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Jason Dzubow on Political Asylum


  1. Gay Rights and the UN: One Step Back, One Step Forward

    Sexual orientation is all about identity: Are you gay or straight or
    bi or trans or questioning or something else? *It seems that the United
    Nations has some identity issues of its own when it comes to LGBT
    rights. * *

    This past September, a "traditional values" resolution sponsored by Russia passed in the UN Human Rights Counsel,
    25-15, with seven abstentions (the U.S. voted against). *The text of
    the resolution and a list of countries and their votes can be found here.
    *The resolution reaffirms that "everyone is entitled to the rights and
    freedoms... without distinction of any kind, such as race, colour, sex,
    language, religion, political or other opinion, national or social
    origin, property, birth or other status." *The basic problem is that
    this list purposefully omits the reference to sexual orientation. *Thus
    (as usual), the term "traditional values" is code for "anti-gay." *

    The UN has a split personality when it comes to gay rights.

    While this particular resolution will probably have little effect, I
    fear it is an unfortunate bellwether of member states' positions on LGBT
    rights and protecting LGBT refugees. *As an aside, my first job as a
    practicing lawyer was at Catholic Community Services in New Jersey. *I
    remember being surprised that the Catholic Church-which generally
    opposes gay rights-was assisting gay asylum seekers. *When you think
    about it, this is not entirely inconsistent: While the Church opposes
    gay rights, it also opposes persecution of gay people. *My concern with
    the UN resolution is that it might be a harbinger of something more
    sinister-the contraction of protection for people facing persecution on
    account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention). *

    But as you might have guessed from the title of this piece, the news from the UN is not all bad.*

    Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity.* The guidelines state:

    A proper analysis as to whether a LGBTI
    applicant is a refugee under the 1951 Convention needs to start from the
    premise that applicants are entitled to live in society as who they are
    and need not hide that.* As affirmed by the position adopted in a
    number of jurisdictions, sexual orientation and/or gender identity are
    fundamental aspects of human identity that are either innate or
    immutable, or that a person should not be required to give up or

    The guidelines recognize persecution by governments, society, and
    family members, and also note that laws criminalizing homosexuality can
    rise to the level of persecution.

    The guidelines also make recommendations concerning refugee status
    determinations for LGBT applicants.* Most of the recommendations seem
    like common sense, but I think they are helpful and-given the sentiments
    of many UN member states concerning LGBT people-worth repeating.* The
    recommendations include:

    - An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant
    Interviewers and decision makers need to maintain an objective approach
    so that they do not reach conclusions based on stereotypical,
    inaccurate or inappropriate perceptions of LGBTI individuals
    - The
    interviewer and the interpreter must avoid expressing, whether verbally
    or through body language, any judgement about the applicant's sexual
    orientation, gender identity, sexual behavior or relationship pattern
    Specialized training on the particular aspects of LGBTI refugee claims
    for decision makers, interviewers, interpreters, advocates and legal
    representatives is crucial
    - Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably
    Questioning about incidents of sexual violence needs to be conducted
    with the same sensitivity as in the case of any other sexual assault

    The U.S. government is ahead of the game in this matter.* In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.

    So it seems that the UN is of two minds about LGBT rights.* There is
    no doubt that many countries and societies violently oppress and murder
    people just because of their sexual orientation.* For their sake, I hope
    the progressive states continue to pressure the UN to move forward on
    LGBT issues.

    Originally posted on the Asylumist:

    Updated 07-16-2013 at 01:58 PM by JDzubow

  2. DOJ Inspector General Cares About Quantity, Not Quality, of Immigration Court Decisions

    A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR's work.* The 74-page report by DOJ Inspector General Michael Horowitz
    finds that data from Immigration Courts overstates case completion
    rates and that the Courts are too slow.* The report also makes
    recommendations, such as developing guidelines for when Immigration
    Judges should grant continuances. *

    Mr. V demonstrates why quality is more important than quantity.

