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Jason Dzubow on Political Asylum


  1. Asylum for Nazis?

    The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway.  Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country's law on gun ownership and having possible links to organized crime.  Mr. Datsik's asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.
    In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years.  In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing "race-hate" by the Leeds Crown Court in England.  After receiving bail, the two men fled the UK for Los Angeles.  On arrival at LAX, immigration officials took the two men--now dubbed the "heretical two"-- into custody.  The men filed for political asylum in the United States. 

    The Heretical Two
    The heretical two believe that their government is unjustly curtailing their right to freedom of speech.  Indeed, many European governments--in particular Germany--have made neo-Nazi activities and Holocaust denial illegal.
    Claims for asylum by European neo-Nazis raise some interesting questions.  For one, can a person receive asylum in the United States for hate speech that is illegal in his home country?  Such speech would be legal in the United States, but can be punished by jail time in Europe.  Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted "on account of" political opinion.  Whether or not the government action against the individual rises to the level of "persecution" might be a more difficult case to make.  But recently, an Immigration Judge granted asylum to some German home schoolers who faced "persecution" because they refused to send their children to public school (the DHS appeal of this decision is currently pending).  If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well. 
    Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum.  Our asylum laws, to some extent, reflect our values.  We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary--even crucial--by the Chinese government.  Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant.  Do we think that people arrested for political statements should be granted asylum?  Does the imprisonment of such people rise to the level of persecution? 
    If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum.  Whether they qualify as a matter of discretion is another matter.
    As for the heretical two, their applications for asylum were denied and they declined to appeal.  After removal to England, they were each convicted of crimes related to racial hatred.  Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months. 
  2. The Silence Between the Notes Makes the Music

    I was never quite sure what that meant, but it somehow seems appropriate to preparing asylum cases.  There is a temptation when preparing a case to include everything the applicant brings you: school and work records, letters from witnesses, police documents, medical documents, news articles.  But sometimes in asylum, less is more, and the more asylum cases I do, the more I feel comfortable leaving things out. 

    Zen and the art of asylum application.
    For one thing, I've seen too many cases where the client included a piece of unnecessary evidence, only to have that piece of evidence create problems.  For example, I worked on an Ethiopian asylum case that was well supported with letters and other evidence.  The client also included a hospital receipt showing that she was treated for stomach illness shortly after her release from prison.  The document supported her assertion that she was sick while in prison, but we had other evidence for that, including letters from people who saw her after she was released.  DHS investigated the document and found that it was fraudulent.  Ultimately, the client was granted asylum, but not without a whole lot of difficulty and expense that could have been avoided if we left out the hospital receipt. 
    The hard part, of course, is how to know what to leave out.  Generally, if I have a document that solidly supports one aspect of the applicant's claim, I feel comfortable leaving out other documents that do the same thing.  For example, I am representing an Afghan asylum seeker who worked with a well known NATO General in Afghanistan.  We have photos of the two men together, a letter from the General, and letters from other people attesting to the relationship.  If my client's claim is that the Taliban threatened to harm him because he was seen together with the NATO General, then it would be helpful to prove that my client and the General were actually together (I do not need to prove the substance of their meeting, only that they were together).  The photos alone are enough to prove that the two men met; the remaining evidence is extraneous and has the potential to create problems-maybe a letter is incorrectly dated or the government will suspect that the General's letter is fraudulent and send it for a time-consuming investigation.  In this scenario, when I submit the additional evidence, I gain nothing for my client and we potentially create problems.  So why submit this additional evidence?
    The REAL ID Act requires an asylum applicant to submit supporting evidence or explain the absence of that evidence, so I am not advocating not submitting pertinent evidence.  I merely suggest that an asylum applicant does not need to submit redundant evidence once he has submitted sufficient evidence to prove an aspect of his story.  Submitting the additional evidence may "bulk up" the asylum application, but it also creates the risk of an inconsistency-and inconsistencies can pop up where you'd least expect them.
    I think this principle holds true for general country condition information as well.  I've worked on several appeals where the underlying case was litigated by someone who submitted copious evidence of country conditions.  Why?  If the New York Times has an article about a particular political rally, you don't need an additional article from the BBC to prove that the rally occurred.  The second (or fifth) article is completely redundant and so it adds nothing to the case.  However, it does serve to burden the fact-finder.  And worse, it creates the risk of an inconsistency.
    I guess the lesson for today is: Prove your case, but not too much.
  3. "One Central Reason" and Withholding of Removal

