Afghan Woman Who Feared Deportation Found Dead

An Afghan woman who was under investigation for filing a false asylum claim was found dead last month in an apparent suicide.  Gulalay Bahawdory, 60, grew up in Afghanistan and lived in Europe before coming to the United States and applying for asylum in 2000.

In her asylum application, Ms. Bahawdory apparently used a fake name.  Her husband, Bashir Bahawdory, also a former refugee from Afghanistan, states that she left the United States before receiving a decision in her case.  But ICE says that her case was denied and she was ordered removed from the U.S. in April 2001.  Both the husband and ICE could be correct: Perhaps she left before a decision was reached, and then an IJ ordered her removed in absentia.

In 2004, Ms. Bahawdory returned to the United States based on a marriage petition filed by her husband.  She became a U.S. citizen in 2009.

According to the Taliban, these girls are committing a serious crime.

Ms. Bahawdory lived in Raleigh, North Carolina.  It sounds like she had a good life there with her husband and her adult step children, who thought of her as a best friend.

For some reason, ICE began investigating her case earlier this year.  After the investigation began, Ms. Bahawdory thought of little else, her husband said.  She feared that if she were deported to Afghanistan, she would be harmed or killed by the Taliban or other extremists.

According to an ICE spokesperson, “Mrs. Bahawdory’s prior removal from the United States was discovered when ICE ran the fingerprints she provided for the spousal petition.”  ICE did not say when or why they checked the fingerprints or why it only began investigating her citizenship this year.  Also, no word on why this discrepancy was not discovered earlier.  (After all, what’s the point of taking fingerprints if they don’t reveal issues like this at the time of the application?)

Last month, Ms. Bahawdory’s body was found in a lake in north Raleigh.  Police found her car nearby.  In the car, there were three notes.  One was to her husband, stating that she loved him and knew what she had done was wrong.  She wrote a second note to her attorney, thanking her for doing what she could to help.  The third letter was left for the Raleigh police.  “I love the United States,” Ms. Bahawdory wrote.  “God bless the United States.”

Whatever the cause of death, this is clearly a tragic case.  If, as it appears, Ms. Bahawdory committed suicide for fear of deportation to Afghanistan, her death is doubly tragic.  For one thing, having already attained U.S. citizenship, it is not easy for the U.S. government to revoke that citizenship.  Remember John Demjanjuk?  He was a naturalized U.S. citizen who was convicted of accessory to murder of 27,900 Jews during World War II.  Despite his horrific crimes, it took over 30 years to finally de-naturalize and deport him.  If it took 30 years for a criminal like Mr. Demjanjuk, how long would it have taken for Ms. Bahawdory?

Also, even if her citizenship were revoked, Ms. Bahawdory had several defenses to removal: She could have sought asylum (or lesser forms of humanitarian relief like Withholding of Removal or Torture Convention relief); She might have been eligible for a waiver for the immigration fraud; She might have been eligible for Cancellation of Removal.  In addition, even if she were denied all relief, she could have asked for deferral of removal based on humanitarian grounds.  She certainly would have presented a sympathetic case given her age, her home country, her family ties to the U.S., and (as far as I know) her otherwise clean record.

I can certainly understand why someone–especially a woman from a country like Afghanistan–would feel tremendous stress if she felt she would be deported to her homeland.  But Ms. Bahawdory was a long way from being deported.  If she really did commit suicide because she feared deportation, this is a tragedy that should never have happened.

Thanksgiving: The Anti-Immigration Holiday

Last week, I posted about how Thanksgiving is the quintessential refugee holiday.  I didn’t want to say anything negative about Thanksgiving before the holiday, as that would be a bit of a humbug.  But now, enough time has passed that most of the leftover Turkey is gone, and now I want to write about the more challenging side of the holiday for immigration advocates.  Of course, I speak about the fact that the immigrants in the Thanksgiving scenario (the Europeans) essentially eradicated the original inhabitants of their new country (the Native Americans). 

Europeans were generally not known for being cordial to the Native Americans.

It has always surprised me that more anti-immigration folks don’t use Thanksgiving as an example of what happens when immigration runs amok.  Fifty years after the first Thanksgiving, most of the Wampanoag tribe (the Native Americans who dined with the Pilgrims in 1621) were either dead or sold into slavery.  From an estimated population of 6,600 in 1610, the Wampanoag were reduced to only about 400 individuals by 1677 (they have since recovered somewhat – in 2000, the estimated population was 2,336).  In short, while the first Thanksgiving was lovey-dovey, things didn’t end too well for the native peoples who received the new immigrants.  But this is something we rarely hear about from immigration restrictionists.

