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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BS from CIS

by Jason Dzubow

The Center for Immigration Studies never seems to let the facts get in the way of attacking immigrants and those who advocate for them.  Most recently, Jessica Vaughan, CIS Director of Policy Studies, criticized Immigration Daily for holding a training on gang-based asylum claims.  Instead of discussing the actual subject of the training, which is not particularly controversial, Ms. Vaughan simply made up her own version of the event in order to attack Immigration Daily.  Of the training, she writes:

Learn how to establish that your gangster clients are “members of a particular social group,” that they deserve humanitarian protection due to their “political opinions” or “religion” (such as La Familia, the murderous Mexican cult-like cartel), and what the UN guidelines are on these oppressed individuals. This e-learning session was preceded by one on how to help your client get a waiver if they are denied a green card or refugee status because of their links to terrorist groups. No, this wasn’t in The Onion, it was in Immigration Daily, the leading e-newsletter of the immigration bar.

Ms. Vaughan did not find this description on the Immigration Daily website.  Rather, she made it up.  Gang-based asylum does not involve helping gang members enter the U.S.  Rather, it is about helping people who have been threatened by gangs.  But, Ms. Vaughan’s goal apparently is not to engage in intelligent debate or education; it is simply to denigrate and discredit those who advocate for people fleeing persecution. 

The Southern Poverty Law Center says of CIS: “it has always been part of a broad-based and well-planned effort to attack immigration in all forms.”  By making up phony arguments to influence the uninformed, Ms. Vaughan seems to be making their point for them.  If CIS wants to be taken seriously, maybe it should demonstrate a little integrity.  It can start by telling the truth.

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Third Circuit Grants Relief to Mentally Ill Respondent

by Jason Dzubow

In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA’s denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).

Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident.  He was eight years old.  Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings.  Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity.  His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture (“CAT”).  He also asked for an indefinite continuance so that his competency could be determined. 

The IJ (in York, Pennsylvania) denied the motion for a continuance.  The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution “on account of” a protected ground.  However, he granted Ms. Soobrian’s application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.

The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was “no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture.”  Mr. Soobrian filed a Petition for Review in the Third Circuit.  Based on an unopposed motion, the case was remanded “for consideration of whether the class of mentally ill persons is a ‘particular social group’ for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was ‘more likely than not’ to be tortured if removed.”

On remand, the IJ held that “mentally ill persons” could constitute a particular social group.  However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources.  He also found no evidence that the government could not or would not protect such people.  As such, he denied Withholding of Removal.  Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.

On appeal, the BIA again affirmed the IJ’s finding vis-a-vis Withholding of Removal.  The Board did not rule on whether “mentally ill persons” constitute a particular social group.  Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness.  The BIA again reversed the CAT grant, holding under a de novo standard of review that “the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering.” 

In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ’s decision on Mr. Soobrian’s CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.

As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo.  Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact.  Under those circumstances, “the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components.”  Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian’s Petition concerning the CAT claim.

The Court also held that Mr. Soobrian’s due process rights were not violated when the IJ refused him a continuance due to his mental health issues.  The Court reasoned:

Under our immigration laws, there is only a passing reference to an alien’s mental competency at a removal hearing.  If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

The Court ultimately found that Mr. Soobrian had received sufficient procedural protections.  In dicta (and relying on a Tenth Circuit decision), the Court also found that “the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding.” 

Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel.  Most mentally ill respondents will not be so lucky.  For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.

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Hirsi Ali Calls for a New Way to Evaluate Asylum Seekers

by Jason Dzubow

Ayaan Hirsi Ali, a prominent critic of fundamentalist (and not so fundamentalist) Islam and the author of Infidel and Nomad, recently told The Australian that it was futile for countries to attempt to establish the bona fides of would-be refugees, not least because many asylum-seekers will say anything in order to qualify for asylum.  “Everybody lies,” she said.  Indeed, she herself admitted to lying on her own application in order to gain asylum in The Netherlands.

Instead of simply assessing whether an asylum seeker has a well-founded fear of persecution, Ms. Hirsi Ali proposes a sort-of cultural test:

[We] have to change the paradigm. You have to say, “You’re welcome, we need immigrants but there are many conditions. Here is the law, the culture, the customs. Here is what you agree to, and in exchange you get to live in a peaceful, prosperous society where you have all this opportunity. If you don’t agree we will just return you.”

