Telephonic Interpreters

Without interpreters, the asylum system could not function. 

For interviews at the asylum office, applicants must provide their own interpreter, either a friend, a volunteer, or a paid professional.  To ensure that the interpretation is accurate (and that there is no funny business going on in the translation), USCIS requires that a professional interpreter monitors the interview by phone.  Who are these mysterious monitors?

One is Maria McFadden, interpreter extraordinaire, who works in the Washington, DC area and beyond.  Here are her thoughts on telephonic interpretation:

One of the most challenging tasks for an interpreter is telephonic interpretation.  While court interpreters aspire to be unobtrusive in order to allow each party to have their say, being able to observe or signal the speakers can make communication flow much more easily.

When using a telephonic interpreter, be sure to speak loudly into the phone.

During interviews at the asylum office, telephonic interpreters are rarely used to interpret the actual proceedings; rather, they serve as monitors.  The role of these monitor interpreters is to ensure the quality and accuracy of the on-site interpreter.  Oftentimes, the person brought to the interview to serve as an interpreter is not a professional.  While such a person might be aware of and adhere to the interpreter code of ethics, their ability to interpret is sometimes not sufficient to ensure an accurate translation.  This could damage the credibility of the asylum applicant and deprive her of the chance to tell her story.

At times, the monitor might “challenge” the interpretation.  This could cause the on-site interpreter to become flustered and become defensive.  If he/she feels that their interpretation is correct, they should state so to the officer and not directly to the monitor.  Each interpreter has the right to stand by their interpretation and it is up to the officer to settle the matter.

Being a monitor is not an easy task and most interpreter’s take the job seriously.  If you feel that the monitor is being unnecessarily disruptive and combative, this issue should be addressed to the asylum officer.  There is no need to talk to the monitor interpreter.

If you have a telephonic interpreter, please keep the following points in mind:

1. Keep your voice loud and clear.  While this is important when working with an on-site interpreters as well, it is even more important over the phone.
2. Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
3. Try not to talk over other people.  The interpreter can only translate for one person at a time.  Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other.  This could result in a statement by the applicant going unheard by the asylum officer–with potentially disastrous consequences.
4. Wait for the interpreter to finish interpreting before making another statement or asking a question.
5.If you don’t hear or can’t understand the interpreter, speak up!

By keeping this short list of pointers in mind, the process will go more smoothly for all involved. 

Game Show for Rejected Asylum Seekers

Those wild and crazy Dutchmen are at it again.  PRI reports on a new game show where rejected asylum seekers in the Netherlands compete for US$6,000.00 to help them resettle in their country of origin.  Losing contestants receive a bag of tulips and a bullet proof vest. 

The show, “Out of the Netherlands,” is actually a “harsh criticism of the Dutch government’s conservative immigration policy,” where asylum seekers are held in limbo for long periods before being deported.  Contestants answer questions about Dutch culture, cuisine, food, and language:

[The] program’s creators attempted to show how Dutch these contenders are.  “We don’t present sad stories, we want to show who these people are, and that it is a shame to let them go.  They are real rejected asylum seekers.  They are really leaving.”  The show’s participants are all young and highly educated immigrants who are facing a grim future in their countries of origin.

Maybe if Richard Dawson hosted "Out of the Netherlands," I could get behind the idea.

So I suppose the show is meant to be a hip, ironic commentary on Dutch society that aims to educate the public about the value of the asylum seekers to Netherlands society.  Nevertheless, I can’t help but find this idea idiotic.  Plus, I remember a cooler, hipper version of this show called Running Man, hosted by Richard Dawson (Also starring Jesse Ventura!  And yes, it also starred everyone’s favorite product of Nazi gene manipulation, Arnold Schwarzenegger).  One difference was that Running Man was a show where convicted criminals–as opposed to rejected asylum seekers–competed for their freedom.  The losers died in the process.  Another difference was that Running Man was fiction while “Out of the Netherlands” features real-life asylum seekers returning to real-life countries where they face harm.  