    In a decision issued last week, the Board of Immigration Appeals held that the "one central reason" standard for asylum also applied to withholding of removal pursuant to INA § 241(b)(3). See Matter of C-T-L-, 25 I&N Dec. 341 (BIA Sept. 14, 2010).
    Under the REAL ID Act, an alien is eligible for asylum only if "one central reason" for the feared persecution is race, religion, nationality, particular social group or political opinion. See INA § 208(b)(i)(B)(I).  Now the BIA has held that the same standard applies to claims for withholding of removal under INA § 241(b)(3).  The Board reasoned that "all indications are that Congress intended to apply the 'one central reason' standard uniformly to both asylum and withholding claims:"
    Applying this standard to withholding claims has two distinct practical advantages. The first is that it will avoid the application of the different standards adopted by the courts of appeals in "mixed motive" cases....  The second is that the burden of proof standard would be consistent between asylum and withholding of removal claims.

    What motivates a persecutor?
    The BIA found that "Applying a different standard in 'mixed-motive' cases to asylum and withholding of removal would create inherent difficulties because it would require a bifurcated analysis on a single subissue in the overall case."  "An application for asylum necessarily includes the similar but lesser form of relief of withholding of removal....  applying the same standard promotes consistency and predictability, which are important principles in immigration law."
    The Board concluded:
    Considering the language and design of the statute, congressional intent to create a uniform standard, and the inherent difficulties in applying different burden of proof standards on the subissue of the persecutor's motive, we conclude that an applicant for withholding of removal must demonstrate that race, religion, nationality, membership in a particular social group, or political opinion was or will be "at least one central reason" for the claimed persecution.
    With that, the Board dismissed the alien's appeal.
    While consistency is a laudable goal, the fact remains that in the REAL ID Act, Congress amended the standard for asylum and not the standard for withholding of removal.  I imagine that we have not heard the last of this issue.  A petition for review to the Ninth Circuit seems likely, and we will see how that court interprets the statute.
  4. The Center for Immigration Studies Latest Comments on Asylum

    David North recently posted a blog entry, the Uses and Abuses of the Asylum System, on the Center for Immigration Studies website.  Normally, I disagree (sometimes vehemently) with postings on the CIS website.  But this time, I'm pretty much in agreement with Mr. North.
    In his posting, Mr. North describes the refugee system and the asylum system.  Apparently, he previously prepared a comparison between refugees and asylees, examining the use of public benefits by each group (he references his study, but I did not notice a link to it).  He found that asylees generally use less pubic benefits than refugees.  He posits that asylum seekers tend to be wealthier and better educated than refugees--asylum seekers make (and pay for) their own way to the United States; refugees are selected overseas from people in camps or otherwise outside their countries. 
    His assessment certainly comports with my experience.  My clients these days are asylum seekers; many of them are educated people who are reasonably well off.  In the early 1990's, I worked in refugee resettlement.  My clients then were a mixed bag--Jewish refugees from the former Soviet Union tended to be well educated, but poor.  Amerasians and other refugees from Indochina were generally less well educated, and many were indigent.   
    Mr. North also notes that asylum seekers from some countries have filed meritless cases in an effort to delay their removal from the United States.  I agree that this is a problem, though it is not really anything new.  Indeed, the asylum system was reformed in 1996 to reduce the incentive to file meritless claims.  Before 1996, asylum seekers received a work permit shortly after they filed for asylum.  Now, they must wait 150 days before they can apply for a work permit.  Of course, some people still file meritless claims in order to delay their removal.  Unfortunately, Mr. North does not suggest what could be done about this.  If we offer asylum to people with a genuine fear of persecution, it is difficult to prevent others from taking advantage of our generosity. 
    I do have one minor quibble with Mr. North's posting.  He notes that during FY 2008-2010, asylum seekers from Iraq were the group most likely to receive political asylum in Immigration Court (only 13% of Iraqi cases were denied).  He writes:
    The sad irony is that the U.S. government, after spending billions of dollars and thousands of lives to make life better in Iraq, has done so little good there, in the eyes of its own Immigration Judges, that when it comes to arguing that one is persecuted in one's own country, those from Iraq are the ones most likely to win.
    I don't know if this is exactly correct.  By the time a case reaches the decision stage in court, it is usually at least one year old, and often two or three years old.  This means that any past persecution occurred probably two to five years earlier.  During that time, conditions were much worse in Iraq.  Mr. North may be correct--maybe IJs think we have not done much good in Iraq--but it is just as likely that the cases before them originated at a time when conditions in Iraq were less secure.  My guess is, we will see the grant rate for Iraqi cases dropping over the next few years (unless of course the country falls apart again). 
    In any case, it is nice to agree with the Center for Immigration Studies for a change.
  5. 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.
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