Sixteen Years and 20 Minutes to “Other Serious Harm” Asylum

by Jason Dzubow

Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy– 

On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.

Jonathan Bialosky, who claims that taking Todd and my class constitutes "other serious harm."
Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”

There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990. 

Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.

My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.

Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.

The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.

It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).

“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.

My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.

Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court.  He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.

Continue reading

1 Comment

One Giant Leap for a Woman; One Small Step for Womankind

by Jason Dzubow

In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them. 

This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.

Guatemalan Women celebrate their new particular social group.
Guatemalan Women celebrate their new particular social group.

In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.

Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).

To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.

It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.

“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.”  I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”

But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”

Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.

I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.

A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.

Continue reading

8 Comments

Gay = Asylum?

by Jason Dzubow

A recent article in the Wall Street Journal (“WSJ”) posits that the number of gay and lesbian people receiving asylum in the United States based on their sexual orientation has surged in recent years and that most such people come from countries in Central America where homosexuality is not criminalized (as opposed to places like Ugandan, where loving the wrong person is a hanging offense). The article, by Joel Millman, concludes that LGBT asylum cases from Mexico and Central America are more likely to be granted than most other types of asylum cases from those countries.

More gay people than ever are fleeing persecution.
More gay people than ever are fleeing persecution.

Heaven forbid that I should agree with the WSJ (Slate certainly didn’t in a piece that pretty clearly misreads the Journal article), but the anecdotal and statistical evidence supports the notion that more people are seeking asylum based on sexual orientation and that those claims are often more likely to succeed than claims by other people from the same countries. But of course, as a certified curmudgeon, I cannot completely agree with the Journal piece, and indeed, I have a few points to take issue with. Then I’d like to pose a question: Is it really easier–as the WSJ claims–for LGBT applicants to obtain asylum in the United States?

First, the issues. To reach his conclusion that more LGBT people are seeking asylum, Mr. Millman relies on two main sources—statistics from the U.S. government and information from Immigration Equality, probably the premier LGBT asylum organization in the country.

As to the statistics, the government does not keep data on the number of people who receive asylum based on sexual orientation. As a rough proxy, the WSJ looked at the percentage of cases granted based on “particular social group” or PSG, the protected category most often used in LGBT asylum cases. The Journal found that as a percentage of total cases, the number of PSG cases has increased over the last several years (from about 12% at the end of the G.W. Bush Administration to 15.7% today).

I am not convinced that this metric tells us a whole lot about the number of gay asylum cases, however. Many people seek asylum based on PSG–gays and lesbians, victims of domestic violence, people fleeing gang persecution, victims of female genital mutilation, to name the most obvious–and so an increase in the percentage of asylum seekers relying on PSG does not necessarily mean that the number of LGBT asylum seekers has gone up. Also, concurrent with our country’s more liberalized approach to LGBT asylum claims, we have expanded protection for other categories of people who fall under PSG. So while the modest increase in asylum seekers relying on PSG supports the notion that LGBT claims are up, I don’t think this data is incredibly significant.

In my opinion, the anecdotal evidence for an increase in the number of LGBT cases is more convincing. According to the WSJ: “Last year, just one New York-based advocacy group, Immigration Equality, helped put 279 LGBT foreigners into the asylum process, a 250% increase from 2009.” That pretty well comports with what I’ve been seeing in DC and what I’ve heard from other lawyers, and so I believe the number of LGBT claimants is up, but by how much, we don’t really know (I have harped on this before, but this lack of reliable data again illustrates the need for better information about asylum seekers).

Another quibble with the article is the WSJ’s comparison of LGBT asylum seekers from Mexico and Central America, where homosexuality is not illegal and—in fact—where laws theoretically protect gay people, with other countries whose governments condemn homosexuality or make it illegal. The article notes that of the top 10 countries with the most PSG grants (where PSG is a proxy for LGBT), only three have laws against homosexuality. This all strikes me as basically meaningless. We receive many more asylum seekers from our own neighborhood, so there is no surprise that most PSG claims come from nearby countries. And while it is interesting that three distant countries (Kenya, Ethiopia, and Guinea) with anti-gay laws produce large numbers of PSG asylees, we have no way of knowing how many of these cases are LGBT; particularly since all three countries have high instances of female genital mutilation, which also falls into the PSG category.

