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Jason Dzubow on Political Asylum


  1. OIL's Adverse Credibility Project

    The Department of Justice's Office of Immigration Litigation ("OIL")--the office that defends BIA decisions in the federal courts of appeals--recently released data on federal court decisions concerning credibility.  Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien's credibility to determine whether to grant asylum.  Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien's testimony.  The REAL ID Act of 2005 tightened these requirements.  Among other things, the REAL ID requires corroboration of an alien's testimony in certain circumstances.
    OIL's Adverse Credibility Project tracks appeals court decisions concerning credibility.  OIL describes the data used for the study:
    The data... reflects a tally of all decisions in which - regardless of the ultimate outcome of the petition for review - the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.
    The report found that the "adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board."  For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed.  This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed. 
    The overall numbers mask some diversity between the different circuit courts.  In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld.  The Sixth Circuit upheld 100% of EOIR's credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld).  The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%.  In the Eighth Circuit, 86% of credibility determinations were upheld.  According to OIL, the other circuit courts--the First, Seventh, and Tenth--heard no cases involving credibility determinations.  This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.
    The circuit courts with the most changes in "win" rates for OIL are the Second and the Ninth:
    Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.
    The bottom line, I suppose, is that it is difficult--and sometimes almost impossible--to reverse the agency's credibility determinations.  Hopefully, this is a reflection of the BIA's increased competence at adjudicating aliens' credibility, and not simply a result of stricter laws concerning federal court review.  I guess that is a possibility, but I have my doubts.
  2. The “Unobservable Factors” that Influence Asylum Decisions

    I recently came across an interesting article from the Journal of Refugee Studies, "A Rare Examination of Typically Unobservable Factors in US Asylum Decisions," which analyzes data from 81 asylum cases to determine the "unobservable factors" that influenced the decisions in those cases.  The authors had access to cases litigated by the Human Rights Initiative of North Texas ("HRI") between 1998 and 2005.  As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only.  Nevertheless, the study points to some interesting possibilities concerning how decisions are made. 
    The authors refer to prior studies, which correlate asylum grants with factors other than a "well-founded fear" of persecution, for example, "the judge's prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes."  Also-
    While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
    Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers' files, and could look at many factors-gender, marital status, education level, religion-that are not normally available.  Some of the findings are quite surprising, and are examined below: 
    The authors write: "we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women's credibility."  In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount.  Indeed, of all the factors studied (except possibly religion), gender was the most significant "unobservable factor" that determined the outcome in an asylum seeker's case. 
    The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants.  They found "applicants with a primary or middle school education had greater success than higher educated applicants."  However, they noted that "the sample size is small in the primary and middle categories" (although the results do seem to have some statistical significance).  They concluded, "Overall, there does not seem to be much variation in the grant rate due to educational attainment."  People who speak English, however, are statistically more likely to succeed in their cases. 
    In my own experience, I have always believed that more educated applicants are more likely to win asylum.  More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society.  I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.

    What are the odds that this single Christian female would qualify for asylum?
    The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions.  They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum.  In fact, the authors found that having a non-Judeo-Christian religion was the most influential "unobservable factor" in gaining asylum.  Their results in this regard were considered statistically significant.
    This is the one observation that seems to me flawed.  The authors' cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America.  People from these countries are very unlikely to gain asylum in the U.S.  Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world-regions where it is more likely that they will be granted asylum.  For example, many of my cllients are asylum seekers from Ethiopia and most are Christian.  They have a very high likelihood of success in their cases (usually based on political persecution).  Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
    Marital Status
    A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants.  However, the authors of the current study found that being married significantly decreases the odds of an asylum grant.  I've never noticed any difference in the grant rates for my married vs. single clients.  However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee's entire family will be "following to join" him in the United States.
    Some Thoughts
    As the authors point out, their sample size is small, and the results are only suggestive.  Nevertheless, it seems safe to say that "unobservable factors"-or at least factors that are not related to the legal requirements for asylum-do influence decisions in asylum cases.  I imagine the same is true in criminal cases and civil cases.  Not that this makes the situation any better, but the fact is, such "improper" influences are difficult to eliminate in any type of case.  More study is clearly needed.  If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.
  3. Update from EOIR at the AILA Conference

