BIA Expands the Definition of Firm Resettlement

A recent BIA decision addresses the issue of firm resettlement. See Matter D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012).  If an alien is firmly resettled in a third country, she is not eligible for political asylum in the United States. 

Last year, in a case called Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011), the Board set forth a framework for determining whether an alien is firmly resettled and thus barred from obtaining asylum.  First, DHS bears the burden of presenting prima facie evidence, such as a passport or other travel document, of an offer of firm resettlement.  The asylum applicant can then rebut DHS’s prima facie evidence by showing that the offer has not, in fact, been made, that he would not qualify for it or that an exception to firm resettlement applies.  One exception is that the applicant’s entry into the country “was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country.” See 8 C.F.R. § 1208.15(a).

A frequent diner card from the Belize City Johnny Rockets may constitute prima facia evidence of firm resettlement.

In Matter of D-X- & Y-Z-, a Chinese asylum seeker went to Belize where she fraudulently obtained a residence permit.  She then continued her journey to the United States and filed for asylum.  Despite the Belize residency permit, the Immigration Judge found that the alien was not firmly resettled because she remained in Belize “only as long as was necessary to arrange onward travel” and she “did not establish significant ties in that country.”  The IJ granted asylum.

The BIA reversed, holding that, “Even if the respondents used some form of fraud or bribery through a middleman to obtain [the residency permit], there has been no showing that they were not issued by the Belize Government.”  The Board also noted, “aliens who have obtained an immigration status by fraud should not be permitted to disavow that status in order to establish eligibility for another type of relief.”  The BIA concluded that the alien’s “claim of fraud in obtaining permits to reside in Belize does not rebut the DHS’s prima facie evidence of firm resettlement in that country [i.e., the fact that she held a Belize residency permit].”

This decision is problematic because it is common for aliens to obtain false documents from countries that will not protect them while they are en route to the United States.  For example, I have represented a number of East African clients who fraudulently obtained South African passports.  These people have no permission to remain in South Africa, and if that government discovered their fraud, they would be deported to the country where they face persecution.   Thus, any “status” they may have in South Africa is tenuous at best.

Perhaps the alien in Matter of D-X- & Y-Z-, should have done a better job obtaining evidence to rebut the presumption of firm resettlement in Belize.  For the rest of us, the case is a cautionary tale–if a client has used a fraudulently obtained documents from a third country, she had better obtain evidence demonstrating that she is not firmly resettled in that country.

New Government Training Manuel for Lesbian, Gay, Bisexual, Transgender, and Intersex Asylum Claims

USCIS and Immigration Equality have joined forces to create a new training module for asylum adjudicators called “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims.”  According to Immigration Equality, the new module “instructs asylum officers on substantive aspects of the law and highlights the unique difficulties that LGBTI claimants may experience in articulating their claims for asylum.”  A few highlights from the module:

  • My favorite LGBTI asylum seeker.
    Helpful definitions, and appropriately sensitive questions, for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices;
  • LGBTI-specific examples of harm that may constitute persecution, including: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to “cure” an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse;
  • Instructions for analyzing complex issues, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBTI applicants are not required to meet pre-conceived stereotypes or “look gay;” and that cultural norms within the LGBTI community in an applicant’s home country may differ from those in the U.S.; and
  • A non-exhaustive list of possible one-year filing deadline exceptions (which make it difficult to pursue asylum after one year of presence in the United States), including: recently “coming out” as LGBTI; recent steps to transition from birth gender to corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.

I am particularly happy to see some (though, in my opinion, not enough) guidance about the one-year filing deadline (see page 47 of the module).  Most likely, the reason for the sparse guidance is that there is not much BIA case law on this issue (note to BIA–publish more cases!).  In my experience–and I am not alone–the one year deadline is a particular problem in LGBTI cases.

Overall, the module seems like a valuable resource for adjudicators and advocates.  Congratulations to Immigration Equality and USCIS on a job well done.

Dead Honduran Seeks Asylum in the U.S.

