The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence. Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death. In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision. That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.” According to the brief:
DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship…. A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…
DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her. These factors will be determinative in most domestic violence asylum cases.
In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.” L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.” Thus, there was compelling evidence that the government would not protect her. There was also compelling evidence and expert testimony that she could not relocate within Mexico.
The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant. It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case. However, L.R.’s case has established a framework for asylum based on domestic violence. Now, at least, such women have a chance to gain protection in the United States.
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.
As I mentioned in a previous post, I attended the American Immigration Lawyers Association annual conference last week. One panel I went to included a talk by the Chief Immigration Judge of the United States, Brian M. O’Leary. Judge O’Leary previously served as an IJ in Arlington, Virginia, and I tried a number of cases before him. As much as I think he is doing a great job as Chief Judge, he is certainly missed by those of us who practice in Virginia.
Judge O’Leary updated us on the news at EOIR. We learned that there are 43 new IJs “in the pipeline” and they are expected to start work by the end of the year. During the last round of hiring, over 1,700 people applied for 28 positions, and Judge O’Leary is confident that the new IJs will be very competent. EOIR will be opening a new Immigration Court in Texas later this summer; this will be the 59th Immigration Court in the United States. Hopefully all this will help alleviate the long waits that have become so common in almost all Immigration Courts.
Speaking of long waits, Judge O’Leary noted that receipt of new cases was up 17% from 2007 to 2009, with an 11% rise in the last year alone. This is because DHS is bringing more aliens into the system. Completion rates are also up, but only by 4%, which is not keeping pace with the ever-growing case load. Judge O’Leary also stated–and this was a surprise to me–that the detained docket has reached nearly 50% of all cases in Court. He speculated that this may be because DHS has more beds available and they are making a greater effort to detain criminal aliens. Apparently, DOJ/EOIR and DHS have been meeting to review the immigration process. Hopefully, this will give EOIR a heads up about how many new cases are coming into the system (DHS brings new cases to EOIR when they file papers to remove an alien), which will allow EOIR to better anticipate its docket.
We also heard that there will be a new Assistant Chief Immigration Judge (“ACIJ”) whose portfolio will include only “vulnerable populations,” such as juveniles and aliens with mental disabilities. Such people have often had great difficulty in Immigration Court, and hopefully an ACIJ devoted completely to them will improve the situation. Another ACIJ has a portfolio that includes training new (and old) IJs.
In terms of improvements to the Court facilities, Judge O’Leary noted that most Courts now have digital-audio recording. The only exceptions are Los Angeles and Hawaii, and those Courts should have the new system by August. The digital-audio recording system records Court proceedings on a computer hard drive. This is an improvement over the old system, which used cassette tapes. The system is controlled by the IJ on the bench and cannot be used to listen to conversations going on when the IJ is not in the courtroom (I must admit that wasn’t sure whether anyone could listen in when I was in the courtroom and I have been careful about what I say; despite Judge O’Leary’s assurance, I guess I am too paranoid to change my ways).
There have also been some personnel changes. EOIR has been increasing the number of judicial law clerks. Currently there are 65 JLCs. In FY 2011, there will be 90. In addition, the tenure for the clerks has been increased from one year to two years. This latter development is very significant. I served as a JLC back in the late 1990s. I felt like I was reaching my stride after the first year, and I think I could have made a greater contribution to the Court if I had had a second year. I think the IJs will notice a difference in the quality of their help during the JLC’s second year.
If you are interested in learning more about EOIR (from their point of view), visit their website. For independent statistical information about EOIR, visit the TRAC website, which collects and publishes a wide range of data on the agency.
So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference. I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn’t think I would get much out of it. Turns out, I really enjoyed the conference–it is fun to meet and hear about people who are doing the same work as you and who speak the same “language,” though invariably I spent most of the time hanging out with people I already knew. Although the fee was pretty steep, I’m glad I went, and maybe I will go again next year if I am feeling flush.
I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney. The subject was the UN Convention Against Torture (“CAT”). More specifically, we talked about how the Torture Convention might apply to non-governmental actors. My role was pretty easy–I presented some hypothetical examples for the audience and the panelists to discuss. Since I am not so creative, my hypos were actual cases that I had litigated. One “hypo” examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT. In real life, I lost that case, though I managed to convince the IJ that FGM was torture. At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006). The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities. That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.
The audience responds to my analysis of the UN Convention Against Torture.
Aside from that panel, there were a number of panels–and some informal meetings–relevant to the asylum practitioner. Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a “particular social group.” I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass).
AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice. Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference. The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense. One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner. Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys. There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.
Overall, it was a useful and energizing conference. I hope to be back next year.
We’ve reported before about Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef. The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience. He has been living in California for the last few years and his application for asylum was recently rejected because he supposedly provided “material support” to Hamas, a designated terrorist organization. Mr. Yousef claims any “support” he provided was done in the course of learning about the organization in order to prevent terrorist attacks. His case is currently before an Immigration Judge, who will review his claim for asylum de novo.
Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef’s claim. The Jewish Journal reports that Gonen Ben-Yitzhak confirmed that Mr. Yousef provided information that “prevent[ed] attacks that saved countless Israeli and Arab lives.” Mr. Ben-Yitzak will testify at Mr. Yousef’s upcoming asylum hearing.
