Recommendations Regarding Detained Asylum Seekers

by Jason Dzubow

From the Heartland Alliance’s National Immigrant Justice Center:

Heartland Alliance’s National Immigrant Justice Center and 30 other national and international immigrant and human rights organizations, think tanks, and academics have petitioned the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) to issue regulations allowing the release of detained asylum seekers who pose no danger to the community and would face persecution if returned to their home countries.

According to the report, in 2006, “of the 5,761 asylum seekers who were detained, 1,559 (27%) were detained for more than 180 days.”  The report continues: “On average, arriving aliens who eventually obtain asylum spend 10 months in detention.”  The report discusses the mental and physical effects of detention on asylum seekers, and also notes that the cost of detaining asylum seekers averages $95 per person per day–from 2003 to 2009, we spent more than $300 million to detain asylum seekers.  The report recommends regulatory changes to allow more detained asylum seekers to be released prior to their final hearings. 

As usual, this problem is also a question of the asylum seeker’s financial situation and access to counsel.  Represented asylum seekers who are eligible for release (and who can afford to pay the bond) will almost always be released in a month or two.  The poorest and most vulnerable asylum seekers are the most likely to remain detained.  Case in point: I received a call today from a woman whose sister was threatened by gang members in El Salvador.  She fled the country, crossed the border illegally, and was detained.  She is currently being held in Eloy, Arizona, and has already made a claim for asylum.  The sister is looking for an attorney in Arizona to prepare an application for bond.  I referred her to the Florence Project, an excellent legal services organization that assists immigrants detained in Arizona.  If the woman can secure a bond, the chances of her asylum claim succeeding will be much improved.  If she remains detained, she will have to prepare her case and gather evidence–such as letters from witnesses, police reports, and medical reports–from behind bars.  Under those circumstances, I imagine the chances for her to succeed are pretty slim.

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We Need More Judges

by Jason Dzubow

Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has issued a new report confirming what immigration attorneys already know: the waiting time for cases in the Immigration Courts is longer than ever.  From my experience, a typical case in the over-burdened Arlington, Virginia court takes almost two years.  It turns out, Arlington isn’t the slowest court in the land:

From the TRAC website:

Cases awaiting a hearing in the nation’s Immigration Courts reached an all-time high of 228,421 in the first months of FY 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The current number of pending cases is up 23 percent just since the end of FY 2008, and 82 percent higher than it was ten years ago.

Wait times also vary markedly from one court to the next. At one extreme there are the Los Angeles and Boston Immigration Courts where pending cases have now been waiting for an average of 713 days and 612 days, respectively. At the other extreme, there is the Florence, Arizona Immigration Court with an average wait time of 75 days and the Miami (Krome) Immigration Court with 82 days.

I imagine that the courts in Florence and Miami are faster because those locations deal primarily with detained immigrants.  The courts make detained cases a priority.  Not, as you might expect, because the alien is in detention, but rather because the alien is in detention at government expense. This is made clear when you view the courts’ files, which are prominently labeled, “Detained at Government Expense.”

The problem could be alleviated (or at least ameliorated) if the Department of Justice would begin filling some of the 48 immigration judge vacancies.  Indeed, according to TRAC, since 2007, the number of immigration judges has actually gone down (from 229 to 227) while the case load has increased dramatically.  The backlog has resulted in difficult waits for asylum seekers and others caught in the system.

In a strongly-worded response to TRAC, EOIR Acting Director Thomas Snow calls the report “unbalanced” and states that it fails to acknowledge EOIR’s efforts to fill the vacant positions.  Acting Director Snow points out that 15 judges are in the final stage of the selection process, and EOIR is interviewing hundreds of candidates to fill the remaining IJ openings.  For aliens in the system, the process cannot move fast enough.  To properly enforce the nation’s immigration laws, ensure due process, and fulfill our humanitarian obligations, we need more judges.