First, the problem of fraudulent asylum claims is widely acknowledged (I wrote about it here).  However, Ms. Hirsi Ali’s statement that “everybody lies” on their asylum applications is simply wrong.  That would mean that no one who has been persecuted in their country has ever escaped and sought asylum abroad.  Maybe it’s a small point–as she was likely speaking in general terms–but when we’re talking about people who have been tortured and lost loved ones, it seems a bit insensitive and ungenerous.

Second, while there may be reason for a cultural test in Australia (Ms. Hirsi Ali was speaking about asylum seekers in Australia), it seems less needed in the U.S.  Ms. Hirsi Ali is concerned about importing destructive cultural practices, such as female circumcision, forced marriage, and honor killings.  She associates these practices with Islam and would basically exclude asylum seekers who refuse to adopt a more Western lifestyle.  Most people seeking asylum in the U.S. are not from countries where these practices are common.  According to the Department of Justice, almost 35% of successful asylum seekers come from China.  The next largest groups–about 4% each–come from Ethiopia and Haiti.  While these countries certainly have problems (hence people from these countries seek asylum), the asylees from these places generally embrace Western values and do not bring with them the kinds of cultural baggage that concerns Ms. Hirsi Ali.  

In addition, any type of “cultural test” for asylum seekers seems doomed to fail.  If, as Ms. Hirsi Ali says, people will “say anything,” then certainly they will falsely claim to adopt Western values in order to win asylum.   

Finally, under U.S. law, people who practice FGM or commit honor killings are not eligible for asylum (whether the adjudicator learns about these acts is another matter).  Asylum seekers who are found to have persecuted others (FGM is a form of persecution) or who have committed serious non-political crimes (like murder) may not receive asylum.  If asylees commit such crimes in the United States, they will be deported.  Asylees should be educated about these laws, and such laws need to be enforced.    

It seems that a cultural test as proposed by Ms. Hirsi Ali is not needed for asylum seekers in the United States.  We can better balance our human rights obligations with our desire to avoid negative cultural influences by educating new Americans, making it safe for people to report abusive cultural practices, and enforcing the law.

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Charles Taylor’s Son Attempts to Invalidate the Torture Convention in Order to Save Himself

by Jason Dzubow

Attorneys who specialize in political asylum generally think of the United Nations Convention Against Torture (“CAT”) as a defense to deportation.  If an alien does not qualify for asylum, he may qualify for relief under the CAT.  But a recent Eleventh Circuit decision reminds us that the CAT is a sword as well as a shield.

Glamour shot of Chuckie Taylor

On July 15, 2010, the Eleventh Circuit upheld the torture convictions and 97-year sentence imposed on the son of former Liberian President Charles Taylor, who led a notorious paramilitary unit during his father’s bloody rule.  According to the Associated Press, the younger Taylor, Charles McArthur Emmanuel, also known as Chuckie Taylor is– 

a 33-year-old U.S. citizen born in Boston while his father was a student there, [and] was convicted in 2008 of torturing or ordering the torture of dozens of the Taylor government’s political opponents with numerous gruesome techniques. These included electric shocks; bayonet stabbing; burning with cigarettes, clothes irons, melted plastic and scalding water; shoveling of biting ants on people’s bodies; and imprisoning people in water-filled holes covered by iron bars.

For his crimes, which are detailed in the Eleventh Circuit’s decision, “Chuckie” Emmanuel was sentenced to 97 years in prison.  The Court notes that his was the first prosecution under the Torture Act and sets forth the basis for the appeal:

Emmanuel, who is the first individual to be prosecuted under the Torture Act, 18 U.S.C. § 2340-2340A (“the Torture Act”), seeks reversal of his convictions on the ground that the Torture Act is unconstitutional. Primarily, Emmanuel contends that congressional authority to pass the Torture Act derives solely from the United States’s obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (the “CAT”); he says the Torture Act impermissibly exceeds the bounds of that authority, both in its definition of torture and its proscription against conspiracies to commit torture.

