Hungarian Roma (Gypsies) Seeking Asylum in Canada

I was surprised to learn that the largest source country for asylum seekers in Canada is Hungary.  Embassy Magazine reports that 2,297 Hungarians–mostly Roma–filed for asylum in Canada in 2010.  During the first nine months of 2011, figures show that 2,545 Hungarians applied for asylum in Canada, 1,000 more than the next highest source country, China.  Presumably most of these asylum seekers were also Roma (Roma are pejoratively known as Gypsies). 

There’s a different story in the United States.  According to the DHS Yearbook of Immigration Statistics, only a nominal number of people from Hungary sought asylum in the U.S.  Indeed, the Yearbook does not even list Hungary as a source country, and in FY 2010, only 730 people from all of Europe applied for asylum here.

So why the difference between us and (as Herman Cain would call it) Cana-an-an-anada?

My first thought was that the difference must be related to visa requirements, but this appears not to be the case.  Embassy Magazine reports that, “Canada lifted visa requirements for Hungarian nationals in 2008,” but the same is true for the U.S.  As of November 2008, Hungarians are eligible to enter the United States on the Visa Waiver Program.

Maybe Bela Lugosi is scaring away his fellow Hungarians.

Another explanation may be that Canada already has a sizable Hungarian population, including many people who fled Hungary after the 1956 Revolution.  Immigrants tend to go where they feel more comfortable, in terms of culture, language, etc., and so the new immigrants might be joining their countrymen in Canada.  But it turns out that the U.S. has more Hungarians than Canada (including Drew Barrymore and–my personal favorite–Bela Lugosi) .  

A final reason might be that it is easier to win asylum in Canada than in the U.S.  But I don’t think that is the case either.  According to Embassy Magazine, Canada “accepted less than 10 per cent of the Hungarian refugee claims since 2009.” 

In the end, it is a mystery to me why Canada is receiving so many more Hungarian asylum seekers than the U.S.  What seems pretty clear, though, is that the situation for Roma people in Hungary is dangerous.  Many Roma have been murdered and right wing extremism is on the rise.  The main reason for the low asylum grant rate is not that Roma people are safe in Hungary.  Rather, the Canadian government believes the Roma can resettle in other EU countries where they can live safely (whether the Roma agree with this is a separate question).

There is talk in Canada of making it more difficult for Hungarians to obtain visas.  Even if visas are not restricted, if the grant rate remains low, the flow of Hungarians may slow down.  But if the situation for the Roma in Hungary is as bad as it seems, a 10% chance of gaining a better life in Canada might be enough to keep people coming. 

And yes, I know Herman Cain jokes are so last month, but I thought that was a good one.

Jesus, Mary, and Joseph – Asylum Seekers

When Jesus was born, three wise men came to worship him.  According to Mathew, the men came from the East, and before they met Jesus, they went to King Herod and asked him, “Where is he that is born King of the Jews?”  When Herod heard their question, he was “troubled,” as he viewed himself as the Jews’ king. 

A 900-year-old depiction of the flilght into Egypt. From St. Catherine's Monestary in the Sinai.

Herod directed the wise men to Bethlehem, where the king’s prophets predicted the baby would be found.  He also ordered the wise men to inform him when they found Jesus, so Herod could come “worship” the new King.  Of course, this was a ploy–Herod wanted to find Jesus so he could kill him and eliminate the threat to his throne.  The wise men (being wise) understood Herod’s plan and failed to return with Jesus’s whereabouts.

Herod was not pleased that the wise men betrayed him, so he decided to kill all the babies born in the Bethlehem metro area, an event that became known as the Massacre of the Innocents.  Luckily for Jesus and his family, an angel came to Joseph and warned him about the impending danger.  Joseph gathered up his family and fled to Egypt, where they received asylum.  The family remained in Egypt until Herod died a few years later.  They then moved to Nazareth, to avoid living under the rule of Herod’s son, who was by all accounts worse than his father. 

