According to a new report released by USCIS, asylum applicants are “highly satisfied” with the service they receive at the nation’s various Asylum Offices.
Asylum seekers who appeared for interviews at the different Asylum Offices answered the written survey. A total of 933 responses were collected from September 2011 through March 2012. Surveys were collected after the interview but before the final decision (for obvious reasons).
Asylum Officers celebrate the positive survey results.
According to the survey, customers are highly satisfied with the services they receive from USCIS’s Asylum Offices; their overall satisfaction index is 87 on a scale of 0 to 100. For comparison, the federal government satisfaction index is currently 67. At the office-level, customers who were serviced by the Miami Asylum Office, Chicago Asylum Office, and the Houston Asylum Office were the most satisfied with indices of 93 or 94. Conversely, satisfaction was the lowest for those serviced by the New York Asylum Office with a satisfaction index of 70.
Overall, 17% of respondents felt that the Asylum Officer was either argumentative or biased; at the New York office, 29% of respondents felt the officers were argumentative or biased. In LA, the next highest, the number was 23%.
With overall satisfaction at 87, the report opines that it may be difficult for USCIS to significantly improve its asylum office customer satisfaction scores at an aggregate level. However, the report notes, at certain locations there appears to be opportunity for improvement. Most significantly, in New York and Los Angeles, Asylum Officers should try to provide more information to applicants about the process. They should also try to appear less argumentative during interviews. According to the report, offices in Los Angeles, Newark, New York, and San Francisco should address wait times for the start of the interview.
The survey also contained a comments section. Most comments are very positive. A typical comment reads, “Everything was good.” Some of the more interesting comments include:
Cannot think of anything right now to improve the service, how do you improve on perfection?
Smile more.
No need to improve anything unless you decide to improve something.
My service overall was good with exception of the officer which directed my interview in a coercive and threatening manner.
Provide free coffee and donuts [I fully endorse this idea!].
The survey results (if not all the written comments) comport with my view of the Asylum Office. I find the officers to be very professional and courteous. They don’t always grant my cases (the nerve!), but in the large majority of cases, I find that they are fair and reasonable. Congratulations to the Asylum Officers on the survey results and on a job well done.
The New York Times reports a major bust involving lawyers, paralegals, and even a church official who were allegedly helping Chinese nationals file fraudulent asylum cases.
The Times reports that 26 people, including six attorneys, were arrested in Chinatown and Flushing, Queens. They are accused of an elaborate scheme to help Chinese immigrants invent stories about persecution and dupe immigration officials into granting asylum. Some false stories describe persecution based on China’s one-child policy, including forced abortion. Others set forth claims based on religious persecution. Apparently, the asylum seekers aroused suspicion when Asylum Officers noticed that many of the stories were very similar.
Some people probably should not be allowed to practice law.
In all, the conspiracy involves 10 law firms and as many as 1,900 asylum seekers. The conspiracy also allegedly involved at least one church official, Liying (pronounced “Lying”?) Lin. According to the Times, Ms. Lin, 29, trained asylum seekers in the basic tenets of Christianity. According to the indictment against her, Ms. Lin also helped her “clients” trick the immigration authorities and “trained asylum applicants on what questions about religious belief would be asked during an asylum interview and coached the clients on how to answer.”
This is not the first time that I’ve written about Lawyers and paralegals helping to create false cases, but it is the largest such bust that I’ve heard about. One question is, how pervasive is this type of fraud?
A professor of Asian-American studies and urban affairs at Hunter College in New York, Peter Kwong, told the Times that he believes most Chinese asylum cases in New York City were fraudulent. “This is an industry,” said Prof. Kwong, who has written widely on Chinese immigration. “Everybody knows about it, and these violations go on all the time.” While I would not be surprised if Prof. Kwong is correct, I would also not be surprised if he is over-estimating the number of fraudulent asylum claims.
The reason for the difficulty is that there is no data on false asylum claims. There is plenty of anecdotal evidence about false claims, but this is really not reliable. For one thing, some people with real asylum claims are duped by unscrupulous lawyers and paralegals into making false applications. For instance, I was recently consulted in a case where a Russian paralegal and attorney created a false claim for the asylum seeker even though he had a perfectly legitimate reason for seeking asylum. I suspect they created the false case because that was easier than preparing the actual case. So while the man’s case was false, he had a real claim for asylum (he lost his case and spent many thousands of dollars in the process).
