How to Hire an Immigration Lawyer Who Won’t Rip You Off

I’ve written previously about the poor state of the immigration bar.  And while there are–unfortunately–too many bad lawyers, there are many excellent ones.  The question is, for an immigrant unfamiliar with the American legal system, how can you distinguish between the good and bad?  In other words, how do you find a lawyer who will assist you, and not just take your money?  Below are some hints that might be helpful:

If your lawyer wears a cape, that is probably a good sign.

– Bar complaints: Complaints against lawyers are often a matter of public record.  So you can contact the local bar association (a mandatory organization for all lawyers) to ask whether a potential attorney is a member of the bar and whether she has any disciplinary actions.  You can also look on the list of disciplined attorneys provided by the Executive Office for Immigration Review (“EOIR”).  Sometimes, good attorneys are disciplined, but if an attorney has gotten into trouble withe the Bar, it would be helpful to know why.

– Referral from non-profits: Most areas of the country have non-profit organizations that help immigrants (EOIR provides lists of such organizations here).  While these organizations are often unable to take cases (due to limited capacity), they usually have referral lists of attorneys.  I would generally trust the local non-profits for recommendations, as they know the lawyers and know their reputations. 

– Referrals from friends: Most people who hire me were referred by an existing or former client.  However, from the immigrant’s point of view, I do not think that this is the best way to find a lawyer.  They say that a million monkeys with a million typewriters, typing for a million years will eventually write a novel.  It is the same with bad immigration lawyers.  Once in a while, they actually win a case (usually through no fault of their own).  The lucky client then refers other people.  I suppose a recommendation from a friend is better than nothing, but it would not be my preferred way to find a lawyer.

– Instinct: If you think your attorney is not doing a good job, he probably isn’t.  Attorneys are busy people, and they may not be as responsive as you might like, but if your attorney never returns calls and is never available to meet with you, that is a problem.  Also, if your attorney seems unprepared in court, that is obviously a bad sign.  If you are having doubts about your attorney, nothing prevents you from consulting with a different lawyer for a second opinion.

Hiring a lawyer can be tricky, especially for someone who is unfamiliar with the American legal system.  Given that the quality of lawyers varies so much, it is worth while to spend some time investigating a lawyer before you hire him.  That is the best way to protect yourself and (hopefully) ensure that you receive the legal assistance that you need.

New Canadian Law Attempts to Block Bogus Refugees

Canada is preparing to implement the Protecting Canada’s Immigration System Act later this year.  The law is ostensibly designed to protect Canada’s refugee law by weeding out false asylum claimants.  The provisions of the new law include the following:

– The immigration minister would have the power to designate which countries are safe without a committee including human rights experts.

– Rejected refugee claimants from “safe” countries would no longer be able to appeal the decision to the Immigration and Refugee Board (the administrative body that reviews asylum claims).

– Claimants from countries on the safe country list would have limited appeals rights and limited ability to apply for compassionate or humanitarian relief.

The law seems primarily targeted at the Roma (a/k/a Gypsies) who have been coming to Canada from Hungary in large numbers and requesting asylum.  According to the Canadian Immigration Minister, “almost 95 percent of Hungarian asylum claims [are] abandoned, withdrawn or rejected.”  The Minister states that “Countries whose nationals have an acceptance rate of 25% or less, or where 60% or more of claimants from a country have abandoned or withdrawn their claims … would be subject to designation” as a safe country, thus making it more difficult for them to successfully claim asylum.

Under the new Canadian law, Mexico is “safe.”

My first question about this new law is whether it is necessary.  Under the current system, people who can return safely will presumably have their cases denied anyway.  The new law is designed to streamline the system to allow people from certain countries to be deported more quickly.  Also, if people from “safe” countries know that their claims will likely be denied, they may decide not to seek asylum in Canada in the first place.  Proponents of the law claim that all this will save government resources.  But I wonder how many people will actually be dissuaded from coming and–for those who do seek asylum–how much money the government will actually save under the new, streamlined system.  Currently, 95% of asylum claimants from Hungary are unsuccessful, yet Hungarians keep coming to Canada.  If the current (very high) denial rate does not dissuade people from coming, how will the new law?  Further, those who seek asylum from “safe” countries are still entitled to certain procedures and benefits.  It is unclear how much the Canadian government will save by marginally reducing the protections available to such asylum seekers.

