EOIR Bans Art in Immigration Court

The Arlington Immigration Court recently relocated from Ballston to Crystal City, Virginia.  The new court is bigger and has public bathrooms (a BIG improvement for the bladder-impaired).  It is also totally devoid of art.

One of many walls in the Arlington Immigration Court.

For those of us who practice before the Arlington Court, the bare walls feel a bit strange.  The old court had portraits of the founding fathers, various presidents, and some of our founding documents.  You could also see busts and paintings of various presidents inside the courtrooms.  One IJ, now retired, was known for her husband’s paintings (mostly flowers), which adorned her courtroom walls.  

In stark contrast, you’re lucky to find a light switch on the walls of the new court.  Now, you might be thinking, “The Court just opened, so they haven’t yet had time to decorate.”  Not so.  I asked around about the barren landscape.  The word on the street is that courtrooms and waiting areas can no longer be “personalized.”  This means no art.  I contacted the Executive Office for Immigration Review (“EOIR” – the agency that administers the Immigration Courts) for clarification.  Their response:

As EOIR is one adjudicative agency with 59 immigration court locations throughout the nation, we strive to maintain uniform public spaces throughout our facilities.  As with other federal agencies, private spaces such as judges’ chambers and individual office space may be personalized within reasonable boundaries.

In this context, “uniform public spaces” means no wall art.  I suppose I understand the reasoning.  For one thing, if you allow any art, it is hard to control what ends up on the wall.  If EOIR allows a portrait of Abe Lincoln, must they also allow a portrait of anti-immigration president Warren G. Harding?  What about a portrait of presidential candidate (and anti-immigrant crusader) Pat Buchanan?  

Also, what about images that might not be culturally sensitive to the aliens appearing before the Court?  Much as Attorney General John Ashcroft covered a bare-breasted statue in the Justice Department, might some playboy IJ seek to fill a courtroom with inappropriate images?

Given all the potential pitfalls, it is easier to completely ban art in the courtroom than to allow art and then try to regulate it.

All the same, I am not a fan of this policy.  I liked going into courtrooms filled with paintings and statues.  I prefer a “personalized” courtroom (and waiting room) to an antiseptic one.  There is something ennobling about practicing law in a room filled with historic and patriotic images.

Also, while I see the need for IJs to avoid the appearance of impropriety, it is actual impropriety that concerns me.  If some IJ adores Warren G. Harding (and there are good reasons to), why not put up his photo?  I trust that the IJ will make a determination on the merits of each case, and that a picture of President Harding does not indicate an anti-immigration bias.  If we trust IJs to make decisions that will profoundly affect people’s lives, we should trust them to use some common sense in their courtroom decor.

I described the new courtroom ambiance to an asylee friend.  She feels that the bare walls and lack of art would be “intimidating.”

Maybe I am making too big a deal about this.  But there is a long history of art in courtrooms–it benefits the judges, the lawyers, and the litigants.  And while I sympathize with the reasons for EOIR’s decision, I think that the benefits of allowing art in court greatly outweigh the dangers.  To quote George Bernard Shaw: “Without art, the crudeness of reality would make the world unbearable.”

Somali Woman Wins Nansen Refugee Award

The Nansen Refugee Award has been called the “Nobel Prize for refugee workers.”  The award is bestowed annually on a person or group that has “provided extraordinary and dedicated service to the forcibly displaced.”  Past honorees include Senator Edward Kennedy, Medecins Sans Frontiers, and Eleanor Roosevelt.

The award is named for Fridtjof Nansen, a polar explorer, diplomat, and the High Commissioner for Refugees for the League of Nations (the precursor to the UN) from 1920 to 1930.  Mr. Nansen helped hundreds of thousands of refugees return home or resettle in new countries after World War I.  He also organized a relief effort to help famine victims in Russia in 1921 and 1922.  For his efforts in Russia, Mr. Nansen received the 1922 Nobel Peace Prize.

Funny how the people with the toughest jobs often have the biggest smiles.

This year’s honoree is Hawa Aden Mohamed, who has helped thousands of displaced women and girls in Somalia.  Ms. Mohamed, who is widely known as Mama Hawa, escaped violence in Somalia and was a refugee in Kenya, the U.S., and Canada.  She left the (relative) comfort of Canada in 1995 and returned to Somalia, where she established the Galkayo Education Centre for Peace and Development.  Through this organization, she has worked to secure women’s rights and bring free schooling, health care, and skills training to nine communities in the Mudug region of Somalia.

In the early days of the Education Centre, it was attacked with rocks, grenades and gunfire.  Its gate was bombed.  But Mama Hawa and her colleagues did not give up.  “We persevered,” she recalled, “and slowly we convinced the elders and the women that what we were doing was for the benefit of the community.”

