Lawyers Gone Wild

by Jason Dzubow

The New York Times reports a major bust involving lawyers, paralegals, and even a church official who were allegedly helping Chinese nationals file fraudulent asylum cases.

The Times reports that 26 people, including six attorneys, were arrested in Chinatown and Flushing, Queens. They are accused of an elaborate scheme to help Chinese immigrants invent stories about persecution and dupe immigration officials into granting asylum. Some false stories describe persecution based on China’s one-child policy, including forced abortion. Others set forth claims based on religious persecution. Apparently, the asylum seekers aroused suspicion when Asylum Officers noticed that many of the stories were very similar.

Some people probably should not be allowed to practice law.
Some people probably should not be allowed to practice law.

In all, the conspiracy involves 10 law firms and as many as 1,900 asylum seekers. The conspiracy also allegedly involved at least one church official, Liying (pronounced “Lying”?) Lin. According to the Times, Ms. Lin, 29, trained asylum seekers in the basic tenets of Christianity. According to the indictment against her, Ms. Lin also helped her “clients” trick the immigration authorities and “trained asylum applicants on what questions about religious belief would be asked during an asylum interview and coached the clients on how to answer.”

This is not the first time that I’ve written about Lawyers and paralegals helping to create false cases, but it is the largest such bust that I’ve heard about.  One question is, how pervasive is this type of fraud? 

A professor of Asian-American studies and urban affairs at Hunter College in New York, Peter Kwong, told the Times that he believes most Chinese asylum cases in New York City were fraudulent. “This is an industry,” said Prof. Kwong, who has written widely on Chinese immigration. “Everybody knows about it, and these violations go on all the time.” While I would not be surprised if Prof. Kwong is correct, I would also not be surprised if he is over-estimating the number of fraudulent asylum claims. 

The reason for the difficulty is that there is no data on false asylum claims. There is plenty of anecdotal evidence about false claims, but this is really not reliable. For one thing, some people with real asylum claims are duped by unscrupulous lawyers and paralegals into making false applications. For instance, I was recently consulted in a case where a Russian paralegal and attorney created a false claim for the asylum seeker even though he had a perfectly legitimate reason for seeking asylum. I suspect they created the false case because that was easier than preparing the actual case. So while the man’s case was false, he had a real claim for asylum (he lost his case and spent many thousands of dollars in the process).

Another reason why I don’t trust the anecdotal evidence on fraud is because cases are sometimes fraudulent in non-material ways. What I mean is, sometimes people lie about things that do not affect their cases. For example, I worked on a case where the applicant did not mention her husband on her I-589 form (which she completed and filed before she had a lawyer). She felt that she did not need to list him, as they were separated. The DHS attorney brought this up when he argued that the applicant was not credible, so it might have impacted the case (in the end, the IJ found her credible). The marriage did not relate to the primary basis for the application, and it was based on my client’s misunderstanding of the form. So, should this be considered a “fraudulent” case?  I suppose it depends who you ask. The point being: When it is difficult to define fraud, it is difficult to characterize asylum cases as either fraudulent or non-fraudulent.

Although it is difficult to know the magnitude of the problem, it’s pretty clear that many asylum cases are fraudulent. The situation in New York is only the most recent illustration of the problem. So what’s the solution? I strongly believe that the government can do more to stop these fraudsters. I have seen enough of their work to know that they are not so smart and often not very careful (witness the Chinese case in NY where Asylum Officers detected the fraud when they noticed that many of the applications were suspiciously similar–in other words, the lawyers were too lazy and too cocky to bother making up unique stories for each asylum seeker).

Since many of these fake cases seem to originate with a (hopefully) small number of lawyers, paralegals, and translators, I believe the most effective solution is to investigate such people. DHS could send undercover “clients” to suspect attorneys to determine whether the attorneys are helping to concoct false cases. The “clients” could also visit paralegals and translators, who often work independent of attorneys, to see whether they are practicing law without a license. People who help create false cases should be prosecuted and jailed.  Lawyers who engage in such behavior should be disbarred.  

If DHS can bring more cases like the one in New York, it will help deter the paid “professionals” who create false asylum claims. It will also help preserve the integrity of the asylum system for those who need it. 

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Seeking Asylum at the U.S. Embassy in China

by Jason Dzubow

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.

