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Jason Dzubow on Political Asylum


  1. New Handbook on Best Asylum Practices in the US and UK

    A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.
    In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged-an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.

    The U.S. and Britain agree: We don't like the asylum system or the French.

    The report found many similarities between the U.S. and Great Britain, which led to the conclusion that "there are merits to dialogue and exchange... across these distinct country contexts."* Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.
    The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain.* The report also recommends sharing ideas and policy objectives between organizations in different countries.
    One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries.* Despite the relatively small amount of international cooperation between asylum support groups, survey respondents "felt that there was much potential for co-ordinated international approaches to the issues they face," particularly issues that could draw on international experience, like alternatives to detention.* While this is true in theory, I am not exactly sure how it would work in practice.
    For me-and I think for most immigration lawyers and advocates-the local connections are the most important.* I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments.* While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients' claims, I can find this information on the internet without much trouble.* I certainly like the idea of connecting with asylum advocates in other countries.* It's just that with limited time, it is difficult to establish and maintain such connections.*
    In the report, the authors indicate that they are attempting to start a conversation.* I hope that this proves to be true.* Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue.* Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.
    Originally posted on the Asylumist:
  2. FGM + Other Serious Harm = Asylum

    I had a case last week where the Eritrean government arrested and beat my client because they believed she helped her brother escape from the national military service.* We tried to frame the case in terms of imputed political opinion (our claim was that the authorities thought my client was "anti-government" because she helped her brother escape), but it was a bit of a tough sell.* We came up with a strategy that may have saved the day (she received asylum), so I thought I would share, as this strategy could be employed by many women who face persecution that is not based on a protected ground.
    The key to our strategy was that my client had been a victim of female genital mutilation ("FGM") early in her life.* In a well known decision, the Board of Immigration Appeals held that FGM could form the basis for an asylum claim.* Thus, FGM may be considered past persecution based on a protected ground.

    Until the recent BIA decision, these guys had done more than anyone to define "other serious harm."

    Where a person has been subject to past persecution based on a protected ground, she is eligible for asylum if there is a "reasonable possibility" that she will face "other serious harm" in her country, regardless of whether that harm is based on a protected ground and regardless of whether that harm is related to the original persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(B).* While I had written previously about "other serious harm," it had not occurred to me how useful this provision could be for many female asylum seekers.
    FGM is prevalent in a number of African countries and elsewhere.* A woman who has been subjected to FGM has likely satisfied the first prong of the requirement for "other serious harm" asylum.** To satisfy the other requirement, the asylum seeker must demonstrate that she faces a reasonable possibility of other serious harm in her country.* This could be any type of harm and does not have to be based on a protected ground or related to the original persecution.
    Until recently, there has been little guidance*about what constitutes "other serious harm," but last month, the BIA published a decision examining this basis for asylum. See Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).* In that case, the Board held that to qualify as "other serious harm," the harm must be as severe as persecution, and the Board has given some examples:
    Such conditions may include, but are not limited to, those involving civil strife, extreme economic deprivation beyond economic disadvantage, or situations where the claimant could experience severe mental or emotional harm or physical injury.
    A number of federal circuit courts (all listed in Matter of L-S-) have given examples of what might constitute other serious harm.* The list is quite diverse: (1) harm resulting from the unavailability of necessary medical care; (2) the mental anguish of a mother who was herself a victim of FGM whose daughter faces the same fate; (3) the unavailability of needed psychiatric medications; (4) victimization by criminals or militias; (5) unavailability of necessary AIDS medications coupled with social stigma.* While diverse, this list is obviously not exhaustive, and it seems to me there is a lot of room for creative lawyering (for example, might criminal prosecution qualify if the punishment is severe enough?).
    Thus, for victims of FGM, the "other serious harm" category of asylum could be a useful tool to obtain asylum, even if the harm they face is not based on a protected ground.
    Originally posted on the Asylumist:
  3. From Private Attorney to NGO Director

    Thank you to guest blogger William Holston, the new Executive Director of Human Rights Initiative of North Texas, who agreed to share his experience moving from private practice to the non-profit world:
    On January 15, I left my law practice of thirty years to become Executive Director of Human Rights Initiative of North Texas, a non-profit organization that provides pro bono legal services for asylum seekers and individuals seeking relief under VAWA, U-Visa, and SIJ visas.*

    Bill Holston (I love this photo--very dramatic).