I suppose one reason that Thanksgiving is not used by immigration opponents is that it’s not easy to be anti-Thanksgiving.  Thanksgiving is probably the most popular non-religious holiday in the U.S., and to oppose Thanksgiving might seem un-American (in fact, to oppose Thanksgiving is un-American).  Since immigration opponents always seem to be uber patriots, I guess they do not want to be seen opposing the holiday.

Another reason that the holiday is not used against immigrants is that the analogy between European settlers/colonialists and modern-day immigrants really does not stand up.  The settlers of old were not trying to integrate into the indigenous culture; they were trying to conquer it.  Even if–as some restrictionists might argue–modern day immigrants do not integrate into mainstream society, they are clearly not in the same position to conquer our country as the settlers who conquered the New World.  We are much larger and more unified than the pre-Colombian indigenous peoples.  The number of immigrants coming to the U.S. these days is much smaller proportionately than the number of Europeans coming here in the colonial period.  Finally, most Native Americans died from diseases, and–Lou Dobbs notwithstanding–that is not a real threat to us today (at least not because of immigration).  So even if restrictionists wanted to use Thanksgiving as a cautionary tale about too much immigration, the analogy is weak.

Thanksgiving is frequently cited by pro-immigration types (and pro-asylum types like me).  I do think the holiday could be used to raise questions about immigration: How much immigration is good for our country, whether immigrants appropriately integrate into our society, how best to handle people who are here illegally.  But for restrictionists, maybe it is safer and more effective to raise those issues separately from the Thanksgiving holiday.  That’s fine with me, as I am a fan of Thanksgiving.  Now if you’ll excuse me, I know we have some leftover cranberry sauce around here somewhere…

Thanksgiving: The Refugee Holiday

They say that if you have a hammer, every problem is a nail.  In the same way, if you have an asylum blog, every holiday involves asylum.  Last Christmas, I wrote about how Jesus, Mary and Joseph were asylum seekers.  Today, I thought I’d discuss Thanksgiving and refugees.  Maybe next time, I will explain why Arbor Day is an asylum holiday. 

The connection between refugees and Thanksgiving is probably pretty obvious. 

Starting in the late 16th century, a group of Separatists who objected to certain practices of the Church of England faced persecution from ecclesiastic and state authorities.  These people were later called Pilgrims.  As a result of their tenuous situation in England, they migrated to the Netherlands in the first decade of the 17th century.

The Pilgrims were not thrilled with the libertine atmosphere on the Continent, and so they returned to England and then sailed to North America in 1620.  If they were seeking refuge today, the Pilgrim’s return to England (re-availing themselves of the protection of the English government) might very well disqualify them for asylum.  Also, the fact that they were firmly resettled in the Netherlands, and then chose to up and move to America might also disqualify them for asylum.

In any case, after a difficult 65-day journey on the Mayflower, the Pilgrims arrived at Plymouth Rock in November 1620.  That winter was particularly hard, and about 50% of the new settlers died.

Things improved the following year with a good harvest (and with the help of local Indians), and the Pilgrims decided to celebrate–this would be the first Thanksgiving dinner.  Attending the dinner were 53 Pilgrims and 90 Native Americans from the Wampanoag tribe.  The celebration lasted for three days.

After the first Thanksgiving, various public leaders and church officials would declare thanksgiving holidays, but there was no set date for the festival.  Finally in 1789, George Washington proclaimed the first nation-wide thanksgiving celebration, but the holiday was still not regularized. 

In 1863, during the height of the Civil War, President Lincoln declared that Thanksgiving would be celebrated on the last Thursday in November (and here I must mention Sarah Joseph Hale, a tireless crusader who helped make Thanksgiving a national holiday (and who wrote the nursery rhyme Mary Had a Little Lamb)).

In 1941, Franklin Roosevelt signed a bill making Thanksgiving the fourth Thursday in November.  Thus, the holiday achieved its present form.