Another reason why I don’t trust the anecdotal evidence on fraud is because cases are sometimes fraudulent in non-material ways. What I mean is, sometimes people lie about things that do not affect their cases. For example, I worked on a case where the applicant did not mention her husband on her I-589 form (which she completed and filed before she had a lawyer). She felt that she did not need to list him, as they were separated. The DHS attorney brought this up when he argued that the applicant was not credible, so it might have impacted the case (in the end, the IJ found her credible). The marriage did not relate to the primary basis for the application, and it was based on my client’s misunderstanding of the form. So, should this be considered a “fraudulent” case? I suppose it depends who you ask. The point being: When it is difficult to define fraud, it is difficult to characterize asylum cases as either fraudulent or non-fraudulent.
Although it is difficult to know the magnitude of the problem, it’s pretty clear that many asylum cases are fraudulent. The situation in New York is only the most recent illustration of the problem. So what’s the solution? I strongly believe that the government can do more to stop these fraudsters. I have seen enough of their work to know that they are not so smart and often not very careful (witness the Chinese case in NY where Asylum Officers detected the fraud when they noticed that many of the applications were suspiciously similar–in other words, the lawyers were too lazy and too cocky to bother making up unique stories for each asylum seeker).
Since many of these fake cases seem to originate with a (hopefully) small number of lawyers, paralegals, and translators, I believe the most effective solution is to investigate such people. DHS could send undercover “clients” to suspect attorneys to determine whether the attorneys are helping to concoct false cases. The “clients” could also visit paralegals and translators, who often work independent of attorneys, to see whether they are practicing law without a license. People who help create false cases should be prosecuted and jailed. Lawyers who engage in such behavior should be disbarred.
If DHS can bring more cases like the one in New York, it will help deter the paid “professionals” who create false asylum claims. It will also help preserve the integrity of the asylum system for those who need it.
Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada. In short, Lozada states that to reopen an immigration case where the previous attorney was constitutionally ineffective, the alien must file a bar complaint against that attorney. Despite some intervening decisions, Lozada is still the controlling law. As a result, many immigration lawyers will face a bar complaint at some point in their career.
It starts with Lozada, and ends like this.
In that happy spirit, I am re-posting an excellent article by Dolores Dorsainvil, a Senior Staff Attorney with the D.C. Office of Bar Counsel (the article is written with the DC Rules of Professional Conduct in mind, but it really applies to all jurisdictions). Ms. Dorsainvil investigates and, where necessary, prosecutes allegations of ethical misconduct of District of Columbia attorneys. She is also an adjunct professor at the American University’s Washington College of Law where she teaches Legal Ethics. She has an ethics blog, The Gavel, which can be found here. Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:
For many attorneys, coming across an envelope with the return address marked “Office of Bar Counsel” undoubtedly brings a sinking feeling. After reading the Bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel as a personal attack on their credibility and professionalism. Whatever the feeling, and however the complaint arose, with hundreds of Bar Counsel complaints lodged every year, attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.
Here are seven simple tips to guide attorneys in responding to a Bar Counsel inquiry should one ever become subject to such a complaint:
1. Think. Before penning an emotional response to Bar Counsel, take time to think about the legal matter, the history of the case, and the client who filed the complaint. This will aid an attorney in focusing on the issues involved in the complaint and may give him or her time to provide a response based on facts rather than emotions. An attorney may even want to review the file in its entirety to make sure he or she is able to recall every detail about the underlying legal matter.
2. Be timely. Request an extension, if needed. In its cover letter accompanying the complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason an attorney is not able to submit a timely response, he or she may wish to request an extension. Our office usually will grant an initial reasonable request for an extension. The attorney should confirm such a courtesy in writing. If a circumstance exists that requires a lengthy response period—as we all know, illnesses, deaths, vacations, business or personal matters happen—it is prudent for an attorney to explain that in writing to Bar Counsel and provide corroborating documents explaining the lengthy extension request.
3. Respond. This may seem like an obvious step, but there are attorneys who, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1(b). So, even if Bar Counsel is not able to make any findings of a violation of the D.C. Rules of Professional Conduct in the initial complaint, our office may pursue and prosecute an attorney for violating Rule 8.1(b). No matter how distasteful the prospect is of being subject to a complaint, every attorney has an affirmative duty under the rules to respond to requests for information from Bar Counsel authorities.
4. Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel in rendering a disposition; however, an attorney should be judicious. Providing a 30–page response while failing to actually address the allegations of misconduct may raise concerns.
5. Provide documents, and then some. An attorney should provide the documents our office requests, but he or she also should provide relevant documents as exhibits to the response if those documents corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that already has been addressed by a tribunal is extremely helpful. Taking this proactive step saves time in the investigation process.
6. Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as they relate to the underlying legal matter. It is important for an attorney not to assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied upon in the underlying matter is invaluable and can assist our office in determining the validity of the complaint.
7. Hire counsel, if necessary. This is a determination that can only be made by an attorney, but there are benefits to hiring representation. Respondent’s counsels usually are more familiar with the attorney disciplinary process and can help to navigate the system.
Overall, an attorney’s cooperation with a Bar Counsel investigation will contribute to a resolution in a manner that safeguards the rights of the public and protects attorneys from unfounded complaints.
A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR’s work. The 74-page report by DOJ Inspector General Michael Horowitz finds that data from Immigration Courts overstates case completion rates and that the Courts are too slow. The report also makes recommendations, such as developing guidelines for when Immigration Judges should grant continuances.
Mr. V demonstrates why quality is more important than quantity.
I’ve reviewed the report, and I can safely say that it was a complete waste of time (both my time and the time of the poor sod who prepared it) and tax payer money (both mine and yours). For that reason, I won’t waste additional time discussing what’s in the report (and if you want to see a substantive critique of the report, check out TRAC Immigration). However, I want to discuss what’s not in the report.
Actually, before I get to that, I want to further trash this report. It is frankly offensive that the Office of Inspector General (“OIG”) would issue a report about quantity without discussing quality. If the OIG’s only concern is completing cases quickly, why not just deny all the cases now and be done with it? Why bother with due process or equal protection? Why bother to have a Department of Justice at all? We can simply rename it the Department of “Just ICE” and then deport everyone. Done and done.
And now, for what’s not in the report.
First, you would think that anyone preparing a report about IJs or BIA Board Members would have sought input from people who practice before the Immigration Courts and the BIA. Bar associations regularly survey their members about the quality of judges, so why can’t the OIG (or EOIR) survey private attorneys, non-profit organizations, and DHS attorneys about their experience with IJs and the BIA? Such information would be very helpful in assessing both the quality and the quantity of EOIR’s work product.
Second, the report does not tell us whether IJs or the BIA are doing a good job deciding cases. This seems to me the single most important part of the Judges’ and Board Members’ jobs. One way to measure the quality of IJ and BIA decisions is to look at the reversal rates for those decisions. To me–and this is an issue I’ve harped on before–one relatively easy way to reduce reversal rates is to provide more guidance to decision-makers. The BIA can do this by publishing more decisions.
Finally, the report fails to acknowledge the connection between quantity and quality. Immigration cases are often complex. Aliens (and DHS attorneys) seek continuances for valid reasons. In order to reach a just result in many cases, continuances are needed. In the asylum context, for example, continuances are sometimes necessary to allow the alien more time to find a lawyer (the success rate for unrepresented aliens is much lower than for represented aliens). Thus, in Immigration Court, justice delayed is not always justice denied. Sometimes, it is simply justice.
Perhaps I am being a bit too hard on the OIG. It is certainly possible to help improve EOIR by examining the quantity of its decisions and the accuracy of its reporting. But when the OIG has failed to address the quality of EOIR’s work and instead issues a comprehensive report basically telling EOIR to hurry up, it seems to me that the OIG’s priorities are not where they should be.
I’ve written previously about the poor state of the immigration bar. And while there are–unfortunately–too many bad lawyers, there are many excellent ones. The question is, for an immigrant unfamiliar with the American legal system, how can you distinguish between the good and bad? In other words, how do you find a lawyer who will assist you, and not just take your money? Below are some hints that might be helpful:
If your lawyer wears a cape, that is probably a good sign.
