Victory Is Fleeting, But Losing Lasts Forever

It feels good to win an asylum case, particularly a case where the client faces a real danger in the home country, or where winning seemed unlikely.  But one thing I’ve noticed about winning – that good feeling doesn’t last long.

The typical scene at my office after an asylum win.

It’s better for court cases, when you are actually present to hear the decision.  Since you’re not in the office, the win can be savored for a while; at least until you return to work.  With most Asylum Office victories, you receive the result by mail, so you might have a good couple minutes when you call the client to congratulate her.  After that, it’s back to the grind stone.

Losing, on the other hand, is a different story.  When you lose an asylum case, you need to explain to the client what went wrong.  If you’ve screwed up, you need to explain that too, and hopefully in a way that doesn’t generate a bar complaint.  If it’s the client’s fault, you need to be diplomatic–why add insult to injury? And even if you have done everything right, it’s hard not to feel guilty when a client loses his case.  Maybe you could have done more?  Of course, you can always do more, and since you lost the case, you clearly should have.

You also need to explain the appeals process, and how much you charge.  You have to discuss the chances for success on appeal.  For most clients, this is a conversation that you will have more than once.

And then, of course, you actually have to do the appeal.  These are a lot of work.  If the appeal is with the BIA, you won’t receive a decision for a year or two.  During that time, the client will call repeatedly to ask why there is no decision.  If you lose an appeal with the BIA, you then have to explain the process in the federal circuit courts and start the whole process again. 

So what’s the lesson here?  According to a recent survey of asylum advocates in the U.S. and the UK, we need to take time to celebrate our successes.  Many advocates report that there are moments of great joy in their work.  For these advocates, seeing individuals that they have supported win asylum is a strong source of motivation.  Even though we are busy, we should take time to savor our wins.  We help make people’s lives better.  If we take some time to appreciate our successes, it will help us enjoy our work more, and that will make us better advocates for our clients.  

Letter to a Young Immigration Lawyer

One of the perks of working in an area of the law (asylum) that interests law students and young lawyers is that I periodically get to meet people seeking advice about starting a practice or finding a job doing asylum cases.  It’s never easy to advise people about their careers, but there are a few pieces of wisdom I’ve picked up over the years that I try to pass on.  So for what it’s worth, here are some thoughts for up-and-coming immigration lawyers:

– You can do it.  This one sounds trite, so I probably should not have put it first, but I think it is the most important piece of advice I can give.  It may seem difficult (or impossible) to get started in the field of asylum law, but people who persist almost always succeed.  In my case, I could not find the job I wanted, so I worked at another job for a few years, put most of my income towards paying off my student loans, and then opened my own practice.  I kept expecting it to fail, but so far–eight years later–I’m still here.  And once you get your first job in the field, it is easier to move around.  I’ve seen many friends move between public interests jobs, private firms, and academia.  In other words, once you’re in, you’re in.

– Experience in the field prior to and during law school is more important than grades, law school rankings or law journal.  If you are thinking of a career in asylum law, try to gain as much experience as possible while in law school.  There are many opportunities to volunteer, including at the Immigration Court or DHS, for non-profit organizations, and even for private attorneys.  Also, publishing in law school journals or other journals (or writing a blog!) is a good way to get some experience and attention.

– Try to get a clerkship.  A clerkship or an internship with a court is a great way to learn how judges decide cases.  And if you know what judges want, it will help you throughout your career.  I clerked for the Third Circuit in Philadelphia (greatest city on Earth) and for the Immigration Court in Arlington, Virginia.  Both jobs taught me a lot and made me a better lawyer.

Advice from fortune cookies and immigration lawyers should be taken with a grain of salt.

– Volunteer.  One way to get your foot in the door is to volunteer with an organization that represents asylum seekers.  There are many, and they are often in need of free labor.  Volunteering for one of these organizations will allow you to meet people in the field, learn about paying job opportunities, and learn the skills needed to effectively represent people in court and at the asylum office.  I know several people whose volunteer positions led to full time employment.  I would suggest that you think strategically about where you volunteer–some organizations are better than others for purposes of networking, learning the ropes, and getting hired.

– Keep salary expectations realistic.  Your clients are refugees for Pete’s sake. 

– Consider opening your own practice.  However, I would encourage you not to do this anywhere near Washington, DC.  If I am giving you free advice, the least you can do is not compete with me.  Starting a practice of your own may seem daunting, but it really is do-able.  In fact, most private immigration attorneys are solo or work for small firms.  There is a lot of support available from bar associations, organizations (like AILA), and other attorneys.  In fact, many bar associations have a person dedicated to helping lawyers start law firms.  Call your bar association and ask about the resources they can offer you.