There is nothing in Mathew about the family’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt).  These include a story about a tree that was worshiped by the locals as a god.  In fact, the tree was possessed by an evil spirit.  When Jesus approached, the evil spirit fled.  The tree then bent down to worship Jesus.  From then on, the tree was venerated by the people and possessed healing powers. 

Interestingly, the Coptic view holds that the people of Egypt–who offered refuge to Jesus and his family–were “richly blessed” for their good deed.  To me, this is a reminder that the helper often receives as much (or more) of a benefit than the person he is helping.

Merry Christmas and Happy Holidays. 

The Little Things Mean a Lot

Over the years, I’ve attended many asylum interviews.  I notice that different Asylum Officers conduct the interviews in different ways.  While much of this is personal style, some of the differences strike me as something more.  I wonder whether these different interview techniques have any effect on the decision.  Below are some of the differences I’ve noticed, and some thoughts about them:

– Some officers type their notes; others write the notes by hand.  Also, some officers seemingly write down every word the applicant says, while others do not.  These differences are pretty substantive, and they speak to the need to record asylum interviews.   Asylum Officer notes are not only used to make decisions; they are sometimes used for impeachment purposes in Immigration Court.  Notes that are vague or illegible may not be admissible in court.  Also, if different officers are preparing their notes in different ways, it impacts the supervisor’s ability to review the Asylum Officer’s decision.  If interviews were recorded, the officers could take whatever notes they needed to make their decision, and we would still have an accurate record of the interview available to the supervisors and the Immigration Court. 

Some interview styles work better than others.

– Some officers make photocopies of original documents, even when we have submitted copies of those documents already.  Other officers rely on the copies we have submitted.  I don’t think this makes much difference in the case, but it is a bit odd.  Why does one officer trust the copies that we’ve submitted while another officer wants to make her own copies? 

– Some officers copy the lawyer’s ID, others do not.  Again, I don’t see how this makes any substantive difference, but I have no idea why one officer wants a copy of my photo ID while another has no need for it.

– Most Asylum Officers review the form I-589 with the applicant at the beginning of the interview and allow the applicant to make any needed corrections.  A few officers do not review the form and instead make corrections as needed throughout the interview.  This difference strikes me as substantive because it may affect how an officer views the applicant’s credibility.  If the officer reviews the form at the beginning, and then the applicant’s story is not consistent with the form, the officer can find him not credible.  However, if the officer does not review the form at the beginning of the interview, it is a bit unfair to base an adverse credibility finding on a statement that is not consistent with the form, since the applicant did not have an opportunity to correct any errors.

Well, those are a few differences I’ve noticed.  Whether they have any effect on decisions, I don’t know.  But it seems to me that whenever decision makers use different techniques in their interviews, it is worth noting.

UFO Cult Leader from Iran Granted Asylum in the U.S.

According to Raelia News, Negar Azizmoradi, a leader of the Iranian branch of the International Raelian Movement has been granted asylum in the United States.  Ms. Azizmoradi faced a possible death sentence in Iran because of her leadership role in the Raelian movement and because she is an atheist who renounced Islam (apostasy is punishable by death in Iran).  She fled to Turkey, where the government jailed her and threatened to return her to Iran.  After Raelians and others from different countries protested, the Turkish government released her and allowed her to come to the United States.  Last week, she received asylum (given the timing of events, it might be that she came here as a refugee, rather than claiming asylum after she arrived).

For those of you not familiar with Rael (a/k/a Claude Vorilhon) and his followers (called Raelians), here’s a bit of background.  Mr. Vorilhon was born in France.  He has been a race car driver, a singer, and a journalist.  In 1973, he encountered extraterrestrials, who gave him a message to pass on to other humans.  The message involved the secret history of the world and the return of the extraterrestrials.  Since then, Rael (as he is now known), has been spreading his news around the globe.  It’s not surprising that some countries, including Iran, have been less than receptive to his message.