For me, the ultimate authority on exploitative game shows was an episode of the old TV series Insight, a fictional drama that “illuminat[ed] the contemporary search for meaning, freedom, and love.”  In the episode, teams of two family members compete in a game show to see who is more willing to hurt their own family member.  Through a series of escalating challenges, different teams drop out after they are not able to hurt each other.  For example, one team drops out after a brother refuses to insult a sister.  Another team drops out after a son refuses to slap his mother.  The winning team is a husband and wife.  The husband agrees to put a bullet in a revolver, spin the chamber, aim it at his wife’s head, and pull the trigger.  The chamber is empty, the wife lives, and the couple wins the contest.  It is clear from the wife’s reaction, though, that her husband’s willingness to risk her life in order to win money has killed her love for him.  Thus, even the “winner” of such an exploitative show has not really won. 

I suppose my point is, there are ways to inform the public about the issue of rejected asylum seekers without exploiting their situation.  Somehow I doubt “Out of the Netherlands” will achieve that goal. 

Bolivian Man Accused of Genocide Has Asylum in the U.S.

Late last month, Bolivia’s Supreme Court of Justice convicted seven former military and government officials of genocide, reports Indian Country Today Media Network.  The military officials received 10-15 years imprisonment and the civilians three years in prison.  However, the primary suspects in the case, former president Gonzalo Sánchez de Lozada and former defense minister Carlos Sánchez Berzain, remain in the United States.  As far as I can tell, Mr. Sanchez de Lozada is either a citizen or a permanent resident of the United States.  Mr. Sanchez Berzain was granted asylum in the U.S. in 2008 (sparking protests in Bolivia).

Carlos Sanchez Berzain: Accused mass murderer and...

The convictions and accusations stem from a 2003 incident known as the Bolivian Gas War, where protesters blocked a natural gas shipment from Bolivia to Chile.  The then-president of Bolivia used the military to open the road.  As a result of this incident, as many as 67 people died (all of them members of Bolivia’s indigenous Aymara community) and 400 were injured.  The “war” was part of a larger economic and social conflict in Bolivia, and as a result President Sanchez de Lozada resigned from office.  The current president, Evo Morales, was a leader of the protesters.

Since Messrs. Sanchez de Lozada and Sanchez Berzain have been in the U.S., the Bolivian government has filed a formal extradition request, which so far has not been acted upon.  Also, victims of the alleged genocide have filed a lawsuit under the Alien Torts Statute against the two Bolivian leaders seeking to hold them accountable for the deaths in 2003.  The lawsuit involves some heavy hitters on both sides.  For the plaintiffs: Ira Kurzban, Harvard University’s Human Rights Clinic, the Center for Constitutional Rights, and the law firm Akin Gump.  Representing the defendants are my former idol Alan Dershowitz (who seems to have repositioned himself from a defender of civil liberties to a defender of all things right-wing), and the law firms Williams and Connelly, LLP and Greenberg Traurig.  In November 2009, the District Court dismissed some counts of the complaint and allowed others to go forward.  The defendants appealed, and the case is currently before the U.S. Court of Appeals for the Eleventh Circuit.

Ned Flanders look-alike.

As there is (probably) enough evidence for the civil case to move ahead, I wonder whether the Department of Homeland Security is investigating the asylee defendant, Mr. Sanchez Berzain.  Under the law of asylum, one who engaged in genocide or persecution of others is ineligible for asylum.  Clearly, there is some evidence that Mr. Sanchez Berzain was involved in persecuting people.  Aside from the District Court ruling, a leader of the indigenous peoples of Bolivia called Mr. Sancehz Berzain the “specific intellectual author” of the 2003 massacre. 

Given the calls to deport the housekeeper in the DSK case (who seemingly lied about her asylum claim), I wonder whether there will be a similar outcry here, where the asylee is accused of much worse than lying.  My guess is–since our country has a rocky relationship (at best) with President Morales–it’s likely DHS will look the other way when it comes to Mr. Sanchez Berzain.  And that’s too bad–asylum law is supposed to be based on international principles; not politics.   

CBS Special About Refugees and Faith-Based Organizations

CBS News has announced a new interfaith religion special, “Refugee Resettlement: Faith Communities Making a Difference,” to be aired on Sunday, September 25, 2011.