    I've reviewed the report, and I can safely say that it was a complete
    waste of time (both my time and the time of the poor sod who prepared
    it) and tax payer money (both mine and yours).* For that reason, I won't
    waste additional time discussing what's in the report (and if you want
    to see a substantive critique of the report, check out TRAC Immigration).* However, I want to discuss what's not in the report.

    Actually, before I get to that, I want to further trash this report.*
    It is frankly offensive that the Office of Inspector General ("OIG")
    would issue a report about quantity without discussing quality.* If the
    OIG's only concern is completing cases quickly, why not just deny all
    the cases now and be done with it?* Why bother with due process or equal
    protection?* Why bother to have a Department of Justice at all?* We can
    simply rename it the Department of "Just ICE" and then deport
    everyone.* Done and done.

    And now, for what's not in the report.

    First, you would think that anyone preparing a report about IJs or
    BIA Board Members would have sought input from people who practice
    before the Immigration Courts and the BIA.* Bar associations regularly
    survey their members about the quality of judges, so why can't the OIG
    (or EOIR) survey private attorneys, non-profit organizations, and DHS
    attorneys about their experience with IJs and the BIA?* Such information
    would be very helpful in assessing both the quality and the quantity of
    EOIR's work product.

    Second, the report does not tell us whether IJs or the BIA are doing a
    good job deciding cases.* This seems to me the single most important
    part of the Judges' and Board Members' jobs.* One way to measure the
    quality of IJ and BIA decisions is to look at the reversal rates for
    those decisions.* To me-and this is an issue
    I've harped on before-one relatively easy way to reduce reversal rates
    is to provide more guidance to decision-makers.* The BIA can do this by
    publishing more decisions.

    Finally, the report fails to acknowledge the connection between
    quantity and quality.* Immigration cases are often complex.* Aliens (and
    DHS attorneys) seek continuances for valid reasons.* In order to reach a
    just result in many cases, continuances are needed.* In the asylum
    context, for example, continuances are sometimes necessary to allow the
    alien more time to find a lawyer (the success rate for unrepresented
    aliens is much lower than for represented aliens).* Thus, in Immigration
    Court, justice delayed is not always justice denied.* Sometimes, it is
    simply justice.

    Perhaps I am being a bit too hard on the OIG.* It is certainly
    possible to help improve EOIR by examining the quantity of its decisions
    and the accuracy of its reporting.* But when the OIG has failed to
    address the quality of EOIR's work and instead issues a comprehensive
    report basically telling EOIR to hurry up, it seems to me that the OIG's
    priorities are not where they should be.

    Originally posted on the Asylumist:

    Updated 07-16-2013 at 01:58 PM by JDzubow

  3. Russian Artist Exposes Gay Asylum Seekers

    In his native Russia, artist and filmmaker Alexander Kargaltsev was beaten by police at a gay pride event and detained after he left a gay club.* He came to the U.S. in 2010 and*received asylum in 2011.* Last week, Mr. Kargaltsev held his first solo exhibit at a new gallery, called 287 Spring, in downtown Manhattan (which hopefully is not now under water).

    The exhibit is entitled "Asylum" and consists of large photos, each
    depicting a nude gay or bisexual Russian man, with New York City shown
    in the background.* The men have stern expressions, and many were
    photographed provocatively in public areas, such as Central Park.* Under
    each photo is a caption: "Granted Asylum" or "Asylum Pending."

    The artist, strategically placed in front of one of his photos.

    According to curator Ivan Savvine,
    "The models' nakedness is a powerful visual statement imbued with
    symbolism.* They are not nude but naked, for they had courage to shed
    the many layers of fear and come out to the world uncovered, vulnerable,
    yet proud."* He continues,*"Their naked bodies thus also reveal their
    experience as refugees, for every person seeking refuge rebuilds his or
    her life completely 'naked,' starting from scratch with no family or
    friends and often without the language they can speak or understand."