So let’s get this straight, in an effort to avoid punishment for his crimes, Mr. Emmanuel–a man who tortured and murdered countless individuals–is attempting to limit or invalidate the CAT, a law used primarily to protect people who fear torture in their home countries.  Nice.  Fortunately, the Court soundly rejected his arguments:

After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that… the Torture Act [applies] to extraterritorial conduct, and that [its] application in this case was proper…. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects.

Mr. Emmanuel is currently serving his sentence in a federal prison in Kentucky.

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OIL’s Adverse Credibility Project

by Jason Dzubow

The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility.  Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum.  Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony.  The REAL ID Act of 2005 tightened these requirements.  Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.

OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility.  OIL describes the data used for the study:

The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.

The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.”  For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed.  This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed. 

The overall numbers mask some diversity between the different circuit courts.  In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld.  The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld).  The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%.  In the Eighth Circuit, 86% of credibility determinations were upheld.  According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations.  This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.

The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:

Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.

The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations.  Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review.  I guess that is a possibility, but I have my doubts.

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Can DNA Stop Asylum Fraud?

by Jason Dzubow

The United Kingdom is experimenting with genetic testing as a method for reducing asylum fraud.  According to the UK Border Agency, falsifying nationality to gain political asylum has been a particular problem among East Africans (I recently discussed this problem here).  In response, the UKBA attempted to implement a program to genetically test East African asylum seekers to determine their country of origin.  The 2009 program was much criticized by scientists and immigrant advocates, and the British government ultimately shelved the plan.  However, the UK is continuing a smaller scale “proof of concept” project that is scheduled to finish up this month.  According to the UKBA: 

Participation in the project will be entirely voluntary, and will test whether there is the potential for these investigations to be supported by wider use of DNA testing and isotope analysis. Whilst this trial is being undertaken, no decisions on individual cases will be made using these techniques, and they will not be used for evidential purposes.

At the end of the project, the UKBA will evaluate the efficacy and ethics of the project and determine whether the technique could be used to augment its decision-making process in asylum cases. 

A UKBA scientist tests for Somali nationality.

The main objection to the project seems to be that it conflates nationality with ancestry.  A Somali citizen, for example, may be of Ethiopian ancestry.  The science website Singularity Hub reports:

[G]enes don’t relate to political borders. And there are strong doubts as to whether testing this particular group can even provide the slightest statistical reliability, mainly because of past and present population movements throughout the region.

Current TV reports on a second part of the test:

[An] applicant will be asked to give hair and fingernail samples; by looking at which forms of certain elements the samples contain, the government scientists hope to find evidence of the person’s diet and environment [to determine the country of origin]. But isotope specialist Tamsin O’Connell says the results won’t be specific enough to be meaningful. “It is very difficult to identify individuals to very specific locations using isotopes alone,” she said.

In other words, whether or not genetics and isotope analysis can be used to determine nationality is a dubious presumption.  Further, using genetic testing in this way raises ethical issues.  Current TV reports that geneticists and isotope specialists have referred to the project as “horrifying,” “naïve,” and “flawed.”

Writing for the Singularity Hub, Christopher de la Torre imagines a time when genetic testing might be able to identify a person’s country of origin: 

Using DNA to track populations and ancestry isn’t new, but regulating according to DNA opens a Pandora’s box of potential. As the rate of technological progress grows exponentially, it’s more important than ever to balance our ability with morality. 

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Pennsylvania Man Sentenced for Asylum Fraud

by Jason Dzubow

From a June 10, 2010 Department of Justice press release:

David Lynn, 35, of Holland, PA, was sentenced today to 40 months in prison for leading an asylum fraud scheme that netted him and five co-defendants millions of dollars in illegal profits, announced United States Attorney Zane David Memeger. Lynn pleaded guilty, in October 2008, to one count of conspiracy, one count of visa/asylum fraud, one count of money laundering, and conspiracy to commit money laundering. Lynn, who was charged with five co-defendants, ran a business that filed at least 380 bogus asylum applications for clients, between January 2003 and March 2007, charging an average of $8,000 for an application.

Investigators say Lynn posed as a lawyer.  According to an ABC News report, “only a handful of Lynn’s 380 clients from around the country made it through the system by claiming they would face oppression if they returned home.”  The majority of the aliens are in removal proceedings.  Some have already left the country knowing they were going to be deported.  According to another report, the perpetrators were Russian immigrants and most clients were from Russia, Ukraine, and Poland.

