My friend, who is a keen observer of the Immigration Court and USCIS (and who wishes to remain anonymous), has noticed that clients often hide or forget information that effects their cases:
There are surprises in life we all wish we could avoid. Finding a hair in your meal at your favorite restaurant comes to mind, but for lawyers there is an even worse scenario: Showing up to court (or an immigration interview) only to find out that YOU (the client) have failed to tell the lawyer the most important information about your case. Imagine being “surprised” by the government’s trial attorney or an immigration officer with (for example) the revelation that his/her clients has an aggravated felony conviction and is not eligible for the relief sought.
Tell your lawyer everything and you will increase your chances of success.
Though the above example above might seem extreme, it never ceases to amaze me the information that clients seem to “forget” to share with their lawyer: from the fact that they are awaiting trial for two or three misdemeanors (which occurred within three months of the client’s immigration hearing) to changes in domicile that can cause the case to change venue (move to
another location) at the last minute.
The failure to share crucial information with your lawyer is akin to not telling your doctor you have clotting problems as he prepares to do surgery on you. Imagine the complications that would arise in the operating room!
Not having all the facts of the case could be worse than being lied to, (which most seasoned professionals can spot a mile away) since it makes the lawyer look unprepared and negates all the work and effort he/she might have put into the case! As the saying goes, “Forewarned is forearmed”: If a lawyer knows what the issues are, he/she can prepare accordingly and present the best possible case.
Perhaps what’s even more shocking is the fact that clients often “forget” to mention facts that can help their attorney build a stronger case and present a more convincing argument. There are even times when information not shared might have opened the door to more options when it comes to relief before the court or CIS. When presented too late, this information is of no help to the applicant.
Some information you should always share with your attorney (but that routinely seems to be overlooked) is:
- Arrest: No matter when or where they took place. Whether you live on the East or West Coast. Arrest that happened ANYWHERE in or outside the country do count!!! DUI and DWI should always be mentioned! Even if you were not convicted and someone told you the case would be purged.
- Convictions: Once again, no matter when or where these happened. All of the above information regarding arrests applies here.
- Stays in a third country (a country that is not your home country and that is not the United States) no matter what the length.
- Previous applications that you might have filed before USCIS (including INS), the Asylum Office or the Immigration Court.
- Witnesses: The availability or absence of witnesses might be crucial to a case.
- Medical Conditions: Whether they are yours, a family member’s or a witness’s.
- The number of ALL people living in your house and their relationship to you.
- The immigration status of all your relatives living in the United States. If you have relatives who previously lived here and left, you should tell your attorney about them as well.
In short, the more you tell your lawyer, the more he/she can help you with your case. Finally, remember that everything you tell your attorney is confidential—the attorney is not allowed to reveal this information to anyone. By giving your attorney all the information, you increase your chance for a successful outcome in your case.
Government Executive reports on a recent event at the National Press Club featuring Judge Randall Frye from the Social Security Administration and president of the Association of Administrative Law Judges, and Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges. The pair described threats to judges involving guns, baseball bats, cut brake lines, and broken legs.
A safe judge is a happy judge.
“Between March 2009 and February 2010, SSA offices that handle disability claims received 49 threats; individual Social Security judges received 20 threats,” reported Government Executive. “At a Las Vegas federal courthouse in January, a man believed to have been irate over a reduction in his Social Security benefits gunned down a courthouse official and injured a U.S. deputy marshal.” There are no statistics available from the Department of Justice concerning threats to immigration judges or court personnel, but given the high-stakes nature of proceedings, it would not be surprising if threats have been made.
The main concern is lack of security at certain immigration and SSA courts. Many such courts are not housed in government buildings and do not have rigorous screening procedures. Immigration courts also often lack secure parking lots, elevators, and entryways. At the Press Club event, Immigration Judge Marks pointed out that “she could ride the elevator with someone whom she decided to deport.” That is certainly the case in the courts where I litigate.
Suggestions for improvements included increasing the number of security guards in the reception area, stationing a bailiff in every active courtroom, higher railings in front of judges’ benches, and creating secure entrances, exits, and parking lots for judges. At the minimum, the Justice Department should make available data on threats to immigration courts. Then, at least, we could have a sense of the problem.
Of course, improvements to security cost money, which seems to be in short supply. As the number of cases (and level of frustration) in immigration courts increase, we should not forget to ensure the safety of those who enforce and adjudicate our immigration law. Let’s hope we don’t have to wait for a tragedy to realize the importance of protecting our public servants.
Rodolfo Montiel
In the 1990′s, Rodolfo Montiel worked to prevent logging companies and land barons from destroying the ecology of his home state of Guerrero, Mexico. For his trouble, he was arrested and tortured by the Mexican military. Eventually, he made his way to the United States, where he received political asylum in 2005.
Now, Mr. Montiel has a lawsuit that is currently before the Inter-American Court of Human Rights. He is seeking reparations from the Mexican government and punishment of those responsible for torturing him. He also hopes to clear his name. In a telephone interview with the Los Angeles Times, Mr. Montiel said he was optimistic that the court would find in his favor, though not so sure the Mexican government would heed the judgment, even though Mexico recognizes the authority of the court and its rulings are binding.
Mr. Montiel’s case is the fifth case brought against Mexico in the past 18 months. Four of those cases claimed that the Mexican army was responsible for human rights abuses. In the two cases decided so far, Mexico lost.
