?

    I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his "accomplishments."* While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.* For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.* Such people now face increased danger in their home country.* Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.* Exposure damaged our international relationships and did nothing to further the cause of freedom.* Our diplomats and our military officials need to communicate frankly with each other.* This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).* I suppose overall, I believe that Mr. Assange did more harm than good.* But I also suppose that my opinion in this regard is not all that important.* What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.
    It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.* First of all, Mr. Assange is a citizen of Australia.* He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.* If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.* Normally, a person receives asylum from his home country; not from a third country.* As a citizen of Australia, he should receive protection from his own government.* There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).* Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.* Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.**
    Second, Mr. Assange is wanted for two crimes-sexual assaults-in Sweden.* He claims that the charges have been contrived to punish him for exposing state secrets.* That may well be true, but there is no indication that Sweden would deny him a fair and public trial.* Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.* All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.
    Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.* So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).* That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?* *
    Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution-as opposed to prosecution-in the United States.* As far as I know, exposing government secrets is illegal in every country.* People who violate this law may be punished according to the law.* Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to "persecution."* In Mr. Assange's case, there is no reason to believe that he would face the death penalty.* Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.* Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.* It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.* As he does not face "persecution" in the U.S., he would not qualify for asylum from the United States.
    For all these reasons, Mr. Assange would not qualify for asylum under international law.* Ecuador has its own reasons for granting Mr. Assange asylum.* Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.* Maybe they just want to annoy the the U.S. and the West.* Maybe they see it as a way to score propaganda points.* Who knows?* What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.
    Originally posted on the Asylumist: www.Asylumist.com.
  5. Letters from Witnesses

    One key piece of evidence in most asylum cases is the witness letter.* Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available.* Often times, the only evidence that is reasonably available is a letter from a witness.* So what makes a good witness letter?
    First, the witness needs to identify herself and state how she knows the applicant.* While this may seem like a no-brainer, you'd be surprised how many witnesses don't include this information.* I prefer that the witness states her name, address, phone number, and email address.* Then she should describe how she knows the applicant (for example, "Mr. X and I met in the church choir in 2003.").

    There's no excuse for failing to get witness letters.

    Next, the witness should list what they know about the applicant's claim-here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts.* Extraneous material is a distraction.* I can't tell you how many witness letters I've seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant.* Who cares?* Instead, the witness should mention what he or she knows about the case.* One way to start this section of the letter is like this: "Mr. X asked me to write what I know about his problems in Cameroon.* Here is what I know..."
    Also, I prefer that the witness write about what she has seen with her own eyes.* Did the witness see the applicant engage in political activity?* Did she see the applicant get arrested?* Did she see the applicant's injuries after he was released from detention?* The witness should write what she saw (and the date that she saw it).* Secondhand information is admissible, but most fact finders will give such information little weight.
    I also hate when witnesses give me general statements, like "Please don't return to Ethiopia, it is dangerous here."* Not helpful.* We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing.* A better letter might say, "Please don't return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you."
    My clients often ask about how long the letter should be.* My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information.* I prefer that the witness gets to the point and doesn't waste time with irrelevant information, so hopefully that leads to shorter letters.* Also, the longer the letter, the greater the possibility for inconsistencies.
    Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.).* Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript).* Of course, this assumes that the applicant has also included evidence that he attended that school.
    One final note about witness letters.* Unless they are consistent with the applicant's affidavit, they will harm the case.* I would rather submit no letter than an inconsistent letter.* For this reason, it is important to compare the witness letters with the applicant's affidavit (and his other evidence) to ensure consistency.* While people often have different recollections of events-even dramatic events-the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.
    Witness letters are often crucial to a successful asylum application.* A well-crafted letter will help your client's case and could make the difference between a grant and a denial.
    Originally posted on the Asylumist: www.Asylumist.com.
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