Unfortunately, it is a common pattern for unscrupulous immigrants to exploit their countrymen, who are naive about the American system and are ready to trust their own kind.  What’s most amazing to me is that a guy who lost the large majority of his cases and charged $8,000 per person–far more than most legitimate lawyers–seemed to maintain a booming business.  It’s a sad testament to the gullibility and desperation of the clients, some of whom may have lost out on bona fide claims.  Other clients were likely complicit in the fraud, and it’s harder to muster sympathy for them. 

I believe the best way to stop fraud is to go after people like Mr. Lynn, who blatantly take advantage of a system that is designed to help the most vulnerable.  By stopping Mr. Lynn, the DOJ has helped to preserve the integrity of the asylum process.  Congratulations to those involved in the investigation, and keep up the good work.

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Fraud and Asylum

by Jason Dzubow

A recent report from Ireland found that almost two thirds of asylum seekers who claimed to be from Somalia were lying.  The investigation found that the “Somalis” were from other countries, such as Tanzania, Kenya, and Yemen.  Apparently, some of the asylum seekers were found out based on language or a lack thereof; others had previously applied for visas to the UK using different nationalities.  There may be some reason to doubt whether these techniques for outing “Somalis” are valid.  For example, some Somali nationals may have been refugees for many years, raised in other countries without knowledge of Somali languages.  Others may have used false passports from other countries to travel to Europe.  Nevertheless, the high percentage of cases that are likely fraudulent presents a problem for the “system” and for those who represent asylum seekers. 

Of course, the problem is not confined to Europe.  In 2007, the U.S. Embassy in Ethiopia issued a cable (I have not been able to find it online) entitled: Report on fraud trends in Ethiopian asylee claims: A guide for DHS adjudicators.  The cable talks about “following to join” cases where an alien has been granted asylum in the United States and has filed a form I-730 for his relatives to join him in the U.S.  From August 2005 to May 2006, the Embassy reviewed 1,449 following-to-join cases, which represented 288 asylum grants in the United States.  The Embassy writes that “Almost every [following-to-join] interview at Post uncovers information that calls into question the petitioner’s original claim.”  In addition, the Embassy has found that “more than 75 percent of documents investigated were fraudulent” and consular officers “suspect that the fraud rate is well over 50 percent.”  Again, there may be problems with the Embassy’s methods of investigating fraud, but the cable certainly presents evidence of a problem. 

The U.S. Embassy in Cameroon has issued a cable similar to the Ethiopian cable.  It states that asylum claims have increased dramatically since 1992.  The Embassy knows of no corresponding increase in political problems, though the economy has gotten worse, leading to the conclusion that many asylum seekers are economic migrants (the State Department Report on Human Rights conflicts somewhat with this view, listing human rights abuses such as torture, arbitrary arrest, and life-threatening prison conditions).  The Embassy also reports that Cameroonians have been detained entering the United States with all sorts of fake documents that could be used to create fraudulent asylum claims.  Relatives following to join frequently know nothing about the asylees’ political activities or persecution.  As a result of this fraud, non-immigrant visa refusal rates have increased from 35% in 2001 to 60% in 2004.  Further, the Embassy complains that fraudulent applications and following-to-join applications have dramatically increased its workload.  It recommends that Cameroonian asylum cases be viewed skeptically. 

Other evidence is more anecdotal.  A recent report from the blogosphere–I cannot vouch for the report’s credibility–indicates that an Ethiopian diplomat at the Embassy in Washington, DC quit his job, claimed asylum, and then returned to work at the Embassy as a public relations officer.  He was even listed on the Embassy website.  The report states that the diplomat’s asylum claim was false, and urged the U.S. government and the Ethiopian government to investigate.  

The problem of fraud presents a dilemma for attorneys who specialize in asylum and a challenge to the “system.” 

Attorneys who specialize in asylum have generally entered the field to assist those who genuinely fear persecution (we certainly don’t specialize in asylum for the money!), not to help facilitate fraud.  However, for the most part, we can’t know which cases are genuine and which are not, and it’s sometimes dangerous to judge.  I remember one Ethiopian woman whose case I doubted.  We won, and a few months later she returned to my office and asked whether I could help her find a doctor.  Ever since her detention and beating, she said, she had been suffering pain on one side of her body.  Although I don’t know whether this was true or not, she had no reason to lie.  Experiences like this make me cautious about judging my client’s veracity.  Instead, it’s better to represent my clients to the best of my ability and to let the Immigration Judge decide the case.