– Bar complaints: Complaints against lawyers are often a matter of public record. So you can contact the local bar association (a mandatory organization for all lawyers) to ask whether a potential attorney is a member of the bar and whether she has any disciplinary actions. You can also look on the list of disciplined attorneys provided by the Executive Office for Immigration Review (“EOIR”). Sometimes, good attorneys are disciplined, but if an attorney has gotten into trouble withe the Bar, it would be helpful to know why.
– Referral from non-profits: Most areas of the country have non-profit organizations that help immigrants (EOIR provides lists of such organizations here). While these organizations are often unable to take cases (due to limited capacity), they usually have referral lists of attorneys. I would generally trust the local non-profits for recommendations, as they know the lawyers and know their reputations.
– Referrals from friends: Most people who hire me were referred by an existing or former client. However, from the immigrant’s point of view, I do not think that this is the best way to find a lawyer. They say that a million monkeys with a million typewriters, typing for a million years will eventually write a novel. It is the same with bad immigration lawyers. Once in a while, they actually win a case (usually through no fault of their own). The lucky client then refers other people. I suppose a recommendation from a friend is better than nothing, but it would not be my preferred way to find a lawyer.
– Instinct: If you think your attorney is not doing a good job, he probably isn’t. Attorneys are busy people, and they may not be as responsive as you might like, but if your attorney never returns calls and is never available to meet with you, that is a problem. Also, if your attorney seems unprepared in court, that is obviously a bad sign. If you are having doubts about your attorney, nothing prevents you from consulting with a different lawyer for a second opinion.
Hiring a lawyer can be tricky, especially for someone who is unfamiliar with the American legal system. Given that the quality of lawyers varies so much, it is worth while to spend some time investigating a lawyer before you hire him. That is the best way to protect yourself and (hopefully) ensure that you receive the legal assistance that you need.
The Arlington Immigration Court recently relocated from Ballston to Crystal City, Virginia. The new court is bigger and has public bathrooms (a BIG improvement for the bladder-impaired). It is also totally devoid of art.
One of many walls in the Arlington Immigration Court.
For those of us who practice before the Arlington Court, the bare walls feel a bit strange. The old court had portraits of the founding fathers, various presidents, and some of our founding documents. You could also see busts and paintings of various presidents inside the courtrooms. One IJ, now retired, was known for her husband’s paintings (mostly flowers), which adorned her courtroom walls.
In stark contrast, you’re lucky to find a light switch on the walls of the new court. Now, you might be thinking, “The Court just opened, so they haven’t yet had time to decorate.” Not so. I asked around about the barren landscape. The word on the street is that courtrooms and waiting areas can no longer be “personalized.” This means no art. I contacted the Executive Office for Immigration Review (“EOIR” – the agency that administers the Immigration Courts) for clarification. Their response:
As EOIR is one adjudicative agency with 59 immigration court locations throughout the nation, we strive to maintain uniform public spaces throughout our facilities. As with other federal agencies, private spaces such as judges’ chambers and individual office space may be personalized within reasonable boundaries.
In this context, “uniform public spaces” means no wall art. I suppose I understand the reasoning. For one thing, if you allow any art, it is hard to control what ends up on the wall. If EOIR allows a portrait of Abe Lincoln, must they also allow a portrait of anti-immigration president Warren G. Harding? What about a portrait of presidential candidate (and anti-immigrant crusader) Pat Buchanan?
Also, what about images that might not be culturally sensitive to the aliens appearing before the Court? Much as Attorney General John Ashcroft covered a bare-breasted statue in the Justice Department, might some playboy IJ seek to fill a courtroom with inappropriate images?
Given all the potential pitfalls, it is easier to completely ban art in the courtroom than to allow art and then try to regulate it.
All the same, I am not a fan of this policy. I liked going into courtrooms filled with paintings and statues. I prefer a “personalized” courtroom (and waiting room) to an antiseptic one. There is something ennobling about practicing law in a room filled with historic and patriotic images.
Also, while I see the need for IJs to avoid the appearance of impropriety, it is actual impropriety that concerns me. If some IJ adores Warren G. Harding (and there are good reasons to), why not put up his photo? I trust that the IJ will make a determination on the merits of each case, and that a picture of President Harding does not indicate an anti-immigration bias. If we trust IJs to make decisions that will profoundly affect people’s lives, we should trust them to use some common sense in their courtroom decor.
