India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention).  This means that India has no regular procedure for granting asylum to people fleeing persecution.  Nevertheless, according to UNHCR:

[The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation.  India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.

While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.

Even Bollywood endorses helping refugees (at least the good looking ones).

In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy.  Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan.  Earlier this year, a group of Muslim men broke into Rinkle’s home, kidnapped her, and forced her to convert to Islam and marry her neighbor.  The group of men was connected with a local Pakistani politician and the government failed to intervene.  After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents.  She decided to remain with her husband.  Most observers believe that her decision was based on coercion–she feared that her family would be harmed if she returned home.

Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India.  Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:

Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.

Ms. Calamur makes the case for India to adopt an asylum system:

To be considered a world power, you don’t just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.

Well said, Ms. Calamur.  I hope those in the West who question the need for an asylum system hear your words.

A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling.  He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe.  The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony.  He was deported to Albania.

The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.

In Albania, Mr. Bedini was waiting.  He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S.  This time, he was granted Withholding of Removal.

Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported.  The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy.  The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family.  The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.

While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family.  Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:

The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj—that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession.  Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.

Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court.  They were supported by a number of amicus briefs, including one by former law enforcement officials.  That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family.  Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.”  The Fifth Circuit’s decision would obviously discourage such cooperation.

In the end, the petition for certiorari was withdrawn.  DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family.  The result is certainly a relief to the Demiraj family.  But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books. 

Congratulations to Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, LLP, who represented the Demiraj family.

Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims.  That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990′s. 

The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here).  The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.

People of all faiths will celebrate if the one-year deadline is repealed.

First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990′s and early 2000′s (I have represented several such people myself). 

My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement.  Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians.  In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone?  I previously discussed this idea here.

The reason–I believe–that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen.  This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo.  It is also the same type of reasoning that gave us the Cuban Adjustment Act–a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places.  In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.

I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way.  This point deserves further attention, and I will come back to it in a future posting.  For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.

When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis.  A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.

You known you're a dissident when you've been Shepard Fairey-ized.

In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum.  Technically, though, an embassy cannot offer asylum to someone in his or her home country.  Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).

Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy.  This does not mean that our government was powerless to help him after he arrived at the embassy.  United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.

A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square.  Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.

I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions.  Also, it seems, Mr. Chen had not yet made up his mind to leave the country.

As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics).  If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States.  He obviously has a strong case for receiving protection.  But until he actually departs from China, Mr. Chen’s situation remains precarious.

Two Cuban actors who star in an award winning movie, Una Noche, have defected and will be seeking political asylum in the United States.  Coincidentally, the movie tells the story of three Cuban teenagers who try to escape Cuba on a raft in order to start a new life in America. 

America's newest asylum seekers are also some of its most glamorous.

Una Noche was a low budget film directed by Lucy Mulloy, a 32-year-old Brit who shot the movie in Havana.  She says that she was inspired by a tale she heard on a trip to the island nation 10 years ago.

The film achieved unexpected success, and the three stars of the movie–all of whom are non-professional actors–traveled to Germany and later to the U.S. for film festivals.  In the U.S., the trio was scheduled to attend the Tribeca Film Festival in New York, where Una Noche won multiple awards.  However, two of the actors, Analin de la Rua and Javier Nuñez Florian, disappeared after they arrived in the United States and missed the festival (where Mr. Nuñez Florian shared an award for Best Actor in a Narrative Feature Film with the third co-star, Dariel Arrechada).

Ms. de la Rua and Mr. Nuñez Florian played brother and sister in the movie, and (in a Brady Bunch-esque twist) fell in love in real life and decided to defect together.  They recently re-appeared in Miami, represented by attorney Wilfredo Allen, who indicated that they would file for political asylum “based on possible persecution if they return to Cuba.”

Although the couple seems not to have had problems in Cuba prior to their trip to the U.S. (and indeed, they returned to Cuba after a trip to Germany), the public nature of their defection possibly puts them in danger if they return and likely qualifies them for asylum.  Of course, under the Cuban Adjustment Act, even if they do not receive asylum, they would be eligible to apply for residency after one year of physical presence in the United States.  So either way, the couple should be able to remain in the United States.  We will be looking for them in Hollywood.

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.  

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.

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.

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.

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.