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Jason Dzubow on Political Asylum

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  1. 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.
  2. 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

  3. 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

  4. 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

  5. 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

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