For me as an attorney, Ms. Azizmoradi’s asylum application would have been a dream case.  Not that I’m a great fan of Rael, who supported Muammar Gaddafi and seems to have no love for the Jews.  However, I am a big fan of UFOs, lost civilization, and all things Fortean, and a Raelian asylum case certainly fits that bill. And asylum seems necessary here, where Ms. Azizmoradi faced persecution (or worse) in Iran.

Barney Hill: Immigrant and Abductee.

While we are on the subject of UFOs and immigrants, here’s an interesting tidbit.  The most famous UFO abduction case involved a couple, Betty and Barney Hill.  In September 1961, the Hills were driving through New Hampshire when they spotted a flying saucer (as UFOs were called back then).  They could see humanoids observing them from inside the saucer.  After their encounter, they realized that they “lost” three hours of their lives.  The case was investigated by the U.S. military and others, and has been the subject of several books and TV movies.  It also marked the beginning of an abduction craze, and many people claimed experiences similar to the Hill’s.

While people familiar with Hill’s case know that the couple was of mixed race (which was very unusual for 1961 America), what is not widely known is that Barney Hill was either an immigrant from Ethiopia or a descendent of Ethiopian immigrants.  I have never been able to find much information about this aspect of the case, but it strikes me as quite interesting.  When and why did he come here?  What was his birth name (I’ve met a lot of Ethiopians, but never any named Barney or Hill)?  How did he meet his wife?  Much has been made of Barney’s race in analyzing the case, including a recent scholarly article, but I have never seen anything specifically addressing his status as an immigrant.  I suppose there are many questions, but no answers.  So, as the ufologists say: Keep watching the skies!

Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.”  And who has the informant been ordered to turn over this information to?  The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.  If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.

First, a bit of background.  Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.  I’ve written about him before, here and here  (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.  The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.  The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.”  Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks. 

I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas.  But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.  It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.  Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.  Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.  While discovery in civil cases is quite broad, it is not unlimited.  Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.  Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.  If  this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.  For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant. 

The Tyranny of Unreturned Phone Calls

Aliens have a due process right to a fair hearing in Immigration Court.  At what point is that due process right violated when the alien (or her attorney) is unable to communicate with the Court or the DHS attorney?

It is a common scenario for the attorney to contact DHS counsel for a pre-trial conference.  The purpose of this communication is to narrow the issues and learn about DHS’s position in the case.  More often than not, messages left for DHS counsel are not returned.  The DHS attorneys usually have an explanation for failing to return calls—they are too busy or they are not responsible for that particular case.  But the inability to speak with government counsel prior to trial often has real-life consequences for aliens in Immigration Court.

This guy had an easier time making a phone call than most immigration attorneys.

For example, I recently had a Nepalese asylum case remanded by the BIA.  The Board found that my client had suffered past persecution based on a protected ground, and remanded the case to determine whether DHS had any evidence to rebut the presumption that my client faces a well-founded fear of future persecution.  It was pretty obvious that DHS would not rebut the presumption, and the IJ could grant asylum (the IJ said as much himself in court).  Unfortunately, several calls to DHS went unreturned, and when we got to Court, the DHS attorney was unable to state the government’s position.  The result: The case is delayed for several months so DHS can decide what to do.

We face similar problems when attempting to communicate with the Immigration Court.  A recent example of this for me was when the Court rescheduled one of my cases to a date when I was unavailable.  I promptly filed a motion to reschedule, but there was no response.  I called the Court numerous times.  Sometimes, the phone just rang with no answer.  Other times, I left messages that were not returned.  A few times, I actually spoke to someone, but those people were unable to help (they told me that the Judge had the motion but had not yet made a decision).  In the end, I had to send the client to Court without me.  The Judge was angry and blamed me.  He threatened that if I was not in Court the next time, the case would go forward without me.  In the end, he rescheduled the case.  But my inability to communicate with the Court almost caused my client to lose her right to an attorney.

