A Happy New Year?

Among the frustrations of my work as an immigration lawyer is representing asylum seekers-- those who seek protection in the U.S. because they have a well-founded fear of persecution or have suffered past persecution in their native country on account of their race, religion, nationality, political opinion or social group. The first reason these cases are so challenging is because I work in a jurisdiction where, unfortunately, only about 15% or so of the claims are granted by immigration judges. The national average is over 50%. (See, http://trac.syr.edu/immigration/reports/209/). It would seem that the judges in this part of the country simply do not believe what they hear in their courtrooms about "man's" ability to harm his fellow human beings, although history is replete with such atrocities. I have no other explanation for the discrepancy, though I recognize there may be others.

The second hurdle a lawyer faces when handling asylum cases results from the United States' wholesale detention of noncitizens who are found living here illegally, including asylum seekers, even if they have no criminal background whatsoever. Asylum applicants, who have generally fled their countries under dire circumstances, often arrive in the United States with very little money and cannot afford to pay the bond for their release from detention, which makes the preparation of one of these claims extraordinarily difficult. Arguably then, the U.S. Government's detention of asylum seekers subverts its international obligation to protect these men and women from further harm since a thoroughly prepared asylum case requires extensive documentation of country conditions, forensic medical examinations to prove past persecution or torture, and locating event witnesses and/or expert witnesses. All of these tasks are almost impossible when one is incarcerated in an isolated location, has no lawyer, speaks no English, has no access to the internet or libraries, and has minimal funds make telephone calls. Studies have shown that when a lawyer is involved, an asylum applicant is 25% more likely to prevail on his or her claim. However, even when represented by a lawyer, an asylum claimant's detention can pose an insurmountable obstacle to success. So I read with great optimism a recent news bulletin stating that, effective January 4, 2010, the Obama administration has ordered Immigration and Customs Enforcement (ICE) not to hold in detention any asylum seekers who can establish their identities, and that they are not a flight risk or a danger to the community.

While the new policy directive is indeed good news, it is clear that it applies only to those deemed "arriving aliens." An arriving alien is a foreign national who attempts to enter the U.S. but is stopped at a port of entry because, for example, he or she does not have proper documents or the documentation is fraudulent. By law, arriving aliens are ineligible for bond and must seek ICE's permission for release from detention. The Administration's new directive appears to make release obligatory so long as the required criteria are met. This new policy does not, however, appear to include another group of asylum seekers, those who are apprehended by the immigration authorities once inside the U.S. after having overstayed a visa or entering illegally. While these individuals would be eligible for a bond, many asylum seekers simply cannot afford to pay one and will continue to find their cases prejudiced by their status behind bars.