If you are thinking about a career in immigration law and asylum, I hope you will be encouraged to give it a go.  It’s a rewarding area of the law where you will have an opportunity to make a real difference in your clients’ lives.

Asylum Seeker Commits Suicide to Help His Children

In the last few years, we’ve seen a rash of politically motivated suicides.  The most well-known case is that of Mohamed Bouazizi, whose suicide to protest mistreatment by a Tunisian government official began the Arab Spring.  There have also been a number of incidents where Tibetan Buddhist monks set themselves on fire to draw attention to the brutal Chinese occupation of their homeland.  Most recently, a Moroccan woman trapped in a forced marriage killed herself with rat poison.  The incident sparked protests against Islamic marriage laws in Morocco.

Van Gogh's painting anticipates the pain of many asylum seekers.

Now, the Irish Times is reporting the suicide of an asylum seeker from Burundi.  The incident occurred in the Netherlands, and supposedly the man killed himself in an effort to increase the chances that his children would be permitted to stay:

Alain Hatungimana lost his wife during the Burundian civil war, in which 300,000 people were killed between 1993 and 2005. Then, five years ago, he managed to escape to the Netherlands with his son, Abdillah, and daughter, Maimuna – hoping, given the political circumstances, to be granted asylum and allowed to start anew.

Unfortunately for Mr. Hatungimana, the government rejected his claim and was planning to deport the family to Burundi.  This despite strong support for the family from local government officials. 

Mr. Hatungimana became depressed and, the day before he and his children were scheduled to be deported, he took his own life.  “Those who treated him [for depression] say they have no doubt the act was a final desperate attempt to prevent his children from being sent back to Burundi – though it remains uncertain whether he’s achieved even that.”

The government has a somewhat different take on the incident: “The immigration ministry in The Hague said it ‘regretted’ the suicide, noting Mr. Hatungimana had had ‘psychiatric problems.'”  The government also claimed that Mr. Hatungimana’s deportation was not imminent.

Whether the motivation was depression or a selfless (if misconceived) desire to help his children, Mr. Hatungimana’s story serves as a cautionary tale.  While I would not advocate changing law or policy based on the fear that an asylum seeker might commit suicide, Mr. Hatungimana’s example reminds us how serious these cases are.  We must do our best to ensure that legitimate asylum seekers receive the protection to which they are entitled under international law.

UNHCR: Number of Asylum Applications Up Sharply in 2011

A new report from the United Nations High Commissioner for Refugees (“UNHCR”) shows that asylum claims in industrialized countries have increased 20% from 2010 to 2011.  The United States continued to receive the most asylum seekers among the countries surveyed: approximately 74,000 asylum seekers in 2011.  This compares to approximately 55,500 asylum seekers for 2010, a 33% increase (among all countries, South Africa received the most asylum seekers).

The increase in asylum seekers to the U.S. is due largely to higher numbers from three countries: China (+20%), Mexico (+94%), and India (+241%).

With all the new refugees, we should at least get some interesting food joints.

The U.S. receives more asylum seekers from China than from any other country.  In 2010, we received 12,850 asylum seekers from China.  In 2011, we received 15,450 asylum seekers from China, an increase of 2,600 people or about 20%.  The large numbers are probably due to special provisions in the Immigration and Nationality Act that provide for asylum for victims of forced family planning–these provisions were created specifically to assist people from China, and they certainly seem to have encouraged Chinese nationals to seek asylum here.  Indeed, of the 24,400 Chinese asylum seekers worldwide, the U.S. received about 63% of all cases.  This is a very high number, given our physical distance from China.   If these numbers continue to rise, I wonder whether it will cause us to re-think our decision to grant asylum to victims of forced family planning.

The biggest numerical increase was among Mexicans seeking asylum in the U.S.  In 2010, there were 4,225 asylum seekers from Mexico.  In 2011, we received 8,186 asylum seekers from Mexico.  I recently wrote a post where I expressed doubt about the reported increase in Mexican asylum claims.  If the UNHCR report is correct, I was wrong and the number of asylum seekers has increased dramatically in the last year.  We will see whether the grant rate for Mexicans–which has been about 2%–will increase with the new crop of asylum seekers.  If this trend continues, it will certainly place a burden on our asylum system, and we might need to re-evaluate how we deal with the new influx.