I’ve noticed that many new immigrants to the U.S. celebrate Thanksgiving.  Because it is a holiday for giving thanks and for success in the New World, it is perhaps the quintessential immigrant holiday.  And while some have criticized the holiday as glossing over the effect of colonialism on native peoples (including the Wampanoag), the first Thanksgiving was a moment when two very different cultures encountered each other and dined together in peace.  This, to me, is the true spirit of the holiday.  Happy Thanksgiving. 

Gay Rights and the UN: One Step Back, One Step Forward

Sexual orientation is all about identity: Are you gay or straight or bi or trans or questioning or something else?  It seems that the United Nations has some identity issues of its own when it comes to LGBT rights.    

This past September, a “traditional values” resolution sponsored by Russia passed in the UN Human Rights Counsel, 25-15, with seven abstentions (the U.S. voted against).  The text of the resolution and a list of countries and their votes can be found here.  The resolution reaffirms that “everyone is entitled to the rights and freedoms… without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  The basic problem is that this list purposefully omits the reference to sexual orientation.  Thus (as usual), the term “traditional values” is code for “anti-gay.”  

The UN has a split personality when it comes to gay rights.

While this particular resolution will probably have little effect, I fear it is an unfortunate bellwether of member states’ positions on LGBT rights and protecting LGBT refugees.  As an aside, my first job as a practicing lawyer was at Catholic Community Services in New Jersey.  I remember being surprised that the Catholic Church–which generally opposes gay rights–was assisting gay asylum seekers.  When you think about it, this is not entirely inconsistent: While the Church opposes gay rights, it also opposes persecution of gay people.  My concern with the UN resolution is that it might be a harbinger of something more sinister–the contraction of protection for people facing persecution on account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention).  

But as you might have guessed from the title of this piece, the news from the UN is not all bad. 

Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity.  The guidelines state:

A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that.  As affirmed by the position adopted in a number of jurisdictions, sexual orientation and/or gender identity are fundamental aspects of human identity that are either innate or immutable, or that a person should not be required to give up or conceal.

The guidelines recognize persecution by governments, society, and family members, and also note that laws criminalizing homosexuality can rise to the level of persecution.

The guidelines also make recommendations concerning refugee status determinations for LGBT applicants.  Most of the recommendations seem like common sense, but I think they are helpful and–given the sentiments of many UN member states concerning LGBT people–worth repeating.  The recommendations include:

– An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant
– Interviewers and decision makers need to maintain an objective approach so that they do not reach conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI individuals
– The interviewer and the interpreter must avoid expressing, whether verbally or through body language, any judgement about the applicant’s sexual orientation, gender identity, sexual behavior or relationship pattern
– Specialized training on the particular aspects of LGBTI refugee claims for decision makers, interviewers, interpreters, advocates and legal representatives is crucial
– Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably
– Questioning about incidents of sexual violence needs to be conducted with the same sensitivity as in the case of any other sexual assault victims

The U.S. government is ahead of the game in this matter.  In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.

So it seems that the UN is of two minds about LGBT rights.  There is no doubt that many countries and societies violently oppress and murder people just because of their sexual orientation.  For their sake, I hope the progressive states continue to pressure the UN to move forward on LGBT issues.

DOJ Inspector General Cares About Quantity, Not Quality, of Immigration Court Decisions

A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR’s work.  The 74-page report by DOJ Inspector General Michael Horowitz finds that data from Immigration Courts overstates case completion rates and that the Courts are too slow.  The report also makes recommendations, such as developing guidelines for when Immigration Judges should grant continuances.

Mr. V demonstrates why quality is more important than quantity.

I’ve reviewed the report, and I can safely say that it was a complete waste of time (both my time and the time of the poor sod who prepared it) and tax payer money (both mine and yours).  For that reason, I won’t waste additional time discussing what’s in the report (and if you want to see a substantive critique of the report, check out TRAC Immigration).  However, I want to discuss what’s not in the report.

Actually, before I get to that, I want to further trash this report.  It is frankly offensive that the Office of Inspector General (“OIG”) would issue a report about quantity without discussing quality.  If the OIG’s only concern is completing cases quickly, why not just deny all the cases now and be done with it?  Why bother with due process or equal protection?  Why bother to have a Department of Justice at all?  We can simply rename it the Department of “Just ICE” and then deport everyone.  Done and done.

And now, for what’s not in the report.