    Thirty years ago, I graduated law school and started trying cases.* I drove to the courthouse, was sworn in by a State District Judge, and started accepting court appointed criminal defense cases.* My first jury trial was in the spring of the next year-a felony case.* My next jury trial was a condemnation case.* Eventually, my practice settled in general business work. *For most of my career, I represented creditors in commercial collections and a variety of small business clients.* I enjoyed the problem solving that I did for my business clients and found the practice of law challenging and fulfilling.
    That all started to shift about twenty years ago.* I met a Mennonite missionary who was working with Central Americans here in Dallas.* In the mid-eighties, thousands of Salvadorans and Guatemalans were fleeing civil wars in their home countries. Intrigued, I agreed to help obtain guardianships for unaccompanied minors, so they could enroll in school in the U.S.* Later, I took a training in asylum law.* My first asylum case was a Guatemalan woman whose husband, a union leader, was assassinated by a death squad as he took their kids to school.* I helped her obtain asylum.* After that, I was hooked.*
    My policy was that once I finished an asylum case, I'd ask for another one.* Since then, I have provided pro bono legal representation for political and religious asylum applicants from twenty different countries: Guatemala, EI Salvador, Burma, China, Russia, Bangladesh, Zaire (now the Democratic Republic of the Congo), Somalia, Togo, Cameroon, Nigeria, Egypt, Turkey, Pakistan, Eritrea, Ethiopia, Liberia, Nepal, Zimbabwe, and Rwanda.
    Why did I continue to do this work?* A client from Zaire provided all of the incentive I needed.* My client had been a pro-democracy activist during the tyrannical reign of Sese Mobutu.* This resulted in his arrest.* He managed to escape and make his way to America.* He was lucky to be alive.* His wife and children were in hiding in Brazzaville.* I assisted this young man to obtain political asylum here.* Months later, he showed up unannounced at my office with his wife and children.* They were no longer in hiding.* Instead, they were making a new life in the United States.* He introduced me to them and said, "I wanted to thank you in person."* After he thanked me. I told him rather casually that it was my pleasure.* He looked at me, paused, and said, "No, I know what you did for me, you gave me my life."* Then it hit me.* It was*I*who was getting the most out of this relationship.* Most people never get a chance to hear something like that.* So, I knew that this was the most enriching work I could possibly do.* I learned that it was a privilege to represent such people.
    Since 1999, I've been taking cases from Human Rights Initiative of North Texas, Inc.* HRI was founded in 1999 by a lawyer Betsy Healy, and a social worker, Serena Connely. * Their mutual goal was to found an agency that was motivated by compassion, and where the work was performed in an efficient and competent fashion.** I mentored Betsy on her first asylum case, when she was a lawyer in a large Dallas commercial law firm.* Their model was to use pro bono lawyers to do the work. HRI has built strategic alliances with some of the best law firms in America.* Those lawyers provide over two million dollars in legal services to our clients every year.* HRI has built a great reputation by having a rigorous process of screening and intake.
    Over the years, I not only took pro bono cases, but I became an advocate for refugees.* I wrote a number of editorials for newspapers.* I wrote articles about Burma and Zimbabwe.* I also wrote commentaries about human rights issues for our local public radio station.* Any opportunity I had to speak about the issues of asylees, I took.* I realized that our clients' stories were inspiring to others.* I became increasingly aware that this was the work I found the most satisfying in life.* In time, I began to think of it as a calling.* In part, I was motivated by the Biblical mandate to be a voice for oppressed people.
    One of the best parts of this work is seeing our country through the eyes of people who risked much to get here.* I once had a client from Russia, whose family sold their home to pay for their son's escape.* A few years back, a client escaped from a torture chamber and stowed away on a cargo ship.* He swam ashore at the port of Houston.* The main lesson I draw from such stories is that I no longer take my rights for granted.*
    I drive past an Eritrean Church, where my client worships.* She spent days in an overseas shipping container just for reading a Bible.* I drive past a church where my Egyptian Coptic Clients now worship, after losing everything to extremists in their native Egypt.* I once stood in my office on Election Day, as my Zimbabwean client expressed amazement at the peaceful nature of our elections.* I realize just how fortunate I am, and I have our clients to thank.
    Last year, the position of Executive Director became open at HRI.* I talked it over with my wife and we decided I should apply. It was not really a difficult choice, because I now wanted to devote all my energy to the cause of helping people seek refuge here in America.*
    So how do I feel about it now?* My work place is filled with Ethiopian pro-democracy advocates, Iranian Christians, and Egyptian Coptics.* I work with young women escaping abusive arranged marriages and young teens who were survivors of crime.* It is the most fulfilling thing I have ever done.* I work with a team of young people who are full of skill and compassion. I feel younger and more energized than I have in years.* In sum, I can't imagine work that is more fulfilling or more important. I feel like I'm home.
    Originally posted on the Asylumist:
  4. NY State Bar Protects Incompetent Lawyers, Not Immigrant Victims

    As far as I can tell, the NY State Bar exists to protect incompetent and dishonest immigration attorneys.* It could care less about the immigrant victims of those attorneys.
    New York has more attorneys than any other state-about 157,000 of them (as of 2010).* A disproportional number of immigration attorneys are barred in NY because it is one of the few states that allows foreign lawyers to sit for the bar (assuming they take a certain number of credit hours at a U.S. law school), and many foreign-trained attorneys practice immigration law.* Because there are so many immigration attorneys barred in New York, the NY Bar Association has a particular responsibility to protect immigrant victims of attorney malpractice.*

    What other organization protects its own (and its pets) regardless of right or wrong?

