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Jason Dzubow on Political Asylum

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  1. 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

  2. Asylee Info Line Bites the Dust

    Until recently, if you were granted asylum in the United States,* you could call the National Asylee Information and Referral Line, a toll-free number, where you could speak to someone about benefits potentially available to you (such as food stamps, Pell Grants, medical assistance, etc.). For people granted asylum through the Asylum Offices, the toll-free number was-and still is-listed on the approval notice.

    However, as of December 28, 2012, the Info Line is kaput. But have no fear-asylees can still learn about benefits (assuming there are benefits after we fall off the fiscal cliff). Visit the Department of Health and Human Services, Office of Refugee Resettlement, Benefits page on the internet.


    A refugee tries to navigate the ORR website.



    Unfortunately, the ORR website is not so easy to use. Admittedly, I am fairly inept with a computer, and so many people might have an easier time with this than me. But it really does seem confusing.

    For one thing, the site directs the user to a map of the U.S., where she can click on her state to find organizations that assist with benefits. The organizations that receive ORR grant money are listed, as are state coordinators and directors. The problem is, I cannot tell who to contact to ask questions about benefits. If there is an NGO or ORR employee who helps asylees learn about benefits, this should be made more explicit.

    There is a helpful fact sheet available in English and eight other languages, which explains certain benefits, such as the Employment Authorization Document, the Refugee Travel Document, and how asylees can obtain their green cards. But this does not help with medical benefits, food stamps, English language programs, and the like.

    I understand that we live in an era of budget cuts and looming fiscal apocalypse, and I guess that the Info Line was discontinued in order to save money. But I do not see why it should cost much money to make the ORR website simpler to use. In that way, asylees will more easily obtain the services they need, and more quickly become self sufficient. This benefits the asylees, of course, but it will also save money for the government.

    I hope that the Office of Refugee Resettlement plans to make its website more user-friendly. Given that ORR provides grants to implementing agencies, perhaps it could also require the local agencies to follow an easy-to-use model website for providing localized information to asylees. A dedicated, accessible website will go a long way towards replacing the telephone Info Line and towards helping asylees begin to adjust to their new life in the United States.

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

    Updated 07-16-2013 at 01:54 PM by JDzubow

  3. Asylum Seekers ♥ Asylum Office

    According to a new*report*released by USCIS, asylum applicants are "highly satisfied" with the service they receive at the nation's various Asylum Offices.

    Asylum seekers who appeared for interviews at the different Asylum Offices answered the written survey. *A total of 933 responses were collected from September 2011 through March 2012. Surveys were collected after the interview but before the final decision (for obvious reasons).


    Asylum Officers celebrate the positive survey results.


    According to the survey, customers are highly satisfied with the services they receive from USCIS's Asylum Offices; their overall satisfaction index is 87 on a scale of 0 to 100. For comparison, the federal government satisfaction index is currently 67. At the office-level, customers who were serviced by the Miami Asylum Office, Chicago Asylum Office, and the Houston Asylum Office were the most satisfied with indices of 93 or 94. Conversely, satisfaction was the lowest for those serviced by the New York Asylum Office with a satisfaction index of 70.

    Overall, 17% of respondents felt that the Asylum Officer was either argumentative or biased; at the New York office, 29% of respondents felt the officers were*argumentative or biased. *In LA, the next highest, the number was 23%.

    With overall satisfaction at 87, the report opines that it may be difficult for USCIS to significantly improve its asylum office customer satisfaction scores at an aggregate level. However, the report notes, at certain locations there appears to be opportunity for improvement. Most significantly, in New York and Los Angeles, Asylum Officers should try to provide more information to applicants about the process. They should also try to appear less argumentative during interviews.*According to the report, offices in Los Angeles, Newark, New York, and San Francisco should address wait times for the start of the interview.

    The survey also contained a comments section. Most comments are very positive. *A typical comment reads, "Everything was good." *Some of the more interesting comments include:

    Cannot think of anything right now to improve the service, how do you improve on perfection?

    *

    Smile more.

    *

    No*need to improve anything unless you decide to improve something.

    *

    My service overall was good with exception of the officer which directed my interview in a coercive and threatening manner.

    *

    Provide free coffee and donuts [I fully endorse this idea!].

    *

    The survey results (if not all the written comments) comport with my view of the Asylum Office. I find the officers to be very professional and courteous. They don't always grant my cases (the nerve!), but in the large majority of cases, I find that they are fair and reasonable. Congratulations to the Asylum Officers on the survey results and on a job well done.

