OIL’s Adverse Credibility Project

by Jason Dzubow

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

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

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

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

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

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

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

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

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The “Unobservable Factors” that Influence Asylum Decisions

by Jason Dzubow

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.

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Update from EOIR at the AILA Conference

by Jason Dzubow

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.

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Report from the AILA Conference

by Jason Dzubow

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.

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Decision to Deny Asylum to “Son of Hamas” Is “Idiotic”

by Jason Dzubow

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.”

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The ICE Plan Cometh

by Jason Dzubow

Immigration and Customs Enforcement (ICE) has announced a new five-year Strategic Plan.  The Plan’s top three priorities are: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.  There is not a whole lot in the Plan that relates to asylum, perhaps because ICE does not view asylum seekers as a major concern.  However, a few sections of the Plan may impact asylum seekers:

One objective of the plan is to dismantle organized alien smuggling.  In my practice, I’ve seen a number of asylum seekers who have followed a smuggling route from Africa to the U.S. (via South and Central America).  My guess is, this operation is too small to garner much attention from ICE, though there certainly are examples of individual smugglers brought to justice.  We’ll see if ICE’s plan impacts these small-scale operations, and whether it does anything to stem the modest flow of asylum seekers entering at our Southern border. 

The report also states that “newly arriving aliens who do not successfully evade detection are apprehended, detained, and removed as appropriate by law.”  As long as these arriving aliens continue to have opportunities to request asylum and credible fear interviews at the border, this provision should not greatly impact asylum seekers.  The danger is that the practice of cajoling, threatening, and tricking arriving aliens into waiving their right to seek protection will become more common in a culture of stepped up enforcement.  Such behavior is not supposed to happen now, but I have heard many reports that it does.  Hopefully, ICE’s get-tough approach will not compromise our human rights obligations.

The plan continues:

To best protect the system, ICE will work closely with USCIS and the Department of State to identify, address, and prevent the many large-scale, organized frauds perpetrated on the government each year. In addition, ICE will pursue criminal cases against individuals who lie on applications, engage in fraud, and pose a threat to national security or public safety. As ICE attorneys have great insight into possible fraud, they will actively refer cases to ICE agents and, as possible, serve as Special Assistant United States Attorneys to assist with prosecutions. ICE will expand the number of document and benefit fraud task forces to every Special Agent in Charge office.  Following criminal cases, ICE will work closely with USCIS to address lingering administrative fraud.  Also to protect the integrity of the immigration system, ICE will remove aliens who receive final orders, with a focus on convicted criminals and those who have most recently received orders.

I’ve written before about methods to combat asylum fraud.  While ICE can target cases of individual fraud, I’ve always felt that the best policy is to pursue attorneys, notarios, and others who create fraudulent cases.  These people are the most culpable, and removing them from the scene will have a greater impact than removing an individual alien.  Plus, from my conversations with ICE attorneys, it should not be too hard to identify the fraudsters.  The danger, of course, is that legitimate asylum seekers will be intimidated by over-zealous attorneys looking for fraud.  In an atmosphere of increased enforcement, it will be more important than ever for ICE personnel to be sensitive to the situation of legitimate asylum seekers.

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Advice from a Court Interpreter

by Jason Dzubow

Without interpreters, the Immigration Court system could not operate.  One of the best interpreters I’ve worked with is Maria Raquel McFadden.  She is 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.  She is registered with the State of Maryland and can be reached at: (202) 709-3602 (office) or (202) 360-2736 (cell).  Her email address is mcfadden.maria@gmail.com.  Ms. McFadden offers some advice on how best to utilize an interpreter:

Nicole Kidman makes interpreting cool

Many people who are scheduled for interviews before the asylum office or immigration court speak little or no English. Often they have never used the services of an interpreter before.

Being aware of the function of an interpreter can help the process go along more smoothly. The interpreter’s role is to remove the language barrier to the extent possible, so that the access to justice for a person with non- or limited English skills is the same as that of similarly situated English speakers for whom no such barrier exists.

When speaking through an interpreter, people should continue to speak directly to each other.  The interpreter serves merely as a mouthpiece. Interviews and conversations should flow as if the interviewer/judge, lawyer(s), and the asylum applicant are the only ones participating. Experienced interpreters know to use only the third person when referring to themselves.

