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Jason Dzubow on Political Asylum

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  1. One Hell of a Monday

    Last Monday was a busy day for my family and me. Originally, I planned to attend an asylum hearing for a Burmese client in Virginia and to send another attorney (Ruth Dickey) to cover an Eritrean asylum case in Baltimore. At the same time, my wife and I were expecting our second child on Tuesday. Since our first born arrived late, and since the doctor seemed to think Number Two would follow a similar pattern, I hoped to complete both cases and then focus on the family.* Of course, nature takes its own course, and things did not work out as I planned.

    *


    When a new baby arrives, hijinks are sure to ensue.



    Early Monday, my wife's water broke, and we were off to the hospital. I figured the Eritrean client was in good hands, and I left a message at 2:00 AM for the court clerk in the Burmese case stating that I would not be able to attend the hearing that day. I figured the Immigration Judge would understand, and I already gave the client a letter to present to the IJ in case the baby arrived early.

    Labor progressed through the morning, and at some point I learned that the Eritrean client received asylum. The DHS attorney was fairly satisfied with the case we presented, and only asked to hear about the client's journey to the U.S. So after a short direct and cross, focusing basically on the client's travel, DHS agreed to a grant (and so did the IJ). (Congratulations to Ruth on a job well done).

    More surprising news came later. I managed to reach my Burmese client, and I told her that I would not make it to court after all. I assumed that we would receive a new court date, and I would try the case at that time. I must admit that I wasn't thrilled with this option. Country conditions in Burma have been improving, which is great for Burma, but not so great for Burmese asylum cases. A delay might result in a weaker case. Also, delays can be very long, and this client had already been waiting for almost two years for her day in court. But clients, like new babies, have minds of their own. My client did not want to wait for another court date, and so (unbeknownst to me) she told the IJ that she wanted to proceed with her case without me. Like the Eritrean case, the Burmese case was fairly strong, and DHS was mostly convinced that asylum should be granted. So the DHS attorney cross examined the client about her case, and in the end, agreed to a grant.

    I suppose the lesson is that most asylum cases are won or lost prior to court. If the DHS Trial Attorney is presented with a strong case and is convinced that the respondent qualifies for relief, odds are good that they will agree to a grant of asylum. And when DHS agrees, the IJ will almost certainly follow suit.

    So, the final results for Monday: Two asylum grants and one new baby girl (who is hanging out with me as I type this). Not a bad day's work, if I may say so myself (and yes, I suppose some credit goes to my wife for the baby and to Ruth for litigating the case in Baltimore).

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 07-16-2013 at 01:48 PM by JDzubow

  2. Amerasian Homecoming Act – 25 Years Later

    The Amerasian Homecoming Act, which passed into law in December 1987 and went into effect a few months later, began with a photojournalist, a homeless boy in Vietnam, and four high school students in Long Island, New York. Twenty five years later, almost 100,000 people have immigrated from Vietnam to the U.S. as a result of the AHA.

    *


    Amerasian boys hanging out in Ho Chi Minh City, 1988.



    First, a bit of background. One of the great tragedies of the Vietnam War is the story of the Amerasians-children of U.S. servicemen and Vietnamese women. There are tens of thousands of such children. In Vietnam, they were known as "children of the dust" because they were considered as insignificant as specks of dust, and many (if not most) suffered discrimination, abuse, poverty, and homelessness. Although the fathers of these children were United States citizens, the children did not qualify to immigrate to the U.S. The situation was complicated by the absence of diplomatic relations between the government of the United States and the government of Vietnam. Ten years after the war, the situationo for the Amerasians seemed hopeless. A 2009 article from Smithsonian Magazine describes what happened next:

    In October 1985, Newsday photographer Audrey Tiernan, age 30, on assignment in Ho Chi Minh City, felt a tug on her pant leg. "I thought it was a dog or a cat," she recalled. "I looked down and there was [Le Van] Minh. It broke my heart." Minh, with long lashes, hazel eyes, a few freckles and a handsome Caucasian face, moved like a crab on all four limbs, likely the result of polio. Minh's mother had thrown him out of the house at the age of 10, and at the end of each day his friend, Thi, would carry the stricken boy on his back to an alleyway where they slept. On that day in 1985, Minh looked up at Tiernan with a hint of a wistful smile and held out a flower he had fashioned from the aluminum wrapper in a pack of cigarettes. The photograph Tiernan snapped of him was printed in newspapers around the world. The next year, four students from Huntington High School in Long Island saw the picture and decided to do something. They collected 27,000 signatures on a petition to bring Minh to the United States for medical attention.They asked Tiernan and their congressman, Robert Mrazek, for help.