In terms of relative increases, India had the largest increase: Up 241% from last year (the U.S. received 720 Indian asylum seekers in 2010 and 2,457 in 2011).  As far as I can tell, Indian cases are very diverse: political persecution, religious persecution, and sexual orientation, among other basis.  Why the dramatic increase in India asylum seekers?  I have no idea.  One “push factor” that seems inapplicable to Indian cases is the economy–India has one of the fastest growing economies in the world.  One year does not make a trend, so we will have to wait and see how many Indian nationals seek asylum in the U.S. in 2012.

Aside from the “big three,” there were major increases from El Salvador (2010–2,703; 2011–4,011) and Guatemala (2010–2,235; 2011–3,363), and smaller increases from Honduras, Haiti, and Nepal.  Rounding out the top 10 source countries for asylum seekers in the U.S. were Ethiopia (which saw a small drop in numbers) and Egypt, which appeared on the U.S. top ten list for the first time, perhaps as a result of difficulties related to the Arab Spring.

Worldwide, the top source countries for asylum seekers were Afghanistan (approximately 35,700 asylum seekers, up 34% from 2010), China (24,400; up 13% from 2010), Iraq (23,500; up 14% from 2010, but significantly down from 2008 when there were 40,400 claims), Serbia (21,200; down 28% from 2010), and Pakistan (18,100; up 66% from last year).

Given world population growth (there are a lot more people than there used to be), general economic malaise, and the dismal state of human rights in many countries, it is not surprising that the number of asylum seekers is increasing.  How we address these problems and how we treat people who come to us for help are some of the defining issues of our time.

Case Dismissed Against “Halva Terrorists”

Last August, I wrote about three Eritrean refugees who were arrested at Phoenix airport and accused of plotting a terrorist attack.  The Eritreans were caught with a package of halva (a common Mideast dessert, which is delicious AND Kosher for Passover).  The package of halva was suspicious because it had a cell phone taped to it.  TSA suspected this was a mock up of a bomb, and that the Eritreans were on a “dry run” for a terrorist attack.  Unfortunately, in this day and age, it is hard to blame TSA for being overly cautious.  Nevertheless, the charges seemed like a bit of a stretch. 

Jello shaped likes a grenade is also a bad idea for airplane travel.

Now, the government has dismissed the case against the three refugees:

“Based on the new information, further prosecution is not in the interest of justice,” wrote Assistant U.S. Attorney Joseph Koehler in his motion to dismiss the charges.

Philip Seplow, an attorney for one of the three, said he thinks the government simply realized the refugees were not guilty and the whole thing was a big misunderstanding, partially because of a significant language barrier.  Mr. Seplow reports that when he informed his client that she had been cleared of the charges, she wept with relief.

Of course it is better to be safe than sorry, and it is difficult to imagine how the government could have handled this case any better.  As for me, next time I travel, I will not be carrying any halva.

Jewish Hatemonger and Her Lies About Syrian TPS

Conservative blogger Debbie Schlussel has made a name for herself fighting “radical Islam,” which to her is synonymous with any form of Islam.  For instance, in response to Osama bin Laden’s death, she wrote “One down, 1.8 billion to go… many of ’em inside U.S. borders.”  Regarding the teenagers murdered in last year’s massacre in Norway, she writes:

Now these kids’ families know what it feels like to be victims of the Islamic terrorists whose Judenrein boycotts and terrorist flotillas against Israel they support.

Passover reminds us not to rejoice in the downfall of our enemies, even the really annoying ones.

She refers to the victims, who were as young as 14 years old, as “hateful, privileged brats.”  Their crime according to Ms. Schlussel–some of them expressed support for Palestinian rights and boycotting Israel.

You would think that mocking murder victims and calling for genocide against Muslim men, women, and children would put Ms. Schlussel outside the boundaries of civilized conversation.  Her work might be appropriate for a neo-Nazi website like Stormfront (though I imagine they won’t have her since she purports to be Jewish), but not for the main stream media.  Unfortunately, Ms. Schlussel appears regularly in the New York Post and the Jerusalem Post, as well as other media outlets.

The thing about her is that not only is she hateful, but she is a liar.  When the facts don’t support her miserable view of the world, she makes up facts to help fuel her hate (and her readers’ hate).  This is certainly the case with TPS for Syrians.  She writes:

Barack Obama and Janet Napolitano just gave thousands of Syrian Muslims–all of them either sympathizers with Hezbollah or the Muslim Brotherhood–permission to stay in the United States forever.