In court, it is the job of the interpreter to interpret the questions asked into the alien’s language and interpret the answers into English.  At an interview, the interpreter will likewise interpret all questions and answers given.

Some interpreters are better than others and it’s necessary that both lawyers and clients learn how to best use an interpreter. Here are some tips to keep in mind:

1. Before the interview, the asylum seeker and interpreter should talk to each other to make certain that they speak the same dialect and/or understand each other.

2. Try to speak in short, very clear sentences. This will help because it can be difficult for an interpreter to accurately interpret more than a couple of sentences at a time.  

3. Look at and speak directly to the person to whom you are responding. Do not address the interpreter.

4. If you do not understand the interpreter, notify the judge/interviewing officer immediately.

5. Remember that the interpreter must keep all the information he/she learns during the interview/hearing confidential and may not share it with anyone. 

One should bear in mind that when an asylum-applicant goes before a judge, it is the court that will be make an interpreter available. However, asylum applicants must provide their own interpreter when interviewing before USCIS or the Asylum Office.  When hiring one’s own interpreter, one should take into account that a person related to the asylum-seeker may not interpret for them. It is better to have a neutral/disinterested party. The interpreter must take his/her government issued ID and be prepared to stay the entire duration of the interview. Sometimes, appointments are delayed and all parties should be prepared for long waits. 

By taking all the above factors into consideration, the asylum interview/hearing can be more manageable when working with an interpreter.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

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

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

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

Mazel Tov to all on these successful outcomes.

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Immigration Court Backlog Keeps Getting Worse

by Jason Dzubow

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. 

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The Refugee Protection Act and Asylum Interviews

by Jason Dzubow

Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed.  The Refugee Protection Act would require DHS to record these interviews.

A DHS employee demonstrates the agency's latest recording equipment

Currently, asylum interviews at the border (or the airport) are generally not recorded.  As a result, there are often disputes about what the alien said at the interview.  For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border.  He was immediately detained and requested asylum.  His friend and traveling companion served as my client’s interpreter.  The Border Patrol agent wrote down the client’s responses to the agent’s questions.  The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum.  On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border.  Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.

IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes.  Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews).  Thus, the accuracy of the prior statements is frequently an issue.  If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations.  The RPA provides for recorded interviews at the border.  It should also provide for recorded interviews at the Asylum Office.

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The BIA on Frivolous Asylum Applications

by Jason Dzubow

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

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

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

TOUGH GUY

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

Poster extolling the virtues of the one child policy

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

IJ DECISION AND SECOND CIRCUIT REMAND

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

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

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

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

The Second Circuit examined:

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

BIA CLARIFICATIONS

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

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

The BIA stated:

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

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

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

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Singh v. Holder: Is Attorney Error to Blame?

by Jason Dzubow

A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.

In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly.  In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum).  The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.

The Ninth Circuit found that the IJ could require corroboration of the entry date.  The Court held:

With section 1158(b)(1)(B)(ii) [the REAL ID Act], Congress has expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony. Should the applicant fail to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that Singh’s uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.

This result is not that surprising.  The REAL ID Act, which went into effect on May 11, 2005, provides that, “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”  In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:

This is the sort of fact which is “easily subject to verification,'” whether by some form of official documentation or by supporting documents of a more informal variety, i.e., affidavits or letters from family, friends, or traveling companions.  Travelers typically accumulate paper as they move, such as receipts from gas stations, motels, and restaurants, and often take snapshots providing dating information, and reaching a refuge from persecution might well generate a particular desire to preserve souvenirs of arrival. Accordingly, it is eminently “reasonable to expect” an applicant to provide some corroborating evidence of his date of entry

While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry.  Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.

The REAL ID Act went into effect in 2005.  According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry.  Either Mr. Singh’s attorney asked his client for the evidence or he did not.  If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss.  If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.

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An Asylee’s Story

by Jason Dzubow

Below is the story of an asylee from Eritrea.  She prefers to keep her name confidential:

I was born in 1979 in Addis Ababa, Ethiopia. I was an Ethiopian at birth but I am an Eritrean national.