    Mrazek began making phone calls and writing letters. Several months later, in May 1987, he flew to Ho Chi Minh City. Mrazek had found a senior Vietnamese official who thought that helping Minh might lead to improved relations with the United States, and the congressman had persuaded a majority of his colleagues in the House of Representatives to press for help with Minh's visa.

    Minh came to the U.S., where he still lives. but once he got to Vietnam, the Congressman realized that many thousands of Amerasian children were living in Vietnam, often in terrible conditions. Congressman Mrazek resolved to help these children. The result was the Amerasian Homecoming Act, which went into effect in early 1988.

    The AHA allowed Amerasians to come to the United States as lawful permanent residents. They are not considered refugees, but they do receive benefits (such as financial assistance and housing) normally reserved for refugees. In an important way, the law was quite succcesful-as a result of the AHA, approximately 25,000 Amerasians and about 70,000 of their family members immigrated to the United States.

    However, the law was not a success by all measures. For one thing, not all Amerasians in Vietnam learned about the AHA, and so many people who might have qualified to leave Vietnam were unable to do so.

    Another problem was fraud. One type of fraud involved people who claimed to be Amerasian, but who were not (there was no easy way to tell who was an Amerasian, and many decisions were made based on the person's physical appearance). However, the more pervasive problem of fraud involved "fake families." These were people who attached themselves to the Amerasian immigrants' cases in order to come with them to the U.S. In many cases, the Amerasians agreed to this fraud because the fake families would pay the Amerasians' expenses. Without this assistance, the Amerasians could not have afforded to immigrate. The extent of the fraud is unknown, but a November 1992 GAO report found that in 1991, about 20% of applicants were rejected for fraud. By 1992, 80% of applicants were rejected for fraud.

    A final problem-though perhaps this is not a problem with the AHA itself-is that many Amerasians had a tough time adjusting to life in the United States. A 1991-92 survey of 170 Vietnamese Amerasians found that some 14 percent had attempted suicide; 76 percent wanted, at least occasionally, to return to Vietnam. As one advocate put it, "Amerasians had 30 years of trauma, and you can't just turn that around in a short period of time."

    Of course, Amerasians did far better here than they could have in Vietnam, but given their difficult lives back home, the adjustment was often not easy. According to the Encyclopedia of Immigration:

    In general, the Amerasians who came to the United States with their mothers did the best in assimilating to American society. Many faced great hardships, but most proved resilient and successful. However, only 3 percent of them managed to contact their American fathers after arriving in the United States. By 2009, about 50 percent of all the immigrants who arrived under the law had become U.S. citizens.

    Now, Amerasians host black tie galas to celebrate their success as a unique immigrant community. And even in Vietnam, where they were vilified for many years, negative feelings towards Amerasians have faded.

    Finally, on a personal note, my first job out of college was for a social service agency that did refugee resettlement, and so I worked with Amerasians (and others) for a few years in the early 1990s. Of the populations we served, it seemed to me that the Amerasians had been the most severely mistreated. Many were illiterate in Vietnamese and spoke no English. They were physically unhealthy, and they had a hard time adjusting. Twenty five years after the AHA, it seems that Amerasians are finally achieving a measure of success in the United States. Their long journey serves as a reminder that persecuted people need time to become self sufficient. But the Amerasians-like other refugee groups-are well on their way to fully integrating into American society.