The Syrians in our midst–many of them here illegally–will now be untouchable by ICE (which isn’t arresting illegal aliens, anyway) for at least 18 months on the books.  But, as we know, in each case in which the U.S. has granted TPS for 18 months, the aliens got to stay forever.

And to add insult to injury:  these people, as with the Libyans and others who were granted TPS by Obama, will be able to work without restrictions in the U.S.–taking jobs from U.S. citizens.

Of course the first lie is that Syrians in America sympathize with Islamic terrorist groups.  There is no evidence what-so-ever to support this claim.  Indeed, the Syrians I have met in the U.S. oppose Islamic extremism and oppose the Assad regime (one of my clients–a medical doctor–was arrested and held in a torture prison on account of his opposition to the regime).

A second lie is that the Syrians, “as with the Libyans and others who were granted TPS,” will stay in the U.S. forever.  First of all, Ms. Schlussel is wrong (or more likely just made up a “fact” to suit her argument)–Libyans were never granted TPS in the United States.  Second, there is no reason to believe Syrians will stay here “forever.”  While TPS has been extended repeatedly for certain countries (mostly in Central America), that has not been the case for other countries, like Liberia, and–according to the Center for Immigration Studies (a restrictionist organization)–TPS for Sudan is winding down.

A third lie (and I simply don’t have time to address them all) is that Syrians in the U.S. are “untouchable by ICE (which isn’t arresting illegal aliens, anyway).”  In general, people with criminal convictions are not eligible for TPS.  Further, if a person with TPS commits a crime or if there is reason to believe that he is a security threat, he can–and probably will–be arrested.  Finally, contrary to Ms. Schlusser’s claim that we are not arresting illegal aliens, DHS has deported record numbers of aliens during each year of the Obama administration.

It’s too bad that Ms. Schlussel’s lies are able to distort the public dialogue on this important issue.  It’s also too bad that a person who claims to be the “granddaughter of immigrant Holocaust survivors” would perpetrate the same type of hatred and lies that led to the Holocaust.  I expect better from my fellow Jews.

Section 13: An Asylum Alternative for Diplomats

Diplomats who cannot return to their countries can claim asylum, like anyone else.  But an alternative form of relief is available: Section 13 of the Immigration and Nationality Act allows individuals who entered the United States under diplomatic status to obtain a green card.  To be eligible for residency under Section 13, you must demonstrate that:

  • You entered the United States as an A-1, A-2, G-1, or G-2 nonimmigrant
  • You failed to maintain your A-1, A-2, G-1, or G-2 nonimmigrant status 
  • Your duties were diplomatic or semi-diplomatic
  • There is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat
  • You are a person of good moral character
  • You are admissible to the United States for permanent residence
  • Granting you a green card would be in the national interest of the United States

Several of these requirements are a bit tricky.  First, you must show that your duties were diplomatic or semi-diplomatic.  “Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13.” See Matter of —, Administrative Appeals Office, July 23, 2007.  Second, you must show a compelling reason why you cannot return to the country that accredited you.  Fear of persecution would qualify as a “compelling reason,” but the law does not seem limited to such claims. Id. (however, the inability to support oneself in the home country is not a “compelling reason”).  Finally, you would need to show that granting residency is in the “national interest” of the United States.  The only information I could find about this requirement is in the AAO decision, mentioned above, which notes that being a healthy, hard working man who can contribute to society is not the type of advantage to our national interest envisaged by the Act. Id.

Diplomats get all the perks.

To apply for section 13 relief, a diplomat must file an I-485 form with supporting documents.  More information about the requirements is available here.  The diplomat may also apply for a work permit (I-765) while the application for permanent residency is pending.

So what is the advantage of section 13 adjustment over asylum?  For one thing, it appears that section 13 adjustment does not require any nexus between the feared harm and a protected ground (race, religion, nationality, particular social group or political opinion).  Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency.  One disadvantage to section 13 is that the diplomat would not be eligible for some of the special benefits available to asylees (like housing assistance and job placement).  Another disadvantage is that diplomats must show granting them residency is in the U.S. “national interest.” 

I imagine section 13 would come in handy for diplomats from a country like Syria.  Although I have not heard about mass defections from that embassy, one can only hope that professional diplomats would have the courage to abandon a regime that is murdering thousands of people.  Section 13 allows such people to take a stand against their government and remain safely in the United States.