Today the Education Centre teaches girls and women to see themselves as full members of society who possess fundamental human rights.  It openly addresses the issues of female genital cutting, puberty, early marriage, sexual and gender-based violence, and HIV/AIDS.  It prepares women to play an active role in achieving peace, reconciliation, democracy, and development in their country.

Mama Hawa will receive the Nansen Award on October 1st in Geneva.  If you find yourself in the neighborhood, the ceremony looks to be worth attending.  If you would like to learn more about Mama Hawa and her organization, or if you would like to contribute to her worthy cause, you can do so here.

When Asylees Return Home

In the old days, when a person immigrated to the United States, he would probably never return home or see his family again.  For example, when my Great-Grandfather David came to the U.S. from Russia in 1904, he left behind his parents and six siblings.  He never saw them again, and as far as we know, they and their families died in the Holocaust. 

Today, it’s a different story.  It’s much easier to remain in contact with the homeland and to return for a visit.  However, for people who have received asylum in the United States, return to the home country may result in the termination of their status. See INA § 208(c)(2).

Sorry, asylees. Missing grandma’s cooking is probably not a valid excuse for returning to your home country.

Despite the possibility of termination, my clients who have received asylum sometimes need to return home.  There are different reasons for this–some want to visit sick relatives or help relatives who are in trouble.  Others are political activists or journalists, and they want to return home to continue their activities.  A few of my clients from Afghanistan wanted to return to their country as interpreters with the U.S. military. 

In cases like these, I explain the legal consequences of returning to the home country so that the client can weigh the risk of losing asylum status against her desire to go home.

The provision for termination of asylum,  INA § 208(c)(2), states:

Asylum… does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that… the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality.

It’s clear from this provision that the AG does not have to terminate asylum if the alien returns to her country (“Asylum… may be terminated”).  Also, return to the country in-and-of itself may not be a sufficient basis for termination if the alien has not “voluntarily availed himself or herself of the protection of the [home] country.” 

So in the above examples, there is room to argue that the clients have not voluntarily availed themselves of the protection of the home country.  In the case of an alien who returns home to help a relative, perhaps he entered the country surreptitiously and remained in hiding during his time there.  Evidence that the alien’s journey home was clandestine might help to counter an attempt to terminate asylum (asylum may be terminated if DHS shows by a “preponderance of the evidence” that the alien voluntarily availed himself of the protection his country – 8 C.F.R. 208.24).

In the example of a political activist who returns to her country to engage in political activity, she can argue that she did not avail herself of the protection of her country.  On the contrary, she challenged her country’s government and put herself at risk to do so.

In the case of an alien who returns to his country to work for (or serve in) the U.S. military, that alien has not availed himself of the protection of his country.  Rather, he is being protected by the U.S. military.

In all these examples, the alien is able to argue that he or she has not “voluntarily availed himself or herself of the protection of the alien’s country of nationality.”  The alien in each case could also appeal to the Attorney General not to terminate asylum as a matter of discretion.  In these cases, the aliens have returned to their country for good reasons.  In some cases, the reason for returning might be in the interest of the U.S. government.  Under such circumstances, the AG might agree not to terminate asylum as a matter of discretion.

Although asylees who return home can sometimes make decent arguments against termination, they put themselves at risk of losing their status.  For this reason, any asylee considering a return trip should think carefully about the potential consequences.  At a minimum, the alien should gather as much evidence as possible to show that she has not voluntarily availed herself of the protection of her country.  She would also do well to consult an attorney.

Paralympic Athletes Seek Asylum

The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home. 

Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata and Levy Kitambala Kinzito, have supposedly filed for asylum in the United Kingdom.  Ms. Kimbata seems to be the more well-known of the two.  She was a teenage basketball player from Kinshasa who lost both legs to a land mine when she was 18 years old.  “I thought my life was over,” she said.  “People told me I had a new life now, but I thought: ‘How can you tell me this when you have legs and I do not?  Even if I accept this new life I do not have legs.'”  After two years in the hospital, where she often had to sleep in the corridor and borrow a wheelchair just to reach the bathroom, she received prosthetic legs from the Red Cross. 

Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

Ms. Kimbata is now a wheelchair racer.  She states that the DRC received money for her to pay for a racing wheelchair, but she never received the chair.  She arrived in the UK with her orthopedic chair (which is designed to be pushed by someone else) and only received a racing wheelchair when another athlete generously helped her out.

