The Tyranny of Unreturned Phone Calls

by Jason Dzubow

Aliens have a due process right to a fair hearing in Immigration Court.  At what point is that due process right violated when the alien (or her attorney) is unable to communicate with the Court or the DHS attorney?

It is a common scenario for the attorney to contact DHS counsel for a pre-trial conference.  The purpose of this communication is to narrow the issues and learn about DHS’s position in the case.  More often than not, messages left for DHS counsel are not returned.  The DHS attorneys usually have an explanation for failing to return calls—they are too busy or they are not responsible for that particular case.  But the inability to speak with government counsel prior to trial often has real-life consequences for aliens in Immigration Court.

This guy had an easier time making a phone call than most immigration attorneys.

For example, I recently had a Nepalese asylum case remanded by the BIA.  The Board found that my client had suffered past persecution based on a protected ground, and remanded the case to determine whether DHS had any evidence to rebut the presumption that my client faces a well-founded fear of future persecution.  It was pretty obvious that DHS would not rebut the presumption, and the IJ could grant asylum (the IJ said as much himself in court).  Unfortunately, several calls to DHS went unreturned, and when we got to Court, the DHS attorney was unable to state the government’s position.  The result: The case is delayed for several months so DHS can decide what to do.

We face similar problems when attempting to communicate with the Immigration Court.  A recent example of this for me was when the Court rescheduled one of my cases to a date when I was unavailable.  I promptly filed a motion to reschedule, but there was no response.  I called the Court numerous times.  Sometimes, the phone just rang with no answer.  Other times, I left messages that were not returned.  A few times, I actually spoke to someone, but those people were unable to help (they told me that the Judge had the motion but had not yet made a decision).  In the end, I had to send the client to Court without me.  The Judge was angry and blamed me.  He threatened that if I was not in Court the next time, the case would go forward without me.  In the end, he rescheduled the case.  But my inability to communicate with the Court almost caused my client to lose her right to an attorney.

The obvious solution is for DHS attorneys and court employees to return our phone calls.  But I know it is not that simple.  Case loads are oppressive, and I imagine the government workers receive many phone calls and messages.  There is very little time to return calls.  (Not to let government workers off too easy—I also receive many phone calls and have a busy schedule, but I return all my calls).

Aside from hiring more employees (not gonna happen), I am not sure how to make this better.  Perhaps there could be a dedicated email address, which we could use to communicate with the Court or DHS.  The email could be screened by an employee and priority issues could be forwarded to the appropriate party.  Or maybe there could be AILA/immigration lawyer volunteers who act as liaisons to DHS or the Court.  For the time being, though, we are left to call repeatedly and hope we reach someone.

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EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

by Jason Dzubow

The New York Times recently reported on a new policy at the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) designed to prioritize the removal of criminal aliens.  Under the policy, DHS will review cases and terminate proceedings for aliens deemed a low priority for removal.  At the same time, EOIR (the Immigration Courts) will re-arrange its dockets to expedite priority cases.  From December 4, 2011 to January 13, 2012, EOIR will be implementing the Prosecutorial Discretion Pilot Project in Baltimore and Denver.  The results for aliens seeking asylum are already pretty devastating, and if the program goes national in its present form, we can expect serious problems for many asylum seekers.

Some experiments have unintended consequences.

My first experience with the program came last week when we received notice that my client’s Individual Hearing was re-scheduled from this December to May 2014 (yes, that is 2014, almost 2.5 years from now).  The man is an Eritrean national who fled persecution in his homeland.  He has a decent case and he had been hoping for a resolution later this month.  Now he must wait until 2014.  He has no work permit and the Asylum Clock is stopped in his case.

According to EOIR, the goal of the Pilot Program is “to ensure that [limited] resources are focused on the Administration’s highest immigration enforcement priorities.”  Unfortunately, in this case, the Administration’s “enforcement priorities” (i.e., removal of aliens) comes at the expense of our country’s humanitarian obligations.

