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Jason Dzubow on Political Asylum

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  1. CIVIC Works to Visit and Protect Detained Immigrants

    CIVIC-Community Initiatives for Visiting Immigrants in Confinement-is
    an organization that works to "end the isolation and abuse of men
    and*women in U.S. immigration detention by building and
    strengthening*volunteer-run community visitation programs." The idea is
    that if ordinary people visit detained immigrants, the immigrants will
    feel more connected and more hopeful, and the detention facilities (many
    of which are run by private, for-profit corporations) will not be able
    to get away with abusing detainees.*

    The protection aspect of CIVIC's mission reminds me of Amnesty
    International, which calls attention to individuals at risk of abuse
    through letter writing campaigns. The hope is that if the abuser knows
    he is being watched, he is less likely to harm the victim.*


    "Remember... Hope is a good thing, maybe the best of things, and no good thing ever dies."



    Based on my experience with detained clients, it seems to me that
    CIVIC's goals of offering hope and protection to detained immigrants are
    (unfortunately) very necessary. Many people in immigration detention
    have no criminal record and are not dangerous to the community. Some are
    minors. Others are asylum seekers who suffered persecution and torture
    in their home countries. These people remain detained for months and
    sometimes years. The emotional (and physical) toll of such detention can
    be quite devastating.

    CIVIC is currently working to expand its visitation program, in accordance with ICE's Visitation Directive,
    which was designed to help facilitate visits to detention facilities.
    In furtherance of this goal, CIVIC has released the following statement:

    Every day, immigrants disappear and are
    detained by the U.S. government. For example, Ana is a human trafficking
    victim who was detained for over a year, locked in solitary
    confinement, and forced by a guard to sleep on the cement floor of her
    cell until CIVIC ended this isolation and abuse. Over 32,000 immigrants
    like Ana remain isolated in remote detention facilities today because no
    law protects a right to visitation, phone calls cost up to $5.00 per
    minute, and 46% of detained migrants are transferred at least twice
    during their detention-often out of state and away from their families.

    CIVIC is changing this reality by
    building and strengthening community visitation programs that are
    dedicated to ending the isolation and abuse of men and women in
    immigration detention.* Visitation programs connect persons in civil
    immigration detention with community members. These volunteer visitors
    provide immigrants in detention with a link to the outside world, while
    also preventing human rights abuses by creating a community presence in
    otherwise invisible detention facilities.

    CIVIC recently released A Guide to Touring U.S. Immigration Detention Facilities & Building Alliances,
    designed for communities across the country hoping to start a
    visitation program using ICE's new Visitation Directive. *The benefit of
    this resource is that the general guidelines are tailored to the unique
    request of using the Visitation Directive as a tool to establish
    contact and set up a permanent visitation program. In addition, this
    manual provides an overview of some of the successes and roadblocks
    visitation programs have encountered in the first year of the Visitation
    Directive's existence.

    CIVIC is setting in motion a national
    movement to combat the isolating experience of immigration detention.
    *To get involved or for more information, please visit their website at*www.endisolation.org.

    In some parts of the country-like the DC metro area-we have a well established visitation program (thank you CAIR Coalition).
    But in many areas, detained immigrants are much more isolated. For
    people looking for an interesting and rewarding volunteer experience,
    CIVIC's program offers an excellent way to get involved and to help
    people who are in great need.

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

    Updated 07-16-2013 at 01:45 PM by JDzubow

  2. Russia Angered by UK Asylum Grant

    Recently, I*wrote*about people from friendly countries receiving asylum in the United States. There are few such cases, and they generally seem to be*aberrations. *For these reasons, the source countries are not particularly concerned that we are granting asylum to their nationals. *That is not always the case, however.*

    *


    Russia called. They want their Baryshnikov back.



    Earlier this month, the United Kingdom granted asylum to Andrey Borodin, a 45-year-old Russian banking tycoon, who owns Britain's most expensive private house (it's quite nice, as you can see*here). Russian authorities accuse Mr. Borodin of bank fraud. *But Mr. Borodin claims that*the charges were trumped up after he accused a key ally of President Vladimir Putin of corruption. The case became public after Mr. Borodin and his lawyer spoke to the press about receiving refuge in the UK (Britain, like the U.S., keeps such claims confidential).

    Moscow was not pleased by the Brit's offer of asylum:

    The Russian premier's press secretary Natalya Timakova said that the accusations against Mr. Borodin--who fled to London in April 2011--are of "pure criminal character" involving the Bank of Moscow, which he formerly owned. "There [is] now a practice of seeking political asylum, especially in England, whereby it*doesn't*matter what the seeker has done," she said. "What matters is how loudly he shouts about political persecution--and this will become a guarantee that the asylum will be granted." Ms. Timakova accused Britain of ignoring that Interpol "is after him." Moscow also insists that it would continue to demand Mr. Borodin's extradition from Britain.

