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Jason Dzubow on Political Asylum


  1. 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.
  2. 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.
  3. 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."
  4. Ninth Circuit Rules that Guatemalan Women May Be a Particular Social Group

    Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to "determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution 'on account of' her membership in such a group." See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010). 
    In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala.  Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity.  The IJ denied the application because she found that young women in Guatemala were not a cognizable social group.  The BIA affirmed, finding that a social group consisting of "all women in Guatemala" is over-broad and "a mere demographic division of the population rather than a particular social group."  Ms. Perdomo entered the U.S. in 1991 when she was 15.  In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.

    Guatemalan women celebrate their new social group.
    The Ninth Circuit noted, "Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA."  The Court further noted, "Our case law examining asylum claims based on membership in a particular social group continues to evolve."  The Court had previously defined "particular social group:"
    A "particular social group" is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.
    The Court had also previously concluded that "females, or young girls of a particular clan, met our definition of a particular social group." See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005).  In Mohammed, the Ninth Circuit recognized that gender is an "innate characteristic" that is "fundamental to one's identity." Id.  The Court found that the social group "Guatemalan women" was not necessarily overbroad: "To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group."  Further, the Court "rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum."  Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether "Guatemalan women" constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution "on account of" her membership in such a group.
    Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States' court system, which has grappled with determining gender-based claims for asylum.
    This is not the end of the matter for Ms. Perdomo.  The case will be remanded for further consideration.  She will still need to prove that Guatemalan women are a social group and that her feared persecution is "on account of" her gender.  It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States.  Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.
  5. More from EOIR

    I recently wrote about Chief Immigration Judge O'Leay's comments at the AILA Conference.  Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA. 
    Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month.  This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents-detained respondents are less likely to appeal.  Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days.  The average time for a detained case at the Board is 95 to 100 days. 
    Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication.  I strongly second that opinion.  The Emergency Stay sections deals with respondents who are in imminent danger of being deported.  I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney's ineffective assistance of counsel).  The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance.  Thanks to their assistance, the Board reopened my client's case, he was released from detention, and he ultimately received his lawful permanent residence.  
    Mr. Neal also told us that the Board's practice of "affirmance without opinion" has been greatly reduced.  Three years ago, 30% of cases were decided without a written opinion.  Today, only 4% of cases are decided that way, and most of those are bond appeals.  He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member).  Currently, 11% of cases are decided by three Board Members.  A few years ago, 7% of cases were decided by three Members.  Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.
    Another area that takes more resources is published decisions.  Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years.  He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer).  This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions.  Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented.  He noted that very few recent precedential decisions involved unrepresented aliens.
    Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions.  Over the last few years, reversal rates have declined from 20% to 10%.  The biggest improvements (well, improvements from the BIA's point of view) have been in the Second and Ninth Circuits.
    I have a few items on my wish list for the BIA.  For one, I would like to see more precedent decisions.  Such decisions are important because they give more guidance to IJs.  Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions.  This would result in less work for the Board.  Second, the average time for a non-detained appeal (at least for my cases) is almost two years.  I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further.  Finally-and this is more of a pet peeve-I would like the Board to give more time to prepare the appellate brief.  Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien's attorney.  The attorney then has three weeks (plus a three-week extension upon request) to file the brief.  I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed.  Why not give attorneys more time to file the brief, say 60 days.  That would allow us to prepare better briefs and would accommodate our often busy schedules.
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