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Immigration “Consultants” and Fraud

by Jason Dzubow

When asylum seekers arrive in the United States, they are often unfamiliar with how to file for asylum and how to find help with their cases.  Such people commonly hire “consultants” (or “notarios” in the Spanish-speaking community) to assist them.  The consultants prepare the case and sometimes attend the asylum interview as an interpreter.  They charge a fee–often the same or a little cheaper than a legitimate attorney.  Sometimes these cases succeed and asylum is granted.  More frequently, the case is denied and referred to the Immigration Court.  Other times, the consultant just takes the money and runs. 

The ABA (American Bar Association) has created a program called Fight Notario Fraud to help report and crack down on consultant fraud.   From the ABA website:

Unscrupulous “notarios” or “immigration consultants” have become an increasingly serious problem in immigrant communities throughout the United States. Often using false advertising and fraudulent contracts, notarios hold themselves out as qualified to help immigrants obtain lawful status, or perform legal functions such as drafting wills or other legal documents. Unethical Notarios may charge a lot of money for help that they never provide. Often, victims permanently lose opportunities to pursue immigration relief because a notario has damaged their case. The [American Bar Association] Commission is working to provide immigrant communities with information about this dangerous practice, and to support advocates who represent victims.

Unfortunately, as the ABA notes, consultant “fraud is usually identified after the fact, when an immigrant has already suffered an adverse event as the result of a consultant’s services.”  If you have been a victim of consultant fraud, you can report the fraud to the ABA, and they may be able to assit you.  Submit your contact information and a description of the problem here.

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How Confidential Is the Asylum Process?

by Jason Dzubow

Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

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ABA Recommends Creation of Independent Immigration Courts

by Jason Dzubow

From Human Rights First:

After conducting a comprehensive review of the U.S. immigration adjudication system, the American Bar Association (ABA) Commission on Immigration released is long-anticipated report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency and Professionalism in the Adjudication of Removal Cases.” The study found that pressures on the adjudication system have grown exponentially in recent years, as the number of people in immigration proceedings has increased and immigration enforcement efforts have heightened. The study recommends the creation of an independent immigration court, either as an Article I court or as an independent agency. It also makes a series of recommendations related to funding and staffing and suggests legal changes necessary to improve the fairness and efficiencies of immigration processes.

The full report is available here.

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2009 Human Rights Report

by Jason Dzubow

The U.S. State Department Country Reports on Human Rights Practices were released today.  Secretary of State Clinton described the purpose of the report:

These reports are an essential tool—for activists who courageously struggle to protect rights in communities around the world; for journalists and scholars who document rights violations and who report on the work of those who champion the vulnerable; and for governments, including our own, as they work to craft strategies to encourage protection of the human rights of more individuals in more places.

The reports released today are a record of where we are. They provide a fact-base that will inform the United States’s diplomatic, economic and strategic policies toward other countries in the coming year. These reports are not intended to prescribe such policies, but they provide essential data points for everyone in the U.S. Government working on them.

Secretary Clinton also described the philosophy behind the reports:

Human rights are timeless, but our efforts to protect them must be grounded in the here-and-now. We find ourselves in a moment when an increasing number of governments are imposing new and crippling restrictions on the nongovernmental organizations working to protect rights and enhance accountability. New technologies have proven useful both to oppressors and to those who struggle to expose the failures and cowardice of those oppressors. And global challenges of our time—like food security and climate change; pandemic disease; economic crises; and violent extremism—impact the enjoyment of human rights today, and shape the global political context in which we must advance human rights over the long term.

Human rights are universal, but their experience is local. This is why we are committed to hold everyone to the same standard, including ourselves…. When we work to secure human rights, we are working to protect the experiences that make life meaningful, to preserve each person’s ability to fulfill his or her God-given potential.

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An Insider’s View of the Asylum System

by Jason Dzubow

Mesfin (not his real name) fled Ethiopia to escape political persecution.  Once he reached the United States, he filed for political asylum.  Four years, four attorneys, and thousands of dollars later, Mesfin’s journey finally came to an end when an Immigration Judge granted his application for asylum earlier this week.  “When [my claim] was denied at USCIS, I had another chance with the Immigration Judge, and when [my claim] was denied there, I had another chance with the BIA [Board of Immigration Appeals],” a happy and relieved Mesfin said in an interview the day after his asylum grant.