Part of the problem, I think, is the government’s attitude, articulated by the Supreme Court in INS v. Doherty, 502 U.S. 314, 323 (1992), that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”  I have always felt that this statement reflects an insensitivity and ignorance about many aliens who are in the U.S.  While some aliens do merely hope to delay their removal, asylum seekers wish to see their cases resolved as quickly as possible.  There are a number of reasons for this: Asylum seekers are hoping to petition for their family members, some of whom face threats in the home country; asylum seekers fear return to their country, and waiting for years to learn their fate is extremely stressful; many asylum seekers are young and hope to study in university, which is difficult without lawful status; many asylum seekers are well educated and hope to find professional jobs, which is also difficult without status.

For all these reasons, delaying asylum hearings for 2+ years is devastating to many asylum seekers.

The Pilot Program is going forward, and I imagine that the same or similar policies will be adopted throughout the U.S.  Given this new reality, here are a couple suggestions about how EOIR can mitigate the difficulty to asylum seekers and other aliens who are hoping for a resolution of their cases:

– When an asylum case is postponed, the Asylum Clock should start automatically, so that the asylum seeker can obtain her work permit.

– EOIR should reserve some time slots in the (relatively) near future for asylum seekers and others whose cases have been postponed.  Aliens that wish to have a sooner resolution of their cases can file motions to expedite.  Thus, for example, if EOIR reserved some time slots in 2012, my 2014 client could file a motion requesting one of those dates.

Finally, while it might be futile to argue that we should not be prioritizing removals over protecting people fleeing persecution, I want to give it a try.  Statistically, most removals involve people with no criminal histories.  Even many “criminal aliens” are convicted of very minor violations (driving without a license, using a false ID, and drunk in public are three common violations).  The benefit to the U.S. of removing these people quickly–and often separating them from their family members–is pretty minimal.  On the other hand, as discussed above, the harm of leaving legitimate asylum seekers in limbo for long periods is severe.  If these competing interests are balanced, it seems unjust that asylum seekers should never receive priority over the removal of “criminal aliens.”  EOIR should re-think its policy to account for the needs of legitimate asylum seekers.

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Pleading the Fifth

by Jason Dzubow

It’s rare that one of my clients or witnesses needs to assert the protection of the Fifth Amendment, but it happened the other day in court.

The case involved an Eritrean who fled persecution in his country and made his way to the U.S. with the help of smugglers.  His journey cost more than $10,000.00, paid for by various relatives.  One of the relatives came to court as a witness.  During cross examination of this witness, the trial attorney asked about sending money to my client to pay the smugglers.  Not only is this a crime, but it is also a deportable offense (the witness is a lawful permanent resident). 

The Fifth Amendment: It's not just for baseball players, Solyndra executives, and comedians.

I objected to the question on the basis that the witness was unrepresented, and if he testified about paying for a smuggler, his testimony could be used against him in a criminal prosecution (not to mention a removal proceeding).  After my objection, the IJ instructed the witness about his rights under the Fifth Amendment and the witness chose to invoke his right against self incrimination.  Probably a smart move.

The situation raises a few issues.  For one, what is the attorney’s obligation to protect the witness?  I certainly could have allowed the witness to answer DHS’s question.  The witness did not know that he might face prosecution for helping his friend enter the U.S. illegally; nor did he know about his Fifth Amendment right.  In this case, there was no conflict between my client’s interests and the witness’s, and so objecting was clearly the right thing to do.  But what if the witness’s testimony would have helped my client, but harmed the witness? Perhaps I would be obliged to allow the witness to testify in order to help my client (I have a duty to my client, but not to the witness).  I suppose this points to the need for witnesses to have their own attorneys in court, but as a practical matter, I imagine that is pretty unlikely.  

Another issue is the Immigration Judge’s obligation in this situation.  A quick review of the Immigration Judge Benchbook does not reveal any helpful guidance.  The Ethics  and Professional Guidelines are little better, though they do advise the IJ to “act in a professional manner towards all… witnesses.”  Based on this, one could argue that the IJ should inform a witness when he is entering dangerous territory.  To the extent that IJs are not obligated to notify witnesses of potentially self incriminating testimony, it seems to me that EOIR should create some guidance on this point to protect witnesses in Immigration Court.     

