Jason Dzubow on Political Asylum

What Does “Persecution” Really Mean?

There is no uniform definition for the term “persecution.”  While different courts have attempted to define the term, its meaning has remained frustratingly elusive.  A new article by Scott Rempell, Assistant Professor of Law at South Texas College of Law, sets forth a workable definition of the term that is certainly worth considering.  About his article, Prof. Rempell writes:

Most people, even those with no immigration background, have some idea about what persecution means.  They know to equate persecution with inflicted suffering.  But beyond a general understanding that persecution is tied in some way to suffering, it’s much harder to pinpoint persecution’s precise meaning.

There are many definitions of persecution.

During my years practicing immigration law at the Justice Department, I was always struck by the wide divergences of opinion on the meaning of persecution that surfaced in the immigration agencies and federal appeals courts.  Does the harm have to be severe or will any harm suffice?  Will one instance of harm be sufficient or must the harm be systematic?  Does the persecutor need to intend to punish the victim or are the consequences of the persecutor’s actions sufficient?  Courts have come out on both sides of each of these questions, and many other questions as well.  It’s surprising that a term this central to asylum can be interpreted so differently, particularly since the stakes for asylum applicants are so high.

After years of head scratching, I finally found some time this summer to sit down and see whether I could come up with a more uniform understanding of persecution.  In the end, after I stripped away the superfluous criteria and eliminated factors that pertain more directly to the other elements of the refugee definition (such as the nexus requirement), I arrived at the following definition of persecution: “The illegitimate infliction of sufficiently severe harm.”  If you’re interested in how I arrived at this definition, take a look at my paper, recently posted on SSRN.  Here is a copy of the abstract:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Prof. Rempell welcomes feedback at srempell@stcl.edu.

Originally published on the Asylumist: www.Asylumist.com.

The BIA’s Ridiculous Deadline

I once heard about an Admiral during WWII who described carrier warfare as hours of boredom punctuated by moments of terror.  That is a bit like how I think of appeals to the Board of Immigration Appeals.

First, you file your appeal.  Nothing happens for a couple months.

Then, the transcript arrives.  You theoretically have 21 days to write the brief.  However, by the time you receive the transcript, a few days have passed.  Plus, you have to make sure that the appeal brief is received by the Board no later than day 21, so you have to mail it early.  Thus, you actually have about 15 or 16 days to write the brief.  Of course, the transcript always arrives when you are about to leave for vacation or when you have three individual hearings to prepare for, so the 15 or 16 days is not enough.  You can ask for one extension (which seems to be granted as a matter of course), so you can realistically gain a total of about 36 or 37 days to prepare the brief.

After the brief is filed, you will then wait one to two years for a decision.

So my question is: Since these appeals take so long anyway, why are we given such little time to prepare a brief?  

Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date.  But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?

There is, of course, a downside to limiting the time for the brief: Given most attorneys’ busy schedules, it is difficult to do our best work when we have insufficient time to write the brief, particularly if we are unlucky enough to have the transcript and briefing schedule arrive at a bad time (which always seems to happen).

The obvious solution is to extend the time for filing the brief.  Federal appeals courts (at least where I practice) generally give about 45 days to file the brief.  Lower courts usually give at least 30 days.  All these courts grant extensions where warranted.  At a minimum, the BIA should initially grant six weeks to file the brief; at least this would save lawyers the time and uncertainty of having to ask for a three-week extension.

With more time, we can expect better briefs–not only from the private bar, but also from DHS.  I imagine this would result in better BIA decisions.  There is really no good reason for such short deadlines with the BIA.  The Board should consider extending the time for filing briefs.

Originally posted on the Asylumist: www.Asylumist.com.

Afghan Asylee Murdered in San Diego

Mir Najibullah Sadat Sahou was an economist and the governor of the Afghan Central Bank before he fled Afghanistan in 1992. Like many refugees and asylees, Mr. Sahou could not find work in his field.  Instead, he drove a taxi, supported his family, and continued his political activity by appearing regularly on a talk show on Ariana Afghanistan International TV.

Mir Najibullah Sadat Sahou

Mr. Sahou, age 68, was gunned down on September 28, 2011.  According to CBS News, the police have identified a suspect and issued an arrest warrant.  It appears that the motive was robbery, but given Mr. Sahou’s political activism and his prior high-profile job, other motives cannot yet be ruled out.

The story of a prominent person who flees his country and starts over in the U.S. is fairly common among refugees.  When I worked in refugee resettlement in the early 1990′s, I knew a Russian man who had designed the radar system for the Backfire Bomber (the Soviet Union’s main long-range bomber).  In the U.S., he worked as a mechanic in a machine shop.  I also met the former Minister of Finance for the Ethiopian army.  He worked in a parking garage.  It takes a certain strength of character to go from a prominent station in life to one that is more humble.  But like many refugees, Mr. Sahou appears to have carried on for the sake of his children (one of whom is a pre-med student).

Another aspect of Mr. Sahou’s story that strikes me is his on-going concern  for his home country.  Although he did not have a professional position in his field, he continued to work for the betterment of Afghanistan by educating the public through his television show.