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 07-16-2013 at 01:49 PM by JDzubow

  3. The Seven Habits of Highly Annoying Immigration Judges

    Well, I've dissed immigration lawyers, asylum-seeker clients, and the BIA, so I might as well offer my criticism of Immigration Judges. Of course, this comes with the usual disclaimer: None of the IJs that I appear before have any of these annoying habits. But I have heard speak of such problems from other lawyers (terrible, terrible people), so please blame them for this list. If you need names and addresses, email me offline. With the shifting-of-the-blame thing out of the way, here is the list:
    7 - Changing Court Dates: I suspect that most immigration attorneys have a schedule best explained by Chaos Theory - Make a small change to the delicate balance in our calendars and things fall apart. Obviously, IJs sometimes need to postpone (or advance) hearings. The problem comes when hearing dates are changed without checking with the attorney first. This potentially creates scheduling conflicts for the lawyer, who must then file a motion to change the court date. This can be stressful and time consuming (and it might add to the client's expenses). The better approach is for the clerk to contact the attorney prior to changing the court date. In my experience, when this happens (rarely), it is done by phone. Perhaps it would be easier for the clerk to contact the attorney using a new technology called email. This would be more efficient for all involved, as attorneys could avoid motions to re-schedule and IJs would not have to deal with such motions.   
     

    Mocking litigants is generally considered an annoying habit (even if they deserve it).

    6 - Double Booking: This issue is less of a problem these days, at least in my home courts. But there was a time when my Individual Hearings were commonly double booked. This meant that we prepared for the hearing, went to court, waited (sometimes for hours), and were then told to go home. Given client stress and attorney time wasted, I am glad that double bookings have become more rare.
    5 - Denying Cases: OK, I really shouldn't complain about this, as it is part of an IJ's job. But it is kind of annoying.
    4 - Failing to Rule on Motions: I understand that IJs are busy people. But if IJs could rule on motions in a timely manner, it might increase overall efficiency. Pleadings can be done by motion, thus reducing crowds at Master Calendar Hearings. Issues for trial can be narrowed, making trials less time consuming. Some cases can be resolved completely by motion. You get the idea. The problem, however, is that since IJs cannot be relied upon to rule on motions in advance of the hearing, it is not really worth the attorney's time to write the motion (and then spend more time repeatedly calling the court to ask whether the motion has been granted). If IJs consistently responded to motions in a more timely way, lawyers would file more motions, and cases might be resolved in a more efficient manner.
    3 - Stopping the Asylum Clock: As I have written previously, the rules governing the Asylum Clock are-to put it diplomatically-ridiculous. Different IJs interpret the rules differently. Some IJs interpret the rules restrictively and some even appear to make an effort to prevent the respondent from obtaining a work permit. Given the long waiting periods for these cases, aliens suffer great hardship when they do not receive a work permit. Unless the alien is engaged in egregious and purposeful delay, IJs should err on the side of keeping the Clock moving and of allowing asylum seekers to obtain their work permits.
    2 - "Egalitarian" Master Calendar Hearings: Most IJs give priority to aliens who appear with an attorney at the Master Calendar Hearing. Of course, I am an attorney, and a somewhat impatient one at that, and so I do not like waiting around during a MCH. But there are more legitimate reasons for prioritizing represented respondents. First, respondents who are represented usually take less time during the MCH than unrepresented respondents. So more people will get done more quickly if represented aliens go first. Second, while most immigration lawyers do not charge by the hour, some do. Therefore, it is more expensive for some respondents to have their attorneys wait around for their turn at the MCH. Third, even those lawyers (like me) who do not charge by the hour might charge an extra fee for MCHs before IJs who are known to be slow (I have not done this, but I have considered it). If lawyers are more expensive, it is more difficult for aliens to retain us. Thus, when IJs do not have efficient MCHs, it potentially creates an access to justice issue for aliens.
    1 - Showing the Proper Level of Respect: Notice, I did not say, "Showing Respect." Sometimes IJs are not respectful enough to immigration lawyers; other times, they are too respectful to us lawyers. While I certainly believe that IJs should err on the side of being respectful to everyone in the courtroom, they do sometimes allow lawyers to get away with a bit too much. Oft times, alien respondents are not aware that their lawyers are unprepared or incompetent. When such behavior is egregious, IJs should point out the problem to the alien (and potentially to the bar association). Further, unprepared attorneys waste time at Master Calendar Hearings and cause delay for everyone else. There is no need for IJs to respect such behavior. On the other hand, some IJs run their courtrooms by bullying and demeaning attorneys (DHS attorneys and respondents' attorneys). Obviously, this is inappropriate and, for the most part, ineffective. Good attorneys are sometimes unprepared, and sometimes make mistakes. It is harder for lawyers to do our best work when we face disrespectful comments at the slightest misstep. That said, while disrespectful IJ behavior can be a problem, it seems to me that such behavior is (fortunately) pretty rare. 
    Well, there you have it. While some IJs have bad habits (or so those nasty lawyers tell me), most IJs that I have encountered are hardworking, diligent, and fair. As we (hopefully) prepare for a major immigration reform, it is important to appreciate the positives about our immigration system and the legal protections we offer non-citizens. It is also important to appreciate the Judges and others who make that system work.
    Originally posted on the Asylumist: www.Asylumist.com.
  4. New Novel Explores the Lives of Asylum Seekers