The bottom line for me is that, while the increased number of PSG cases is consistent with an increase in LGBT claims, the statistics don’t really tell us much. But based on the anecdotal evidence and my own experience, it seems clear that more people than before are seeking asylum based on sexual orientation. Whether this constitutes a “surge” in LGBT claims, as the WSJ concludes, is debatable given the lack of data.

Finally, do LGBT claimants have an easier time winning asylum than others?

As the WSJ points out, an LGBT case from Central America is certainly more likely to succeed than the average case from the region. According to the Journal, Immigration Equality’s “success rate for closed cases [is] 98%, roughly quadruple the batting average of the typical asylum-seeker.” (Though I would be curious to know how they define “success” when they came up with this figure). Of course, many cases from Central America are based on gang persecution, which does not easily fit within a protected category for purposes of asylum. Since LGBT asylum seekers fall within a protected category–PSG–it is not surprising that they have a higher success rate than average. I would imagine that other cases where there is an obvious protected ground–like political cases, for example–are also much more likely to succeed than the average case.

Also, as the Journal points out, for LGBT asylum seekers, the likelihood of success is particularly high because country conditions are particularly bad. In our office, we see a decent number of LGBT asylum applicants, and they often have been subject to severe physical and psychological violence. So based on my own experience, the information in the WSJ piece rings true.

In the end, we don’t have the data to make a firm conclusion about how much “easier” it is for LGBT claimants to obtain asylum, but it seems likely that the success rate for such cases is higher than for many other types of cases. Given the threats and violence against gay people around the world, it seems to me that a high asylum grant rate is completely justified.

Continue reading

3 Comments

That Pesky Nexus

by Jason Dzubow

To receive asylum in the United States, an applicant must show not only that he faces persecution in his home country, but that the feared persecution is “on account of” a protected ground (race, religion, nationality, particular social group or political opinion).

GW law students react to Todd and my appointment to the adjunct faculty.
GW law students react to Todd and my appointment to the adjunct faculty.

This means that if MS-13 gang members want to kill you because you refuse to join the gang, you probably won’t qualify for asylum. On the other hand, if the Ethiopian government wants to detain you for a year because you attended an anti-government protest, you probably will qualify. To me, the regime created by the nexus requirement seems incongruous and unjust.

I’ve seen this play out in many of my cases, where we often have to shoehorn our client’s claim into a protected category. For example, Eritreans who flee the National Service (really, a form of never-ending slavery) would not ordinarily receive asylum since the (very serious) harm they face for trying to escape is not generally “on account of” a protected ground. One strategy to help such people obtain asylum is to show that the Eritrean government views them as enemies. In other words, that it imputes to National Service evaders an anti-government political opinion. Sometimes this works; sometimes it doesn’t. But the question is, why do we have an asylum system that forces us to contort legitimate claims so that they fulfill the nexus requirement?

This is essentially one of the questions that my esteemed co-professor Todd Pilcher and I asked our students on their final exam. As an aside, this was the first year that either of us taught a law school course (Asylum and Refugee Law at George Washington University Law School). Even having practiced primarily asylum law for the last 10 years, it was amazing how much I learned by teaching this class. I also learned that it is better not to know what goes on behind the scenes with grading. Suffice it to say that as a mere adjunct professor, we had quite a bit of power to grade as we wished; more power, actually, than we were comfortable with (but on the bright side for our students, despite a killer exam–sorry about that–they did very well).  