Finally, does the DHS attorney have any obligation to the alien?  The only other time a Fifth Amendment issue came up in one of my cases, I was questioning a witness and the DHS attorney pointed out that the witness’s answer might incriminate him (and no, I was not purposely out to get the witness; I didn’t realize that my question had potentially dangerous consequences).  DHS attorneys represent the government and should act justly.  However, sometimes there are good reasons to question a witness about issues that might incriminate him.  DHS attorneys need to balance their obligation to do justice with the need for information in the case.  I would argue that DHS attorneys should warn witnesses when they are asking questions that might incriminate them, but my guess is, most DHS attorneys would disagree with me.

As for my case, the Respondent was granted relief under the Torture Convention (a result we were not thrilled with, but it beats a denial) and the witness did not incriminate himself.  I guess that is mostly a happy ending.

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EOIR to Stop Wasting DOS’s Time

by Jason Dzubow

The Executive Office for Immigration Review has published new proposed regulations that would amend the requirement that all asylum applications filed with the Immigration Court also be filed with the Department of State.  Until now, when an alien files a defensive asylum application (form I-589) in court, he was required to file a second copy for the State Department.  The Immigration Judge would forward the application to the State Department, which could comment on the application.

Secretary of State Hillary Clinton reviewing asylum applications for EOIR.

The reality was that DOS almost never had any comment, so the second I-589 disappeared into a bureaucratic black hole.  Immigration Judges found the process so useless, that some would not even take a second copy of the I-589, as they had no intention of forwarding it to DOS (in violation of the existing regulations).  I observed this at a recent Master Calendar Hearing, where the IJ specifically instructed a lawyer not to file a second copy of the I-589, since the State Department never had any comments and the IJ had no intention of sending them a copy of the form.

I suppose the fact that IJs ignored the existing regulation is a good argument in favor of modifying the rule (though ordinarily when Immigration Judges ignore regulations, bad things happen).

Under the new rule, Immigration Judges have discretion to forward the I-589 forms to DOS, and should do so only “to ascertain whether DOS has information relevant to the applicant’s eligibility for asylum.”  Supposedly, this new rule will increase efficiency by limiting the number of inquiries to DOS.

The big problem with the new regulation (as with the old regulation) is that it puts the IJ in the position of the prosecutor, rather than in the position of a neutral decision-maker.  It seems to me, a better rule would be to allow the DHS Trial Attorney to submit the I-589 to DOS if she deems the State Department’s opinion useful.  Since the Trial Attorney is the person tasked with litigating the case, she is the best person to determine what evidence is necessary.  She is also (theoretically) familiar with the case and is thus best positioned to know if DOS might have relevant information about the asylum seeker. 

In an effort to be a glass-is-half-full kind of guy, I suppose the new regulation is an improvement over the current system.  The better approach, however, is to let DHS handle the investigation and leave the decision-making to the Immigration Judge.

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Closing Argument

by Jason Dzubow

Last week, I won an asylum case thanks to a good closing argument.  The lead respondent was a woman from Ethiopia.  She had been arrested a few times in her country, and faced persecution in prison.  In many ways, it was a standard-issue case–the type of case that cynical judges and DHS attorneys tend not to believe.  And the case was not going well—the DHS attorney had raised some legitimate questions about the plausibility of the woman’s story.  After her testimony, the DHS attorney and I spoke during a brief recess.  We both agreed that the IJ was leaning heavily towards a denial based on implausibilities. 

Closing arguments are not always my strong suit, but that day, I gave an argument that did the trick.  The IJ listened to what I said, and he granted the case.  

Throughout my career, I’ve been fairly indifferent to closing arguments.  At least one judge I practice before does not allow them, and I’ve generally felt that closing arguments rarely make a difference.  Over the years, though, I’ve come to believe that a good closing can persuade the judge, and there are a few techniques that I’ve found to be effective.

You don't have to be a super hero to give a good closing argument.