Eritrea is a little known country in East Africa of about 5 million people. Eritrea was forcefully annexed with Ethiopia in 1962. Freedom fighters struggled for Eritrea’s independence against the Derg, the Ethiopian government from 1974 to 1991. The struggle ended in 1991, when the freedom fighters won the fight. A referendum was held in 1993. Eritreans overwhelmingly voted to be independent from Ethiopia. My parents decided it was time to move to Eritrea. We moved to Eritrea for good in 1993.

The Beauty of Culture by Eritrean artist Yosief Indrias
I came to the U.S. on August 10, 2007, a year after I left my country. I left my country in August 2006. I won a scholarship to pursue higher studies in Geneva, Switzerland. While in Geneva, I received a tuition waiver to study at a university in Washington, DC.

I am an Evangelical Christian. While I went to Evangelical Christian churches since I was a child, I did not become a devoted Evangelical Christian until March 2005. Unfortunately, that was after the faith was banned in Eritrea and when hundreds of evangelical Christians were thrown in jail for their faith. In 2001, the government declared that only Orthodox, Catholic, Lutheran and Islam were complying churches. All other faiths, including Evangelical/Pentecostals, Jehovah Witnesses, Bahai, and Seventh Day Adventists, were declared non-compliant faiths and banned.

Going to Bible or Prayer cells in houses or even carrying the Bible could lead to arrest, detention or even death in some cases. That did not stop my desire to attend Bible study and prayer meetings. I was eager to learn God’s Word and become a mature Christian. I went to a friend’s house to pray and study the Bible.

At the time I left Eritrea, the government imprisoned hundreds of Evangelical Christians. The government did not show any signs of stopping the persecution against Evangelical Christians. I was too afraid to go back home when I finished my studies in the United States. I talked to a couple of my professors about my intention to apply for asylum. They strongly advised me against applying for asylum without legal representation. One of my professors talked to the Immigration Clinic of the Law School. The clinic contacted me and set up an appointment to interview me. Two interns at the clinic interviewed me and made copies of my documents.

About a week later, the clinic notified me that it would take my case and represent me in my asylum application. I was relieved to hear that news. My next concern was to get my asylum application filed before the one year dead line. I had only a few weeks to write my affidavit, gather documents and mail the package. I had more interviews with the interns at the clinic to write my affidavit. After the affidavit was ready, the package was mailed on August 1, 2008, just a few days before the one year deadline.

The next step was to wait for my fingerprint appointment. I had my fingerprints taken on August 21. Because the interns that prepared my application finished their internship at the end of August, the professor asked for a continuance of my asylum interview, which was originally set for the beginning of September. My interview was rescheduled for September 15, 2008. Another intern was assigned to be my student council. I had a moot interview with the clinic team a few days before my interview. The moot helped me to get prepared for the interview. I felt less anxious about the interview at the asylum office.

Then came September 15. I arrived at the asylum office early. I met the professor and the student counsel outside the building. My interview was scheduled at 9:00 AM. The three of us got up to the third floor. We sat in the waiting room. Almost three hours went by before the asylum officer called me. The long wait made me nervous.

Around 11:50, I was called by the asylum officer. We followed her to the interview room. After the oath was administered, the officer started to ask me questions. She typed my answers to her questions. She asked me questions for an hour and a half. I had not anticipated some of the questions but I had a feeling it went well. The officer told me the decision will be sent to me by mail in about two weeks.

A month and a half went by before I heard anything from the asylum office. I was very anxious to know the decision. When I get home from work, the first thing I did was to go to the kitchen table to see if anything came in the mail for me. I was so happy when I finally got the good news. It was a huge relief. I did not have to go back to my country and risks persecution from the government of Eritrea.

My getting asylum in the United States was wonderful news. However, my personal life got a little complicated because of it. My fiancé had proposed to me after I had left the country and I said yes! Now that I can not go back to Eritrea because of my asylum status, and because it is difficult for him to leave the country, we do not know when we will see each other again. We can only hope that it is sooner than we think. For now, I’m happy that I am safe until I meet the love of my life and start a new journey.

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