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Jason Dzubow on Political Asylum

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  1. 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: www.Asylumist.com.
  2. 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: www.Asylumist.com.
  3. 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: www.Asylumist.com.
  4. Want to Help Gay Couples with Immigration? Give Them Asylum

    I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.* The two men started a successful business and are pillars of their community.* But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.* This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act ("DOMA").

    The Defense of Marriage Act: DOMAnd Dumber.

    Last week, a federal appeals court struck a blow against DOMA.* The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.* However, the First Circuit said "its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules" on the matter.* Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.* We will have to wait and see.
    In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner.*
    If social conservatives can define "marriage" as a union between a man and a woman, why can't progressives define "persecution" as the forced separation of same-sex couples due to immigration restrictions.* When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.
    Although this definition of "persecution" stretches the normal meaning of the term, there is precedent for such a move.* For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.* Also, people who fear coercive family planning in China are eligible for asylum.* For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief.*
    While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.* In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).* More recently, DHS determined that domestic violence could form the basis for asylum.
    The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.* Witness the new regulations on waivers.* Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.* This often meant a long separation from family members while the waiver was processed.* Starting in January 2013, such aliens can apply for a waiver in the United States and-if the waiver is approved-they can obtain lawful status with only a brief stay overseas.
    President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.* So why not do something for the thousands of same-sex couples faced with forced separation?* Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.* If DOMA is repealed or overturned, the government could re-visit this definition of persecution.* But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.* We should grant asylum to gay and lesbian spouses of U.S. citizens.
    Originally posted on the Asylumist: www.Asylumist.com.
  5. Guatemala Massacre Survivors Reunited After 30 Years

    In 1982, during the Guatemala civil war, a squad of soldiers led by Lt. Oscar Ramírez Ramos attacked the town of Dos Erres.* They killed over 250 people, mostly women and children. *
    Lt. Ramírez Ramos spared a 3-year-old boy named Oscar, and brought the child home to live with him (the phenomena of persecutors adopting the children of their victims is not as uncommon as you might think-the New Yorker recently had an interesting article about how this played out during Argentina's Dirty War).* After*Lt. Ramírez Ramos died in an accident, his family continued to raise Oscar as their own.* The family never told him about his past, and he grew up idolizing his "father," the man who killed his mother and eight siblings.

    Tranquilino Castañeda reunited with his son and grandchildren.

    Oscar's real father, Tranquilino Castañeda, was away from home during the attack, and for 30 years, he mourned the death of his wife and children, including Oscar.* But last year, an investigation by Guatemalan prosecutors revealed that one son-Oscar-had survived.* A DNA test last August confirmed that the two men were father and son, and they were reunited via Skype.
    Oscar had come to the United States in 1998, and has been living here illegally since that time.* After they learned about each other, Oscar's father came to the U.S., and the pair reunited after 30 years apart:
    "Yesterday I had the chance to see him in person. It is quite different from seeing him on the computer or on pictures," Tranquilino said. The Guatemalan farmer has green eyes and the leathery skin of someone who has worked in the fields all his life. He is a man of few words.* Tranquilino and Oscar, who is 33, met for the first time at a New Jersey airport, just a few hours after Castaneda landed there from Guatemala. [Oscar], his son, traveled to New Jersey from Framingham, Mass., a blue-collar suburb of Boston where he lives with his wife and four children.
    After he learned the truth about his family, Oscar decided to seek asylum in the U.S. based on his fear that he would be a target in Guatemala.* "The military retains great power in his native land and most atrocities from the 36-year civil war, which ended in 1996, have gone unpunished."* He has a pro bono attorney, R. Scott Greathead, and his asylum interview is set for June 21, 2012.*
    Given that his case is so high profile, he probably has a good chance for success.* But one issue will be that his father has been living in Guatemala for all these years and has testified against the soldiers responsible for the Dos Erres massacre (one of the soldiers was sentenced to 6,060 years in prison).* If the father lives in Guatemala in relative safety, it may be difficult for Oscar to demonstrate that he will face harm.
    It seems to me that another basis for him to remain in the U.S. is humanitarian asylum (I imagine he is also eligible for Cancellation of Removal if his case ends up before an Immigration Judge).* Under humanitarian asylum, Oscar could remain in the United States if he demonstrates "compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution."* It may be a bit novel, but the facts of the case-his family's massacre, his abduction by the man (at least partly) responsible for their deaths, and growing up with that man's family-may constitute compelling reasons why Oscar cannot return to Guatemala.*
    With humanitarian asylum, even if it is now safe for Oscar to return to Guatemala, he can obtain asylum based on the severity of the persecution he previously suffered.* What is interesting here is that Oscar did not know until recently that he had been persecuted.* Generally, asylum seekers are entitled to the benefit of the doubt, and here-where the harm was so severe-humanitarian asylum seems appropriate.
    Originally posted on the Asylumist: www.Asylumist.com.
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