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Jason Dzubow on Political Asylum


  1. Charles Taylor’s Son Attempts to Invalidate the Torture Convention in Order to Save Himself

    Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture ("CAT") as a defense to deportation.  If an alien does not qualify for asylum, he may qualify for relief under the CAT.  But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.

      Glamour shot of Chuckie Taylor
    On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father's bloody rule.  According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is- 
    a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government's political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people's bodies; and imprisoning people in water-filled holes covered by iron bars.
    For his crimes, which are detailed in the Eleventh Circuit's decision, "Chuckie" Emmanuel was sentenced to 97 years in prison.  The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:
    Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A ("the Torture Act"), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States's obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the "CAT"); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.
    So let's get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel-a man who tortured and murdered countless individuals-is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries.  Nice.  Fortunately, the Court soundly rejected his arguments:
    After thorough review, we conclude that all of Emmanuel's convictions are constitutional. The United States validly adopted the CAT pursuant to the President's Article II treaty-making authority, and it was well within Congress's power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that... the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper.... Accordingly, we affirm Emmanuel's convictions and sentence in all respects.
    Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.
  2. Moscow in the Hawkeye State

    The Iowa Press-Citizen reports on a Moscow couple who moved to Iowa, and applied for political asylum in the United States.  Irakliy Surguladze and Elena Boryuk came to Iowa with their children in 2007 to escape growing tension in Russia: she is Russian and he is Georgian.  Their two countries have had a history of problems, including the deportation of several hundred Georgians from Russia in 2006 and awar in 2008.
    Now, the couple is waiting for a hearing in their asylum case, which is scheduled for January 2011 in the Omaha, Nebraska Immigration Court--a court that opened its doors in October 2008 and hears cases from Nebraska and Iowa.
    According to an interview with the couple by the Press-Citizen:
    Life had been good for the growing family in Moscow, they said.  Both having earned advanced college degrees, Surguladze had been working as an engineer, while Boryuk had a good job with an Italian company.  He had obtained dual Russian-Georgian citizenship.  However, as tensions grew between their native countries, the family began looking for a way out, and in October 2006, they applied for political asylum at the United States Embassy in Moscow.
    They learned at the Embassy that they would have to travel to the U.S. to apply for asylum, so they obtained tourist visas and came to the United States.
    The Press-Citizen article does not make it clear, but apparently, the couple applied for asylum after they arrived, and their case was referred to an Immigration Judge (either that, or they were somehow placed in removal proceedings and filed a defensive asylum application). 
    One issue that the couple faces is that Mr. Surguladze has dual Russian-Georgian citizenship.  This means that he would need to prove that he cannot return to Russia or Georgia.  To get around this problem, perhaps Ms. Boryuk could serve as the lead respondent (it seems she has only Russian citizenship)--if she wins, her husband will receive asylum as her dependent.  Of course, this assumes that her case is as strong as her husband's.  
    Another problem they might face is proving that they cannot relocate within Russia (it's a big place).  If the IJ finds that they can live safely in some other part of Russia, they may be denied relief.  I once represented a Russian human rights worker from North Ossetia, a very troubled region.  We faced this same problem, but overcame it when we demonstrated that he could not obtain a propiska--a kind of residence permit--for any other part of Russia.
    It sounds like their case might be difficult, and I wish them good luck.
  3. What Not to Wear in Court

    From my friend, who has observed many court hearings, but prefers to remain anonymous:
    Imagine showing up to one of the most important meetings in your life, wearing a top cut so low that there is an eminent risk of "wardrobe malfunction" or maybe with pants hanging so low it's a miracle that you've not tripped as you entered the room.  
    While many people have learned much about courtroom etiquette from television, such as the notion to stand up when the judge enters the courtroom, an aspect that seems to be lacking is the need to dress appropriately.  As the weather becomes warmer and warmer, it seems to bring more and more examples into court of what not to wear as people's efforts to dress lightly clash with the more formal atmosphere in the court.
    Though there is no formal dress code when appearing before immigration court and immigration officers, asylum seekers and their witnesses should keep in mind that in order not to take away the focus from their own or another's testimony some of the following guidelines should be kept in mind:
    Hats, caps, bandanas or any head dress should not be worn unless they form part of one's religious attire.  Women should avoid wearing tube tops, tank tops, midriff, halter tops, short shorts or any other revealing clothing.  Clothing should not have obscene or profane language or illustrations, nor should one wear gang-related attire.  Clothing must cover all undergarments for both men and women.  It is also best to avoid wearing sports jerseys and brand promotional T-shirts.