But back to the nexus requirement. In theory, it exists because it reflects our values. We care about political expression and the exercise of religion, and so we protect people who face persecution on those grounds. In reality, it exists because some Dead White Men created relatively arbitrary categories that seemed appropriate in the post-WWII world. So–as we asked our students–would we be better off without it?

The students were split in their responses, and obviously reasonable people can differ (though of course we flunked everyone who disagreed with us).

For me, the nexus requirement is an arbitrary way to limit the number of people eligible for asylum. That the nexus requirement has worked so well in this regard is more an accident of geography than anything else. It just so happens that the main reasons people from Mexico and Central America flee their countries are not reasons that easily fulfill the nexus requirement (fear of gangs and cartels). Imagine if we lived next to China, where many refugees face political persecution (or persecution for forced family planning, which is considered political persecution under U.S. asylum law). Or what if we lived next door to Iran or Afghanistan, where people flee due to religious persecution. The nexus requirement would do little to stem the flow of refugees from those places.

So if we eliminated the nexus requirement, how could we keep from being overwhelmed by asylum seekers?

The first question, I suppose, is, Would we be overwhelmed by asylum seekers if we gave asylum to everyone who faces persecution irrespective of nexus? Certainly the number of people eligible would go up. And we have seen that asylum seekers respond to policy changes (witness the surge of credible fear interviews at the U.S.-Mexico border). So it certainly seems possible that the number of asylum seekers would increase, but by how much, no one can say. If I had to guess, I would say that the increase would not be as dramatic as we might imagine. Why? Because asylum seekers who want to come here will come here and try for asylum regardless of the odds. Just because you have a one in ten million chance of winning the lottery does not mean you won’t play. So while I suspect that if the nexus requirement were eliminated, more people would be incentivised to come here, I am not sure how many would actually change their behavior and make the trip.

There are, of course, other ways to limit the number of asylum seekers. One way is to change the level of proof. Instead of a 10% chance of future persecution, how about a 50% chance or a 75% chance. While this would reduce the number of people qualifying for asylum, it would also result in legitimate refugees being returned to countries where they face persecution. Also, given the arguments above, I doubt it would do much to actually reduce the number of people coming here for asylum.

Another option would be to resettle anyone qualifying for asylum to a third country. In other words, if a person wins asylum in the U.S., she will be resettled in Argentina. While this would likely reduce the number of people seeking asylum here, I doubt whether many other countries would agree to such a scheme. Also, I imagine there would have to be some sort of reciprocity, so if people were granted asylum in Greece, for example, they might be resettled here. While this plan eliminates some of the incentive for seeking asylum in the U.S., I just don’t see how it could work in the real world.

In the end, the nexus requirement is not going away anytime soon. I do think it is helpful and important to recognize, however, that the requirement really is quite arbitrary. It would do far less to limit the number of asylum seekers if we lived in a different part of the world or if conditions in our neighborhood changed. But for the foreseeable future, we lawyers will continue looking for ways to fit our clients’ cases into one of the protected categories.

Continue reading

4 Comments

Where Cato Gets It Wrong on Asylum

by Jason Dzubow

The Cato Institute’s Alex Nowrasteh recently published a piece in the Huffington Post called Saving the Asylum System. The title accurately reflects the author’s point, and of course I agree that our asylum system should be preserved (and–really–cherished). But where Mr. Nowrasteh gets it wrong, I think, is his analysis of the problem.

Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.
Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.

The “fundamental problem” according to Mr. Nowrasteh is that intending economic migrants who arrive illegally at the border and get caught are requesting asylum as a way of gaining entry into the U.S. to work. He views this as an “unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.” He posits that “creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system [would remove] the incentive for some of them to make dubious asylum claims.”

Cato is a Libertarian think tank, and Mr. Nowrasteh’s proposal is a Libertarian solution (free flow of labor and all that).