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Second Circuit Denies Chinese Asylum Cases En Masse

by Jason Dzubow

The United States Court of Appeals for the Second Circuit recently issued a summary order denying petitions for review in 24 separate cases involving Chinese asylum seekers.  The Court held:

Each of these petitioners, all Chinese citizens, challenges a decision of the BIA denying their applications for relief based on the birth of one or more children in the United States. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decision denying each application.

The Court’s Internal Operating Procedures allow for such orders, and this is not the first time the Court has denied cases like this en masse.  But are these mass denials fair to the petitioners and proper under the law?

First, some background.  In response to the “one family, one child” population control measures in China, Congress passed a law modifying the definition of “refugee” to include anyone subject to forced sterilization or forced abortion, as well as people who resist coercive population control measures.  This (predictably) led to hundreds of claims by Chinese nationals who had not been subject to past persecution or credible threats of future persecution.  Rather, these asylum seekers argued that because they had more than one child–which is not allowed under Chinese law–they would be subject to forced sterilization if returned to China, and should thus be granted asylum. 

Sometimes one is enough.

Because laws are enforced differently throughout China, the BIA found that cases involving Chinese nationals with more than one child must be examined on a case-by-case basis to determine whether each alien has a well founded fear of persecution.  Thus, the BIA has restricted a provision that was arguably meant to be expansive.  In Jian Hui Shao, the Second Circuit accepted the case-by-case analysis endorsed by the BIA, and held that it would not disturb the BIA’s ruling unless it concluded that “no reasonable fact-finder could have failed to find in favor of petitioner.”

Turning to the summary order disposing of the 24 Chinese asylum cases, all of those cases involve Chinese nationals who fear persecution because they have more than one child.  Apparently, some of the asylum seekers were originally granted asylum, but those decisions were reversed by the BIA.  Other asylum seekers were denied by the Immigration Judge and the BIA.  The asylum seekers are represented by different attorneys and have all filed their own briefs.  Aside from the fact that they share similar legal issues, the cases are unrelated.  But the Court denied them en masse.

Whether intentional or not, the cursory review and mass denials send a message that the Second Circuit will not entertain Chinese forced-sterilization cases.  This seems inconsistent with our system of justice and unfair to the litigants, who deserve to know (1) that the Court actually considered their individual claim, and (2) the reason for the Court’s decision.  It is also unfair to the attorneys (the private attorneys and the Department of Justice attorneys) who have spent many hours briefing their cases.  I doubt a federal appeals court would issue mass denials in cases involving civil or criminal appeals.  Immigration cases should be treated with the same respect.  It is understandable that the Court would be frustrated with the large number of cases coming from the Board of Immigration Appeals.  However, all litigants deserve to have their cases heard and considered.  Perhaps the Second Circuit has carefully reviewed each litigant’s claim, but the summary orders and mass denials send a message that the Court simply does not care about these cases.

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Remembering the Golden Venture

by Jason Dzubow

It’s been 17 years since the Golden Venture ran aground off New York.  The Epoch Times remembers that fateful day in an interview with a Chinese fisherman who survived the ordeal, gained political asylum, and built a life for himself and his family in the United States:

“Jump! Jump! Hurry Up! Jump into the sea! You are in America. Or they will send you back to China,” a man shouted hastily. Hundreds of Chinese men and women jumped from a rusty freighter into the cold water, swimming, struggling, crying, and gasping.

Liu Ping

Ten people died as they struggled to swim to shore. After getting so close to the American dream, chased so painstakingly, they hit America’s shoreline at the end of their lives.

“The water was freezing and my body was weak. I didn’t know whether I could make it. I thought I was dying. I asked ‘God help me’,” recalled Liu Ping, 44, one of the survivors of 298 passengers on the Golden Venture that ran aground off New York at 2:00 a.m. on June 6, 1993.

Liu was one of the lucky survivors, and he was among the dozens who were granted asylum. Of the 298 people, 110 were deported to China, 53 were detained until 1997 when they were pardoned under a bill signed by President Clinton.

Now a permanent resident, Liu leads a peaceful and content life in Philadelphia with his wife and three children. Two of his children are U.S. born citizens. His other child was born in China and later became a naturalized American citizen. His wife, whom he married before coming to the U.S., also became a naturalized U.S. citizen.

A Survivor’s Story

He’ll never forgets how he made it – the Golden Venture experience.

Speaking with a thick Fujianese accent, Liu was emotional when recalling his 26-month journey from China to America. It was over land, mountains, across rivers, through a jungle, and finally over the ocean, using all possible method of travel imaginable.

The first words that he uttered on U.S. soil were “Thank you” to an American police officer.

(more…)

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