    As a humble immigration lawyer who received most of his artistic training from Bill Alexander,
    I can't help but find this type of artist speak a bit pretentious.*
    Also, I really can't imagine many of my clients posing nude in public
    (and-no offense to my clients-I don't want to imagine it).* But I
    suppose Mr.*Kargaltsev's exhibit raises some interesting points.

    I agree with the idea that refugees start their lives over "naked."*
    But to me, the more interesting analogy between asylum seekers and
    nakedness is the idea of exposing one's past history to the scrutiny of
    an Asylum Officer or an Immigration Judge (not to mention to the asylum
    seeker's own lawyer).* Depending on the person, and on the problems he
    faced in the home country, relating the story of past persecution can be
    humiliating and traumatic.

    I have represented rape victims and torture victims.* When such
    people apply for asylum, they need to tell these stories.* Sometimes,
    people do not behave honorably under the threat of persecution.* They
    need to relate those stories as well.* I remember one client who fled
    his home when government soldiers broke in to look for him.* He left his
    wife and children behind.* My client had to explain this to the
    Immigration Judge, which was extremely difficult for him to do.* This is
    the type of "exposure" I think about when I think of refugees.* And in
    some ways, it is similar to exposing oneself naked before the camera,
    flaws and all.

    Mr. Kargaltsev's photos are of gay asylum seekers from Russia.* The photos
    I've seen depict good-looking young men whose nudity is nothing to be
    ashamed of.* In my experience, the exposure endured by asylum seekers is
    a lot less attractive than Mr. Kargaltsev's images.* While Mr.
    Kargaltsev's photos certainly add to the dialogue about issues faced by
    asylum seekers, in my opinion they gloss over the ugly truths about
    refugees and the pain that they have endured.* A more realistic and
    challenging exhibit in this vein would be less pleasant to look at, but
    more useful to understanding the real lives of refugees.

    Originally posted on the Asylumist:

    Updated 07-16-2013 at 01:59 PM by JDzubow

  4. How to Hire an Immigration Lawyer Who Won’t Rip You Off

    I've written previously about the poor state of the immigration bar.
    *And while there are-unfortunately-too many bad lawyers, there are many
    excellent ones. *The question is, for an immigrant unfamiliar with the
    American legal system, how can you distinguish between the good and bad?
    *In other words, how do you find a lawyer who will assist you, and not
    just take your money? *Below are some hints that might be helpful:

    If your lawyer wears a cape, that is probably a good sign.

    - Bar complaints: Complaints against lawyers are often a matter of public record.* So you can contact the local bar association
    (a mandatory organization for all lawyers) to ask whether a potential
    attorney is a member of the bar and whether she has any disciplinary
    actions.* You can also look on the list of disciplined attorneys
    provided by the Executive Office for Immigration Review ("EOIR").*
    Sometimes, good attorneys are disciplined, but if an attorney has gotten
    into trouble withe the Bar, it would be helpful to know why.

    - Referral from non-profits: Most areas of the country have
    non-profit organizations that help immigrants (EOIR provides lists of
    such organizations here).
    *While these organizations are often unable to take cases (due to
    limited capacity), they usually have referral lists of attorneys. *I
    would generally trust the local non-profits for recommendations, as they
    know the lawyers and know their reputations.*

    - Referrals from friends: Most people who hire me were referred by an
    existing or former client. *However, from the immigrant's point of
    view, I do not think that this is the best way to find a lawyer. *They
    say that a million monkeys with a million typewriters, typing for a
    million years will eventually write a novel. *It is the same with bad
    immigration lawyers. *Once in a while, they actually win a case (usually
    through no fault of their own). *The lucky client then refers other
    people. *I suppose a recommendation from a friend is better than
    nothing, but it would not be my preferred way to find a lawyer.

    - Instinct: If you think your attorney is not doing a good job, he
    probably isn't. *Attorneys are busy people, and they may not be as
    responsive as you might like, but if your attorney never returns calls
    and is never available to meet with you, that is a problem. *Also, if
    your attorney seems unprepared in court, that is obviously a bad sign.*
    If you are having doubts about your attorney, nothing prevents you from
    consulting with a different lawyer for a second opinion.