Assuming the law is needed, how effective will it be?  The idea of determining in advance whether a country is safe seems antithetical to international refugee law.  Someone once said that no country is safe for everyone all the time.  If 95% of Roma claims are denied, what type of harm do the remaining 5% face?  Also, just because a country has a low overall denial rate for asylum claims does not mean that it is safe.  To cite an example from our side of the border, the denial rate for Mexicans is quite high (about 98%), but certain people from Mexico–journalists and human rights activists–face real danger there.  Another example–while the overall asylum grant rate for Jamaicans is low, the grant for Jamaicans claiming asylum based on sexual orientation is relatively high.  My point is that designating a country “safe” just because the overall grant rate is low will likely result in legitimate asylum seekers being rejected and returned to face persecution. 

Despite these (and other) doubts, the Protecting Canada’s Immigration System Act will go into effect shortly.  We will then start to get a clearer idea of whether the law will save resources and how it will affect asylum seekers.

Failed Asylum Seeker Stuck in Samoa

Mikhail Sebastian is an Armenian from Azerbaijan who came to the United States on a Soviet passport in 1995.  After the break-up of the U.S.S.R., neither Armenia nor Azerbaijan would take him, and Mr. Sebastian ended up stateless. 

While in Samoa, beware the Wild Samoans (shown here with the late, great Cap’t Lou)!

He filed for asylum in the U.S., but his claim was ultimately denied (in 2002) and he was ordered removed.  The U.S. immigration authorities took Mr. Sebastian into custody, but after six months, he was released because there was no country that would accept him.  As with other people who cannot be deported, DHS issued Mr. Sebastian a work permit.  He was allowed to remain in the United States, but he did not have permission to travel abroad and then return.

According to a recent article in Salon, Mr. Sebastian has attempted to satisfy his urge to travel by visiting the most exotic American destinations he can find, including Guam, Puerto Rico, and Hawaii.  To facilitate his travels, he has a  “World Passport” from the World Service Authority, which purports to be a global-governmental organization.  A World Passport is a document that is supposed to confer world citizenship and allow travel.  I have some limited experience with the World Passport, and while I think it’s a nice idea, I would not feel confident to use it as a travel document.  Worse, I think their website is a bit misleading.  They claim that many countries accept the World Passport.  While many countries may have accepted the passport once or twice (possibly by mistake), most countries do not generally accept the passport for immigration purposes.

In any case, as part of his overseas travel in U.S. territory, Mr. Sebastian took a vacation to American Samoa, an unincorporated territory (whatever that means) of the United States.  His big mistake seems to have been flying over to plain old Samoa, which is an independent country.  Even if he had not traveled to Samoa, the trip to American Samoa required passing through customs, and when immigration authorities checked him before allowing him to return to the mainland (and saw the World Passport), they found that he had an old removal order.  As a result, he was not permitted to board the return flight, and he has been stranded in American Samoa ever since.

The Department of Homeland Security issued a statement about Mr. Sebastian:

In 2002, an immigration judge with the Executive Office for Immigration Review (EOIR) ordered Sebastian to depart the United States. At that time, he was not in ICE custody as the agency had deferred action on his removal. In the meantime, he had been granted employment authorization. In December 2011 when Mr. Sebastian traveled to American Samoa and Samoa, he was prohibited from returning to the United States due to the immigration judge’s order.

So for the last 10 months, Mr. Sebastian has been stuck waiting for DHS to allow him to return to the mainland, and there is no end to his ordeal in sight.  Mr. Sebastian has been writing about his predicament, and you can read more about him in his own words here.  It seems he spends most of his time at the local McDonald’s, which has air conditioning and internet access.

His case is particularly strange in that he is actually in U.S.-controlled territory, but he is not allowed to return to the mainland.  If nothing else, Mr. Sebastian’s story serves as a cautionary tale.  If you have some type of deferred action, withholding of removal or Torture Convention relief, you are better off not pushing the limits by traveling to American “territories.”  It seems that Mr. Sebastian’s case is receiving some high-level attention, so likely it will be resolved at some point.  But I am quite certain that after 10 months in Samoa, he wishes he had never taken his vacation in the first place.