First and foremost, a good closing argument should address the weakest parts of your case—it is crucial not to ignore or hide from the weak points of the case.  Rather, these points must be confronted directly.  As you listen to the DHS attorney’s (and the IJ’s) questions, you should gain a pretty good understanding of what they perceive as the weak points in the case.  You need to mitigate these weaknesses and explain to the IJ why they should not sink the case.  For example, in my case last week, the IJ questioned the alien about how her husband could work for the government and, at the same time, join an opposition political party.  Using record evidence (in this instance, the State Department Country Report), I argued that several well-known opposition leaders worked for the Ethiopian government.  My client also misspoke during cross exam and gave the wrong date for her husband’s arrest.  I mentioned her error and pointed out that she gave the correct date during direct examination.  I also noted that she quickly corrected her mistake on cross, and that this was the only inconsistency in her testimony.  Of course, to effectively address the weak parts of your case, you need to pay close attention to the IJ and the DHS attorney.  You generally cannot prepare the closing in advance; it will be shaped by the testimony and questions at trial.

Second, a good closing should remind the IJ about the legal standard and show how your client meets that standard.  In my case, the client was unable to get some evidence that the IJ wanted to see.  I reminded the IJ that, under the REAL ID Act, my client was only required to obtain evidence that was “reasonably available.”  I then explained why the missing evidence was unavailable. 

Finally, you should discuss the strong points of your case.  This is probably the most obvious thing to do during closing, but it is also—in my opinion—the least important.  Usually, the strong points of the case are apparent.  Also, asylum cases that are denied tend to be denied for lack of credibility.  Findings of incredibility are based on the weak parts of the case.  Once a client is found not credible, the strong parts of the case become irrelevant (who cares if you say you were tortured in prison if the IJ has found your testimony incredible).  That said, it is a good idea to remind the IJ about the strongest parts of your client’s case.

Well, those are some thoughts on closing arguments.  I still believe that in most cases, they do not make much difference.  But after last week, I am convinced that sometimes they can turn a denial into a grant.

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Are Well-Fed Judges More Likely to Grant Asylum?

by Jason Dzubow

A recent study of parole judges in Israel demonstrates that the judges tend to issue more favorable decisions on a full stomach.  The study, by Shai Danzuger of Ben Gurion University, examines 1,112 parole board hearings in Israeli prisons.  In the chart below, the vertical axis represents the proportion of cases where the judges granted parole.  The horizontal axis shows the order that cases were heard throughout the day.  The dotted lines represent the points where the judges went away for a morning snack and a lunch break.

The study controls for various factors, such as gender, ethnicity, and type of crime, and its conclusion–that the judges’ decisions are strongly influenced by whether they’ve eaten–seems pretty convincing.  My question is: Does this study have any applicability to Immigration Judges or Asylum Officers?

One reason to think that the study is not applicable to IJ’s and Asylum Officers is that the Israeli judges ruled on 14 to 35 parole cases per day.  While IJs in Master Calendar Hearings often rule on more than 35 cases per day, such cases are rarely final decision where the alien is contesting removal.  Most final decisions occur during Individual Hearings, and IJs generally do not adjudicate more than four or five individual hearings per day (especially when those hearings involve asylum applications, which tend to take more time than other types of immigration cases).  Asylum Officers also have a much lower daily caseload than the Israeli judges.  Thus, the challenges faced by the Israeli parole judges are quite different from those faced by Asylum Officers and IJs in the United States.

On the other hand, the study does point to the problem of fatigue as a factor in decision-making, and it makes sense that fatigue would affect IJs and Asylum Officers, all of whom are overworked and under pressure.  How–or whether–that fatigue affects asylum cases is not known.      

Studies of asylum cases have shown that the results can be arbitrary (see, for example, this posting about the article Refugee Roulette) and that “unobservable factors,” such as gender and education, may affect asylum decisions.  However, as far as I know, there has not been a study of how fatigue affects decision-making.  There is, however, significant evidence that IJs (and presumably Asylum Officers) are stressed out by the heavy case load and the difficult types of cases. 