Before I respond, I must admit to a certain prejudice against Libertarianism in general. To use a fancy law school word, I find the whole philosophy jejune. It seems perfectly fine for high school juniors with Ayn Rand fantasies, but I feel it fails utterly in the real world. In other words, to me, “Libertarian think tank” is an oxymoron. On the other hand, I have some good friends who are staunch Libertarians, and sometimes they even give me free cigars (though I suppose this must be in exchange for some utility they get from my company–or maybe they just hope I die from lung cancer). So perhaps I am being a bit too harsh. Anyway, the point is, it’s only fair to put my prejudice on the table before I respond.

That said, I think that Mr. Nowrasteh is simply wrong that most–or even a significant portion–of asylum seekers are economic migrants. To be sure, asylum seekers come to the U.S. (as opposed to Namibia, for example) because they can settle here, get  a job, and build a new life. But this does not make them economic migrants in the normal sense of the phrase. Economic migrants are not fleeing their country because their life or freedom is threatened; they are leaving for a better job.

Stated another way, with all immigrants (including asylum seekers) there is a push and a pull. For refugees, the most important “push” factor is a threat to life or freedom in the home country. For economic migrants, the push is a bad economic situation. The pull for both groups is freedom, opportunity, peace, the ability to gain acceptance, and all the other tangibles and intangibles of “America.”

So why do I think that most asylum seekers are not economic migrants who file fraudulent asylum claims in order to circumvent immigration restrictions?

The main reason, I must admit, is anecdotal. I have represented hundreds of asylum seekers, and while I have suspicions about the motivations of some clients, most clearly face threats in their home countries. Also, many of my clients held good jobs in their home countries and they are unlikely to achieve the same level of success in the United States (due to language barriers, lack of transferable skills, etc.).

Another reason I believe that asylum seekers are not mere economic migrants is because countries that produce large numbers of asylum seekers have widespread human rights problems. The source country for the most asylum seekers in the U.S. is–by far–China. Of late, China has produced between 20 and 25% of affirmative asylum cases and a whopping 45% of defensive asylum grants in FY2013. China has a repressive government and–probably more importantly for purposes of this discussion–Congress passed a law to provide asylum to victims of forced family planning, and these people come almost exclusively from China. While the U.S. economy provides more opportunities than China’s, the repressive nature of the government combined with a special law to help Chinese asylum seekers suggests that asylum applicants from China are more than just economic migrants–they are refugees.

A possible counter argument here is that the increase in credible fear applicants, who have lately been overwhelming the asylum system, comes from people arriving from Mexico, Guatemala, Honduras, and El Salvador, which all have very low asylum grant rates. There are two reasons why I think this argument fails, however. First, many people seeking asylum from these countries face severe threats and persecution from gangs and cartels, or from crime and domestic violence. Such people are genuinely afraid (for good reason), but they rarely qualify for asylum since they cannot show that the feared harm is “on account of” a protected ground. Second, all these countries are very violent places. The less violent countries in the region–Belize, Costa Rica, Nicaragua, and Panama–have weak economies compared to the U.S. (especially mi país Nicaragua, which is the poorest country in the Western Hemisphere aside from Haiti). If Mr. Nowrasteh’s theory is correct, we would expect these countries to be sending us comparable numbers of (fraudulent) asylum seekers, but they are not. To me, all this supports the notion that people leaving the region and seeking asylum in the U.S. are driven more by a fear of harm than by the desire for a better job.

So in the end, while I am happy that the Cato Institute is thinking creatively about ways to preserve our asylum system, I am not convinced by their analysis. While a guest worker program (especially for Mexico and Central America) might marginally reduce the number of asylum seekers, the overlap between refugees and economic migrants is pretty minimal. If we want to reduce the number of asylum seekers at our Southern border, we should spend more time supporting good governance in the region and less time meddling in our neighbors’ affairs.

Continue reading

4 Comments

Amendments to the Terrorism Bar–or–How Fox News Enables the Holocaust

by Jason Dzubow

I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking. 

Before we begin our journey, let’s look at the laws and policies that we will be sending back in time. 