    Hiring a lawyer can be tricky, especially for someone who is
    unfamiliar with the American legal system.* Given that the quality of
    lawyers varies so much, it is worth while to spend some time
    investigating a lawyer before you hire him.* That is the best way to
    protect yourself and (hopefully) ensure that you receive the legal
    assistance that you need.

    Originally posted on the Asylumist:

    Updated 07-16-2013 at 01:59 PM by JDzubow

  5. New Canadian Law Attempts to Block Bogus Refugees

    Canada is preparing to implement the Protecting Canada's Immigration System Act
    later this year.* The law is ostensibly designed to protect Canada's
    refugee law by weeding out false asylum claimants.* The provisions of
    the new law include the following:

    - The immigration minister would have the
    power to designate which countries are safe without a committee
    including human rights experts.

    - Rejected refugee claimants from "safe"
    countries would no longer be able to appeal the decision to the
    Immigration and Refugee Board (the administrative body that reviews
    asylum claims).

    - Claimants from countries on the safe
    country list would have limited appeals rights and limited ability to
    apply for compassionate or humanitarian relief.

    The law seems primarily targeted at the Roma (a/k/a Gypsies) who have been coming to Canada from Hungary in large numbers and requesting asylum.* According to the Canadian Immigration Minister, "almost 95 percent of Hungarian asylum claims [are] abandoned, withdrawn or rejected."* The Minister states
    that "Countries whose nationals have an acceptance rate of 25% or less,
    or where 60% or more of claimants from a country have abandoned or
    withdrawn their claims ... would be subject to designation" as a safe
    country, thus making it more difficult for them to successfully claim

    Under the new Canadian law, Mexico is "safe."

    My first question about this new law is whether it is necessary.
    *Under the current system, people who can return safely will presumably
    have their cases denied anyway. *The new law is designed to streamline
    the system to allow people from certain countries to be deported more
    quickly.* Also, if people from "safe" countries know that their claims
    will likely be denied, they may decide not to seek asylum in Canada in
    the first place.* Proponents of the law claim that all this will save
    government resources.* But I wonder how many people will actually be
    dissuaded from coming and-for those who do seek asylum-how much money
    the government will actually save under the new, streamlined system.*
    Currently, 95% of asylum claimants from Hungary are unsuccessful, yet
    Hungarians keep coming to Canada.* If the current (very high) denial
    rate does not dissuade people from coming, how will the new law?*
    Further, those who seek asylum from "safe" countries are still entitled
    to certain procedures and benefits.* It is unclear how much the Canadian
    government will save by marginally reducing the protections available
    to such asylum seekers.

    Assuming the law is needed, how effective will it be? *The idea of
    determining in advance whether a country is safe seems antithetical to
    international refugee law. *Someone once said that no country is safe
    for everyone all the time. *If 95% of Roma claims are denied, what type
    of harm do the remaining 5% face?* Also, just because a country has a
    low overall denial rate for asylum claims does not mean that it is
    safe.* To cite an example from our side of the border, the denial rate
    for Mexicans is quite high (about 98%),
    but certain people from Mexico-journalists and human rights
    activists-face real danger there.* Another example-while the overall
    asylum grant rate for Jamaicans is low, the grant for Jamaicans claiming
    asylum based on sexual orientation is relatively high.* My point is
    that designating a country "safe" just because the overall grant rate is
    low will likely result in legitimate asylum seekers being rejected and
    returned to face persecution.*

    Despite these (and other) doubts, the Protecting Canada's Immigration
    System Act will go into effect shortly.* We will then start to get a
    clearer idea of whether the law will save resources and how it will
    affect asylum seekers.

    Originally posted on the Asylumist:

    Updated 07-16-2013 at 02:00 PM by JDzubow

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