It is not surprising that refugees who have completed a long odyssey through the Immigration Courts would have familiarized themselves with the procedural framework of the process.  It is likewise unsurprising that such immigrants, if successful, would come to have an appreciation for the principles of due process that underlie the layered review of immigration cases.  Still, Mesfin’s conversance with these concepts is impressive.  In recounting his case, the computer science student sounded every bit the law student, using terms like “clearly erroneous” and “credibility determination” as he discussed such concepts as burden shifting and appellate posture. 

Certain items in Mesfin’s files offer other clues about the traits that made him such a ready student of the immigration system.  Mesfin’s transcript from Addis Ababa University, for instance, shows that he carried a 4.0 GPA and needed only a thesis defense to complete his master’s degree.  That thesis defense, which was to be delivered in 2005, never did get made.  The reasons for this were the same events in 2005 that prompted Mesfin’s flight from Ethiopia, a large, ethnically diverse country ruled by an authoritarian government that keeps power by pitting different ethnic groups against each.

The current Ethiopian government, which The Economist has characterized as a “hybrid regime” situated between a “flawed democracy” and an “authoritarian regime,” cracked down hard on protestors in the aftermath of contested parliamentary elections in 2005.  A government ban on protests was imposed throughout the election period, but the repression got much worse for opposition party members (including Mesfin) after the disputed results.  Police are said to have massacred 193 protestors, according to a reported prepared by a since-exiled Ethiopian judge who was appointed by the Prime Minister to investigate the killings.  More than 100 opposition leaders were arrested and charged with treason and “attempted genocide.”  Hundreds more rank-and-file opposition party members on college campuses – including Mesfin – were arrested for mobilizing political opposition to protest the election results, which they regarded as fraudulent. 

He was detained for eight days and was interrogated, beaten, threatened, deprived of sleep, denied food and medicine, and held incommunicado – without the opportunity to consult an attorney and without word to his family about his whereabouts. 

“The prison cell I was in was filled with many prisoners,” he would later say. “[At night], they would wake me up and splash me with dirty water for sleep deprivation and mental torture.  [During] interrogation, the investigators warned me that my life would be taken because of links with anti-government bodies….  I was denied bail rights and court appearances since there was no evidence of wrong doing.  I was not charged with any crime.  But still, I was kept in jail and abused.  I got no justice or due process of law.”

Mesfin was released from his illegal detention after eight days, and only after a previously released cellmate contacted his cousin who arranged an expensive bribe that secured his release.  It was then that he resolved to flee the country to avoid further persecution.  The sense of urgency that fueled that decision was evidenced by the fact that he felt compelled to depart within weeks of release – and just two weeks before the 4.0 student was scheduled to defend his thesis.

But the hastiness of his escape would later make things difficult, Mesfin said, noting that the initial rejections of his asylum claim by USCIS officials and the Immigration Judge were based in part on a lack of documentary evidence to corroborate his account of being beaten and jailed.  “All you are thinking about is leaving,” he explained.  “You’re not thinking about the documents you’ll need” to later make an asylum claim.  And even if he was thinking ahead and about those matters, “I didn’t know any lawyers [in Ethiopia] who could tell me” what was needed.  Fortunately for him, Mesfin was finally able to convince the U.S. government that he needed protection.  Now, after four years, he hopes to return to school and begin his life again.

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The Fourth Circuit and Asylum

by Jason Dzubow

Among lawyers (like me) who practice in the U.S. Court of Appeals for the Fourth Circuit, there has been ongoing speculation about whether the conservative court is moving to the left.  AILA’s Immigration Slip Opinions discusses several positive asylum decisions from the last few months, including my case, Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009).   The one common factor in these cases is Judge Gregory, who seems to favor a more expansive judicial review of asylum cases than many of his colleagues.  The Fourth Circuit has traditionally been considered very conservative when it comes to immigration cases in general, and asylum cases in particular, but that may be changing.  The newest judge, Barbara Milano Keenan, confirmed last week may further tip the balance.  And there are currently four more vacancies on the Court.  We’ll see if the new appointments make the Fourth Circuit friendlier terrain for asylum seekers.

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