The problem of fraud also presents a challenge to the legal system.  Our country has–I think quite properly–taken a generous approach to asylum.  We would rather allow some fraudulent cases to succeed than turn away genuine asylum seekers.  Of course, if fraud becomes too pervasive, it might cause us to re-consider how we evaluate asylum claims.  The Australia government recently initiated a six-month freeze on processing asylum applications filed by Afghani and Sri Lankan asylum seekers who arrive by sea.  The system was becoming overwhelmed by applicants, and the government reacted with a heavy hand.  Such a broad brush approach is questionable under international law, and would obviously affect legitimate and illegitimate asylum seekers. 

So what can be done to reduce fraudulent asylum claims?

The U.S. Embassy in Cameroon suggests that DHS check asylum applications with records obtained at the Embassy to determine whether family members listed on the asylum form were also mentioned at the Embassy.  This would avoid the problem of asylum seekers “adding” family members in order to bring them to the U.S. after they win asylum.  If “false family members” could not follow to join, the incentive for seeking asylum might be reduced. 

Also, more generally, documented information at the Embassy could be compared with information in the asylum application.  Theoretically, this should happen already, but DHS has limited resources, and this method seems to have limited value, as most biographical information is consistent between the Embassy and the asylum application.

In many cases, friends and relatives in the home country submit letters in support of an applicant’s claim.  Such people could be called to the Embassy for questioning.  It is more difficult to create a fraudulent case if people in the home country are required to testify about the claimed persecution.  Of course, this would have to be done while maintaining confidentiality, but this should be possible given that such people already know about the asylum claim (having written letters in support of the claim).

Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the “client” engage in fraud, the attorney could be charged with a crime (that is exactly what happened to a Washington State couple who helped create fraudulent asylum cases).  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.

The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:

(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.

(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group.  On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.” 

Mazel Tov to all on these successful outcomes.

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A Short “Wish List” for the Refugee Protection Act

by Jason Dzubow

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

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President Obama’s Aunt Wins Asylum

by Jason Dzubow

An Immigration Judge in Boston granted asylum to President Obama’s aunt Zeituni Onyango, a Kenyan national who has been in the U.S. since 2000.  Ms. Onyango first applied for asylum in 2002.  She was initially denied, but then either appealed or reopened her case (I have found nothing definitive about the course of the litigation).  Earlier today, the IJ granted her application for asylum. 

Obama's aunt holds a photo of herself and a little-known state senator

At least as far as I can tell, the basis for Ms. Onyango’s claim has not been made public.  My guess is that after Obama was elected president (or at least after he became nationally and internationally known), Ms. Onyango filed a motion to reopen her case and asserted that she would face persecution from people who wished to harm her family (the Obama family).  Given the various threats to our country, this seems a reasonable claim.  Although perhaps the possibility of her facing harm in Kenya is remote (Obama’s grandmother is living there peacefully), it’s easy to understand why an IJ would be reluctant to send her back.  She would make a tempting target for extremists, and it would be a blow to the U.S. if she were harmed.  Under these circumstances–and given the fairly low threshold for asylum–it’s not a surprise that the IJ granted Ms. Onyango’s claim.

Professional Obama-hater Michelle Malkin and others have raised the question of whether Ms. Onyango received special treatment because of her relationship with the President.  Of course, I have no idea (and neither do they), but special treatment hardly seems necessary in a case like Ms. Onyango’s.  I once represented an Afghani woman who received a fellowship to study in the United States.  A university brought her here and supported her, and the local press covered her progress for four years.  Towards the end of her fellowship, extremists in her country threatened her, and we applied for asylum.  I argued that she was a prime target for anti-American extremists because of her relationship with our country–had she been harmed in Afghanistan, it would have been seen as a major victory for our enemies.  The Asylum Office granted her application.  Ms. Onyango’s situation was similar to my client’s, in that our enemies would view an attack against her as an attack against the United States.  Not surprisingly, the IJ was not willing to take that risk.