Finally, although the motive for the attack seems to have been robbery, there have been many instances of foreign agents operating clandestinely in the United States and attacking political opponents.  The most famous example is probably the 1976 assassination in Washington, DC of Chilean activist Orlando Letelier, who was murdered by agents of the Pinochet government, but many foreign government have engaged in violent acts against their nationals in the United States, including China (against the Falun Gong), Cuba (against anti-Castro Cubans), and Iraq (under Saddam Hussein).  Just last week, the Justice Department announced it had uncovered an Iranian plot to kill the Saudi Ambassador in the United States (a claim disputed by Iran).  Given the frequency of such activity, it would be wise to look closely at Mr. Sahou’s case to be sure that no foreign government or agency is behind the attack.

Of course, whatever the motive, the murder of a family man who worked hard, served his home country, and loved his adopted country is a terrible tragedy.  May he rest in peace.

Originally posted on the Asylumist: www.Asylumist.com.

Jewish Lawyers; Muslim Immigrants

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, ”when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Kumbaya

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.  

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

Originally posted on the Asylumist: www.Asylumist.com.

Fear and Loathing in the Asylum System, Part III: A “Solo” Visa for Refugees

For those who seek to limit immigration to the U.S., one area of concern is so-called “chain immigration,” where one immigrant brings multiple family members to the United States. 

This applies to asylees and refugees as follows: Such people can immediately bring their spouses and under-21, unmarried children to the United States (the term “immediately” here means that there is no backlog – processing the family member takes anywhere from six months to several years).  Asylees and refugees are eligible for their green card after one year, and then their citizenship four years later.  Once they have their green card, they can file for their over-21 children (including the child’s spouse and under-21 children), and once they become citizens, they can file for their parents, siblings (including the sibling’s spouse and under-21 children), and married children (including the spouse and under-21 children).  In short, after the asylee or refugee becomes a U.S. citizen, she is eligible to bring multiple family members to the United States–”chain migration.”

In a recent blog post on the Center for Immigration Studies website, David North argues that we could limit chain immigration by prohibiting asylees and refugees  from filing for family members other than spouses and under-21 children.  Before responding to Mr. North’s proposal, I want to mention a few points.  First, I disagree with the presumption behind the proposal–the idea that immigration has a negative effect on our society and should be more limited than it already is.  Of course, too many immigrants could not be absorbed and integrated, but I am not convinced we have reached that level.  Second (and maybe this is a contradictory point), I believe we should eliminate the “siblings” category of immigrants.  There are large backlogs for many categories of immigrant.  I think we would be better off eliminating the siblings category and using those slots for children and spouses of lawful permanent residents.  It never made sense to me that we allow the principal immigrant to come here with a green card, but we make his family members wait for years to join him.  This greatly delays the family members’ integration into our society, keeps family members unnecessarily separated, and causes the principal to send his earnings out of the U.S. to support his family.  We’d be better off bringing the family members here sooner, and one way to do that is to use the visa numbers that are currently given to siblings.

Reunited and it feels so good...

All that said, I must respectfully disagree with Mr. North’s proposal for several reasons.  For one thing, allowing asylees and refugees to bring their family members here does not greatly increase the overall number of people immigrating to our country.  For most categories of family immigrants, there are numerical limits on the number of people who can immigrate to the U.S. each year.  Thus, at worst, the relatives of the asylees and refugees will displace the relatives of other people who are waiting to immigrate.  There will be very little increase in the overall numbers.

Second, I disagree with the idea of making asylees and refugees “different” from others who come to the U.S.  It seems to me, if we are bringing such people to the U.S., we ought to treat them the same as every other immigrant once they become lawful permanent residents or U.S. citizens.  It is better to integrate these people into our community, rather than erect barriers that make them feel excluded. 

Finally, many asylees and refugees will never return to their home countries.  For some, the only hope of seeing their family members is that they can file petitions for them to come to the U.S.  Given the very long waiting times for an immigrant visa, and depending on which relatives are petitioned, such people can expect to wait anywhere from five to 20 years (or more) to see their family members.  Thus, while many asylees and refugees have only a slim hope of seeing their family members again, I suppose this is better than no hope at all. 

In the end, Mr. North’s proposal is quite modest.  I just believe that the “benefits” (i.e., a small reduction in the number of people coming to the U.S.) are not worth the costs.

Originally posted on the Asylumist: www.Asylumist.com.

Dear Client: I am Not Your Mommy

Some clients just don’t get it.  No matter how often you tell them what evidence they need for their case, they bring you bupkis. 

Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum.  I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc.  I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available.  If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it.  Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).

I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built).  I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.

Is all this excessive?  You would think so.  You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case. 

Many clients do, in fact, make diligent efforts to get evidence in their cases.  It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves.  Such clients greatly reduce their chances for a successful outcome.

So what can be done about these slacker-clients?  One possibility, of course, is to do nothing.  If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may.  This does not seem like a very satisfactory solution, though.  For one thing, there may be a legitimate reason why the client is not cooperating.  Perhaps he does not understand what is needed or why such evidence is important.  Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case.  Maybe he fears that the people sending evidence will be endangered.  Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential.  For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience. 

Another way to encourage clients to gather evidence is to nag them.  “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case.  In my practice, I don’t have a lot of extra time to chase after my clients.  I do, however, try to remind them once or twice about the need for evidence.

I find that giving the client a check list of needed documents is helpful.  When it comes time to remind them about gathering evidence, I always refer them to the check list.  It helps me remember their case as well.  A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.

Asylum seekers are not always the easiest clients.  As lawyers, we need to use our limited time efficiently.  That means informing the clients about the need for documents, and periodically reminding them about what is needed.  For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence.  And that could make the difference between a successful case and a denial.

Originally posted on the Asylumist: www.Asylumist.com.