What, then, is the solution?  I suppose the easy answer is to hire more IJs and more Asylum Officers.  EOIR has been expanding the number of judges, but given our current budgetary woes and the vast number of cases, it is doubtful that a handful of new IJs will make a great difference in the overall stress level.  Another solution (which I don’t love) is to simplify the system and eliminate some layers of review (for example, combine the Immigration Courts and the Asylum Offices into one body, which would handle all cases at the trial level).  A final thought is to encourage the BIA to issue more decisions (I have written about this before in the cleverly titled (if I do say so myself) blog post–The Unbearable Lightness of BIA-ing).  This would create more certainty and regularity in the system.  It certainly won’t solve the problem, but it does seem like a reasonably easy way to improve efficiency.

Fatigue, stress, and overwork are all factors that negatively affect decion-makers in the asylum system.  The more we can do to alleviate those problems, the better decisions we can expect.  In the mean time, I recommend that you bring the IJ a nice sandwich before your trial.  It couldn’t hurt.

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Chilean Revolutionary “Demands” Political Asylum – Gets Bupkis

by Jason Dzubow

I’ve long had a soft spot in my heart for Worker’s World newspaper, with its tag line: “Workers and Oppressed Peoples of the World Unite!”  I can’t say I always agreed with the paper, but is does sometimes highlight issues not covered by more mainstream news outlets.  

Victor Toro: Revenge is a dish best served Chile... er, cold.

One recent story caught my attention.  Last December, the paper had an article about Chilean “revolutionary” Victor Toro.  Mr. Toro claims to be a leader and founder of the Movimiento de Izquierda Revolucionaria (MIR – the Revolutionary Left Movement) of Chile.  He was tortured in Chile because of his political opposition to General Pinochet’s dictatorship.  Mr. Toro has also been a well-known activist for immigrant’s rights in New York City for many years. 

According to Worker’s World, Mr. Toro, who is undocumented, was “racially profiled” by immigration agents and arrested in 2007.  He was then placed into removal proceedings where he “demanded” political asylum.

First, it strikes me as a bit ironic that a Chilean revolutionary–someone who opposed the U.S.-backed coup that violently overthrew elected president Salvador Allende in 1973–would seek asylum in the United States, the same country that helped orchestrate the coup. 

Second, it seems strange to “demand” asylum.  Maybe it is a technical point, but asylum is a discretionary form of relief; this means that the U.S. government can deny asylum in the exercise of its discretion (say, for example, if the asylum seeker is not a person of good moral character).  Given the discretionary nature of the relief, no one can “demand” asylum.  They have to ask for it.  Nicely.

Earlier this month, the Immigration Judge denied asylum.  Mr. Toro’s attorney issued a strongly-worded statement condemning the decision and vowing to appeal.  From what I can glean from the statement, the IJ denied relief principally because Mr. Toro did not file for asylum within one year of arriving in the U.S. and because country conditions in Chile had changed, making it safe for him to return. 

I have never worked on an asylum case from Chile, but given the current country conditions (good), I am not surprised that Mr. Toro’s case was denied.  What seems a real shame is that, had Mr. Toro applied in a timely manner, he might well have qualified for “humanitarian asylum.”  Humanitarian asylum is available to people who have suffered severe persecution in their country, and is available even if country conditions have improved.  Basically, it is a recognition that some people should not have to go back to a country where they suffered severe persecution.  

Mr. Toro was tortured severely in Chile, but apparently his failure to timely file for asylum prevented him from obtaining humanitarian asylum.  Thus–once again–an arbitrary filing deadline has caused real harm.  Frankly, I have my doubts that Mr. Toro will suffer persecution if he returns to Chile.  But considering that he suffered torture in his country previously, he should have received humanitarian asylum.   

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DHS and Mentally Ill Respondents: Why Is the Fox Guarding the Hen House?

by Jason Dzubow

I recently learned about the removal case of mentally ill man from Africa.  Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there.  His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding.  He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.   

Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself.  At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer.  At the hearing, the ICE officer failed to appear, so the IJ dismissed the case.  The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law.  DHS appealed and the case is currently before the Board of Immigration Appeals.