Four years ago, Josue Rafael Orellana Garcia fled Honduras to escape persecution by a criminal gang.  It seems the gang originally targeted him due to a handicap–he lost an eye and much of his hearing when he was struck by a tree during Hurricane Mitch.  Mr. Orellana arrived illegally in the United States at age 17 and requested political asylum.  His case was ultimately denied, and he was deported to Honduras in 2010.  

Mr. Orellana's mother with a photo of her deceased son.

Back in Honduras, Mr. Orellana disappeared while running an errand.  His body was found in July of last year.  Presumably, Mr. Orellana was murdered by the same gang members that had been persecuting him all along. 

Now, the Wall Street Journal reports that Mr. Orellana’s attorney has brought a posthumous asylum case before the Board of Immigration Appeals.  The purpose of the case is to highlight our country’s failure to protect people fleeing gang violence in Central America.  Mr. Orellana’s attorney, Joshua Bardavid, states, “I think it’s something that needs to be acknowledged: that we failed him; that he came here seeking safety, and the entire system let him down.”

The problem of gang violence is certainly endemic in several Central American countries.  Honduras, El Salvador, and Guatemala have some of the highest murder rates in the world (several times higher than Mexico, which has received much attention of late).  And the asylum grant rate from those countries is quite low.  According to statistics from the Department of Justice, in FY 2009 (the latest year I see data available) the asylum grant rate was as follows: Honduras: 5.5%, El Salvador: 2.9%, Guatemala: 4.3%.

As far as I know, there is no provision in the INA to grant asylum to someone who is deceased (unlike naturalization, which can be granted posthumously).  However, Mr. Orellana’s case is a sobering reminder that when we return Central American asylum seekers to their countries, we sometimes condemn them to death.  Hopefully, his case will help bring attention to this serious and difficult issue. 

For those attorneys and advocates working on gang-based asylum cases, the U.S. Committee for Refugees and Immigrants has some good resources that might prove useful.

Credibility Determinations Are Not Credible, Part Three

In this series, I have been writing about methods for determining whether an alien is telling the truth.  So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable.  Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility.  I am speaking about plausibility.

First, what do we mean by plausibility?  When a fact finder determines that an event is not believable, it is implausible.  For example, I worked on a case where the Immigration Judge found my client’s testimony implausible.  The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest.  The IJ did not believe that a person wanted by the government could pass through airport security.

Unless your name is Big Daddy, you probably can't smell the mendacity.

The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible.  In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport.  In my case, we presented this evidence and my client received asylum.

As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way.  The IJ was concerned about a legitimate plausibility issue.  We presented evidence to satisfy that concern.  The case was granted. 

The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.”  Mr. Sagan’s axiom can be applied in the asylum context.  Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible.  The more implausible the claim, the better evidence the alien will need to demonstrate plausibility.  This seems like a reasonable method for assessing credibility.

If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable.  This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony.  The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness.  In the end, the fact finder must reach a conclusion using the imperfect tools that are available.  Given all that rides on these decisions, it’s not a task I envy them.

The Problem With Immigration Lawyers and How to Fix It, Part 3: Notarios

The now-defunct Syms clothing store had a slogan, “An educated consumer is our best customer.”  Unfortunately, many asylum seekers and immigrants are not well educated about the immigration system or the attorneys and notarios who represent them (a notario, in the parlance of our times, is a non-lawyer who purportedly assists aliens with their immigration paperwork). 

If your lawyer also sells fried chicken, it might be a bad sign.

Some notarios are honest and do excellent work; some are crooks who exploit an alien’s naivete about the immigration system and steal their money.  Although it is somewhat self-serving for an immigration lawyer (like me) to condemn notarios, I have seen many instances where a notario caused an alien to lose his case or where the notario took the alien’s money and disappeared.  Also, I am certainly not alone in my opinion: AILA has an over-the-top website called Stop Notario Fraud, and USCIS has a campaign explaining that the wrong help can hurt.  Not to mention that it is illegal to provide legal representation unless you are an attorney or an authorized representative.