In the United Kingdom, she decided to seek asylum.  Ms. Kimbata told the press that she saw her neighbors shot dead by government troops on election day and that 95% of people in her area voted against President Kabila.  While these events probably would not qualify Ms. Kimbata for asylum (at least under U.S. law), the fact that she is a high-profile athlete speaking out against her government may put her at risk, particularly given the repressive nature of the regime in her country.  For these reasons, she likely has a good chance for success in her asylum claim.

It seems that all together, at least six Congolese athletes and coaches (from the Olympics and the Paralympics) have requested protection in the UK.  As I have written before, such high-profile defections are a powerful repudiation of the home government, and hopefully they will help bring about some desperately needed changes.

Finally, having assisted many asylum seekers in the United States, I have witnessed how difficult it is to leave everyone and everything behind to seek refuge in a foreign land.  It must be even more daunting for someone like Ms. Kimbata, who will have to live with her serious disability in a new place and (presumably) without family support.  She is obviously a very courageous woman, and I hope that she will find safety and success in her new country.

The Party Platforms and Refugees

The platforms of the various political parties are basically statements about what those parties believe and what they intend to do if elected.  Since it is now election season (the joy), I thought it might be interesting to see what the party platforms have to say about refugees, so here we go:

Republicans

The Republican Party Platform is the only platform that directly references our country’s commitment to refugees.  The Platform states:

We affirm our country’s historic tradition of welcoming refugees from troubled lands.  In some cases, they are people who stood with us during dangerous times, and they have first call on our hospitality.

“My wife owns a couple of refugees.”

This is a positive statement, and it is encouraging.  As an asylum attorney, I particularly like the second sentence, which acknowledges that some refugees are people who stood with the United States and now face persecution in their homelands.  I represent many people from Iraq, Afghanistan, and elsewhere who assisted the U.S., often at great risk to themselves.  My clients include law enforcement officers, journalists, interpreters, human rights workers, and others.  Given that they risked their lives to help us in our mission, we should offer them refuge when needed.

Unfortunately, of late, we have heard many anti-Muslim statements from prominent members of the Republican party.  It seems that such bigotry is inapposite to the Party Platform, which recognizes people like my Muslim clients who “stood with us during dangerous times.”  I hope that the spirit of the Platform–rather than the hatefulness of some Republican officials–will prevail in the Grand Old Party.

Democrats

The Democratic Party Platform does not specifically mention refugees.  It does discuss immigration, and endorses comprehensive immigration reform, the DREAM Act, and the new Deferred Action program.  However, it is disappointing that the Platform is silent on refugee issues.

“If you’re a refugee and you live in a tent, you didn’t build that.”

Since President Obama has been in office for several years, we can safely assume that his policy on refugees and asylees will continue forward if he is re-elected.  The Obama Administration has capped the number of refugees admitted into the U.S. at 80,000 per year.  However, we have never reached the cap.  In 2009, we admitted 74,602 refugees; in 2010, we admitted 73,293; and in 2011, we admitted 56,384 refugees.  As for asylees, we admitted 22,219 in 2009; in 2010, we admitted 21,056; and in 2011, we admitted 24,988 (all of this is courtesy of the DHS Yearbook of Immigration Statistics).

President Obama’s policies have been comparable with his predecessors, and I think we can expect similar policies if he has a second term.

Libertarian Party

Since I have an affinity for third parties, I thought I would mention two.  The first is the Libertarian Party.  The party’s Platform is silent on refugee issues.  The only mention of human rights is in the context of property law: “Property rights are entitled to the same protection as all other human rights.”  The Platforms mentions immigration and states:

Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws.

Given the general Libertarian philosophy (“We would end the current U.S. government policy of foreign intervention, including military and economic aid”), I’d imagine that they would leave refugee assistance up to private individuals and agencies, such as churches or humanitarian NGOs.  Like much of Libertarianism, this is nice in theory, but has problems in practice.  For various reasons, refugees impact national security and relationships between nations.  For this reason, governments cannot always leave refugee policy in the hands of private organizations.

Green Party

Finally, the Green Party Platform mentions refugees several times, but always in the context of the Israeli-Palestinian conflict: “We reaffirm the right and feasibility of Palestinian refugees to return to their homes in Israel.”

While I support the rights of Palestinian refugees, this is pretty ridiculous.  Why single out Palestinians among all the world’s refugees while at the same time completely ignoring refugees from other countries, including many who are living (and dying) under worse conditions than the Palestinians?  It seems to me that this is not a serious party platform, which is unfortunate, as we could certainly use a strong, articulate liberal voice on this and other issues.

OK, so there you have it.  To judge solely by party platform, I’d say that the Republicans win on the refugee issue, though I suppose the win is mostly by default.