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The BIA on Frivolous Asylum Applications

by Jason Dzubow

Biao Yang probably isn’t the first man to tell an exaggerated story about his courage in defense of a woman’s honor. Similarly self-aggrandizing stories have no doubt been told in countless bars and around hundreds of water coolers.

Narrative license of this sort usually carries little risk. A drinking buddy or co-worker might express disbelief by making reference to bovine excrement.

But the personal consequences of Yang’s embellishments are far more serious, as they will likely result in his deportation and the imposition of a lifetime bar to future immigration benefits. The consequences of Yang’s narrative excesses also had a broader effect, as they were the focus of a recent BIA decision that added to the administrative corpus of immigration law by clarifying the standards under which asylum claims are determined to have been made frivolously.

TOUGH GUY

Yang, a Chinese national, arrived in Chicago in 2002. After touching down, he told immigration officials at O’Hare that he had fled his country because “family planning authorities” – bureaucrats tasked with enforcing the country’s “One Child” policies – had forced his girlfriend to abort her pregnancy and that they wanted to arrest him.

Poster extolling the virtues of the one child policy

The embellishments would come in an asylum application filed 18 months later. In that application, Yang asserted that he got into a scuffle with and injured one of the abortionist bureaucrats who had come to his house to escort his girlfriend to the hospital. He further claimed to have been beaten and detained for his fearless acts. And then he claimed that he made a prison break and left the country.

IJ DECISION AND SECOND CIRCUIT REMAND

None of these details had been mentioned during the airport interview, however. This and other suspicious aspects of Yang’s story – including chronological discrepancies , “rank inconsistencies” within his testimony, and the sheer “implausibility” of his prison-break story – led an immigration judge to render an “adverse credibility determination.”

The result was denial of Yang’s asylum claim. But the IJ further held that these inconsistencies indicated that Yang’s asylum claim had been filed frivolously – which resulted in the imposition of a lifetime bar to future immigration benefits.

The IJ’s decision was affirmed by the BIA.  However, the U.S. Court of Appeals for the 2nd Circuit remanded because the case exposed vagueness in the existing BIA standard for making a “frivolousness” determination. Those standards included:

[A] specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application … [and] … sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated

The Second Circuit examined:

to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination.

BIA CLARIFICATIONS

On remand, Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010), the BIA made the following clarifications:

Factual findings made in reaching an adverse credibility determination can be incorporated into the findings made in reaching a frivolousness determination … but will not be sufficient … the frivolousness determination requires additional, explicit findings of “materiality” and “deliberate fabrication.” 

The BIA stated:

In this case, as is often the situation, fact-finding regarding credibility overlaps with fact-finding as to whether an asylum application was frivolously filed. Both determinations involve the identification of inconsistencies and discrepancies in the asylum claim and consideration of any explanations offered for them. There may be circumstances where the pertinent facts do not overlap, and separate factual findings by an Immigration Judge will be necessary.

However, neither fairness nor clarity requires an Immigration Judge to separate and repeat those aspects of the credibility determination that overlap with the frivolousness determination.

… The frivolousness determination, however, requires explicit findings as to “materiality” and “deliberate fabrication” that are not required for an adverse credibility determination. As we indicated in Matter of Y-L-, 24 I&N Dec. at 156, “[T]he Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”

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The Refugee Protection Act and the “Central Reason” for Persecution

by Jason Dzubow

This is part four in a series of posts about the Refugee Protection Act (“RPA”), a bill introduced by Senators Leahy and Levin in the United States Senate.  The RPA would modify the requirements for asylum by changing the requirement that a “central reason” for the persecution is a protected ground.

In order to qualify for asylum, an applicant must demonstrate a well-founded fear of persecution based on a protected ground (race, religion, nationality, political opinion, particular social group).  The REAL ID Act (effective May 11, 2005) modified this definition, and the law now requires that “at least one central reason” for the persecution must be a protected ground.  The BIA found that this new requirement did not “radically alter[]” existing law. See In re: J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007). 