Barred from asylum: A Jewish boy provides "material support" to the Nazis.
Barred from asylum: A Jewish boy provides “material support” to the Nazis.

After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.

Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?

The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.

Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

Continue reading

9 Comments

BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

by Jason Dzubow

Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here).  The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges).  Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

A BIA Board Member addresses the Ninth Circuit.

First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue.  The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit.  Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).

In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances.  However, these are two independent tracks.  According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.

The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).”  The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS).  The BIA concludes that

[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status.  The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).

What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge.  The IJ does not have to accept the determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.

The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.”  Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.

Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA).  Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important.  I expect we will see much litigation about these issues over the next few years.

Continue reading

Citing the Beatles, Ninth Circuit Determines that Only the Attorney General Can Terminate Asylum

by Jason Dzubow

A few days before Yesterday, the Ninth Circuit ruled that only the Attorney General–not DHS–can terminate asylum.  In Nijjar v. Holder, No. 07-74054 (9th Cir. 2012), the Department of Homeland Security, through the Asylum Office, terminated Gurjeet Singh Nijjar’s asylum approval In Spite of All the Danger in his country. 

Mr. Nijjar received asylum in 1995, based on political persecution he claimed to have suffered in India.  Before he left India, he was advised to Run for Your Life.

The Beatles: Great music AND binding precedent.

In 2003, DHS notified Mr. Nijjar that it intended to terminate his asylum status for fraud and order him to Get Back to India.  DHS wrote that it had information indicating that Mr. Nijjar was in the United States at the time he claimed to have been Across the Universe being persecuted in India and that Every Little Thing about his case was false.  The DHS letter instructed Mr. Nijjar to Come Together for a termination interview with an asylum officer to see whether We Can Work It Out or whether they would tell him, Hello, Goodbye.  However, Mr. Nijjar was a Nowhere Man and failed to appear.  After he failed to Help himself, DHS terminated his asylum status and referred his case to Immigration Court.

After a Long and Winding Road, the IJ (a Woman) concluded that she did not have jurisdiction to review the termination and gave Mr. Nijjar a Ticket to Ride to India.  After She Said She Said he is deported, the BIA Let It Be.  Mr. Nijjar then filed a petition for review with the Ninth Circuit Like Dreamers Do.  There, he asked the Court to Please Please Me.

On review, three Ninth Circuit judges noted All Together Now that the regulations, 8 C.F.R. § 208, provide as follows–

[An] asylum officer [of the DHS] may terminate a grant of asylum . . . if following an interview, the asylum officer determines that… There is a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.

The problem, however, is that the statute (the INA) does not give DHS the authority to issue such regulations–

Congress [a/k/a The Fools on the Hill] did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.

Congress expressly provided that “the Secretary of Homeland Security or the Attorney General may grant asylum . . . .” But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The “termination of asylum” subsection of the statute says that asylum “may be terminated if the Attorney General determines” that any of several conditions are met.

The Government attorney countered that Because the Asylum Office had the power to grant asylum, it must also have the power to take asylum away Any Time at All.  The Court called this argument “euphonious but not logical,” and held that popular songs are full of euphonious lyrics that make false statements, such as the Beatles’ lyrics:

There’s nothing you can know that isn’t known,
Nothing you can see that isn’t shown,
Nowhere you can be that isn’t where you’re meant
to be…

In other words, don’t Ask Me Why, but “there is no general principle that what one can do, one can undo.”  Because the statute specifically gives DHS and DOJ the power to grant asylum, but only DOJ the power to terminate asylum, the Court concluded that only the Attorney General can terminate asylum.  The regulations allowing DHS (through the Asylum Office) to terminate asylum are invalid.

I Want to Tell You, the Ninth Circuit’s logic seems sound.  I Imagine that unless Congress changes Something in the statute, future asylum terminations by the Asylum Office will face strong challenges from asylees Here, There and Everywhere.  Rather than waste resources litigating this issue Helter Skelter every time the government seeks to terminate, I’m Down with the regulations being amended to reflect the statute–only DOJ has the power to terminate an asylum grant.  In the future, when DHS wants to declare The End of an alien’s asylum status, it will need to issue a Notice to Appear, and then allow the IJ to make the initial decision concerning termination.  Dig It?

