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Jason Dzubow on Political Asylum

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  1. Venezuelan Accused of Embassy Bombings Seeks Asylum

    A Venezuelan man accused in the 2003 bombing of Spanish and Colombian diplomatic missions in Venezuela has fled his country and is seeking asylum in the United States.  The Miami Herald reports that Raul Diaz escaped from prison while on a daytime furlough.  He traveled by boat to Trinidad and then flew to Miami. 
     Mr. Diaz denies involvement in the embassy bombings, which injured four people.   He claims that there were irregularities in his criminal proceedings and that he was detained in inhumane conditions.



    Memorial to Victims of Cuban Flight 455
    Since arriving in the U.S., Mr. Diaz has garnered support from the Venezuela Awareness Foundation, a human rights organization that opposes the Hugo Chavez regime.  He has also met with U.S. representative Ileana Ros-Lehtinen, who is supporting his bid for asylum and who issued a press release stating that Diaz's case was an example of the human rights violations carried out by Chavez.
    While there is good reason to oppose Hugo Chavez and his dictatorial tendencies, it seems premature to embrace Mr. Diaz as deserving asylum in our country.  He has been accused of a serious crime-planting bombs that injured four people, including the wife and young daughter of a security guard.  This reminds me of the bombing of Cuban flight 455 in 1976, a terrorist attack that killed 73 people.  At least two of the men responsible for the attack are now living freely in the U.S., supported by various politicians, including Rep. Ros-Lehtinen, who is originally from Cuba and who is strongly opposed to the Castro government.  I guess I do not understand the logic of supporting terrorists who kill innocent people, just because we oppose the governments of the countries they attack. 
    Perhaps Mr. Diaz is innocent, as he claims, but perhaps not.  An Asylum Officer or an Immigration Judge needs to scrutinize the case to determine whether he is eligible for asylum or whether he is barred as a terrorist.
  2. Gay Saudi Diplomat Fears Return to His Country

    Ali Ahmad Asseri, the first secretary of the Saudi consulate in Los Angeles, has applied for political asylum in the United States, claiming that Saudi officials have terminated his job after discovering that he was gay and was close friends with an Israeli Jewish woman.  MSNBC reports that on a Saudi website, Mr. Asseri recently criticized his country's "backwardness" and the role of "militant imams" in Saudi society.  He also threatened to expose what he describes as politically embarrassing information about members of the Saudi royal family living in luxury in the U.S.  Mr. Asseri states that he could face persecution or death in his home country.


    I suppose this represents some sort of progress.
    According to MSNBC, the last time a Saudi diplomat applied for asylum in the U.S. was in 1994 when the first secretary for the Saudi mission to the United Nations was granted asylum after publicly criticizing his country's human rights record and alleged support for terrorism.
    If Mr. Asseri can demonstrate he is gay, he should have a good chance to win his asylum case: homosexuals have been defined as a particular social group and country conditions in Saudi Arabia are dangerous for gays and lesbians-according to the State Department report on Saudi Arabia, sexual activity between two persons of the same gender is punishable by death or flogging.
    According to MSNBC, Mr. Asseri was interview by DHS on August 30, 2010.  He should expect a decision in the near future. 
    What is curious to me about the case is why Mr. Asseri felt the need to publicize his criticisms of Saudi Arabia on the internet.  His complaint about "militant imams" might be understandable given his circumstances, but it certainly would not improve his situation were he to return home.  I know nothing about Mr. Asseri, but I've seen other aliens engage in activities in the U.S. that are possibly designed to bolster their asylum claims-for example, attending political rallies against their government or posting anti-government messages on the internet. 
    Such activities present a challenge for the decision maker.  On the one hand, the activities may be legitimate political activities.  On the other hand, they could be designed merely to engineer a stronger case.  Either way, the activities make it more dangerous for the alien to return home.  In Mr. Asseri's case, his internet postings do not seem to be the primary basis for his asylum claim and may simply be a manifestation of his anger over his treatment.  In any case, if he can demonstrate his sexual orientation and that he was fired from the Saudi embassy, that would likely be enough for a grant of asylum.
  3. Sex for Asylum

    Two female asylum seekers who were offered asylum in exchange for sex can sue the federal government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), ruled the U.S. Court of Appeals for the Ninth Circuit. See Xue v. Powell, No. 08-56421 (9th Cir. Sept. 2, 2010).  The two women are Chinese nationals who filed affirmative asylum claims and appeared for interviews at the Asylum Office in Los Angeles.  Asylum Officer Thomas A. Powell, Jr. interviewed each woman and requested sexual favors and money in exchange for granting their asylum applications.  Mr. Powell was convicted in 2004 and sentenced to three years and nine months imprisonment.  He died shortly thereafter.