    Mr. Borodin counters (probably correctly) that, "Any political asylum seeker must submit the application together with... proof showing the political character of the persecution in his native country." "My lawyers submitted all necessary proof," added Mr. Borodin.*

    This case reminds me of one I worked on as a wee law clerk at the Arlington Immigration Court.*Alexander Konanykhin*was a Russian businessman in the roaring 90?s who made hundreds of millions of dollars. The Russian government eventually seized most of his assets and forced him to flee for his life. He made his way to the United States, but the Russians wanted him back and INS tried to deport him. After an epic trial in 1999, he received asylum. The asylum grant was overturned, but later (in 2007) re-instated, and Mr. Konanykhin is now a successful businessman in the United States. Although Mr. Konanykhin always seemed a bit shady to me, it was quite clear that the Russian government was up to no good. Mr. Konanykhin called the government a "Mafiocracy."*

    Between the UK and Russia, I will choose the UK, and-Gerard Depardieunotwithstanding-my bet is that there was ample evidence that Mr. Borodin faced persecution on account of his political activities. He would certainly not be the first Putin opponent to end up in jail (Mikhail Kho****ovsky) or dead (Anna Politkovskaya).

    Russia can complain about Britain (or the U.S.) granting asylum to its nationals. But so long as those countries follow international human rights law, and so long as the Russian government continues to persecute its opponents, Russians will be able to obtain asylum in the West. To (badly) paraphrase The Bard: The fault, dear Putin, lies not in the asylum process, but in yourself.

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

    Updated 07-16-2013 at 01:45 PM by JDzubow

  3. The Needs of the Many Do Not Outweigh the Needs of the Few or the One

    One of my clients was recently referred from the Asylum Office to Immigration Court due to his failure to file for asylum within one year of arrival in the United States. The client was not thrilled with the referral (as you can imagine) and with some other aspects of the interview, and so he filed a complaint with the Asylum Office. He did not tell me about the complaint until after he filed it. He said that he thought it would be better if I did not know, as it might jeopardize my other clients' cases or my relationship with the Asylum Office.

    In fact, there are times when advocating for one client might cause problems for future clients or relations with different government agencies. However, in immigration law, as in other areas of the law, the needs of the many do not outweigh the needs of the few or the one (i.e., the client).

    Lawyers of course must be zealous advocates for our clients. But what do we do when advocacy for one client might result in problems for future clients?


    If Mr. Spock had been an immigration lawyer, things would not have ended well for the Enterprise.



    Another way this question comes up at the Asylum Office is at the interviews themselves. I tend to take a less confrontational approach, as that is what works for me. A lawyer friend of mine takes the opposite approach. He is always complaining to supervisors and threatening to sue. I don't know which of us has a higher approval rate, but his method works for him. Nevertheless, you can imagine how a lawyer who is confrontational in one case might receive a less-than-warm reception when he appears before the officer in the next case. But does that mean he should tone it down in case A in order to benefit the client in case B?

    The question can also arise in Immigration Court. I once appealed an Immigration Judge's decision to the Board of Immigration Appeals and won. When I was before the IJ in an unrelated case, he called me to the bench and spoke to me about the appeal. He did not seem particularly pleased to have been reversed. It so happens that I have a lot of respect for this Judge, and I do not think the appeal impacted his view of me or my other cases. Nevertheless, when he mentioned the appeal to me that day, it raised those concerns in my mind.

    As to whether lawyers should hold back in one case in order to avoid possible harm in future cases, I think the answer is clearly "no." We are obligated to zealously advocate for each client without regard for how it might affect future case. Of course, "zealous advocacy" does not mean being disrespectful or behaving inappropriately. But zealous advocacy might involve making complaints. Or filing lawsuits.

    When I think about the question of the needs of the current client versus the needs of a future client, I think about Paul Farmer. He is the doctor, described in Tracy Kidder's Mountains Beyond Mountains, who has done tremendous work in Haiti (and elsewhere) helping care for the sick and establishing community health clinics. Dr. Farmer was often faced with patients whose treatment would be expensive and risky. Other health professionals felt that the (limited) money available to treat people might be better spent on helping more people who had a greater chance for a successful outcome. But Dr. Farmer seemed always to help the person in front of him, regardless of the cost. When he came to the next patient, he would gather the resources he needed and treat that person as well. From an ethical point of view, this comports with the idea that life is sacred, and that each human life is infinitely valuable.

    I think it is the same in asylum law. We have to do our best with the case before us, regardless of whether it might jeopardize relations with an Asylum Officer or a Judge. In my experience, though, when we make arguments respectfully, and when those arguments are legally supportable, the adjudicators do not hold such behavior against us. So while the needs of a future client do not outweigh the needs of the current client, we usually do not have to choose between the two.