What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer.  Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court?  Clearly, something needs to be done.

According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court.  Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities.  Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill.  (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).

In the mean time, the BIA might take matters into its own hands.  In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court.  An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.

Mentally ill aliens in immigration court face many difficulties.  At the minimum, we should try to ensure that their due process rights are protected.  As things stand now, that is not the case. 

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Immigration Judges Repudiate Asylum Officers

by Jason Dzubow

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:

There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 

The IJ grant rate for affirmative cases is significantly higher than for defensive cases:

Year

 IJ Grant Rate for Affirmative Asylum Cases

IJ Grant Rate for Defensive Asylum Cases

 FY 2006

 51%

 34%

 FY 2007

 51%

 39%

 FY 2008

 51%

 37%

 FY 2009

 55%

 36%

 FY 2010

 61%

 35%

This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.

Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 

One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 

Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case.  In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).   

When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.

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Witnesses: The Triumph or Tragedy of an Asylum Case

by Jason Dzubow

I finished my last asylum trial of the year earlier this month, and I almost lost the case, thanks to a witness who had flown in from Cameroon especially for the occasion. 

I felt that our case was pretty strong–my client was a political activist who had been arrested several times in his country.  The case was well documented, and my client seemed credible.  Even the government attorney indicated that we should get it over with quickly–a sure sign that she anticipated a grant.  Then, basically out of nowhere, the witness starts babbling about the time he and my client were arrested together in Cameroon.  My client had never mentioned this arrest to me, nor had the witness told me about it during our preparation session.  In Immigration Court, attorneys are not permitted to strangle their own witnesses, so there was nothing I could do but watch my case go down the drain.  Fortunately, during re-direct, I was able to elicit some explanation from the witness.  Then we had my client return to the stand to further clarify.  In the end, the Judge granted relief, but a strong case was nearly sunk by a witness with a big mouth.

The Rules of Professional Conduct do not allow an attorney to strangle a witness, even when it seems justified.

All this raises the question: Do the benefits of witnesses outweigh the risks?  It’s a question I have thought a lot about.  On the one hand, the REAL ID Act requires us to submit reasonably available evidence, so if a witness is available and we do not bring her to Court, the IJ could use that to support a denial.  On the other hand, it is difficult to hold the respondent responsible for a witness who fails to appear, and a well-supported case will likely be granted even when there is no witness. 

Nevertheless, I tend to bring witnesses to Court if I have them.  For one thing (and perhaps this is naive), I feel a certain duty to present my case, for better or worse.  If the IJ sees that we are presenting everything we have, and being as open as possible, I believe that we are more likely to win the case.  Also, I feel it makes me a more credible lawyer, and thus helps my clients over the long run.  In addition (and again, possibly naively), I believe I can usually prepare the witness for cross examination and anticipate questions that the DHS attorney might ask.  When the respondent and her witness testify consistently about details of an event (especially when those details have not been presented previously in the written statements), it is strong evidence of their veracity.  Finally, I tend to believe (maybe yet again naively) that my clients are telling me the truth when they describe the basis for their asylum claim.  If the client is telling the truth, a well-prepared witness should only help the case.  If the client is lying about his claim, and inconsistent testimony exposes the lie, the client really only has himself to blame. 

Of course, even in a completely bona fide case, an ill-prepared or foolish witness can tank an asylum claim.  That is why I am very wary of witnesses who can corroborate large tracts of a respondent’s story.  The more the witness knows about a respondent’s story, the more opportunities exist for the DHS attorney (or the IJ) to ask detailed question about information not in the written statement and that we did not discuss during trial preparation (the idea is to ask questions that the witnesses are not prepared for, and then compare the answers to make sure the testimony is consistent).  Such questions can be confusing to witnesses who–despite repeated reminders not to do so–sometimes guess at the answers.  A better witness is a person with first-hand knowledge of one small part of the case.  Such a person is less likely to face a broad range of questions from the DHS attorney.