Continue reading

3 Comments

Asylum and Shari’ah Law

by Jason Dzubow

I recently finished a book about the Quran, and it got me wondering about what Islamic Law (or Shari’ah) has to say about asylum. 

Forget the Asylum Primer…

With the help of the mighty Google, I found an interesting paper on the subject from 2009: The Right to Asylum between Islamic Shari’ah and International Refugee Law: A Comparative Study.  The study is by Prof. Ahmed Abou-El-Wafa, chief of the department of public international law at Cairo University, and was written for the United Nations.  The study was meant to begin a conversation and get feedback from various experts in preparation for publishing the second edition of the study.  This conversation is apparently on-going.

Obviously, I am no expert in Shari’ah law, but I reviewed the initial study and I thought I would mention a few highlights.  The document begins with a quote from the Quran:

Those who believed and emigrated, and strove in the cause of God, as well as those who hosted them and gave them refuge, and supported them, these are the true believers.  They have deserved forgiveness and a generous recompense. (Quranic Surat al-Anfal, “The Spoils of War” [Chapter 8 verse 74]).

Try the Quran instead.

From there, the study sets forth the conditions for granting asylum under Islamic law.  For one thing, refugees should be “warmly welcomed… and well treated.”  “This is clear from the divine phrase [in the Quran that] those who ‘show their affection to such as came to them for refuge…’ and consequently [they] should not be expelled to the borders (refouled) or denied admission.”  Indeed, asylum seekers “should not be rejected , even if the inhabitants of the territory of asylum are in dire poverty… as the [Quran] says, ‘… even though poverty was their (own lot).'”  The study further states that “Islam categorically disallows that a refugee be returned to a place where there are fears for his basic freedoms and rights (such as being subjected to persecution, torture, degrading or other treatment).” 

Most of the examples in the study involve granting asylum to Muslims, but the law of asylum also extends to non-Muslims who are seeking protection.  This is based on a “well-known Islamic principle, i.e. ‘Before the world’s calamities, all sons of Adam (human beings) are equal.'”

The study also discusses the case of a person who enters Muslim territory without permission for the purpose of seeking asylum.  While non-Muslims are generally not permitted to enter Muslim lands without permission (and may be severely punished if they do), people who enter for the purpose of seeking asylum are not subject to penalties and should be offered protection. 

Interestingly, as in international law, Islamic law lists certain people who are ineligible for asylum.  One group that is not eligible are criminals, “particularly those who have committed acts warranting prescribed penalties (hodoud, e.g. willful murder).”  Also, people who have committed “grievances” in their home country are ineligible.  Here, Islamic law distinguishes between offering asylum and sheltering offenders.  The latter is not allowed.  Further, a grant of asylum to a specific person “may be coupled with an agreement concluded with him.”  Failure to abide by the agreement can have “grave consequences.”

The report concludes that “Observance of this right [to asylum] as enshrined by Islam is a duty for every zealous Muslim.”

While the concept of asylum exists under Shari’ah law, many Islamic countries, including the wealthy Gulf states, have not signed on to international treaties concerning refugees and do not offer asylum to people fleeing persecution.  I hope Professor Ahmed’s study reaches those Islamic governments that do not offer protection to refugees.  Not only do such governments fail to fulfill the duties incumbent upon all nations; it seems they also fail to fulfill their obligations under Islamic law. 

Continue reading

7 Comments

To Brief or Not to Brief

by Jason Dzubow

It seems that every lawyer who represents asylum seekers has their own style of preparing cases.  Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).

One big divide I’ve noticed is between lawyers who submit legal briefs with their cases and those who don’t.  Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.