    They say that truth is stranger than fiction because fiction has to be believable. That is basically the premise that got*Scott Rempell*thinking about the lives and stories of asylum seekers, and which led to his new novel,*Five Grounds:

    The idea to write an immigration novel that delves into the asylum process first hit me when I was working at the Office of Immigration Litigation in the Department of Justice. I was sitting in my office reviewing a Department of State report on a humanitarian crisis engulfing a particular country. I remember sitting back and thinking to myself that some of what I'm reading is stranger than fiction. It's the type of information that people might read about in a novel and say, "no way that would happen!" But it does. It happens all the time in countries around the world and very few people know about it. I wanted to write a story that would educate readers about these countries, explain how the asylum process works, and highlight the tensions in the immigration debate.

    Five Grounds is great reading material while waiting for your asylum interview.

    The title refers to the five protected grounds that can form the basis for an asylum claim--race, religion, nationality, membership in a particular social group or political opinion. The novel follows three asylum seekers as they flee their home countries and make their way to the United States:

    In Ethiopia, Tesfaye abandons his post at the Ministry of Defense and attempts to escape the country while a crazed rebel commander hunts him down for reasons he will spend years trying to fully understand. Lin's mother forces her to leave China to protect her from the same fate that led to her father's disappearance. In Mexico, Sofia's health rapidly deteriorates, so she leaves behind her two young children and the memory of a murdered husband.

    The three arrive in the United States where they must confront the American asylum system. A brief excerpt captures the flavor of the book:

    Tesfaye placed a hand on each of his daughters' cheeks. "I have some business to take care of, but I will come soon. I promise."

    Unconvinced, Yenee opened the door and grabbed hold of Tesfaye's leg. "No, you need to come with us now, please come with us."*

    Tesfaye picked up Yenee and tried to comfort her. He could feel the tears on his shoulder, seeping through his shirt. "Look at me, Yenee." Tesfaye gently pushed up on Yenee's chin so that her eyes met his. "Look at me," he repeated. "I have always tried to teach you the importance of responsibility. Our country has put its trust in me and I have a responsibility to help protect it."

    "But . . ."

    "You remember the importance of honoring one's obligations?"

    "Yes, it's just . . ."

    "Now I need you to be strong." Yenee loosened her arms, which had been clenched around Tesfaye. Her body slowly slid down until her feet touched the cobblestone walkway below. After she reluctantly got back into the car, Tesfaye stuck his head inside the open window and kissed Yenee on her forehead. He walked over to the front passenger seat, reached in the car, and gently rubbed his wife's neck, massaging her earlobe with his thumb.

    "We will see you soon," Ayana sighed, forcing herself to smile.

    Tesfaye smacked the roof of the car twice with his hand and Negasi shifted into gear. The Mercedes sped down the long dirt driveway toward the front gates, dust spewing into the air. Tesfaye stood at the edge of the driveway until the dust had again settled into the bone-dry ground.

    I will see them soon. I just need some time to think.

    Tesfaye could not have foreseen the consequences of his decision that morning, but the circumstances of his past were already conspiring. A chain of events set in motion nearly two decades ago was about to catch up to him. Soon, the conspiracy would reveal itself, and he would spend years desperately trying to unravel it.

    The author was an attorney for OIL--the Office of Immigration Litigation, which defends BIA decisions in the U.S. federal courts. Now Mr. Rempell is a professor at South Texas College of Law in Houston.