The Asylum Affidavit, Part 3: TMI

This is the final (and much delayed)  installment in a series about preparing a client’s asylum affidavit.  I previously wrote about the importance of including enough detail to support a claim.  Today I want to discuss how to provide details about sensitive topics, like rape or the murder of a loved one.

Immigration Judges love reading well crafted affidavits.

For obvious reasons, most asylum applications involving discussing unpleasant events.  However, some events are more unpleasant than others.  For example, I worked on a case where my client witnessed the murder of her mother and siblings during a genocide in her country.  At the time of these murders, my client was just 11 years old.  In another case, a client was arrested while returning from a political rally.  While she was in custody, two policemen raped her.  In a third case, my client quit his political party and, in a revenge attack, he was shot six times and left for dead.

This is pretty horrific stuff, so how do you present these event in a credible manner without forcing the clients to re-live their trauma?

First, I think it is helpful if the client understands why he needs to explain the painful aspects of his case.  I am no expert, but I believe that when a client is educated about the requirements for asylum, he feels more in control of his case and this might make it easier for him to talk about past trauma. 

Second, it is important to establish a rapport with the client so she feels comfortable and safe discussing difficult issues.  While this may seem like a no-brainer, it is often difficult for busy attorneys to spend the extra time our clients need to make sure they are comfortable.

Third, it is often not necessary to provide a lot of detail about a traumatic event in order to establish past persecution.  For example, in my case–where the political activist was raped by the police while returning from a demonstration–we provided details about her political involvement, the demonstration, and her detention.  When it came to the actual rape, we stated that the police raped her, but we provided no further details about the incident.  If she has established her credibility and the fact finder believes that she has been raped, that is enough to prove past persecution.  USCIS has some good training materials for Asylum Officers, which discuss this point:

The asylum officer can elicit sufficient detail to establish credibility and gain an understanding of the basis of the claim without probing too deeply into all the details of a painful experience.

This is a key point–it is not necessary to provide all the details about an event like a rape.  The fact that the person was raped is, in-and-of-itself, sufficient to show past persecution.

Finally, and to their credit, Asylum Officers, DHS Trial Attorneys, and Immigration Judges tend to be very sensitive to an alien’s trauma.  I tell my clients about this, as I believe it helps reduce the level of intimidation and makes it easier for them to discuss their history.

While it is probably not possible to prepare a case without discussing traumatic events to some extent, it is possible–and important–to minimize the secondary trauma our clients suffer while preparing their asylum applications.

Former U.S. Marine Seeks Asylum in Russia

A former Marine who claims to have exposed clandestine U.S. support for the Republic of Georgia in its 2008 war with Russia has requested political asylum in Russia.  U.S. citizen Patrick Downey first sought asylum in Ireland, where his case was denied–as he puts it–by Ireland’s first ever Jewish Minister for Justice, Equality and Defense.  He then “fled” to Russia (after visiting the U.S. for his brother’s wedding), where his asylum case is currently pending.

Patrick Downey (right) is seeking asylum in Russia.

Pravda reports that while living in Georgia in 2007 and teaching English to Georgian billionaire Bidzina Ivanishvili, Mr. Downey “obtained documents” indicating that a U.S.-controlled bank transferred $12 million to Mr. Ivanishvili.  Mr. Ivanishvili, in turn, used the money to fund “anti-Russian activities” prior to and during the Russian-Georgian war.  Mr. Downey tried to publicize this “sensational material” in the U.S., but no one was interested.  However, his activities supposedly brought him to the attention of the U.S. government, which gave him the code name “Trouble Man” and tried to “neutralize” him.  Mr. Downey told Pravda, “I began to feel that it was simply dangerous for me to be in the U.S.”

Hence, he fled to Ireland and now Russia.

While I must admit that I am skeptical of Mr. Downey’s claims (and I am not thrilled by his antisemitism), the fact that he is currently receiving publicity from a Russian newspaper is significant.  On October 1st, Mr. Ivanishvili’s political party won parliamentary elections in Georgia, and he is likely to become the country’s new Prime Minister.  As such, the timing of the article about Mr. Downey–and his claims of a secret anti-Russian alliance between the U.S. and Georgia–has broader implications. 