I described the new courtroom ambiance to an asylee friend. She feels that the bare walls and lack of art would be “intimidating.”
Maybe I am making too big a deal about this. But there is a long history of art in courtrooms–it benefits the judges, the lawyers, and the litigants. And while I sympathize with the reasons for EOIR’s decision, I think that the benefits of allowing art in court greatly outweigh the dangers. To quote George Bernard Shaw: “Without art, the crudeness of reality would make the world unbearable.”
Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here). The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges). Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).
A BIA Board Member addresses the Ninth Circuit.
First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue. The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit. Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).
In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances. However, these are two independent tracks. According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.
The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).” The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS). The BIA concludes that
[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status. The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).
What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge. The IJ does not have to accept the determination by DHS concerning termination. Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum. So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.
The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.” Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.
Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA). Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important. I expect we will see much litigation about these issues over the next few years.
Asylum applications are initially submitted to one of the USCIS Service Centers. After an initial review, the Service Center forwards the application to the appropriate Asylum Office for an interview. Unfortunately, the Service Centers reject a fair number of applications and mail them back to the applicants (or their lawyers). Based on my own experience, it seems that many of these rejections are frivolous or at least unwarranted, and this raises concerns about access to justice for asylum seekers.
Where I live (in the civilized part of the country), we submit our asylum applications to the Texas Service Center. Maybe I’ve just been on a losing streak, but in recent months, I have had three applications rejected and returned to me by the TSC. Each one was rejected for an illegitimate reason (at least as far as I am concerned). The first application was rejected because we failed to list the applicant’s siblings on the form. But the applicant has no siblings, so there was nothing for us to list. After this rejection, I have taken to writing “n/a” in any space on the form that would otherwise be left blank. The second rejection occurred because USCIS wanted additional information that the Alien number we listed belonged to the applicant. However, the applicant’s Alien number had been assigned to him by USCIS. Why they simply couldn’t look up the number that they previously assigned to the applicant is beyond me. The most recent rejection was because the applicant purportedly failed to include an additional copy of the I-589 for her dependent child, whose application was attached to her’s. Also, supposedly, we did not include evidence (like a birth certificate) establishing the relationship between the parent and the child. The only problem here is that we did include an extra copy of the I-589 form and a copy of a document showing that the applicant was the parent (there are no birth certificates in the applicant’s country). I even clearly listed these documents on the cover page. For this one, I have no idea why the application was rejected. Before mailing it back, I highlighted some documents in bright pink and attached some sticky notes. I’ll hope for the best.
If only the Service Centers were this helpful.
I imagine that if the Service Centers regularly reject applications prepared by someone familiar with the process, they must reject a good portion of the applications they receive. For pro se asylum seekers, this creates a barrier that might prevent them from presenting their cases. So what’s to be done?
The basic problem,I think, is that the criteria for rejecting asylum applications is too stringent. Forget to check the box indicating whether you received a list of attorneys who can represent you at low or no cost? Rejected. Fail to indicate whether you are fluent in English? Rejected. Forget an extra copy of the I-589 for the dependent? Rejected.
I recognize that the Service Centers are bureaucracies with limited resources. However, in some cases, it would seem easier to either contact the applicant and ask for an explanation of the problem or let the Asylum Officer deal with the problem at the interview. In cases of minor errors, these solutions would be easier and less expensive than reviewing the application, deciding to reject it, addressing the return envelope, paying for the return envelope, and repeating the process once the application is re-submitted. It would also be less frustrating for attorneys (i.e., me) and it would better ensure access to justice for pro se applicants.
The TSC is partnering with the Nebraska Service Center (NSC) to provide an opportunity to meet staff and share information on asylum- and refugee-related topics through presentation and open dialogue. The conference will include a panel discussion with representatives from the Refugee, Asylum and International Operations (RAIO) and Service Center Operations (SCOPS) directorates, the director of the National Visa Center (tentative), as well as TSC and NSC employees. Immigration Services Officers will also be available in the afternoon to answer your case-specific questions.
I certainly hope that one topic of conversation will be how to reduce the rejection rate for asylum applications.
It seems that every lawyer who represents asylum seekers has their own style of preparing cases. Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).
One big divide I’ve noticed is between lawyers who submit legal briefs with their cases and those who don’t. Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.