It is illegal for a former Shin Bet agent to publicly reveal his name, and Mr. Ben-Yitzak faces potential legal trouble in Israel when he returns:
“It’s my country, my land. I love the Shin Bet, and I love Israel. But I have to help my friend,” he said of the San Diego hearing. “This is my duty — to stand with him and say the truth. It’s something I need to do. He always stood beside me. In the harshest days of the second intifadah, I called and asked about his opinion because his understanding about Hamas is unbelievable.”
The two men received awards at a dinner sponsored by the Endowment for Middle East Truth, a pro-Israel organization. Other muckety-mucks at the dinner included Senator Sam Brownback, Congressman Brad Sherman, and Congressman Doug Lamborn. The event was held at the U.S. Senate, leading Mr. Yousef to joke, “How did security let a terrorist like me into this building?”
Mr. Yousef’s asylum hearing is scheduled for next week. There seems little doubt that he has a well-founded fear of persecution in the Palestinian territory–not just for his efforts against Hamas, but also for his apostasy (he has publicly referred to Islam as a religion of hate). The issue is whether his “support” for Hamas will disqualify him for asylum. Mr. Ben-Yitzak’s testimony should go a long way towards solving the “material support” problem. And even if the Immigration Judge determines that Mr. Yousef supported Hamas, he should still qualify for relief under the United Nations Convention Against Torture, which would allow him to remain in the United States.
When asked about the U.S. government’s effort to deport Mr. Yousef, Mr. Ben-Yitzak, the former Shin Bet agent, said, “It’s hard for me to understand — very hard for me to understand.” Former CIA director James Woolsey was less diplomatic. “My view is that the decision to deny him political refugee status was incredibly idiotic,” Woolsey said. “It’s hard to think of a worse immigration decision in history. It’s fundamentally nuts.”
A new report by TRAC, a group that collects information on immigration cases, finds that the backlog in Immigration Courts is worse than ever:
The number of cases awaiting resolution before the Immigration Courts reached a new all-time high of 242,776 at the end of March 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The case backlog has continued to grow — up 6.3 percent — since TRAC’s last report four months ago, and nearly a third higher (30.4%) than levels a mere 18 months ago.
"Is it time for my immigration hearing yet?"
The backlog has resulted in longer delays in Immigration Court:
Wait times have also continued to inch upward. The average time these pending cases have been waiting in the Immigration Courts of the Executive Office for Immigration Review (EOIR) is now 443 days.
The longest delays are in California, where the average wait time is 627 days. TRAC blames the delays mainly on an insufficient number of IJs. I’ve discussed that issue before (We Need More Judges). In a recent exchange with the Federation for American Immigration Reform (FAIR), that group argued that aliens are largly to blame for delays since they abuse the system to prolong (or completely avoid) removal. Maybe I will devote a future blog post to the reasons for delay, but for now, it seems the wait times are longer than ever and there is little relief in sight.
Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has issued a new report confirming what immigration attorneys already know: the waiting time for cases in the Immigration Courts is longer than ever. From my experience, a typical case in the over-burdened Arlington, Virginia court takes almost two years. It turns out, Arlington isn’t the slowest court in the land:
From the TRAC website:
Cases awaiting a hearing in the nation’s Immigration Courts reached an all-time high of 228,421 in the first months of FY 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The current number of pending cases is up 23 percent just since the end of FY 2008, and 82 percent higher than it was ten years ago.
Wait times also vary markedly from one court to the next. At one extreme there are the Los Angeles and Boston Immigration Courts where pending cases have now been waiting for an average of 713 days and 612 days, respectively. At the other extreme, there is the Florence, Arizona Immigration Court with an average wait time of 75 days and the Miami (Krome) Immigration Court with 82 days.
I imagine that the courts in Florence and Miami are faster because those locations deal primarily with detained immigrants. The courts make detained cases a priority. Not, as you might expect, because the alien is in detention, but rather because the alien is in detention at government expense. This is made clear when you view the courts’ files, which are prominently labeled, “Detained at Government Expense.”
The problem could be alleviated (or at least ameliorated) if the Department of Justice would begin filling some of the 48 immigration judge vacancies. Indeed, according to TRAC, since 2007, the number of immigration judges has actually gone down (from 229 to 227) while the case load has increased dramatically. The backlog has resulted in difficult waits for asylum seekers and others caught in the system.
In a strongly-worded response to TRAC, EOIR Acting Director Thomas Snow calls the report “unbalanced” and states that it fails to acknowledge EOIR’s efforts to fill the vacant positions. Acting Director Snow points out that 15 judges are in the final stage of the selection process, and EOIR is interviewing hundreds of candidates to fill the remaining IJ openings. For aliens in the system, the process cannot move fast enough. To properly enforce the nation’s immigration laws, ensure due process, and fulfill our humanitarian obligations, we need more judges.
After conducting a comprehensive review of the U.S. immigration adjudication system, the American Bar Association (ABA) Commission on Immigration released is long-anticipated report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency and Professionalism in the Adjudication of Removal Cases.” The study found that pressures on the adjudication system have grown exponentially in recent years, as the number of people in immigration proceedings has increased and immigration enforcement efforts have heightened. The study recommends the creation of an independent immigration court, either as an Article I court or as an independent agency. It also makes a series of recommendations related to funding and staffing and suggests legal changes necessary to improve the fairness and efficiencies of immigration processes.
Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef’s claim. The 
