Two female asylum seekers who were offered asylum in exchange for sex can sue the federal government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), ruled the U.S. Court of Appeals for the Ninth Circuit. See Xue v. Powell, No. 08-56421 (9th Cir. Sept. 2, 2010). The two women are Chinese nationals who filed affirmative asylum claims and appeared for interviews at the Asylum Office in Los Angeles. Asylum Officer Thomas A. Powell, Jr. interviewed each woman and requested sexual favors and money in exchange for granting their asylum applications. Mr. Powell was convicted in 2004 and sentenced to three years and nine months imprisonment. He died shortly thereafter.
If this is your Asylum Officer, ask for a supervisor, baby!
In 2001, the two asylum seekers sued Mr. Powell, his supervisor, and the U.S. government. The District Court dismissed the claims against the U.S. government under the FTCA. Under the FTCA, the United States is only liable “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [California].” See 28 U.S.C. § 1346(b)(1). In a split decision, the Ninth Circuit reversed in part, holding that, under California law, the plaintiffs could state a claim for infliction of emotional distress and interference with the civil rights of the plaintiffs. The case will now be remanded to the District Court for trial.
Meanwhile, one of the asylum seekers received asylum based on her fear of persecution as a Christian. The other asylum seeker’s case was denied; she claimed a fear of persecution on account of China’s one child policy. According to the San Francisco Chronicle, she faces deportation after the resolution of her lawsuit.
From a friend, who observes court hearings, but prefers to remain anonymous:
Imagine showing up to one of the most important meetings in your life, wearing a top cut so low that there is an eminent risk of “wardrobe malfunction” or maybe with pants hanging so low it’s a miracle that you’ve not tripped as you entered the room.
While many people have learned much about courtroom etiquette from television, such as the notion to stand up when the judge enters the courtroom, an aspect that seems to be lacking is the need to dress appropriately. As the weather becomes warmer and warmer, it seems to bring more and more examples into court of what not to wear as people’s efforts to dress lightly clash with the more formal atmosphere in the court.
Though there is no formal dress code when appearing before immigration court and immigration officers, asylum seekers and their witnesses should keep in mind that in order not to take away the focus from their own or another’s testimony some of the following guidelines should be kept in mind:
Hats, caps, bandanas or any head dress should not be worn unless they form part of one’s religious attire. Women should avoid wearing tube tops, tank tops, midriff, halter tops, short shorts or any other revealing clothing. Clothing should not have obscene or profane language or illustrations, nor should one wear gang-related attire. Clothing must cover all undergarments for both men and women. It is also best to avoid wearing sports jerseys and brand promotional T-shirts.
If you can wear it to a drag show, it's probably safe to say that you should not wear it in court.
When it comes to shoes, one should avoid wearing flip flops (no matter how expensive they are) and no one should come to court in bare feet (You’d be surprised.)
Avoid wearing heavy perfumes, as someone might be allergic, and the hearing or interview you have been waiting for so long might have to be postponed when that person becomes ill.
It is a good idea to also remember that during summer, most buildings have central air and can be very cold, if not downright freezing. Hearings, interviews, and even the wait for either can be very lengthy. Carrying a sweater or jacket is a wise move, as this item can be removed if the court/interview room is warm.
One of the best ways to think about what you should wear is to ask yourself: Is this something I would wear to my church, mosque, synagogue, temple or other place of worship. If you can wear it there, chances are you can wear it to court. And while fashion consultant might not be part of an attorney’s formal job description, it would be good for the client to be reminded that dressing neatly and properly for court is an important part of the courtroom etiquette.
Dressing properly for court is a way to show one’s respect to the court and the proceedings; this same courtesy should be extended to USCIS officers. After all, in the end, it is you who benefits.
I recently came across an interesting article from the Journal of Refugee Studies, “A Rare Examination of Typically Unobservable Factors in US Asylum Decisions,” which analyzes data from 81 asylum cases to determine the “unobservable factors” that influenced the decisions in those cases. The authors had access to cases litigated by the Human Rights Initiative of North Texas (“HRI”) between 1998 and 2005. As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only. Nevertheless, the study points to some interesting possibilities concerning how decisions are made.