When I first started doing asylum cases, I submitted briefs. I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum. As time went on, I ended that practice. Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.
The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.
One advantage is that a brief helps the lawyer organize her thoughts. It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case. Briefs are also helpful for cases involving “particular social groups,” where the brief can clearly define the social group. Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal. When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief. In addition, for new lawyers or lawyers who don’t normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.
There are also disadvantages to writing briefs. The main disadvantage is that writing a brief is time consuming. Lawyers have limited time to prepare cases and we need to be efficient. Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial. My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them. They already know the law, and they will gain a better understanding of the facts by reading the applicant’s story and reviewing the evidence. Again, it is a question of efficiency–Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.
Also, for normal cases, where the law is not in dispute, a brief can be a distraction. Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application. A brief that spends three pages “educating” the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.
Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim. If there is a particular social group, I define what that is. I also include a detailed summary of the client’s affidavit and each piece of evidence. To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.
All that said, there of course is no “right way” to present an asylum case. Each lawyer must decide what is best for herself and her client.
One of the perks of working in an area of the law (asylum) that interests law students and young lawyers is that I periodically get to meet people seeking advice about starting a practice or finding a job doing asylum cases. It’s never easy to advise people about their careers, but there are a few pieces of wisdom I’ve picked up over the years that I try to pass on. So for what it’s worth, here are some thoughts for up-and-coming immigration lawyers:
– You can do it. This one sounds trite, so I probably should not have put it first, but I think it is the most important piece of advice I can give. It may seem difficult (or impossible) to get started in the field of asylum law, but people who persist almost always succeed. In my case, I could not find the job I wanted, so I worked at another job for a few years, put most of my income towards paying off my student loans, and then opened my own practice. I kept expecting it to fail, but so far–eight years later–I’m still here. And once you get your first job in the field, it is easier to move around. I’ve seen many friends move between public interests jobs, private firms, and academia. In other words, once you’re in, you’re in.
– Experience in the field prior to and during law school is more important than grades, law school rankings or law journal. If you are thinking of a career in asylum law, try to gain as much experience as possible while in law school. There are many opportunities to volunteer, including at the Immigration Court or DHS, for non-profit organizations, and even for private attorneys. Also, publishing in law school journals or other journals (or writing a blog!) is a good way to get some experience and attention.
– Try to get a clerkship. A clerkship or an internship with a court is a great way to learn how judges decide cases. And if you know what judges want, it will help you throughout your career. I clerked for the Third Circuit in Philadelphia (greatest city on Earth) and for the Immigration Court in Arlington, Virginia. Both jobs taught me a lot and made me a better lawyer.
Advice from fortune cookies and immigration lawyers should be taken with a grain of salt.
– Volunteer. One way to get your foot in the door is to volunteer with an organization that represents asylum seekers. There are many, and they are often in need of free labor. Volunteering for one of these organizations will allow you to meet people in the field, learn about paying job opportunities, and learn the skills needed to effectively represent people in court and at the asylum office. I know several people whose volunteer positions led to full time employment. I would suggest that you think strategically about where you volunteer–some organizations are better than others for purposes of networking, learning the ropes, and getting hired.
– Keep salary expectations realistic. Your clients are refugees for Pete’s sake.
– Consider opening your own practice. However, I would encourage you not to do this anywhere near Washington, DC. If I am giving you free advice, the least you can do is not compete with me. Starting a practice of your own may seem daunting, but it really is do-able. In fact, most private immigration attorneys are solo or work for small firms. There is a lot of support available from bar associations, organizations (like AILA), and other attorneys. In fact, many bar associations have a person dedicated to helping lawyers start law firms. Call your bar association and ask about the resources they can offer you.
If you are thinking about a career in immigration law and asylum, I hope you will be encouraged to give it a go. It’s a rewarding area of the law where you will have an opportunity to make a real difference in your clients’ lives.
I arrived in Court the other day for an asylum case where I represented an Ethiopian poet who had been detained and persecuted for her political writings. When the DHS attorney arrived, she told me that she had good news and not-so-good news. The good news was that she reviewed the case and felt that my client should receive asylum (that was VERY good news). The not-so-good news was that the biometric background check was not complete, so she thought we would have to reschedule the matter for another hearing, and the client would receive asylum at that time. That news was inconvenient, and maybe a bit annoying, but not so bad. However, it raises the question: What’s the deal with those pesky biometric background checks?