Despite the risks, I feel that a well-prepared witness can go a long way towards winning an asylum case.  I can think of several cases that were won by credible witnesses.  Each case is different, and there are good arguments for avoiding the risks inherent in using a witness.  Despite the risks, I will continue to favor the use of witnesses in my cases.    

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When Silence is Golden: Interpreters and Asylum

by Jason Dzubow
This blog entry is by ace reporter Maria Raquel McFadden.  Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience.   She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings.  Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736; mcfadden.maria@gmail.com.          
Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied.  It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.

Like many other professionals, interpreters must follow certain standards of practice while on the job.  Despite the fact that the number and order of cannons in the interpreters’ “Code of Ethics” can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.  

Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told  directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 
Interpreters often have access to protected, restricted, private and/or sensitive information.  The oath taken by professional interpreters to adhere to  confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.  
No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding. 
From time to time, for educational purposes, interpreters do and should share language issues that arise.  However, it is important they never share any identifying information which can include the name of the  asylum seekers, the judge, officer, or representing attorney.
Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional “interpreters” are used.  Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality. 
When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.

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It’s Getting Easier to Win Asylum

by Jason Dzubow

A recent report from TRAC Immigration reveals that the nation-wide asylum denial rate in Immigration Court has reached a 25-year low.  That means that a higher percentage of asylum seekers are receiving asylum than ever before.

The statistics show that in Fiscal Year 1986, 89% of asylum applications in Immigration Court were denied.  For the first nine months of the current fiscal year, only 50% of asylum cases in court were denied. 

The most obvious explanation for the higher grant rate is that a larger proportion of asylum seekers are now represented by attorneys–for FY 2010, 91% of asylum seekers were represented by attorneys; in 1986, only 52% of asylum seekers were represented. 

For those not represented by counsel, the difference in grant rate is stark: For FY 2010, only 11% of unrepresented asylum seekers received asylum in immigration court.  While this demonstrates the importance of legal representation, I suspect it also reflects the fact that aliens with weak claims often cannot find pro bono representation (law firms won’t take cases that are not meritorious).  Thus, this statistic may not be quite as bad as it seems.

Another reason for the improved grant rate may be that aliens are applying for asylum less frequently than in the past.  Since FY 2003, when Immigration Judges decided 35,782 asylum cases, the number of asylum cases has dropped to a projected 19,937 for FY 2010.  Perhaps aliens have become more savvy about what constitutes a bona fide claim, and they are more selective in making their applications for asylum. 

Finally, the TRAC report shows that the asylum grant rates for individual IJs continues to vary widely, though there seems to have been a slight improvement.  I have always felt that more guidance from the BIA–in terms of more published decisions–would help to reduce these disparities.  

The best news from the TRAC report is that most asylum seekers are now represented by legal counsel.  Hopefully, this means that their claims are being presented properly and that few aliens with meritorious claims are being denied.

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How Safe Are Immigration Judges?

by Jason Dzubow


Government Executive reports on a recent event at the National Press Club featuring Judge Randall Frye from the Social Security Administration and president of the Association of Administrative Law Judges, and Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges.  The pair described threats to judges involving guns, baseball bats, cut brake lines, and broken legs.

A safe judge is a happy judge.

“Between March 2009 and February 2010, SSA offices that handle disability claims received 49 threats; individual Social Security judges received 20 threats,” reported Government Executive.   “At a Las Vegas federal courthouse in January, a man believed to have been irate over a reduction in his Social Security benefits gunned down a courthouse official and injured a U.S. deputy marshal.”  There are no statistics available from the Department of Justice concerning threats to immigration judges or court personnel, but given the high-stakes nature of proceedings, it would not be surprising if threats have been made. 

The main concern is lack of security at certain immigration and SSA courts.  Many such courts are not housed in government buildings and do not have rigorous screening procedures.  Immigration courts also often lack secure parking lots, elevators, and entryways.  At the Press Club event, Immigration Judge Marks pointed out that “she could ride the elevator with someone whom she decided to deport.”  That is certainly the case in the courts where I litigate. 