The authors refer to prior studies, which correlate asylum grants with factors other than a “well-founded fear” of persecution, for example, “the judge’s prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes.” Also–
While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers’ files, and could look at many factors–gender, marital status, education level, religion–that are not normally available. Some of the findings are quite surprising, and are examined below:
Gender
The authors write: “we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women’s credibility.” In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount. Indeed, of all the factors studied (except possibly religion), gender was the most significant “unobservable factor” that determined the outcome in an asylum seeker’s case.
Education
The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants. They found “applicants with a primary or middle school education had greater success than higher educated applicants.” However, they noted that “the sample size is small in the primary and middle categories” (although the results do seem to have some statistical significance). They concluded, “Overall, there does not seem to be much variation in the grant rate due to educational attainment.” People who speak English, however, are statistically more likely to succeed in their cases.
In my own experience, I have always believed that more educated applicants are more likely to win asylum. More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society. I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.
What are the odds that this single Christian female would qualify for asylum?
Religion
The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions. They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum. In fact, the authors found that having a non-Judeo-Christian religion was the most influential “unobservable factor” in gaining asylum. Their results in this regard were considered statistically significant.
This is the one observation that seems to me flawed. The authors’ cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America. People from these countries are very unlikely to gain asylum in the U.S. Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world–regions where it is more likely that they will be granted asylum. For example, many of my cllients are asylum seekers from Ethiopia and most are Christian. They have a very high likelihood of success in their cases (usually based on political persecution). Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
Marital Status
A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants. However, the authors of the current study found that being married significantly decreases the odds of an asylum grant. I’ve never noticed any difference in the grant rates for my married vs. single clients. However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee’s entire family will be “following to join” him in the United States.
Some Thoughts
As the authors point out, their sample size is small, and the results are only suggestive. Nevertheless, it seems safe to say that “unobservable factors”–or at least factors that are not related to the legal requirements for asylum–do influence decisions in asylum cases. I imagine the same is true in criminal cases and civil cases. Not that this makes the situation any better, but the fact is, such “improper” influences are difficult to eliminate in any type of case. More study is clearly needed. If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.
Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed. The Refugee Protection Act would require DHS to record these interviews.
A DHS employee demonstrates the agency's latest recording equipment
Currently, asylum interviews at the border (or the airport) are generally not recorded. As a result, there are often disputes about what the alien said at the interview. For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border. He was immediately detained and requested asylum. His friend and traveling companion served as my client’s interpreter. The Border Patrol agent wrote down the client’s responses to the agent’s questions. The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum. On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border. Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.
IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes. Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews). Thus, the accuracy of the prior statements is frequently an issue. If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations. The RPA provides for recorded interviews at the border. It should also provide for recorded interviews at the Asylum Office.
USCIS Asylum Division will hold its quarterly stakeholders meeting in Washington, DC on June 8, 2010 at 2:00 PM. For details about attending the meeting, RSVP information, and how to submit questions, view the USCIS Memo. Questions are due by close of business on May 21, 2010, and RSVPs are due by close of busines on June 4, 2010.
Below is the story of an asylee from Eritrea. She prefers to keep her name confidential:
I was born in 1979 in Addis Ababa, Ethiopia. I was an Ethiopian at birth but I am an Eritrean national.
Eritrea is a little known country in East Africa of about 5 million people. Eritrea was forcefully annexed with Ethiopia in 1962. Freedom fighters struggled for Eritrea’s independence against the Derg, the Ethiopian government from 1974 to 1991. The struggle ended in 1991, when the freedom fighters won the fight. A referendum was held in 1993. Eritreans overwhelmingly voted to be independent from Ethiopia. My parents decided it was time to move to Eritrea. We moved to Eritrea for good in 1993.
The Beauty of Culture by Eritrean artist Yosief Indrias I came to the U.S. on August 10, 2007, a year after I left my country. I left my country in August 2006. I won a scholarship to pursue higher studies in Geneva, Switzerland. While in Geneva, I received a tuition waiver to study at a university in Washington, DC.