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

    Updated 07-16-2013 at 01:46 PM by JDzubow

  4. Seeking Asylum from Friendly Countries

    A couple of recent articles got me thinking about how the U.S.
    handles asylum seekers coming from countries that we view as
    friends-Western-style democracies that generally respect human rights.

    The first is an article from the Jewish Daily Forward
    (featuring a quote from my esteemed law partner, Todd Pilcher) about
    asylum seekers from Israel. The article found that 18 Israeli nationals
    sought asylum in Fiscal Year 2011. The article found that*the asylees
    were a "strange and quirky mix:"

    One, an Arab citizen of Israel, is a gay
    man who convinced authorities he would face violence from his own family
    and tribe if forced to return to Israel. Lack of adequate action by
    Israeli police played a role in the approval of the request, his
    attorney said. Another is an Israeli woman who suffered domestic abuse.
    She also received asylum after making the case that Israeli authorities
    were not protecting her. Yet a third is the son of a founder of Hamas
    who, after spying on the terrorist-designated group for Israeli
    authorities, felt unsafe under Israeli protection and fled to the United
    States in fear for his life [I wrote about this case here].


    German citizens react to the news that one of their own has received asylum in the U.S.



    The second article
    is a follow-up on a homeschooler family that received asylum from
    Germany. *In that case, an Immigration Judge found that the family faced
    persecution in Germany after they refused for religious reasons to send
    their children to public school, as required by German law. The Board
    of Immigration Appeals reversed the IJ's decision last May, and the
    homeschoolers filed a petition for review and a brief with the Sixth Circuit. The case is currently pending.

    Other "Western" countries listed
    as source countries for asylum seekers in the U.S. include Argentina (9
    people granted asylum in FY 2011), Brazil (20 people), Germany (4),
    Latvia (6), New Zealand (5), Poland (6), and the United Kingdom (8).
    These numbers are pretty small given the total of 24,988 people granted asylum in FY 2011, but such cases raise some interesting questions.

    First, how do the source countries feel about a decision from the
    U.S. government that they are persecuting (or, at best, failing to
    protect from persecution) their own citizens? When asked by the
    Forward,*an Israeli diplomat said that the scarcity of asylum cases in
    the United States did not require the Israeli government to bring up the
    issue with Washington. The official added that the few cases in which
    Israelis were granted asylum in America represented "unusual
    circumstances" and did not reflect on Israel's democracy. I'd bet that
    like the Israelis, most Western democracies see these asylum cases as
    aberrations and aren't particularly bothered by them. One country that
    is annoyed by our State Department's practice of evaluating the human
    rights situation in other countries is China. In "retaliation" for our
    report, China issues its own report, which describes a litany of human rights abuses in the United States.

    A related issue is whether-if the number of asylum cases form a
    particular allied country increased-that country could raise the issue
    diplomatically in order to curtail asylum grants. Theoretically, asylum
    should be independent of politics, but the Forward article raises the
    example of Israeli conscientious objectors who received asylum in
    Canada. Apparently, "Canada has approved dozens of asylum requests from
    individuals claiming political persecution by Israel since 2000."
    According to the Forward, in 2006, the Israeli government protested
    Canada's asylum policies. And in the past two years the number of
    Israelis receiving asylum in Canada has declined. If this is correct,
    and the decline in asylum grants is related to the Israeli protest, it
    raises serious concerns about the integrity of the Canadian asylum
    system.

    Another question raised by these asylum cases is, how the heck do you
    get granted asylum from a country like New Zealand or the UK? My guess
    is that these cases involve very special circumstances, like victims of
    human trafficking who have not received adequate protection, or maybe
    sexual orientation cases where the person was subject to severe abuse.
    Another possibility is that the Immigration Judge and the DHS attorney
    agreed to grant asylum in order to address an otherwise inequitable
    situation. For example, I once had a case where my client was convicted
    of an aggravated felony. She had been here for many years, had a family
    with a special needs child, and it was obvious that the only reason for
    her conviction was the incompetence of her criminal lawyer (her crime
    was very minor). Although it was pretty clear that she did not
    qualify for withholding of removal, the IJ would have granted relief to
    resolve the situation. Unfortunately, the DHS attorney did not agree.
    Had the attorney agreed, the client would have received relief, even
    though she really did not qualify. Maybe something similar is happening
    in some of the asylum cases at issue here.

    Asylum cases from Western democracies are relatively rare. But there
    are enough such cases to help prove the adage, no country is safe for
    everyone all the time.

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

    Updated 07-16-2013 at 01:47 PM by JDzubow

  5. 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

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