And that’s the way it is…

The special will focus on Church World Service(“CWS”), which has helped over 500,000 refugees resettle in the U.S. since its founding in 1946.  The special features interviews with Erol Kekic, Director of Immigration and Refugee Program for CWS, as well as Vincent Cochetel, Regional Representative for The UN High Commissioner for Refugees.  The program also includes interviews with volunteers from interfaith co-sponsorship teams (where a Muslim and a Christian are paired to assist a refugee), as well as refugees from Eritrea and Somalia, “who are adjusting with the help of their new friends, many of whom are now like family.”

Given the hateful propaganda against Muslims in the U.S. these days, I am particularly interested in the interfaith partnerships.  This seems like a great way to bring people together while accomplishing important work.  The initiative is sponsored by the Minnesota Counsel of Churches and is called the Taking Root program.  Here is an excerpt from the Taking Root website:

Imagine you are a refugee fleeing persecution, arriving in Minnesota knowing no one. You are greeted at the airport and helped in your first months by a team of Muslim and Christian volunteers working together. In your homeland you only knew people of your own religious tradition, or your experience with other religions was one of distrust and persecution. But here your interfaith sponsors help you find a home, a job and make a successful transition to self-sufficiency. Gradually you build a new life of hope, safety, peacefulness and connection. This unique team of volunteers has also given you a gift that may have been unimaginable to you – an experience of interfaith cooperation.

The CBS documentary will help spread the word about interfaith cooperation and about refugee resettlement.  It sounds like a win-win.

New Musical About Asylum Seekers Opens in Washington State

A new musical about asylum seekers and asylum adjudicators opens next week at the Village Theater in Issaquah, Washington.  The play, “Take Me America,” chronicles the story of people from different countries applying for asylum in the U.S.  The show also addresses issues faced by adjudicators, “the people who bear the responsibility of determining [the asylum seeker’s] fate.”

Music and Refugees: A winning combination.

The Issaquah Press reports that the show distinguishes between asylum seekers and immigrants:

The director Jerry Dixon encouraged the “Take Me America” author and composer to shore up the differences between asylum and immigration to offer audiences more clarity.  “One of my first jobs was to get the authors to take away any ambiguous language or monetary language like, ‘I’m coming to America to get ahead, to make a better living,’” Dixon said. “That’s immigration. That’s different. ‘I’m coming to America because my arms will be hacked off by my government.’ That’s not immigration.”

Bill Nabel, “Take Me America” author and lyricist, said “Well-Founded Fear” — a 2000 documentary about the asylum process — laid the foundation for the rock musical. The filmmakers recorded the last interviews of applicants in the asylum process for the piece.  “To me, a musical is about where you find your heart,” Nabel said. “There’s a very large part of that in the asylum question. Asylum is much more than a legal question to us. How do we make a human decision about a law?”

In light of the negative attention recently generated by the DSK housekeeper case, it’s great to see asylum seekers–and asylum adjudicators–receiving some positive attention.  And if that attention is set to music, so much the better.

The show runs from September 14 to November 20, 2011.  For more information or to purchase tickets, visit the Village Theatre website, here.

Possible Lawsuit to Help Victims of the Asylum Clock

The Asylum Clock has been the bane of asylum seekers and their lawyers since it was created in 1994 (and codified into law in 1996).  It requires an asylum applicant to wait 150 days before applying for an employment authorization documents (“EAD”), but the clock “stops” if the applicant causes a delay in her case.  The idea was to dissuade people from filing frivolous asylum applications in order to get EADs.  The problem, however, is that legitimate applicants are often prevented from obtaining EADs for seemingly random and inexplicable reasons. 

In this artist's rendition of the destruction of the Asylum Clock, AIC and NWIRP are represented by Donald Duck.

One reason for this problem is that the regulations implementing the Clock are vague, and are interpreted differently by different Immigration Judges.  So for example, most of my cases are in the Immigration Courts in Baltimore, Maryland or Arlington, Virginia.  Clients with the same case will receive an EAD in one court, but not the other.  All because the regulations are interpreted differently in different places.  For a good analysis of the Asylum Clock, check out this report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock prepared by the American Immigration Counsel and Penn State’s Dickinson School of Law.