When I first started doing asylum cases, I submitted briefs.  I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum.  As time went on, I ended that practice.  Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.

The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.

One advantage is that a brief helps the lawyer organize her thoughts.  It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case.  Briefs are also helpful for cases involving “particular social groups,” where the brief can clearly define the social group.  Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal.  When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief.  In addition, for new lawyers or lawyers who don’t normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.

There are also disadvantages to writing briefs.  The main disadvantage is that writing a brief is time consuming.  Lawyers have limited time to prepare cases and we need to be efficient.  Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial.  My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them.  They already know the law, and they will gain a better understanding of the facts by reading the applicant’s story and reviewing the evidence.  Again, it is a question of efficiency–Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.

Also, for normal cases, where the law is not in dispute, a brief can be a distraction.  Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application.  A brief that spends three pages “educating” the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.

Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim.  If there is a particular social group, I define what that is.  I also include a detailed summary of the client’s affidavit and each piece of evidence.  To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.

All that said, there of course is no “right way” to present an asylum case.  Each lawyer must decide what is best for herself and her client.

Continue reading

4 Comments

Albanian Informant and His Family Granted Asylum – Finally

by Jason Dzubow

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.

Continue reading

Congress Considers Waiving the One-Year Asylum Deadline for Indonesian Christians

by Jason Dzubow

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.

Continue reading

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.

Continue reading

Victory Is Fleeting, But Losing Lasts Forever

by Jason Dzubow

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.  

Continue reading

5 Comments

South Korean Spy Blows the Whistle, Gets Asylum

by Jason Dzubow

As you might imagine, South Korea is not a big source country for asylum seekers.  So it’s newsworthy when someone receives asylum from that country–particularly when that someone is a former operative with Korea’s top spy agency, the National Intelligence Service (“NIS”).

Writing for the Korea Times, Donald Kirk reports on the asylum case of Kim Ki-sam, a South Korean intelligence agent who blew the whistle on the NIS and former South Korean President Kim Dae-jung.  Mr. Kirk also served as an expert witness at Kim Ki-sam’s asylum hearing in Philadelphia and wrote a book with Mr. Kim’s help, Korea Betrayed: Kim Dae-jung and Sunshine.

The story goes that Kim Ki-sam made public information about the “tremendous investment of time, money and resources that went into arranging the June 2000 summit between Kim Dae-jung [the former president of South Korea] and Kim Jong-il [the late and not-so-missed dictator of North Korea].”  Apparently, “hundreds of millions of dollars… flowed into North Korean coffers to grease the path to the summit while the NIS and other agencies lobbied hard for years for the Nobel Prize for Kim Dae-jung.”

People are always thinking of crazy ways to get out of Korea.

Kim Dae-jung won the Noble Peace Prize for his “Sunshine Policy” towards the North, but the award was tainted by allegations that vast sums of money flowed to the North while at the same time the South ignored human rights abuses in North Korea.

The asylum case apparently wasn’t easy.  Mr. Kim first applied for asylum in 2002.  An IJ granted asylum in 2008, but DHS appealed.  The case was remanded to the IJ and Mr. Kim presented his claim again.  Finally, last month, the IJ granted asylum and DHS agreed not to appeal.  Mr. Kim was ably represented by Janet Hinshaw-Thomas of Prime Immigration Ministry in Philadelphia.

Of course, all this makes me think of another supposed whistle blower from a democratic country–Bradley Manning, who is currently awaiting trial (and facing a possible death sentence) for revealing classified information to Wikileaks.  Perhaps it is ironic that we grant asylum to one whistle blower while we potentially put another to death, but I think the cases are distinguishable.  One difference is that Bradley Manning publicized documents that mention Afghan civilians by name.  This put the civilians in serious jeopardy of Taliban attack.  As far as I can see, Kim Ki-sam’s actions have not put people’s lives at risk.  Ironic or not, the South Korean whistle blower has now received political asylum from the U.S. government.

Continue reading