    What has drawn me (and other attorneys) to the practice of asylum law is the stories of our clients: What they did in their home countries, how they survived, their journeys to the U.S., and their experience in the U.S. immigration system. Prof. Rempell writes, "my goal in writing*Five Grounds*is to educate and inform against the backdrop of a gripping, fast-paced story." If you would like to learn more about*Five Grounds--or buy the book, visit Prof. Rempell's website,*here.

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 07-16-2013 at 01:50 PM by JDzubow

  5. There Is No Such Thing as a Tough Immigration Judge

    A recent article in the Sun Sentinel (Broward County, Florida) got me thinking about what it means to be a "tough" Immigration Judge.


    Judge Ford, pictured here at his Senior Prom.



    The article discusses Judge Rex. J. Ford, who will be celebrating (if that is the right word) 20 years on the bench this April. According to the Sun Sentinel, "In 96 percent of the 2,057 proceedings Ford completed in fiscal 2011, he ordered the person removed from the country." Judge Ford told the paper: "I follow the book and I don't get reversed." The article also notes that Judge Ford is a registered Republican who "garnered attention in 2008 with the release of a U.S. Justice Department report that named him as playing a role in recommending the appointment of immigration judges based on their political leanings." Judge Ford denied that he considered party affiliation in advocating for specific job candidates.

    First, I suppose the Sun Sentinel mentions that Judge Ford is a Republican because Republicans are considered "tougher" on immigration than Democrats (this, despite the fact that President Obama has deported record numbers of illegal immigrants during each year of his Administration). I can't help but think that this is an unfortunate stereotype-at least to some extent. Maybe I will write a post about that subject in the future, but for now, I will just note that Judge Ford was appointed during the Clinton Administration. In this post, I am more interested in how we decide which IJs are "tough."

    The most objective measure of an IJ's "toughness" is his asylum denial rate, which can be found at TRAC Immigration, a website affiliated with Syracuse University. The toughest Judges are the ones with the highest denial rates. By this measure, Judge Ford is pretty tough. Of the 256 IJs examined by TRAC, only three deported people at a higher rate than Judge Ford. Does this mean that he is tough? Or does it mean that he doesn't know what he is doing? Or something else?

    Whenever a judge's denial rate deviates significantly from the mean, it raises a red flag. In Judge Ford's case, his denial rate of 93.3% is much higher than the national average of 53.2%. But I think it is more important to compare his denial rate with the local average. Why? Because local factors significantly impact denial rates. In Judge Ford's case, the aliens he sees are all detained. Denial rates for detained asylum seekers are much higher than rates for non-detained aliens. In part because such aliens are less likely to be represented by attorneys and have a more difficult time gathering evidence, but mostly (I think) because such aliens often have no valid defense to removal, and so they tend to file weak (or frivolous) asylum claims as a last-ditch attempt to remain in the United States. Also, many detained aliens are ineligible for asylum due to criminal convictions or the one-year asylum bar. Comparing Judge Ford to his local colleagues, his denial rate does not seem particularly unusual. The denial rate for other IJs at Miami's Krome Detention Facility (where Judge Ford is listed on the TRAC website) is 89.8%. So while Judge Ford is probably not an "easy" judge, if he were relocated to a different court, with a non-detained docket, I bet that he would grant a lot more cases.

    Speaking more generally, where an IJ with a non-detained docket denies asylum cases at a significantly higher level than his local colleagues, I don't see that as a sign of "toughness." I see it as a failure to properly apply the law. The INA, the CFR, and various precedent decision from the BIA and the federal courts provide guidance to IJs about how to make decisions. They set forth how to determine if an alien is credible (consistent testimony and submission of reasonably available evidence). They define "persecution," nexus, and the different protected grounds. In reaching a decision, an IJ is obliged to follow these laws; he is not permitted to "go with his gut." In my experience, most IJs do their best to follow the law. Therefore, if one IJ stands out in terms of her denial rate (whether it is too high or too low), something is wrong.

    In deciding an asylum case, it is not the IJ's job to be tough or easy; it is her job to analyze the facts in the context of the law. Where an IJ's denial rate differs significantly from the local average, it may be a sign that the IJ is not following the law. In such a case, the IJ's supervisors should determine what is happening and whether additional training or some other corrective action is necessary.

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 07-16-2013 at 01:53 PM by JDzubow

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