First, you would think that anyone preparing a report about IJs or BIA Board Members would have sought input from people who practice before the Immigration Courts and the BIA.  Bar associations regularly survey their members about the quality of judges, so why can’t the OIG (or EOIR) survey private attorneys, non-profit organizations, and DHS attorneys about their experience with IJs and the BIA?  Such information would be very helpful in assessing both the quality and the quantity of EOIR’s work product.

Second, the report does not tell us whether IJs or the BIA are doing a good job deciding cases.  This seems to me the single most important part of the Judges’ and Board Members’ jobs.  One way to measure the quality of IJ and BIA decisions is to look at the reversal rates for those decisions.  To me–and this is an issue I’ve harped on before–one relatively easy way to reduce reversal rates is to provide more guidance to decision-makers.  The BIA can do this by publishing more decisions.

Finally, the report fails to acknowledge the connection between quantity and quality.  Immigration cases are often complex.  Aliens (and DHS attorneys) seek continuances for valid reasons.  In order to reach a just result in many cases, continuances are needed.  In the asylum context, for example, continuances are sometimes necessary to allow the alien more time to find a lawyer (the success rate for unrepresented aliens is much lower than for represented aliens).  Thus, in Immigration Court, justice delayed is not always justice denied.  Sometimes, it is simply justice.

Perhaps I am being a bit too hard on the OIG.  It is certainly possible to help improve EOIR by examining the quantity of its decisions and the accuracy of its reporting.  But when the OIG has failed to address the quality of EOIR’s work and instead issues a comprehensive report basically telling EOIR to hurry up, it seems to me that the OIG’s priorities are not where they should be.

Russian Artist Exposes Gay Asylum Seekers

In his native Russia, artist and filmmaker Alexander Kargaltsev was beaten by police at a gay pride event and detained after he left a gay club.  He came to the U.S. in 2010 and received asylum in 2011.  Last week, Mr. Kargaltsev held his first solo exhibit at a new gallery, called 287 Spring, in downtown Manhattan (which hopefully is not now under water).

The exhibit is entitled “Asylum” and consists of large photos, each depicting a nude gay or bisexual Russian man, with New York City shown in the background.  The men have stern expressions, and many were photographed provocatively in public areas, such as Central Park.  Under each photo is a caption: “Granted Asylum” or “Asylum Pending.”

The artist, strategically placed in front of one of his photos.

According to curator Ivan Savvine, “The models’ nakedness is a powerful visual statement imbued with symbolism.  They are not nude but naked, for they had courage to shed the many layers of fear and come out to the world uncovered, vulnerable, yet proud.”  He continues, “Their naked bodies thus also reveal their experience as refugees, for every person seeking refuge rebuilds his or her life completely ‘naked,’ starting from scratch with no family or friends and often without the language they can speak or understand.”

As a humble immigration lawyer who received most of his artistic training from Bill Alexander, I can’t help but find this type of artist speak a bit pretentious.  Also, I really can’t imagine many of my clients posing nude in public (and–no offense to my clients–I don’t want to imagine it).  But I suppose Mr. Kargaltsev’s exhibit raises some interesting points.

I agree with the idea that refugees start their lives over “naked.”  But to me, the more interesting analogy between asylum seekers and nakedness is the idea of exposing one’s past history to the scrutiny of an Asylum Officer or an Immigration Judge (not to mention to the asylum seeker’s own lawyer).  Depending on the person, and on the problems he faced in the home country, relating the story of past persecution can be humiliating and traumatic.

I have represented rape victims and torture victims.  When such people apply for asylum, they need to tell these stories.  Sometimes, people do not behave honorably under the threat of persecution.  They need to relate those stories as well.  I remember one client who fled his home when government soldiers broke in to look for him.  He left his wife and children behind.  My client had to explain this to the Immigration Judge, which was extremely difficult for him to do.  This is the type of “exposure” I think about when I think of refugees.  And in some ways, it is similar to exposing oneself naked before the camera, flaws and all.

Mr. Kargaltsev’s photos are of gay asylum seekers from Russia.  The photos I’ve seen depict good-looking young men whose nudity is nothing to be ashamed of.  In my experience, the exposure endured by asylum seekers is a lot less attractive than Mr. Kargaltsev’s images.  While Mr. Kargaltsev’s photos certainly add to the dialogue about issues faced by asylum seekers, in my opinion they gloss over the ugly truths about refugees and the pain that they have endured.  A more realistic and challenging exhibit in this vein would be less pleasant to look at, but more useful to understanding the real lives of refugees.