    Thus, when an alien (or her attorney) files a bar complaint against a New York-barred lawyer, you might think the Bar Association would take that complaint seriously.* Unfortunately, this is not the case.*
    As an initial matter, it is not easy to file a bar complaint in New York.* Unlike most other states, there is no central authority where complaints are filed.* Instead, the injured client needs to determine the correct NY department with authority over the offending attorney.* This depends on where the attorney is located, but it is not always easy to figure out.* Once you know the correct department, you can file your complaint.*
    On behalf of my clients, I have filed two complaints against NY-barred lawyers.*
    The first was against an attorney who refused to turn over a client file because the client had not paid money allegedly owed to him.* Refusing to turn over a file is not allowed under the Rules of Professional Conduct.* After I filed the complaint, the attorney responded to Bar Counsel and threatened me with a frivolous bar complaint for the "tone" of my phone conversation and letter to him.* Threatening a frivolous complaint is not allowed either.* Nevertheless, the NY Bar saw fit to dismiss my complaint.
    The second complaint did not even get that far, and was dismissed out of hand.* In that case, my client received a decision from the BIA (she lost) and the lawyer failed to inform the client-for over one year.* As you might imagine, not knowing that her case was denied caused problems for my client.* The Bar Association's response to our complaint:
    After careful review, it has been determined that the issues you raise are more appropriate for resolution by the Board of Immigration Appeals in the first instance [we had also filed a motion to reopen with the BIA, but they are not responsible for attorney discipline].* Therefore, although we appreciate your effort, we are unable to assist you.
    How nice that they appreciate our effort.* Further, we did not file the complaint so that the Bar Association could "assist us."* We filed the complaint because the attorney violated her duty to inform my client about the result of the appeal, and because such a complaint is required to reopen the immigration case.* If she did this to our client, likely she has done it to others.* The Bar Association should be as concerned (or more concerned) about protecting potential future victims of this attorney than it is about "assisting" my client.* But obviously, they do not care about my client or about any potential future victims.*
    To their credit, the Bar Association did an excellent job of protecting the incompetent lawyer.* They did not even require her to make a response to our complaint.* Thank goodness that the attorney was not inconvenienced by having to spend time explaining her bad conduct.* Better, she should use that time to rip off other immigrants.** With all the money she makes, I hope she remembers to bay her bar dues-she certainly owes them for protecting her.*
    Despite my annoyance at the general failure of the New York Bar to protect immigrants, there are some resources available.* You can contact the Attorney Grievance Committees.* You can also contact the Immigrant Affairs Program of the District Attorney's Office for the City of New York.* For the sake of future immigrant (and non-immigrant) victims, we can only hope that the NY Bar Association will one day recognize its responsibility to protect the public, and not just its own members.
    Originally posted on the Asylumist:
  5. South African Whites Seek Asylum in the U.S.

    An asylum claim by a white Afrikaner farming family from South Africa has sparked a debate about whether their claim is based on a real fear of persecution or is "the result of paranoid (and racist) whites wanting to leave because they want no part in a black-governed South Africa."*

    Some Afrikaners fear that in South Africa, white is the new black.

    The family's claim seems to be that they are being discriminated and persecuted by the government.* Also, they face a severe risk of racially motivated crime and the government is unwilling or unable to protect them.
    The family's attorneys have been searching for an expert witness, but they have been rejected by several academics:
    Professor Mark Behr, of Rhodes College, in Memphis, Tennessee, and Dr. Dennis Laumann, of the University of Memphis, have rejected requests that they help the family.* "I am not interested in assisting Afrikaners claiming discrimination in a non-racial, democratic, post-apartheid South Africa," wrote Laumann.* "In my scholarly opinion, there is absolutely no basis for their allegation - whatever evidence they may present."
    Such rejection seems to me to represent the worst of academia.* To assume that any claim of asylum by a white South African is based on paranoia and racism is bad enough, but to publicly state that "there is absolutely no basis for their allegation - whatever evidence they may present" is completely irresponsible.* As a top asylum attorney once remarked: No country is safe for everyone all the time.
    Nevertheless, it seems to me that the family will face an uphill battle for asylum.* For one thing, it appears that much of the case is based on the claim that the South African government discriminates against whites.* Assuming this is true, discrimination is not sufficient for a grant of asylum.* Also, to the extent that the family faces violence, they would need to show that there is nowhere in South Africa where they could relocate and live safely.* Given that there are about 4.5 million whites living in South African, I am not sure how the family can demonstrate that internal relocation is not an option.
    Finally, the articles about white South Africans cite a figure that I find misleading.* They state that between 2001 and 2010, a total of 129 South Africans were granted asylum in the United States.* The articles imply that all these South African asylees are white.* DHS statistics show that 129 South Africans were granted asylum, but there is no reason to believe that these asylees are white.* Indeed, given that only 9% of South Africans are white, it is likely that the majority of asylum seekers coming to the U.S. are not white.
    In any case, the asylum claim of the white South African family-like all asylum claims-should be evaluated on its merits.* Despite the irresponsible public comments of some academics, if the family has a well founded fear of persecution in South Africa, their application should be granted.
    Originally posted on the Asylumist:
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