DHS biometric technicians hard at work.
Before we get to that question, here is a more basic query: What the heck is a biometric? The State Department defines the term as follows:
A biometric or biometric identifier is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify the identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans.
In the case of asylum seekers, the biometrics are fingerprints and a photo.
Biometrics checks in asylum cases are valid for 15 months. Meaning that if a case takes longer than that (which most cases do), the asylum seeker has to go for a new biometrics appointment where DHS again takes the person’s fingerprints and photo. What’s nonsensical about this is that fingerprints do not change after 15 months. In fact, the whole point of identifying people by their fingerprints is that the prints never change. Otherwise, they would not be a very good way to identify people. So why do the asylum seekers have to be re-printed?
As best as I can tell, sending asylum seekers for another fingerprint appointment is a way to “tickle” the system and generate a new background report. So here’s a suggestion: Rather than wasting hours of the asylum seekers’ time arranging an appointment and traveling to the (always inconvenient) biometric office, and wasting the government’s time and money to repeatedly fingerprint and photograph hapless asylum seekers, let’s create a system where some government official pushes a button on a computer and generates a background check based on the existing biometric data. This seems like a simple way to save time and money. Also, since it can be done immediately prior to the Individual Hearing, it will be completely up to date.
In my Ethiopian case, the DHS attorney was able to run back to her office and get the results of the background check, so my client’s case was granted that day. But for efficiencies sake, it would be better to reform the current biometric procedures.
USCIS and Immigration Equality have joined forces to create a new training module for asylum adjudicators called “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims.” According to Immigration Equality, the new module “instructs asylum officers on substantive aspects of the law and highlights the unique difficulties that LGBTI claimants may experience in articulating their claims for asylum.” A few highlights from the module:
My favorite LGBTI asylum seeker.Helpful definitions, and appropriately sensitive questions, for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices;
LGBTI-specific examples of harm that may constitute persecution, including: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to “cure” an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse;
Instructions for analyzing complex issues, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBTI applicants are not required to meet pre-conceived stereotypes or “look gay;” and that cultural norms within the LGBTI community in an applicant’s home country may differ from those in the U.S.; and
A non-exhaustive list of possible one-year filing deadline exceptions (which make it difficult to pursue asylum after one year of presence in the United States), including: recently “coming out” as LGBTI; recent steps to transition from birth gender to corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.
I am particularly happy to see some (though, in my opinion, not enough) guidance about the one-year filing deadline (see page 47 of the module). Most likely, the reason for the sparse guidance is that there is not much BIA case law on this issue (note to BIA–publish more cases!). In my experience–and I am not alone–the one year deadline is a particular problem in LGBTI cases.
Overall, the module seems like a valuable resource for adjudicators and advocates. Congratulations to Immigration Equality and USCIS on a job well done.
Four years ago, Josue Rafael Orellana Garcia fled Honduras to escape persecution by a criminal gang. It seems the gang originally targeted him due to a handicap–he lost an eye and much of his hearing when he was struck by a tree during Hurricane Mitch. Mr. Orellana arrived illegally in the United States at age 17 and requested political asylum. His case was ultimately denied, and he was deported to Honduras in 2010.
Mr. Orellana's mother with a photo of her deceased son.
Back in Honduras, Mr. Orellana disappeared while running an errand. His body was found in July of last year. Presumably, Mr. Orellana was murdered by the same gang members that had been persecuting him all along.
Now, the Wall Street Journal reports that Mr. Orellana’s attorney has brought a posthumous asylum case before the Board of Immigration Appeals. The purpose of the case is to highlight our country’s failure to protect people fleeing gang violence in Central America. Mr. Orellana’s attorney, Joshua Bardavid, states, “I think it’s something that needs to be acknowledged: that we failed him; that he came here seeking safety, and the entire system let him down.”
The problem of gang violence is certainly endemic in several Central American countries. Honduras, El Salvador, and Guatemala have some of the highest murder rates in the world (several times higher than Mexico, which has received much attention of late). And the asylum grant rate from those countries is quite low. According to statistics from the Department of Justice, in FY 2009 (the latest year I see data available) the asylum grant rate was as follows: Honduras: 5.5%, El Salvador: 2.9%, Guatemala: 4.3%.