    As I mentioned in a previous post, I attended the American Immigration Lawyers Association annual conference last week.  One panel I went to included a talk by the Chief Immigration Judge of the United States, Brian M. O'Leary.  Judge O'Leary previously served as an IJ in Arlington, Virginia, and I tried a number of cases before him.  As much as I think he is doing a great job as Chief Judge, he is certainly missed by those of us who practice in Virginia.
    Judge O'Leary updated us on the news at EOIR.  We learned that there are 43 new IJs "in the pipeline" and they are expected to start work by the end of the year.  During the last round of hiring, over 1,700 people applied for 28 positions, and Judge O'Leary is confident that the new IJs will be very competent.  EOIR will be opening a new Immigration Court in Texas later this summer; this will be the 59th Immigration Court in the United States.  Hopefully all this will help alleviate the long waits that have become so common in almost all Immigration Courts.
    Speaking of long waits, Judge O'Leary noted that receipt of new cases was up 17% from 2007 to 2009, with an 11% rise in the last year alone.  This is because DHS is bringing more aliens into the system.  Completion rates are also up, but only by 4%, which is not keeping pace with the ever-growing case load.  Judge O'Leary also stated-and this was a surprise to me-that the detained docket has reached nearly 50% of all cases in Court.  He speculated that this may be because DHS has more beds available and they are making a greater effort to detain criminal aliens.  Apparently, DOJ/EOIR and DHS have been meeting to review the immigration process.  Hopefully, this will give EOIR a heads up about how many new cases are coming into the system (DHS brings new cases to EOIR when they file papers to remove an alien), which will allow EOIR to better anticipate its docket.
    We also heard that there will be a new Assistant Chief Immigration Judge ("ACIJ") whose portfolio will include only "vulnerable populations," such as juveniles and aliens with mental disabilities.  Such people have often had great difficulty in Immigration Court, and hopefully an ACIJ devoted completely to them will improve the situation.  Another ACIJ has a portfolio that includes training new (and old) IJs.
    In terms of improvements to the Court facilities, Judge O'Leary noted that most Courts now have digital-audio recording.  The only exceptions are Los Angeles and Hawaii, and those Courts should have the new system by August.  The digital-audio recording system records Court proceedings on a computer hard drive.  This is an improvement over the old system, which used cassette tapes.  The system is controlled by the IJ on the bench and cannot be used to listen to conversations going on when the IJ is not in the courtroom (I must admit that wasn't sure whether anyone could listen in when I was in the courtroom and I have been careful about what I say; despite Judge O'Leary's assurance, I guess I am too paranoid to change my ways).
    There have also been some personnel changes.  EOIR has been increasing the number of judicial law clerks.  Currently there are 65 JLCs.  In FY 2011, there will be 90.  In addition, the tenure for the clerks has been increased from one year to two years.  This latter development is very significant.  I served as a JLC back in the late 1990s.  I felt like I was reaching my stride after the first year, and I think I could have made a greater contribution to the Court if I had had a second year.  I think the IJs will notice a difference in the quality of their help during the JLC's second year.
    If you are interested in learning more about EOIR (from their point of view), visit their website.  For independent statistical information about EOIR, visit the TRAC website, which collects and publishes a wide range of data on the agency.
  4. Report from the AILA Conference

    So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference.  I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn't think I would get much out of it.  Turns out, I really enjoyed the conference-it is fun to meet and hear about people who are doing the same work as you and who speak the same "language," though invariably I spent most of the time hanging out with people I already knew.  Although the fee was pretty steep, I'm glad I went, and maybe I will go again next year if I am feeling flush.
    I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney.  The subject was the UN Convention Against Torture ("CAT").  More specifically, we talked about how the Torture Convention might apply to non-governmental actors.  My role was pretty easy-I presented some hypothetical examples for the audience and the panelists to discuss.  Since I am not so creative, my hypos were actual cases that I had litigated.  One "hypo" examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT.  In real life, I lost that case, though I managed to convince the IJ that FGM was torture.  At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006).  The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities.  That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.

    The audience responds to my analysis of the UN Convention Against Torture.
    Aside from that panel, there were a number of panels-and some informal meetings-relevant to the asylum practitioner.  Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a "particular social group."  I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass). 
    AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice.  Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference.  The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense.  One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner.  Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys.  There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.  
    Overall, it was a useful and energizing conference.  I hope to be back next year.
  5. Accused Russian Spy Was an Asylee

    Among the 10 people arrested and accused of "conspiring to act as unlawful agents of the Russian Federation within the United States" and "conspiracy to commit money laundering" are "Vicky Pelaez and the defendant known as 'Juan Lazaro,'" her husband, both residents of Yonkers, New York. 
    Ms. Pelaez is a journalist and a native Peruvian.  While working as a journalist in December 1984, members of the Tupac Amaru Revolutionary Movement kidnapped Ms. Pelaez and her cameraman.  She was released a day later after her TV station agreed to air a propaganda piece by the guerilla movement.  Before she was released, she apparently persuaded one of the group's leaders to let her interview him.  The interview later appeared in a left-leaning newspaper. 

    Only one man can stop the Commies and still look this good.
    After the kidnapping, Ms. Pelaez and her husband came to the United States where she applied for asylum.  Her case was granted, and she went on to become a U.S. citizen and a popular writer for a Spanish language newspaper in New York.  Apparently, Ms. Pelaez has been supportive of socialist governments in Latin America, including Cuba, Venezuela and Bolivia.  She has also opposed the U.S. wars in Iraq and Afghanistan and supported the rights of Indigenous peoples and undocumented immigrants in the United States.
    Ms. Pelaez's husband, "Juan Lazaro," admitted that the Russians paid for his home and that he passed letters to their intelligence service, but he has refused to reveal his true name, according to prosecutors.  It seems that Ms. Pelaez's attorney is disputing this account, and I have not verified it.
    All the defendants, including Ms. Pelaez's husband, are being held without bail, except Ms. Pelaez, who is expected to be released today, although she will be confined to home detention.  It seems that she is the only member of the group that did nto receive "spy training" from the Russians.  
    Ms. Pelaez's political views have led some to believe that this is a case of political persecution by the U.S. government.  Her criminal attorney describes a conversation he had with her:
    "When I first met Vicky I asked her: if you are innocent why the U.S. government would bring this charges against you." Vicky Pelaez believes that her criticism against the U.S. policies have converted her in a target for many people "that are very angry" at her political views.
    An interesting side issue is the status of her husband.  Whether he was granted asylum or came here as her derivative (or came here in some other way) is unclear.  If he received asylum himself or entered the U.S. as Ms. Pelaez's derivative, his entry into the U.S. represents a failure of the background security check: he entered using a false name and he was apparently not born in Uruguay, as he had claimed.  Of course, the husband came to the United States 25 years ago, and the security systems have (hopefully) improved since then. 
    As we learn more about this strange case, maybe the details of Ms. Pelaez and her husband's entry into our country will be revealed.  Time will tell if there are lessons to be learned.
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