According to the LA Times, these cases demonstrate a “pattern of abuse by the military that far predates Mexican President Felipe Calderon’s drug war, in which the number of allegations of human rights violations has soared.” “And the case highlights flaws in the judicial system that persist today… including the use of confessions obtained under torture, the denial of basic rights to detainees and the refusal of authorities to seriously investigate allegations of mistreatment by the army.”
It’s rare that an asylee sues the government that abused him. Soon we will see whether the Human Rights Court grants him the vindication that he seeks.
by Jason Dzubow on August 26, 2010
in Asylum,BIA
The Board of Immigration Appeals earlier this week held that an Immigration Judge can make a determination that an asylum application is frivolous even in the absence of a final decision on the merits of that application. See Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010). The Board also held that withdrawal of the alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.
In Matter of X-M-C-, the alien filed an affirmative asylum application that contained false information. After an interview at the Asylum Office in California, the case was referred to an Immigration Court. During a court hearing, the alien admitted that her asylum claim and her testimony before the Asylum Officer were false. She withdrew her application for asylum and applied for adjustment of status. She also admitted to submitting fraudulent documents. The IJ denied the adjustment of status holding that the later recantation of her story did “not waive the fact that a frivolous application has been filed.” The BIA found:
[An] Immigration Judge’s authority to determine that an alien has knowingly made a frivolous application for asylum is not limited to circumstances in which the Immigration Judge makes a final determination on the merits of the application. The relevant provisions of the Act and the regulations clearly indicate that an inquiry into whether an application is frivolous can be triggered once the application is “made” or “filed.”
“Consequently,” the Board held, ”after a determination has been made that an asylum application is frivolous, a separate evaluation of the merits of the application is not necessary.”
The Board also determined that withdrawal of the asylum application does not prevent a determination that the application was frivolous:
The plain language of section 208(d)(6) clearly provides that an asylum application can be deemed frivolous once it is “made” and the required warnings have been given. Allowing the preemptive withdrawal of an application to prevent a finding of frivolousness would undermine both the plain language of, and the policy behind, section 208(d)(6)—as well as the potency of the required warnings. An alien, such as the respondent, who not only filed a frivolous application but also testified falsely in support of that application to an asylum officer could escape the consequences deliberately chosen by Congress to prevent such abuse of the system.
While applicants should be encouraged to recant false statements and withdraw false applications, the Immigration Judge and this Board are not prevented from finding that an application is frivolous simply because the applicant withdrew the application or recanted false statements after the appropriate warnings and safeguards were given, but prior to a decision on the merits.
The paragraph quoted immediately above lays bare the dilemma of cases involving fraudulent asylum applications. On the one hand, we want to encourage aliens to recant false statements. On the other hand, Congress has plainly indicated that aliens who make false statements should be punished. The alien who makes up a claim where there is none has earned such treatment. But aliens who have legitimate claims often “enhance” their story because they feel (or are told) that they should do so. Such aliens are–to me at least–much more sympathetic. In general, IJs seem to distinguish between these two categories of fraudsters, treating the latter better than the former.
Matter of X-M-C- does not require frivolous findings and does not prevent IJs from distinguishing the different types of fraud. It does, however, make clear that an alien cannot protect herself from a frivolous finding by withdrawing her asylum application.
Last month, Cardinal Jaime Ortega reached a deal with Raul Castro and the Cuban government to free 52 political prisoners who have been held since a 2003 government crackdown. Under the agreement, the released Cubans would go to Spain and receive political asylum. Twenty have already been freed and left Cuba for Spain, along with more than 100 relatives. More are expected to travel to Spain over the next few months.
WWCheD?
The problem is, many of the Cuban dissidents would prefer to come to the United States, where they have relatives and community ties. Originally, the political prisoners and their families believed that they could accept exile in Spain and then travel to the United States. A State Department spokesman last month said that the Cubans would be “absolutely” welcome in the U.S. Now, however, the State Department has informed dissidents that if they accept exile in Spain (and the legal status that comes with it), they would not be eligible for asylum in the U.S. Instead, they would have to immigrate based on family or employer petitions, a slow process that may not be available to many of the dissidents.
While such aliens would likely not qualify for asylum in the United States (since they are “firmly resettled” in Spain), they should qualify for permanent residency under the Cuban Adjustment Act. This would require them to arrive in the United States and remain here for one year. After a year, they could obtain their permanent residency. Of course, not all of them would be able to come here, but those who want to live in the U.S. at least have a viable option.
The case of these Cubans raises a broader question about choosing a country to seek refuge. Many asylum seekers travel through third countries before arriving in the U.S. Indeed, I have represented some asylum seekers who have traveled across three continents and a dozen countries before they arrive in the U.S. Why should we allow such people to seek refuge here when they have skipped over other countries where they could live safely? It’s a fair question.
For me, escaping from persecution is only part of the equation. People are searching for a safe, stable place to re-start their lives. They may not find that in a country that does not normally accept immigrants or where they have no friends or family. Refugees also need community support and jobs. They may need financial assistance, medical care, and mental health care. Many countries–including many countries that refugees pass through–cannot offer these types of assistance. For these reasons, some of the Cuban dissidents would rather remain detained in Cuba (while hoping to come to the U.S.) than relocate to Spain, a country where they have no family members or community support.
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.
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.
Immigrants like the Shmenge brothers have come to American with "a burning desire to be someone."
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.
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.
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.
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.