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

    Updated 07-16-2013 at 01:54 PM by JDzubow

  4. Lawyers Gone Wild

    The*New York Times*reports a major bust involving lawyers, paralegals, and even a church official who were allegedly helping Chinese nationals file fraudulent asylum cases.

    The Times reports that 26 people, including six attorneys, were arrested in Chinatown and Flushing, Queens. They are accused of an elaborate scheme to help Chinese immigrants invent stories about persecution and dupe immigration officials into granting asylum. Some false stories describe persecution based on China's one-child policy, including forced abortion. Others set forth claims based on religious persecution. Apparently, the asylum seekers aroused suspicion when Asylum Officers noticed that many of the stories were very similar.

    *


    Some people probably should not be allowed to practice law.


    In all, the conspiracy involves 10 law firms and as many as 1,900 asylum seekers. The conspiracy also allegedly involved at least one church official, Liying (pronounced "Lying"?) Lin. According to the Times, Ms. Lin, 29, trained asylum seekers in the basic tenets of Christianity. According to the indictment against her, Ms. Lin also helped her "clients" trick the immigration authorities and "trained asylum applicants on what questions about religious belief would be asked during an asylum interview and coached the clients on how to answer."

    This is not the first time that I've*written*about Lawyers and paralegals helping to create false cases, but it is the largest such bust that I've heard about.* One question is, how pervasive is this type of fraud?*

    A professor of Asian-American studies and urban affairs at Hunter College in New York,*Peter Kwong, told the Times that he believes most Chinese asylum cases in New York City were fraudulent. "This is an industry," said Prof. Kwong, who has written widely on Chinese immigration. "Everybody knows about it, and these violations go on all the time." While I would not be surprised if Prof. Kwong is correct, I would also not be surprised if he is over-estimating the number of fraudulent asylum claims.*

    The reason for the difficulty is that there is no data on false asylum claims. There is plenty of anecdotal evidence about false claims, but this is really not reliable. For one thing, some people with real asylum claims are duped by unscrupulous lawyers and paralegals into making false applications. For instance, I was recently consulted in a case where a Russian paralegal and attorney created a false claim for the asylum seeker even though he had a perfectly legitimate reason for seeking asylum. I suspect they created the false case because that was easier than preparing the actual case. So while the man's case was false, he had a real claim for asylum (he lost his case and spent many thousands of dollars in the process).

    Another reason why I don't trust the anecdotal evidence on fraud is because cases are sometimes fraudulent in non-material ways. What I mean is, sometimes people lie about things that do not affect their cases. For example, I worked on a case where the applicant did not mention her husband on her I-589 form (which she completed and filed before she had a lawyer). She felt that she did not need to list him, as they were separated. The DHS attorney brought this up when he argued that the applicant was not credible, so it might have impacted the case (in the end, the IJ found her credible). The marriage did not relate to the primary basis for the application, and it was based on my client's misunderstanding of the form. So, should this be considered a "fraudulent" case? *I suppose it depends who you ask. The point being: When it is difficult to define fraud, it is difficult to characterize asylum cases as either fraudulent or non-fraudulent.

    Although it is difficult to know the magnitude of the problem, it's pretty clear that many asylum cases are fraudulent. The situation in New York is only the most recent illustration of the problem. So what's the solution? I strongly believe that the government can do more to stop these fraudsters. I have seen enough of their work to know that they are not so smart and often not very careful (witness the Chinese case in NY where Asylum Officers detected the fraud when they noticed that many of the applications were suspiciously similar-in other words, the lawyers were too lazy and too cocky to bother making up unique stories for each asylum seeker).

    Since many of these fake cases seem to originate with a (hopefully) small number of lawyers, paralegals, and translators, I believe the most effective solution is to investigate such people. DHS could send undercover "clients" to suspect attorneys to determine whether the attorneys are helping to concoct false cases. The "clients" could also visit paralegals and translators, who often work independent of attorneys, to see whether they are practicing law without a license. People who help create false cases should be prosecuted and jailed. *Lawyers who engage in such behavior should be disbarred. *

    If DHS can bring more cases like the one in New York, it will help deter the paid "professionals" who create false asylum claims. It will also help preserve the integrity of the asylum system for those who need it.*

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

    Updated 07-16-2013 at 01:55 PM by JDzubow

  5. When Bar Counsel Comes Calling

    Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.* In short, Lozada
    states that to reopen an immigration case where the previous attorney
    was constitutionally ineffective, the alien must file a bar complaint
    against that attorney.* Despite some intervening decisions, Lozada is still the controlling law.* As a result, many immigration lawyers will face a bar complaint at some point in their career.*


    It starts with Lozada, and ends like this.