While the law may not have been radically altered, the REAL ID Act makes it more difficult for asylum seekers to obtain relief.  I worked on a case in the Fourth Circuit (ably litigated at the agency level by the University of Maryland Law School Clinic) where an El Salvadoran man had been repeatedly harassed and beaten by members of the MS-13 gang.  The gang attacked him for several reasons: (1) they did not want him to date a certain girl; (2) they wanted to steal his money; and (3) they did not want him to attend the Seventh Day Adventist Church.  The Immigration Judge (“IJ”) specifically found that the harm faced by the asylum seeker rose to the level of persecution, and she told him: “I think you are in a terrible situation and I could not have more sympathy for you.”  However, both the IJ and the BIA found that the “central reasons” for the persecution were that the gang did not want my client to date the girl and the gang wanted to rob him–these are not protected grounds.  The BIA found that “even assuming… religion was one motive, we do not find his religion to be ‘at least one central reason’ for the persecution.”  The Fourth Circuit agreed and denied our Petition for Review. See Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009).   

What motivates this guy?

The difficulty in Quinteros-Mendoza was that the IJ had to determine the motivation of the gang members.  It is difficult enough to establish the motivation of a persecutor, let alone to rank that motivation as “one central reason” for the persecution.  The RPA would relax this requirement.  The law would be changed so that the applicant must prove only that a protected ground is “a factor in the applicant’s persecution or fear of persecution.” 

Where an asylum applicant faces persecution, he should not be required to demonstrate the motivation for his persecutor’s actions with such specificity.  The RPA would correct this problem.

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Disgrace at the DRO

by Jason Dzubow

Sometimes it seems that the purpose of the ICE Detention and Removal Office is to make life so miserable that people would rather return to a country where they fear persecution than remain any longer in the United States.  At least that is what the DRO has been doing to one of my clients.  Here’s the story:

My client worked for her country’s government at an international organization in the United States.  She was politically active in favor of an opposition party.  Once her superiors learned about her activity, they ordered her to report to the home office.  She feared–for good reason–that her government planned to arrest her upon her return, and so she filed for political asylum.

The Asylum Office referred the case to an Immigration Judge because the client had not filed for asylum within one year of her arrival in the U.S. (she had been working here for several years before she filed for asylum).  At that point, she hired me, and we prepared a case for the IJ.  I planned to argue that the client’s failure to file for asylum within one year should be excused by “changed circumstances” in her case, but I knew this argument was weak. 

When we arrived in court, the DHS Attorney said he would agree to Withholding of Removal under INA 241(b)(3).  An alien who receives Withholding of Removal cannot be removed to the country where she fears persecution.  She is entitled to a work permit, which must be renewed every year, but if she leaves the U.S., she cannot re-enter.  I had already discussed the possibility of Withholding with my client, and she agreed.  In fact, she was relieved to avoid a trial.  With the consent of DHS, the IJ granted Withholding of Removal.

A few years later, my client is still here.  She is working hard and trying to make a life for herself. 

Recently, however, DRO has begun an effort to force her to relocate to a third country.  Why they have chosen my client for this attention, I do not know.  She has no criminal history and she is employed, and the DHS attorney and the IJ both agreed that she faces persecution in her home country.

The DRO has the legal authority to remove my client to a third country: Withholding of Removal protects an alien from removal to the country where she fears persecution, but it does not prevent ICE from removing her to another country.  Thus, every month for the last few months, DRO has made my client report to their office.  For the client, this means losing a day of work (and having to make excuses to her employer), waiting for hours, and then receiving a lecture about how she will be deported, how the DRO has “power” over her, how they can make her report every month, every week or every day; in short, how they can disrupt her life to the point where she can no longer remain in the U.S.  They leave her with instructions to find a visa to a third country, and to report back about her efforts to get a visa.  The repeated threats from the DRO officers are the worst part. They terrorize and demoralize the client, who, of course, has no where else to go.

My client has dutifully contacted different embassies, none of which offer her a visa.  More stress and wasted time.  She and I both know that no country will offer her residency.  The DRO officers know it as well.  Yet they persist in their efforts to make her keep looking.  As a result, my client is depressed and fearful, she may lose her job due to the frequent absences (to report to DRO and to visit embassies), and she has no certainty about her future in this country.

I suppose I should not speculate about the motivation behind the DRO officers’ actions, but I can clearly see the results of their behavior: They are harming a person who has been granted protection by our country. And to me, that is a disgrace.

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