    If you can wear it to a drag show, it's probably safe to say that you should not wear it in court.
    When it comes to shoes, one should avoid wearing flip flops (no matter how expensive they are) and no one should come to court in bare feet (You'd be surprised.)
    Avoid wearing heavy perfumes, as someone might be allergic, and the hearing or interview you have been waiting for so long might have to be postponed when that person becomes ill.
    It is a good idea to also remember that during summer, most buildings have central air and can be very cold, if not downright freezing.  Hearings, interviews, and even the wait for either can be very lengthy.  Carrying a sweater or jacket is a wise move, as this item can be removed if the court/interview room is warm.
    One of the best ways to think about what you should wear is to ask yourself: Is this something I would wear to my church, mosque, synagogue, temple or other place of worship.  If you can wear it there, chances are you can wear it to court.  And while fashion consultant might not be part of an attorney's formal job description, it would be good for the client to be reminded that dressing neatly and properly for court is an important part of the courtroom etiquette.
    Dressing properly for court is a way to show one's respect to the court and the proceedings; this same courtesy should be extended to USCIS officers.  After all, in the end, it is you who benefits.
  4. Guantanamo Detainee Deported to Algeria Fears Persecution

    According to Al Jazeera: "A prisoner who chose to remain in Guantanamo Bay rather than face possible persecution in Algeria has been forcibly repatriated by the US government....  The US military announced on Monday that Abdul Aziz Naji, 35, had been sent back to Algeria after eight years behind bars, the first involuntary transfer from the prison under the Obama administration."
    Apparently, Mr. Naji fled from Algeria, where he feared persecution from the government and from terrorist groups.  He was arrested in Pakistan in 2002, but he was never charged with or convicted of a crime.  In May 2009, a review team tasked with deciding the fate of prisoners held in Guantanamo cleared Mr. Naji for release.
    "The Obama administration recognizes how essential it is to close Guantanamo by releasing detainees it has cleared," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch.  "But a detainee who fears being returned home should first have a genuine opportunity to demonstrate the danger he faces."
    Other Algerian detainees have "expressed fear at being forcibly returned to Algeria; one said he would rather spend the rest of his life in US custody than return to Algeria."  After Mr. Naji's removal, five other Algerians remain detained at Guantanamo Bay.
    Mr. Naji had sought to bring his claim of feared persecution before a court, and a federal judge stopped his deportation.  However, the U.S. Court of Appeals for the DC Circuit overruled the lower court decision earlier this month.  The U.S. Supreme Court refused to stay his transfer pending further appeal.
    According to HRW, the United States claims detainees can be returned to Algeria safely:
    US officials say that the country's human rights record has improved significantly over the past decade, and... they have asserted that the Algerian government has provided so-called "diplomatic assurances" - promises to treat returned detainees humanely.  Human Rights Watch's research has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment.  Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links.
    Algerian detainees previously returned to Algeria have not reported serious abuse.  However, some of the remaining detainees, though never accused of any crime, might be perceived by the Algerian government as more dangerous than those who previously returned.  Therefore, HRW argues, each case must be examined individually.
    In Mr. Naji's case, it seems he originally left Algeria to escape persecution by the government and armed groups.  Now, he may face persecution on account of these original threats, as well as because the Algerian government perceives him as a terrorist (based on his detention at Guantanamo).  It seems outrageous that his applications for asylum or relief under the UN Convention Against Torture have not even been heard.  I recently represented an Algerian man in an asylum case.  Asylum was granted in that case based on my client's fear of persecution from armed militants.  At the minimum, a U.S. court should have reviewed Mr. Naji's claim before he was returned.
  5. Great Britain Rules to Protect Gay Asylum Seekers

    From theNew York Times:
    The British Supreme Court on Wednesday upheld the right of gay asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men -- a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered -- who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live "reasonably tolerable" lives in their home countries if they concealed their sexuality. The Supreme Court said that "to compel a homosexual person to pretend" that his sexuality does not exist amounted to denying "his fundamental right to be who he is."
    The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.
    According to the Guardian, "Stonewall, the lesbian, gay and bisexual charity, said there were 80 UN member countries where consensual homosexual sex was still illegal, including six that imposed the death penalty."  Anti-immigration groups feared that the ruling "could apply to millions of people around the world."  However, (the aptly named) Lord Hope, one of the judges on the panel, stated that the ruling was necessary since anti-gay sentiment had dramatically worsened in some places, fanned by "the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of sub-Saharan Africa" and "the ultra-conservative interpretation of Islamic law that prevails in Iran."
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