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Jason Dzubow on Political Asylum


  1. Amicus Brief on Protecting Mentally Disabled Respondents

    Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

    Our view of the mentally ill continues to evlove, but we've still got a way to go.

    In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 
    "'The [incompetency] doctrine [where a defendant can not stand trial if he can't comprehend the charges against him, can't effectively consult with counsel, and can't assist in his defense] . . . has been characterized by the Supreme Court as 'fundamental to an adversary system of justice.'"  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person's rights and is the hallmark of a functioning justice system. 
    To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent's right to counsel, (2) the Immigration Judge's ("IJ") ability to terminate proceedings, (3) the IJ's power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 
    In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 
    U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 
    If this case is anything like the cases I've litigated in the BIA, we won't have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA.
  2. Wonderful State Department Publication on Refugees

    Since 1975, the United States has resettled almost 3 million refugees and asylum seekers, more than all other resettlement countries combined.  The most recent edition of the U.S. State Department's eJournalUSA is entitled, Refugees: Building New Lives in the USA.  It presents a number of moving stories about refugees and the Americans who assist them.  From the introduction:
    This eJournal USA chronicles lives of desperation and struggle but also offers examples of friendship and hope. In this issue:
    o a boy is separated from his family and spends his childhood trying to elude the carnage of the Second Sudanese Civil War;
    o a Cuban family of 10 faces persecution for their political beliefs in their home country;
    o a young girl flees war and takes an uncertain journey across the Pacific;
    o a man escapes ethnic violence in Rwanda and subsists on the street and in a refugee camp for 10 years.
    All these people left their homelands and came to the United States as refugees, and all were met by American sponsors who helped them build new lives in the U.S. Through interviews and first-person accounts, our journal tells the stories of refugees who are building new homes and lives in the United States -- and of those Americans who guide and help them.
    Diversity and plurality are among the United States' defining national characteristics. These national values inspire individual Americans to strengthen the country's social fabric by welcoming and helping integrate refugees into U.S. communities. The resettled refugees in turn enrich American culture as well as the nation's social, economic and legal framework.
    The stories and articles in these pages explain the U.S. government's commitment to help refugees and illustrate how that commitment is embodied by thousands of Americans who extend a hand to aid and befriend some of the nation's newest -- and bravest -- residents.
    Eric P. Schwartz, U.S. Assistant Secretary of State for Population, Refugees and Migration
    The articles in the State Department journal highlight America at its best and remind us that our country has been greatly enriched by the refugees we have helped.  I also learned that Gloria Estefan came to the U.S. as a refugee (p. 18) and that a church in my old neighborhood helped welcome Turkish refugees from Georgia and Uzbekistan (p. 21).
  3. Presidential Memo on Refugees, but What About IDPs?

    In a Presidential Memorandum issued last Friday, President Obama has authorized the admission of up to 80,000 refugees in Fiscal Year 2011, which is pretty similar to the admissions numbers for recent years.  "Refugees" are defined as people who are outside their country of origin and have a well-founded fear of return to their homeland.  Internally displaced persons (IDPs), who have been forced from their homes but are still within the borders of their own country, do not qualify as refugees, and-with some exceptions-cannot come to the U.S. as refugees.
    The distinction between refugees and IDPs has always struck me as somewhat arbitrary.  For example, it doesn't get much attention, but according to UNHCR, there are over 3 million IDPs in Colombia.  This is significantly more than the number of IDPs displaced from more well-known conflict areas like Darfur (2 million) and Iraq (2.6 million).  The refugee admissions numbers do almost nothing to assist IDPs. 
    My left foot is an IDP; my right foot is a refugee.
    The only exceptions actually written into the law are for IDPs from Iraq, the former Soviet Union, and (surprise, surprise) Cuba.  Also, U.S. embassies are authorized to designate certain IDPs as refugees, but only in "exceptional circumstances."  This means that-for example-Tutsis in Rwanda in 1994 would not qualify for admission to the U.S. as refugees by virtue of the fact that they are still in their home country.  Ditto for Jews in Germany during World War II.
    I'm not necessarily advocating increasing the number of refugees admitted into the U.S. every year (though I do think we can probably admit more than 80,000, which is less than 0.02% of the 42 million people displaced by conflict).  That should be a function of world-wide need and our ability to pay for and absorb the refugees.  It is determined by Congress and the President.  However, I do think we should consider including IDPs in the pool of potential refugees that will be admitted into our country.  If a person really can demonstrate a well-founded fear of persecution in his country, he should not be prevented from resettling in the U.S. merely because he has not managed to escape from his home country.  IDPs and refugees should be treated the same for purposes of resettlement. 
    Originally posted at the Asylumist,
  4. When Silence is Golden: Interpreters and Asylum

    This blog entry is by ace reporter Maria Raquel McFadden.  Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience.   She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings.  Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736;          

    Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied.  It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.
    Like many other professionals, interpreters must follow certain standards of practice while on the job.  Despite the fact that the number and order of cannons in the interpreters' "Code of Ethics" can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.  

    Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told  directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 
    Interpreters often have access to protected, restricted, private and/or sensitive information.  The oath taken by professional interpreters to adhere to  confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.  

    No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding. 

    From time to time, for educational purposes, interpreters do and should share language issues that arise.  However, it is important they never share any identifying information which can include the name of the  asylum seekers, the judge, officer, or representing attorney.

    Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional "interpreters" are used.  Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality. 
    When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.

  5. Cuban Exiles in Spain Coming to the U.S.

    In August, we reported that Spain and the Catholic Church had brokered a deal with the Cuban government to secure the release of dozens of Cuban political prisoners.  The Cubans were to be resettled in Spain.  The only problem: They wanted to come to the U.S., not Spain.  Now, it seems they will get their wish.
    The AP reports that the Cuban dissidents will be coming to the United States where they will receive asylum:
    The State Department is working to bring to the USA most of the 39 Cuban political prisoners exiled to Spain this summer... More than 100 family members would join them. [The] first case has been processed and nearly all are likely to accept the offer. [The] plan gets around a Catch-22 whereby Cubans who left the island were no longer considered in harm's way, and thus not eligible for traditional asylum requests in the U.S.
    Apparently, the Cubans preferred the United States because they had family and community ties here.  While I understand the desire to resettle in a country where you have connections, this is a deal that would likely not be available to asylum seekers from other countries.  Normally, once a person has asylum in one country, he is not eligible to receive asylum in the U.S.  This case reminds us that politics (here, our dislike of the Cuban government) can play a role in the asylum system. 
    I have a case similar to this, where the United Nations resettled my client as a refugee in a country where the client had no community ties or friends, no knowledge of the language or culture, and no prospects for a job.  The client came to the U.S. and is now seeking asylum here.  We'll see if the Immigration Court is as generous to my client as the State Department has been to these Cuban exiles.
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