As far as I know, there is no provision in the INA to grant asylum to someone who is deceased (unlike naturalization, which can be granted posthumously). However, Mr. Orellana’s case is a sobering reminder that when we return Central American asylum seekers to their countries, we sometimes condemn them to death. Hopefully, his case will help bring attention to this serious and difficult issue.
For those attorneys and advocates working on gang-based asylum cases, the U.S. Committee for Refugees and Immigrants has some good resources that might prove useful.
In this series, I have been writing about methods for determining whether an alien is telling the truth. So far, I have examined inconsistencies, demeanor, and lack of detail, and I have posited that none of these methods is very reliable. Today, I will examine one method that I have long felt was the least reliable, but as I’ve worked on more cases, I have begun to believe that it actually may work better than other techniques used to determine credibility. I am speaking about plausibility.
First, what do we mean by plausibility? When a fact finder determines that an event is not believable, it is implausible. For example, I worked on a case where the Immigration Judge found my client’s testimony implausible. The client was an Ethiopian political activist who passed through government security at the airport even though a warrant had been issued for her arrest. The IJ did not believe that a person wanted by the government could pass through airport security.
Unless your name is Big Daddy, you probably can't smell the mendacity.
The reason I previously felt that plausibility was a poor basis for determining credibility is because it is difficult to know what is plausible. In the above example, it turns out that many high-level political activists who had been jailed by the government were able to leave the country through the airport. In my case, we presented this evidence and my client received asylum.
As I’ve thought about it more, I’ve come to believe that my case was decided in the proper way. The IJ was concerned about a legitimate plausibility issue. We presented evidence to satisfy that concern. The case was granted.
The astronomer Carl Sagan famously said, “Extraordinary claims require extraordinary proof.” Mr. Sagan’s axiom can be applied in the asylum context. Where an alien makes a claim that the IJ finds implausible, the alien should be given an opportunity to demonstrate that the claim is, in fact, plausible. The more implausible the claim, the better evidence the alien will need to demonstrate plausibility. This seems like a reasonable method for assessing credibility.
If there is a conclusion to this short series on credibility, I suppose it is that no method of determining credibility is all that reliable. This problem exists in all areas of the law, but it is particularly acute in the asylum context where so much rests on an alien’s unsupported testimony. The various methods of determining credibility can certainly help suss out the most egregious untruths, but beyond that, I have real doubts about their effectiveness. In the end, the fact finder must reach a conclusion using the imperfect tools that are available. Given all that rides on these decisions, it’s not a task I envy them.
I previously wrote about how credibility determinations based on inconsistencies are not reliable. Today, I want to discuss a couple more methods that I think don’t work, and next time, I will write about one method that seemingly doesn’t work, but might actually be a better test for credibility than the other methods. First, two methods that don’t work well:
Demean girl.
– Demeanor. Fact finders often judge credibility based on the alien’s demeanor during testimony. Demeanor includes things like “body language,” “looking at the judge,” “responsiveness” to questions, and whether the alien’s answers are “vague.” Such evaluations are quite subjective and–because the IJ actually sees the respondent in person while the BIA does not–are subject to great deference by reviewing courts. The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor. This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal. These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.
– Lack of Detail. This is one that you see on referrals from the Asylum Office, but it’s not so common in Immigration Court. My initial reaction when I see this is to blame the Asylum Officer. If the Officer wanted more detail, she should have asked more questions. But I know this is not exactly what is meant by “lack of detail.”
Demeanor girl.
An example will illustrate the point. An asylum seeker (represented by my friend) was asked to describe the conditions of her detention. She responded: “I was locked up and I was interrogated.” The Officer repeated the question and received a similar answer. As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated. Thus, this testimony lacks detail because anyone–whether they had been detained or not–could have provided it. In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as “What did you do every day in detention?” “How was the food?” “Describe your prison cell,” etc. If the applicant could not provide additional information, a finding of “lack of detail” would be appropriate.
The reason I think “lack of detail” is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don’t always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.
Obviously for both “demeanor” and “lack of detail,” where there are egregious problems with the alien’s testimony, he can properly be found incredible. However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth. In a future post, I will discuss some methods of judging credibility that might be more effective.