Now, the American Immigration Counsel (“AIC”) and the Northwest Immigrant Rights Project “(NWIRP”) are exploring potential litigation on behalf of individuals who have been unable to obtain employment authorization due to Asylum Clock problems.  The organizations are looking for potential plaintiffs in the following three categories:

(1) Applicants whose clocks have not started and will not start until the next scheduled master calendar hearing because their applications are not yet considered filed in immigration court;

(2)  Applicants whose clocks have not started or restarted even after alleged applicant-caused delays have been resolved; and

(3) Applicants whose clocks have not started or restarted after their cases were remanded following appeal.

If you have a client in one of these categories who might be willing to participate in litigation, please contact Agnes Gyorfi at AIC at (202) 507-7523 or agyorfi.immcouncil@gmail.com by Friday, September 16, 2011.

Here’s hoping that AIC and NWIRP are able to pursue this litigation and knock some sense into the Asylum Clock.

Closing Argument

Last week, I won an asylum case thanks to a good closing argument.  The lead respondent was a woman from Ethiopia.  She had been arrested a few times in her country, and faced persecution in prison.  In many ways, it was a standard-issue case–the type of case that cynical judges and DHS attorneys tend not to believe.  And the case was not going well—the DHS attorney had raised some legitimate questions about the plausibility of the woman’s story.  After her testimony, the DHS attorney and I spoke during a brief recess.  We both agreed that the IJ was leaning heavily towards a denial based on implausibilities. 

Closing arguments are not always my strong suit, but that day, I gave an argument that did the trick.  The IJ listened to what I said, and he granted the case.  

Throughout my career, I’ve been fairly indifferent to closing arguments.  At least one judge I practice before does not allow them, and I’ve generally felt that closing arguments rarely make a difference.  Over the years, though, I’ve come to believe that a good closing can persuade the judge, and there are a few techniques that I’ve found to be effective.

You don't have to be a super hero to give a good closing argument.

First and foremost, a good closing argument should address the weakest parts of your case—it is crucial not to ignore or hide from the weak points of the case.  Rather, these points must be confronted directly.  As you listen to the DHS attorney’s (and the IJ’s) questions, you should gain a pretty good understanding of what they perceive as the weak points in the case.  You need to mitigate these weaknesses and explain to the IJ why they should not sink the case.  For example, in my case last week, the IJ questioned the alien about how her husband could work for the government and, at the same time, join an opposition political party.  Using record evidence (in this instance, the State Department Country Report), I argued that several well-known opposition leaders worked for the Ethiopian government.  My client also misspoke during cross exam and gave the wrong date for her husband’s arrest.  I mentioned her error and pointed out that she gave the correct date during direct examination.  I also noted that she quickly corrected her mistake on cross, and that this was the only inconsistency in her testimony.  Of course, to effectively address the weak parts of your case, you need to pay close attention to the IJ and the DHS attorney.  You generally cannot prepare the closing in advance; it will be shaped by the testimony and questions at trial.

Second, a good closing should remind the IJ about the legal standard and show how your client meets that standard.  In my case, the client was unable to get some evidence that the IJ wanted to see.  I reminded the IJ that, under the REAL ID Act, my client was only required to obtain evidence that was “reasonably available.”  I then explained why the missing evidence was unavailable. 

Finally, you should discuss the strong points of your case.  This is probably the most obvious thing to do during closing, but it is also—in my opinion—the least important.  Usually, the strong points of the case are apparent.  Also, asylum cases that are denied tend to be denied for lack of credibility.  Findings of incredibility are based on the weak parts of the case.  Once a client is found not credible, the strong parts of the case become irrelevant (who cares if you say you were tortured in prison if the IJ has found your testimony incredible).  That said, it is a good idea to remind the IJ about the strongest parts of your client’s case.

Well, those are some thoughts on closing arguments.  I still believe that in most cases, they do not make much difference.  But after last week, I am convinced that sometimes they can turn a denial into a grant.