The obvious solution is for DHS attorneys and court employees to return our phone calls.  But I know it is not that simple.  Case loads are oppressive, and I imagine the government workers receive many phone calls and messages.  There is very little time to return calls.  (Not to let government workers off too easy—I also receive many phone calls and have a busy schedule, but I return all my calls).

Aside from hiring more employees (not gonna happen), I am not sure how to make this better.  Perhaps there could be a dedicated email address, which we could use to communicate with the Court or DHS.  The email could be screened by an employee and priority issues could be forwarded to the appropriate party.  Or maybe there could be AILA/immigration lawyer volunteers who act as liaisons to DHS or the Court.  For the time being, though, we are left to call repeatedly and hope we reach someone.

EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

The New York Times recently reported on a new policy at the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) designed to prioritize the removal of criminal aliens.  Under the policy, DHS will review cases and terminate proceedings for aliens deemed a low priority for removal.  At the same time, EOIR (the Immigration Courts) will re-arrange its dockets to expedite priority cases.  From December 4, 2011 to January 13, 2012, EOIR will be implementing the Prosecutorial Discretion Pilot Project in Baltimore and Denver.  The results for aliens seeking asylum are already pretty devastating, and if the program goes national in its present form, we can expect serious problems for many asylum seekers.

Some experiments have unintended consequences.

My first experience with the program came last week when we received notice that my client’s Individual Hearing was re-scheduled from this December to May 2014 (yes, that is 2014, almost 2.5 years from now).  The man is an Eritrean national who fled persecution in his homeland.  He has a decent case and he had been hoping for a resolution later this month.  Now he must wait until 2014.  He has no work permit and the Asylum Clock is stopped in his case.

According to EOIR, the goal of the Pilot Program is “to ensure that [limited] resources are focused on the Administration’s highest immigration enforcement priorities.”  Unfortunately, in this case, the Administration’s “enforcement priorities” (i.e., removal of aliens) comes at the expense of our country’s humanitarian obligations.

Part of the problem, I think, is the government’s attitude, articulated by the Supreme Court in INS v. Doherty, 502 U.S. 314, 323 (1992), that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”  I have always felt that this statement reflects an insensitivity and ignorance about many aliens who are in the U.S.  While some aliens do merely hope to delay their removal, asylum seekers wish to see their cases resolved as quickly as possible.  There are a number of reasons for this: Asylum seekers are hoping to petition for their family members, some of whom face threats in the home country; asylum seekers fear return to their country, and waiting for years to learn their fate is extremely stressful; many asylum seekers are young and hope to study in university, which is difficult without lawful status; many asylum seekers are well educated and hope to find professional jobs, which is also difficult without status.

For all these reasons, delaying asylum hearings for 2+ years is devastating to many asylum seekers.

The Pilot Program is going forward, and I imagine that the same or similar policies will be adopted throughout the U.S.  Given this new reality, here are a couple suggestions about how EOIR can mitigate the difficulty to asylum seekers and other aliens who are hoping for a resolution of their cases:

– When an asylum case is postponed, the Asylum Clock should start automatically, so that the asylum seeker can obtain her work permit.

– EOIR should reserve some time slots in the (relatively) near future for asylum seekers and others whose cases have been postponed.  Aliens that wish to have a sooner resolution of their cases can file motions to expedite.  Thus, for example, if EOIR reserved some time slots in 2012, my 2014 client could file a motion requesting one of those dates.

Finally, while it might be futile to argue that we should not be prioritizing removals over protecting people fleeing persecution, I want to give it a try.  Statistically, most removals involve people with no criminal histories.  Even many “criminal aliens” are convicted of very minor violations (driving without a license, using a false ID, and drunk in public are three common violations).  The benefit to the U.S. of removing these people quickly–and often separating them from their family members–is pretty minimal.  On the other hand, as discussed above, the harm of leaving legitimate asylum seekers in limbo for long periods is severe.  If these competing interests are balanced, it seems unjust that asylum seekers should never receive priority over the removal of “criminal aliens.”  EOIR should re-think its policy to account for the needs of legitimate asylum seekers.