Is Russia trying to intimidate Georgia?  Is it trying to send a signal to the United States to keep away?  Is Pravda simply writing an interesting story about an American seeking asylum in Russia?  I have no idea.  But it seems to me, if the Russian government is trying to send some type of message by publicizing Mr. Downey’s case, the message is not a friendly one.  

It will be interesting to see what the Russian government does with Mr. Downey.  Russia grants less than 5% of asylum cases, so if his case is approved, it might indicate more trouble ahead for Russian-Georgian and Russian-U.S. relations.  As for Mr. Downey, if his case is granted, his hopes are the same as those of other asylum seekers around the world: “I will live!  I will get married.  I do not want to fight, do not want to constantly be afraid.  I want a family and a home.  I hope that this is what I will get.”

DHS Ombudsman on Unaccompanied Child Asylum Seekers

The DHS Office of the Ombudsman recently issued formal recommendations for the treatment of unaccompanied minor asylum seekers.  The report is entitled Ensuring a Fair and Effective Asylum Process for Unaccompanied Alien Children.

In 2008, the law was changed so that review of unaccompanied child asylum cases was shifted from EOIR (the Immigration Courts) to USCIS (William Wilberforce Trafficking Victims Protection Reauthorization Act).  The Ombudsman’s recommendations address problems with the implementation of the new law.

Statistics about the number of unaccompanied child asylum applicants are hard to come by.  According to the DHS Yearbook on Immigration Statistics, in FY 2011, there were 76 children under age 16 granted asylum and a total of 569 people under age 19 granted asylum.  These figures do not include dependent children.   Also, these are the number of asylum applications granted.  I did not find information about the number of denied asylum cases for unaccompanied children.

A USCIS employee works on writing regulations.

The Ombudsman’s recommendations touch on a number of problems, including redetermining unaccompanied alien child (“UAC”) status, difficulty rescheduling UAC interviews, inadequate methods and approaches to adjudication, and the failure of USCIS to issue regulations concerning UAC cases.  The Ombudsman made the following recommendations:

  1. Accept jurisdiction of UAC cases referred by the Executive Office for Immigration Review.
  2. Accept jurisdiction of cases filed by children in federal custody under the U.S. Department of Health and Human Services. 
  3. Follow established UAC-specific procedures, expand implementation of certain best practices, and enlist clinical experts for quality assurance and training. 
  4. Limit Headquarters review to a process that can be managed within 30 days.
  5. Issue as soon as possible regulations regarding the UAC asylum process.

I want to comment on two of these recommendations.  First, the always exciting issue of jurisdiction.  It seems that the current procedure is for EOIR or CBP (Customs and Border Protection) to make a determination that the alien is an unaccompanied child asylum seeker.  Once that determination is made, the alien’s case is transferred to USCIS.  The USCIS Asylum Office then re-determines whether the alien is an unaccompanied child.  Essentially, the child–who may not have any documentation or other evidence about her age–is forced to prove that she is a child during two separate interviews.  If she fails to do so, potentially her case will be bounced back to EOIR, which has already determined that it does not have jurisdiction.  This seems like a potential problem for the alien; not mention a waste of resources for the government.

The second issue, which is probably more problematic, is the Ombudsman’s recommendation that USCIS issue regulations implementing the 2008 law.  Four years after the law was passed, USCIS has still not issued regulations concerning unaccompanied child asylum seekers.  This reminds me of the failure to issue regulations for the Violence Against Women Act (“VAWA”).  For years, immigration attorneys used an informal application process for VAWA cases because no regulations were issued.  Although I understand that issuing regulations can be complicated, I don’t see why it should take years.  Regulations are important to help guide adjudicators and attorneys, and to ensure fairness.  Of course, the Ombudsman cannot compel USCIS to issue regulations, but I would have liked to see a stronger statement about this problem.

Overall, the Ombudsman’s recommendations seem sensible.  Hopefully, USCIS will take its own advice and implement the recommendations promptly.