I am an Evangelical Christian. While I went to Evangelical Christian churches since I was a child, I did not become a devoted Evangelical Christian until March 2005. Unfortunately, that was after the faith was banned in Eritrea and when hundreds of evangelical Christians were thrown in jail for their faith. In 2001, the government declared that only Orthodox, Catholic, Lutheran and Islam were complying churches. All other faiths, including Evangelical/Pentecostals, Jehovah Witnesses, Bahai, and Seventh Day Adventists, were declared non-compliant faiths and banned.
Going to Bible or Prayer cells in houses or even carrying the Bible could lead to arrest, detention or even death in some cases. That did not stop my desire to attend Bible study and prayer meetings. I was eager to learn God’s Word and become a mature Christian. I went to a friend’s house to pray and study the Bible.
At the time I left Eritrea, the government imprisoned hundreds of Evangelical Christians. The government did not show any signs of stopping the persecution against Evangelical Christians. I was too afraid to go back home when I finished my studies in the United States. I talked to a couple of my professors about my intention to apply for asylum. They strongly advised me against applying for asylum without legal representation. One of my professors talked to the Immigration Clinic of the Law School. The clinic contacted me and set up an appointment to interview me. Two interns at the clinic interviewed me and made copies of my documents.
About a week later, the clinic notified me that it would take my case and represent me in my asylum application. I was relieved to hear that news. My next concern was to get my asylum application filed before the one year dead line. I had only a few weeks to write my affidavit, gather documents and mail the package. I had more interviews with the interns at the clinic to write my affidavit. After the affidavit was ready, the package was mailed on August 1, 2008, just a few days before the one year deadline.
The next step was to wait for my fingerprint appointment. I had my fingerprints taken on August 21. Because the interns that prepared my application finished their internship at the end of August, the professor asked for a continuance of my asylum interview, which was originally set for the beginning of September. My interview was rescheduled for September 15, 2008. Another intern was assigned to be my student council. I had a moot interview with the clinic team a few days before my interview. The moot helped me to get prepared for the interview. I felt less anxious about the interview at the asylum office.
Then came September 15. I arrived at the asylum office early. I met the professor and the student counsel outside the building. My interview was scheduled at 9:00 AM. The three of us got up to the third floor. We sat in the waiting room. Almost three hours went by before the asylum officer called me. The long wait made me nervous.
Around 11:50, I was called by the asylum officer. We followed her to the interview room. After the oath was administered, the officer started to ask me questions. She typed my answers to her questions. She asked me questions for an hour and a half. I had not anticipated some of the questions but I had a feeling it went well. The officer told me the decision will be sent to me by mail in about two weeks.
A month and a half went by before I heard anything from the asylum office. I was very anxious to know the decision. When I get home from work, the first thing I did was to go to the kitchen table to see if anything came in the mail for me. I was so happy when I finally got the good news. It was a huge relief. I did not have to go back to my country and risks persecution from the government of Eritrea.
My getting asylum in the United States was wonderful news. However, my personal life got a little complicated because of it. My fiancé had proposed to me after I had left the country and I said yes! Now that I can not go back to Eritrea because of my asylum status, and because it is difficult for him to leave the country, we do not know when we will see each other again. We can only hope that it is sooner than we think. For now, I’m happy that I am safe until I meet the love of my life and start a new journey.
A very particular social group Joseph E. Langlois, Chief of the Asylum Division at USCIS, issued a memo declaring that within the Seventh Circuit, former gang membership “may” form a “particular social group.” The memo was prompted by a decision in the Seventh Circuit, Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), which held that former gang membership is a cognizable social group for asylum purposes. Writing for the Court, Judge Posner notes that, “the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do.”
The decision continues: “A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.”
Judge Posner suggests that even where former gang members meet the requirements for asylum, they could be denied as a matter of discretion, or on statutory grounds:
We can imagine the Board’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum [because, for example, he is not a person of good moral character and does not deserve a favorable exercise of discretion].
[In this case,] Ramos was a member of a violent criminal group for nine years. If he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime.
The USCIS Memo states that within the Seventh Circuit, “former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct.” Outside of that circuit, Asylum Officers should remember that criminal activity, “past or present, cannot form the basis of a particular social group.” The memo also states that all Asylum Officers, regardless of jurisdiction, should note that past “gang-related activity may serve as an adverse discretionary factor that is weighed against positive factors.”
