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Jason Dzubow on Political Asylum

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  1. Pre-election Leak Led to Aunt Zeituni's Asylum Grant

    In May 2010, an Immigration Judge in Boston granted asylum to President Obama's aunt, Zeituni Onyango.  The decision sparked protests from some who claimed (without evidence) that the President used his influence to help his relative.
    Now, the Boston Globe reports that the IJ's decision has been released in response to a Freedom of Information Act Request.  The 29-page decision is largely redacted, but the IJ's reasoning seems clear.  On November 1, 2008, shortly before the presidential election, the Associated Press reported that Barack Obama's Kenyan aunt was living in the U.S. illegally.  Regarding the source of this information, the AP wrote:
    Information about the deportation case was disclosed and confirmed by two separate sources, one of them a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release.
    Based on this statement, the IJ found that "an official of the United States government disclosed the Respondent's status as an asylum applicant... to the public at large."  The IJ found that this disclosure--which clearly violated federal regulations--was a "reckless and illegal violation of her right to privacy which has exposed her to great risk."  He further found that this exposure distinguished the aunt from President Obama's other relatives living safely in Kenya because her asylum case was revealed in a "highly politicized manner."  (According to a recent AP article, DHS is investigating the leak.)
    Given the country conditions in Kenya, the IJ found that Ms. Zeituni would be a target and that she had "at least a 10% chance of future persecution."  The IJ granted asylum, but declined to rule on her applications for withholding of removal or relief under the UN Convention Against Torture.
  2. Refugee Success Stories

    The largest group of asylum seekers in the Washington, DC area-and the majority of my asylum cases-are from Ethiopia, so a recent story in the Washington Post caught my attention (ok, it actually caught my wife's attention and she emailed it to me, so she gets credit for this one).  Henok Tesfaye is an Ethiopian immigrant who started his own very-successful parking business, U Street Parking.  In some ways, Mr. Henok's story is typical of Ethiopian immigrants and asylees that I see my daily work.  Also, his story points to some universal lessons in refugee (and immigrant) resettlement and integration.
    Mr. Henok's story is typical because he came here at a young age with little money and few contacts, but with a strong desire to achieve success.  Many of the refugees I have met (and represented) have suffered severe traumas.  Nonetheless, they are optimistic people.  They have left the past behind and have come to the United States to build their future.  They come here with the same attitude as their predecessors, be they Puritans in search of religious liberty, Russian Jews fleeing the Cossacks, or Vietnamese boat people escaping a Communist regime.  Of course they sometimes carry with them baggage from the old country-traditions that don't always square with American values can be a problem-and they usually don't speak fluent English.  But the refugees I have known generally contributed greatly to our community.  It is impressive that such people, who arrive here with so little, are able to accomplish so much. 

    Immigrants like the Shmenge brothers have come to American with "a burning desire to be someone."
    Mr. Henok's story also points to some of the challenges faced by refugees (and immigrants) in the United States.  He was struggling until he finally obtained a loan from the Ethiopian Community Development Counsel, an organization that assists new Ethiopian arrivals in the Washington, DC area:
    ECDC serves as a welcoming presence as well as a bridge for dialogue and education. Through our programs, ECDC seeks to empower African newcomers; giving hope for their future and helping them quickly become self-sufficient, productive members of their communities in their new homeland.
    Groups like ECDC make it possible for refugees and immigrants to adjust more quickly to the United States.  Not all refugees have community-based groups they can turn to, but there are resources available, such as the Catholic Legal Immigration Network and the Hebrew Immigration Aid Society.
    Our country has a generous policy towards refugees and asylum seekers.  We should be proud that we help people fleeing persecution.  At the same time, however, we should remember that the refugees and immigrants who come here have helped enrich our nation.  Mr. Henok reminds us that this is true.
  3. EOIR Makes Court Information Line More Secure and More Annoying

    From an EOIR press release issued earlier today:
    The Executive Office for Immigration Review (EOIR) announced today the launch of a new, upgraded automated case information system, which is designed to assist respondents and their representatives and families in learning the current status of their proceedings. The toll-free number, 1-800-898-7180, has not changed, but a new local number, 240-314-1500, is in service. The system becomes effective August 23, 2010, and callers will need to be prepared to enter both the alien registration number and the date of the respondent's charging document.
    This development-at least on the immigration lawyer list serve I read-has been universally panned.  The problem is, aliens and their representatives often do not have the date of the charging document.  And if you do not have the charging document, it is not easy to get one.  You can file a FOIA request, which takes months (I think the "F" in FOIA stands for "Forever").  You can call up DHS counsel, but they are often not very responsive.  You can go to the Immigration Court to look at the file, which is too time-consuming for most advocates, especially those who work for not profit organizations.  Also, sometimes there is more than one charging document, and they might have different dates.

    "I said I don't have the dang charging document!"
    I suppose EOIR's intention-to make the court information more secure-is laudable (though I have never heard of anyone having a problem with the current level of security).  But by requiring information that may not be available to the alien, the agency is creating a situation where it will be more difficult for aliens and their attorneys to know their court dates.  This could cause aliens to miss their court dates, which would result in a removal order.  In short, it is another bureaucratic barrier thrown in front of the alien. 
    There are alternatives.  My favorite alternative is to leave the system alone.  As I mentioned, I have not heard about problems with the current system.  Another alternative is to remove the alien's name from the computer system (the current system spells the alien's name after you type in his A-number).  This would provide some level of security.  A third possibility would be to require some other information that the alien would know, like her birth date or her country of origin. 
    At this time, it is unclear whether EOIR vetted the new system with AILA or other advocacy groups.  Perhaps a short pause to consider alternatives and have a conversation with immigration attorneys would be in order.
  4. Mexican Woman Receives Asylum on Account of Domestic Violence

    The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman-referred to as L.R.-who was the victim of severe domestic violence.  Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death.  In April 2009, the Department of Homeland Security filed a brief that paved the way for last week's decision.  That brief, which represented a reversal of DHS's position during the Bush administration, concluded that "it is possible" that the Mexican woman "and other applicants who have experienced domestic violence could qualify for asylum."  According to the brief:
    DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship....  A group defined in light of this evidence might be articulated as "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship."  DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group...
    DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her.  These factors will be determinative in most domestic violence asylum cases.
    In L.R.'s case, experts testified that the police and government officials could not and would not protect her because of "the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts."  L.R. herself testified that she went to the authorities for help, and one "judge had offered to help her if she would have sex with him."  Thus, there was compelling evidence that the government would not protect her.  There was also compelling evidence and expert testimony that she could not relocate within Mexico.
    The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant.  It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case.  However, L.R.'s case has established a framework for asylum based on domestic violence.  Now, at least, such women have a chance to gain protection in the United States.
  5. Second Circuit Denies Chinese Asylum Cases En Masse

    The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:
    Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA's decision denying each application.
    The Court's Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?
    First, some background.  In response to the "one family, one child" population control measures in China, Congress passed a law modifying the definition of "refugee" to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child--which is not allowed under Chinese law--they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 




    Sometimes one is enough.
    Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA's ruling unless it concluded that "no reasonable fact-finder could have failed to find in favor of petitioner."
    Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.
    Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court's decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant's claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.
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