Suggestions for improvements included increasing the number of security guards in the reception area, stationing a bailiff in every active courtroom, higher railings in front of judges’ benches, and creating secure entrances, exits, and parking lots for judges.  At the minimum, the Justice Department should make available data on threats to immigration courts.  Then, at least, we could have a sense of the problem.

Of course, improvements to security cost money, which seems to be in short supply.  As the number of cases (and level of frustration) in immigration courts increase, we should not forget to ensure the safety of those who enforce and adjudicate our immigration law.  Let’s hope we don’t have to wait for a tragedy to realize the importance of protecting our public servants.

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Pre-election Leak Led to Aunt Zeituni’s Asylum Grant

by Jason Dzubow

In May 2010, an Immigration Judge in Boston granted asylum to President Obama’s aunt, Zeituni Onyango.  The decision sparked protests from some who claimed (without evidence) that the President used his influence to help his relative.

Now, the Boston Globe reports that the IJ’s decision has been released in response to a Freedom of Information Act Request.  The 29-page decision is largely redacted, but the IJ’s reasoning seems clear.  On November 1, 2008, shortly before the presidential election, the Associated Press reported that Barack Obama’s Kenyan aunt was living in the U.S. illegally.  Regarding the source of this information, the AP wrote:

Information about the deportation case was disclosed and confirmed by two separate sources, one of them a federal law enforcement official. The information they made available is known to officials in the federal government, but the AP could not establish whether anyone at a political level in the Bush administration or in the McCain campaign had been involved in its release.

Based on this statement, the IJ found that “an official of the United States government disclosed the Respondent’s status as an asylum applicant… to the public at large.”  The IJ found that this disclosure–which clearly violated federal regulations–was a “reckless and illegal violation of her right to privacy which has exposed her to great risk.”  He further found that this exposure distinguished the aunt from President Obama’s other relatives living safely in Kenya because her asylum case was revealed in a “highly politicized manner.”  (According to a recent AP article, DHS is investigating the leak.)

Given the country conditions in Kenya, the IJ found that Ms. Zeituni would be a target and that she had “at least a 10% chance of future persecution.”  The IJ granted asylum, but declined to rule on her applications for withholding of removal or relief under the UN Convention Against Torture.

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EOIR Makes Court Information Line More Secure and More Annoying

by Jason Dzubow

From an EOIR press release issued earlier today:

The Executive Office for Immigration Review (EOIR) announced today the launch of a new, upgraded automated case information system, which is designed to assist respondents and their representatives and families in learning the current status of their proceedings. The toll-free number, 1-800-898-7180, has not changed, but a new local number, 240-314-1500, is in service. The system becomes effective August 23, 2010, and callers will need to be prepared to enter both the alien registration number and the date of the respondent’s charging document.

This development–at least on the immigration lawyer list serve I read–has been universally panned.  The problem is, aliens and their representatives often do not have the date of the charging document.  And if you do not have the charging document, it is not easy to get one.  You can file a FOIA request, which takes months (I think the “F” in FOIA stands for “Forever”).  You can call up DHS counsel, but they are often not very responsive.  You can go to the Immigration Court to look at the file, which is too time-consuming for most advocates, especially those who work for not profit organizations.  Also, sometimes there is more than one charging document, and they might have different dates.

"I said I don't have the dang charging document!"

I suppose EOIR’s intention–to make the court information more secure–is laudable (though I have never heard of anyone having a problem with the current level of security).  But by requiring information that may not be available to the alien, the agency is creating a situation where it will be more difficult for aliens and their attorneys to know their court dates.  This could cause aliens to miss their court dates, which would result in a removal order.  In short, it is another bureaucratic barrier thrown in front of the alien. 

There are alternatives.  My favorite alternative is to leave the system alone.  As I mentioned, I have not heard about problems with the current system.  Another alternative is to remove the alien’s name from the computer system (the current system spells the alien’s name after you type in his A-number).  This would provide some level of security.  A third possibility would be to require some other information that the alien would know, like her birth date or her country of origin. 

At this time, it is unclear whether EOIR vetted the new system with AILA or other advocacy groups.  Perhaps a short pause to consider alternatives and have a conversation with immigration attorneys would be in order.

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