    If this is your Asylum Officer, ask for a supervisor, baby!
    In 2001, the two asylum seekers sued Mr. Powell, his supervisor, and the U.S. government.  The District Court dismissed the claims against the U.S. government under the FTCA.  Under the FTCA, the United States is only liable "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [California]." See 28 U.S.C. § 1346(b)(1).  In a split decision, the Ninth Circuit reversed in part, holding that, under California law, the plaintiffs could state a claim for infliction of emotional distress and interference with the civil rights of the plaintiffs.  The case will now be remanded to the District Court for trial.
    Meanwhile, one of the asylum seekers received asylum based on her fear of persecution as a Christian.  The other asylum seeker's case was denied; she claimed a fear of persecution on account of China's one child policy.  According to the San Francisco Chronicle, she faces deportation after the resolution of her lawsuit.
  4. It's Getting Easier to Win Asylum

    A recent report from TRAC Immigration reveals that the nation-wide asylum denial rate in Immigration Court has reached a 25-year low.  That means that a higher percentage of asylum seekers are receiving asylum than ever before.
    The statistics show that in Fiscal Year 1986, 89% of asylum applications in Immigration Court were denied.  For the first nine months of the current fiscal year, only 50% of asylum cases in court were denied. 
    The most obvious explanation for the higher grant rate is that a larger proportion of asylum seekers are now represented by attorneys--for FY 2010, 91% of asylum seekers were represented by attorneys; in 1986, only 52% of asylum seekers were represented. 
    For those not represented by counsel, the difference in grant rate is stark: For FY 2010, only 11% of unrepresented asylum seekers received asylum in immigration court.  While this demonstrates the importance of legal representation, I suspect it also reflects the fact that aliens with weak claims often cannot find pro bono representation (law firms won't take cases that are not meritorious).  Thus, this statistic may not be quite as bad as it seems.
    Another reason for the improved grant rate may be that aliens are applying for asylum less frequently than in the past.  Since FY 2003, when Immigration Judges decided 35,782 asylum cases, the number of asylum cases has dropped to a projected 19,937 for FY 2010.  Perhaps aliens have become more savvy about what constitutes a bona fide claim, and they are more selective in making their applications for asylum. 
    Finally, the TRAC report shows that the asylum grant rates for individual IJs continues to vary widely, though there seems to have been a slight improvement.  I have always felt that more guidance from the BIA--in terms of more published decisions--would help to reduce these disparities.  
    The best news from the TRAC report is that most asylum seekers are now represented by legal counsel.  Hopefully, this means that their claims are being presented properly and that few aliens with meritorious claims are being denied.
  5. Full Disclosure: What Your Lawyer Doesn’t Know Can Hurt You

    My friend, who is a keen observer of the Immigration Court and USCIS (and who wishes to remain anonymous), has noticed that clients often hide or forget information that effects their cases:
    There are surprises in life we all wish we could avoid. Finding a hair in your meal at your favorite restaurant comes to mind, but for lawyers there is an even worse scenario: Showing up to court (or an immigration interview) only to find out that YOU (the client) have failed to tell the lawyer the most important information about your case. Imagine being "surprised" by the government's trial attorney or an immigration officer with (for example) the revelation that his/her clients has an aggravated felony conviction and is not eligible for the relief sought.



    Tell your lawyer everything and you will increase your chances of success.
    Though the above example above might seem extreme, it never ceases to amaze me the information that clients seem to "forget" to share with their lawyer: from the fact that they are awaiting trial for two or three misdemeanors (which occurred within three months of the client's immigration hearing) to changes in domicile that can cause the case to change venue (move to
    another location) at the last minute.
    The failure to share crucial information with your lawyer is akin to not telling your doctor you have clotting problems as he prepares to do surgery on you. Imagine the complications that would arise in the operating room!
    Not having all the facts of the case could be worse than being lied to, (which most seasoned professionals can spot a mile away) since it makes the lawyer look unprepared and negates all the work and effort he/she might have put into the case! As the saying goes, "Forewarned is forearmed": If a lawyer knows what the issues are, he/she can prepare accordingly and present the best possible case.
    Perhaps what's even more shocking is the fact that clients often "forget" to mention facts that can help their attorney build a stronger case and present a more convincing argument. There are even times when information not shared might have opened the door to more options when it comes to relief before the court or CIS. When presented too late, this information is of no help to the applicant.
    Some information you should always share with your attorney (but that routinely seems to be overlooked) is:
    - Arrest: No matter when or where they took place. Whether you live on the East or West Coast. Arrest that happened ANYWHERE in or outside the country do count!!! DUI and DWI should always be mentioned! Even if you were not convicted and someone told you the case would be purged.
    - Convictions: Once again, no matter when or where these happened. All of the above information regarding arrests applies here.
    - Stays in a third country (a country that is not your home country and that is not the United States) no matter what the length.
    - Previous applications that you might have filed before USCIS (including INS), the Asylum Office or the Immigration Court.
    - Witnesses: The availability or absence of witnesses might be crucial to a case.
    - Medical Conditions: Whether they are yours, a family member's or a witness's.
    - The number of ALL people living in your house and their relationship to you.
    - The immigration status of all your relatives living in the United States. If you have relatives who previously lived here and left, you should tell your attorney about them as well.
    In short, the more you tell your lawyer, the more he/she can help you with your case. Finally, remember that everything you tell your attorney is confidential--the attorney is not allowed to reveal this information to anyone.  By giving your attorney all the information, you increase your chance for a successful outcome in your case.
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