In the asylum context, many applicants use notarios to help prepare their affirmative cases (the name for these “helpers” varies depending on the country of origin; for example, an Ethiopian notario is called an “asterguami” or translator).  The notarios are known to embellish cases or to simply make up stories.  There is no regulatory authority (like a bar association) to police the notarios, and though their activity is illegal, they are rarely caught.  They also spread misinformation in their communities about how the asylum process works.  For example, there are persistent (and contradictory) rumors in the Ethiopian community that well-educated asylum seekers are granted asylum because the U.S. needs talented people and also that the outcome of an asylum interview is random, so a well-prepared application is superfluous. 

So what does all this have to do with immigration lawyers?

For one thing, when applicants have been educated by notarios in their communities to believe that the outcome of a case is random, or dependent on factors other than the fear of persecution, there is no incentive to hire a competent attorney.  Indeed, the incentive is to hire the least expensive attorney available.  Except in the case of non-profits or pro bono counsel, such attorneys are not likely to provide the highest quality service.  Since many aliens do not understand that a decent attorney can improve the chances for success in a case, incompetent attorneys are able to continue attracting clients despite a poor track record.  In this case, a mis-educated consumer is their best customer.

In addition, notarios can–to a large degree–control which attorneys their clients will hire after the notario loses the initial case and it is referred to an Immigration Judge.  The notarios (who are not lawyers and cannot go to court) refer their unsuccessful clients to certain attorneys.  As you might imagine, unscrupulous notarios refer their clients to unscrupulous attorneys.

The current efforts to crack down on notario fraud are a good start, but those efforts largely ignore non-Spanish speaking populations in general, and asylum seekers in particular.  Advocacy organizations and the government should do more to address this problem.  Stopping unscrupulous notarios will reduce asylum fraud and, indirectly, improve the quality of lawyers practicing immigration law.

Credibility Determinations Are Not Credible, Part Two

I previously wrote about how credibility determinations based on inconsistencies are not reliable.  Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods.  First, two methods that don’t work well:

Demean girl.

Demeanor.  Fact finders often judge credibility based on the alien’s demeanor during testimony.  Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.”  Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts.  The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor.  This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal.  These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.

Lack of Detail.  This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court.  My initial reaction when I see this is to blame the Asylum Officer.  If the Officer wanted more detail, she should have asked more questions.  But I know this is not exactly what is meant by “lack of detail.” 

Demeanor girl.

An example will illustrate the point.  An asylum seeker (represented by my friend) was asked to describe the conditions of her detention.  She responded: “I was locked up and I was interrogated.”  The Officer repeated the question and received a similar answer.  As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated.  Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it.  In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc.  If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.

The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.

Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible.  However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth.  In a future post, I will discuss some methods of judging credibility that might be more effective. 

Credibility Determinations Are Not Credible

In an asylum case, one of the most difficult determinations for the fact finder is the alien’s credibility: Is the alien telling the truth about his claim?

Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says “Circuit Credibility Outline”). 

One of the main methods used to determine credibility is to to look for inconsistent statements in an alien’s testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

Someone named Mr. Incredible would probably not do well in Immigration Court.

A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 

For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client’s affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.

This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien’s memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates–except in the most egregious circumstances–should not be used to support a negative credibility finding. 

Another technique to evaluate credibility is to look for inconsistencies between an alien’s testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.

Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent’s and a witness’s testimony.

In a future posting, I will discuss other methods of determining credibility.

The Problem With Immigration Lawyers and How to Fix It, Part 2: Bar Associations

This is part two in a series of posts about the poor quality of immigration lawyers.  A recent survey of judges’ opinions found that 33% of immigrants had “inadequate” counsel and 14% had “grossly inadequate” counsel.  I previous wrote about how Immigration Judges could improve the situation by reporting incompetent and dishonest attorneys.  Indeed, according to Justice Department rules, IJs are required to report such attorneys.

Most bar complaints end up here (but at least they recycle).

Of course, reporting incompetent attorneys accomplishes little unless the disciplinary authorities–i.e., the state bar associations–actually impose sanctions where such punishment is appropriate.  Although a large number of practitioners have been disciplined, given the current state of affairs, the bar associations are not doing enough to protect immigrants.  Here are some thoughts on what bar associations could do to improve the situation:

– Bar associations should reach out to immigrant communities to help inform aliens about their right to competent counsel.  This means providing information–including information about how to report dishonest attorneys–to various immigrant advocacy groups and encouraging those groups to translate and disseminate the information.