    In that happy spirit, I am re-posting
    an excellent article by Dolores Dorsainvil, a Senior Staff Attorney
    with the D.C. Office of Bar Counsel (the article is written with the DC
    Rules of Professional Conduct in mind, but it really applies to all
    jurisdictions). Ms. Dorsainvil investigates and, where necessary,
    prosecutes allegations of ethical misconduct of District of Columbia
    attorneys.* She is also an adjunct professor at the American
    University's Washington College of Law where she teaches Legal Ethics.*
    She has an ethics blog, The Gavel, which can be found here.* Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

    For many attorneys, coming across an envelope with the
    return address marked "Office of Bar Counsel" undoubtedly brings a
    sinking feeling. After reading the Bar complaint, an attorney's initial
    reaction may be one of many: anxiety, incredulousness, fear, or even
    anger. Some attorneys may even view the correspondence from Bar Counsel
    as a personal attack on their credibility and professionalism. Whatever
    the feeling, and however the complaint arose,*with hundreds of Bar
    Counsel complaints lodged every year,*attorneys should appreciate and
    understand not only the serious nature of attorney discipline
    investigations, but that the process can be managed.

    Here are seven simple tips to guide attorneys in
    responding to a Bar Counsel inquiry should one ever become subject to
    such a complaint:

    1. Think. Before penning an emotional response
    to Bar Counsel, take time to think about the legal matter, the history
    of the case, and the client who filed the complaint. This will aid an
    attorney in focusing on the issues involved in the complaint and may
    give him or her time to provide a response based on facts rather than
    emotions. An attorney may even want to review the file in its entirety
    to make sure he or she is able to recall every detail about the
    underlying legal matter.

    2. Be timely. Request an extension, if needed.
    In its cover letter accompanying the complaint, Bar Counsel provides a
    date by which an attorney is required to respond. If for some reason an
    attorney is not able to submit a timely response, he or she may wish to
    request an extension. Our office usually will grant an initial
    reasonable request for an extension. The attorney should confirm such a
    courtesy in writing. If a circumstance exists that requires a lengthy
    response period--as we all know, illnesses, deaths, vacations, business
    or personal matters happen--it is prudent for an attorney to explain that
    in writing to Bar Counsel and provide corroborating documents
    explaining the lengthy extension request.

    3. Respond. This may seem like an obvious step,
    but there are attorneys who, even when they have not committed
    misconduct, stick their head in the sand in an effort to avoid dealing
    with the allegations made in a complaint. The important fact to note is
    that failing to respond to a lawful inquiry from Bar Counsel is a
    violation of Rule 8.1(b). So, even if Bar Counsel is not able to make
    any findings of a violation of the D.C. Rules of Professional Conduct in
    the initial complaint, our office may pursue and prosecute an attorney
    for violating Rule 8.1(b). No matter how distasteful the prospect is of
    being subject to a complaint, every attorney has an affirmative duty
    under the rules to respond to requests for information from Bar Counsel
    authorities.

    4. Answer the allegations honestly and concisely. An
    attorney should provide a comprehensive and fair explanation of the
    facts and circumstances surrounding the allegations made in the
    complaint. Providing a full picture or history of the representation
    will assist Bar Counsel in rendering a disposition; however, an attorney
    should be judicious. Providing a 30-page response while failing to
    actually address the allegations of misconduct may raise concerns.

    5. Provide documents, and then some. An
    attorney should provide the documents our office requests, but he or she
    also should provide relevant documents as exhibits to the response if
    those documents corroborate an attorney's version of events. For
    example, supplying Bar Counsel with a copy of a key pleading of an issue
    that already has been addressed by a tribunal is extremely helpful.
    Taking this proactive step saves time in the investigation process.

    6. Be diligent and comprehensive. An attorney
    should take the time to explain relevant areas of law as they relate to
    the underlying legal matter. It is important for an attorney not to
    assume that Bar Counsel is familiar with every practice area. Providing
    Bar Counsel with a copy of the applicable rule or statute that the
    attorney has relied upon in the underlying matter is invaluable and can
    assist our office in determining the validity of the complaint.

    7. Hire counsel, if necessary. This is a
    determination that can only be made by an attorney, but there are
    benefits to hiring representation. Respondent's counsels usually are
    more familiar with the attorney disciplinary process and can help to
    navigate the system.

    Overall, an attorney's cooperation with a Bar Counsel
    investigation will contribute to a resolution in a manner that
    safeguards the rights of the public and protects attorneys from
    unfounded complaints.

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

    Updated 07-16-2013 at 01:55 PM by JDzubow

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