– Given that immigrants are particularly vulnerable to unscrupulous lawyers, bar associations should pay close attention to complaints filed in immigration cases.  My sense is that the bar associations tend to protect lawyers, and that it is not easy to get disbarred (I hope I am not jinxing myself!).  Bar associations need to take complaints seriously and, in the case of vulnerable populations (minors, immigrants, etc.), need to thoroughly investigate allegations of bad conduct.

– Another issue is that certain bars–most notably New York and California–allow people with a foreign law degree to sit for the bar after they receive an LLM.  The requirements for admission to LLM programs are much less rigorous than for admission to JD programs, and thus graduates of these programs are not as familiar with the U.S. legal system as people who receive a JD degree at an accredited law school.  New York, at least, has taken some modest steps to improve this situation.

– A final–and more sweeping–idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies.  Volunteer immigration lawyers, who are knowledgeable about immigration law and who speak different languages, could serve on the disciplinary committee.  This way, aliens could file complaints directly to the immigration bar association, and those complaints would be reviewed by people familiar with the system and who (probably) speak the alien’s native language.  Also, an immigration bar association could require legal education and ethics training.

I don’t think we’ll see a mandatory immigration bar association any time soon, but I believe such an association would improve the quality of immigration attorneys.  For now, we will have to rely on state bar associations–however imperfect–to protect immigrants.

The Problem With Immigration Lawyers and How to Fix It, Part 1: Immigration Judges

The poor quality of the immigration bar is a much discussed topic in certain circles (I wrote about it here).  A recent study in the Cardozo Law Review that was featured last month in the New York Times provides an opportunity to discuss the situation, and give my two cents about how to improve representation for immigrants.  According to the Times, “The study was conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City.”  “Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation.”

Judges to Immigration Lawyers: You stink!

The Times reports that Immigration Judges in the New York City area were surveyed, and they were less than pleased with the quality of the attorneys practicing in their courts.  The judges said that 33% of immigrants have “inadequate counsel” and 14% have “grossly inadequate” counsel.  The judges “gave private lawyers the lowest grades, while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics.”

I believe that Immigration Judges bear some blame for the lawyers’ poor performance.  Aside from the fact that I’m a vindictive so-and-so who doesn’t like judges dissing attorneys, why would I blame judges for attorney behavior?  Let me explain.

Immigration Judges are bound by certain ethical rules, which are set forth in the Ethics and Professionalism Guide.  The Guide states that Immigration Judges–like all DOJ attorneys–have a duty to report allegations of misconduct by other Justice Department attorneys and “a duty to report allegations of misconduct by non-Department attorneys.” See United States Attorneys’ Manual (“USAM”), Chapters 1-4.100 & 1-4.150 (“Allegations of misconduct by non-DOJ attorneys or judges shall be reported to OPR [Office of Professional Responsibility] for a determination of whether to report the allegation to appropriate disciplinary officials.” (emphasis added)).  Thus, it is mandatory for IJs to report misconduct.

According to IJs in New York, 14% of attorneys are “grossly inadequate,” meaning:

They are often poorly prepared or make incoherent arguments in court.  Some fail to present key evidence or witnesses.  Others simply do not show up.

Under the rules of the Guide and the USAM, it seems pretty clear that Immigration Judges are duty-bound to report attorneys who engage in at least some of these bad practices.  To the extent that IJs do not report such behavior, they are encouraging and enabling incompetent and/or dishonest attorneys to continue preying upon naive aliens.

Based on my experience working at an Immigration Court and as a practitioner, everyone–including the IJs–knows who the bad actors are.  I am not talking about attorneys of good will who periodically screw up.  We all make mistakes.  I am talking about attorneys who routinely fail to provide minimally competent work and who regularly destroy their clients’ chances to remain in the U.S.  Given many foreigners’ inexperience with our system and their fear of the authorities, it is critical that Immigration Judges report incompetent and dishonest lawyers to the appropriate disciplinary committees.  When they fail to fulfill this duty, they allow the harmful conduct to continue.