Biased judging

This is indeed an unusual case in immigration practice, although it is not the first time I've heard complaints of biased judges : http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439420796

"Despite having ruled three times in the last four years against the family's pleas not to be deported to their native Bahamas, the board on Jan. 11 agreed to reopen the case. The reason: an investigation by the U.S. Department of Justice's Office of Professional Responsibility (OPR) that concluded the immigration judge in the asylum proceeding 'engaged in professional misconduct when he acted in reckless disregard of his obligation to be fair and impartial.'"


Bad behavior by judge reverses asylum ruling
Asylum case reopened after Justice Department finds misconduct by
immigration judge.

Marcia Coyle

January 25, 2010

For Roscoe Campbell, his family's quest for asylum in this country has been
a "long and rough road, mentally, physically and financially." But years of
fearing deportation when any stranger rang their doorbell or stopped them on
the street ended this month with a remarkable and rare turnaround by the
Board of Immigration Appeals.

Despite having ruled three times in the last four years against the family's
pleas not to be deported to their native Bahamas, the board on Jan. 11
agreed to reopen the case. The reason: an investigation by the U.S.
Department of Justice's Office of Professional Responsibility (OPR) that
concluded the immigration judge in the asylum proceeding "engaged in
professional misconduct when he acted in reckless disregard of his
obligation to be fair and impartial."

"This is pretty amazing," said Nadine Wettstein, director of the American
Immigration Council's Legal Action Center. "That you can use OPR findings to
reopen a case really seems extraordinary to me."

The board's decision means a new day in court before a different immigration
judge and a temporary reprieve for Campbell, his wife and three children,
from "the nightmare of never knowing when you might be picked up," he said.

For Immigration Judge Bruce Solow of Miami, who rejected the Campbells'
asylum request, the board's decision is undoubtedly the continuation of a
different nightmare that now includes public embarrassment and possible
discipline. A number of immigration lawyers who have practiced before him
for many years insist that is undeserved punishment of a judge who is
demanding, compassionate and objective.

Besides the asylum case, the Campbells and Solow now share experience with
the Justice Department's process for investigating complaints against
immigration judges. It is a process that is neither swift nor transparent
and because of that, it can be unfair - to aliens, attorneys and immigration
judges.

In the Campbell case, the process worked, said the family's pro bono
attorney, Christopher Nugent of Holland & Knight's Washington office.

"We were pleasantly surprised by the process," Nugent said. "OPR pulled the
file on the case and when they listened to the tapes, that's when they
realized something had gone wrong. It's not just about the written
transcript. Solow was not only sarcastic and derisive, he was literally
shouting. When you go to the board and raise this behavior in your motion,
they don't listen to the tapes."

INTO THE SYSTEM

In their asylum application, the Campbell family claim they fled their
island nation in 1999 to avoid being tortured or murdered by allegedly
corrupt officials within the Royal Bahamas Defense Force. Roscoe Campbell, a
retired member of that force, reported illegal drug-smuggling activities by
Defense Force officers to the U.S. Drug Enforcement Administration, and, in
the face of a subsequent threat, feared for himself and his family.

In 2005, the Campbells, accompanied by Pastor Chip Stokes of St. Paul's
Episcopal Church of Delray Beach, Fla., which has been supporting the
family, appeared before Solow for their asylum hearing.

Solow, appointed in 1986 by then Attorney General Edwin Meese, denied the
asylum application after finding that it was not filed on time, that
Campbell was not credible, and that there was no substantial evidence that
he had been tortured in the past or would be tortured by any Bahamian
official if he returned. The Board of Immigration Appeals and later the U.S.
Court of Appeals for the 11th Circuit agreed with the judge's -ruling.

Both the board and the circuit court did note that Solow's "sarcasm"
throughout the hearing was inappropriate and detracted from the dignity of
the hearing. But neither said that lack of judicial demeanor rendered the
hearing unfair. The board also noted that Solow was "actually generous" in
giving Campbell an opportunity to bolster his case with additional evidence.
The board twice rejected motions to reopen the case in 2006.

Holland & Knight had entered the case after Solow's ruling and at the
request of Stokes. Nugent's colleague, Leon Fresco, now senior immigration
counsel to Sen. Charles Schumer (D-N.Y.), filed the misconduct complaint
against Solow in 2007.

In the complaint, Fresco described Solow's behavior during the Campbell
hearing as "abusive and intemperate." The transcript showed, he said, that
the judge had "commandeered" the entire direct examination. Campbell's
attorney asked only 13 questions but the judge asked more than 200 "in rapid
fire fashion - each time interrupting Mr. Campbell's answer to the previous
question." He continually accused Campbell of lying and made mocking jokes,
such as asking Campbell whether he spoke to fictional characters from
detective novels, for example Zelda Jones (from a series of books by Sharon
Duncan), at the U.S. Embassy.

At the close of evidence, said the complaint, the judge stated, "This is so
vague and general you could vomit and I could vomit because I can't, he
wants me to become a magician here and grant it merely based on this kind of
testimony," and "I think this case, quite frankly, I hate to use the word
but I think it stinks. It smells bad because there's no way, this is pie in
the sky."

The complaint said the board and the 11th Circuit had noted improper
behavior by Solow in two 2006 cases.

In September 2009, OPR informed Nugent of its conclusion that Solow had
engaged in professional misconduct in the Campbell case and that the agency
had advised the Executive Office of Immigration Review of its findings.
Armed with the OPR findings, Nugent filed the motion to reopen.

Neither OPR nor the Executive Office would comment on the Solow case. The
Executive Office has its own procedure for taking complaints against
immigration judges and private attorneys. Both agencies would not provide
statistics on the number of complaints received against immigration judges
in the last year or any year. The Executive Office does make public
disciplinary actions taken against attorneys, but not judges. The office
does not publish disciplinary actions taken against immigration judges
"because of Privacy Act protections," said a spokeswoman.

The lack of transparency irritates attorneys and judges alike. The American
Immigration Council's Wettstein and other immigration lawyers said
complaints against immigration judges to the Executive Office seem to go
into a "black hole," and, they added, getting notice of findings made by OPR
also seems rare.

"In immigration court, the anomaly is the mechanism for bringing to light
bad behavior of judges and government attorneys is so slow and obscure that
it seems to us in the alien bar that it's unbalanced," said Daniel Kowalski
of Reina, Bates & Kowalski Immigration Law Group's Austin, Texas, office.
"We feel a little put upon."

And so do the judges. The Executive Office prohibits immigration judges from
speaking to the press, which leaves them "undefended" in the face of -public
criticism by the media, courts or others, according to Immigration Judge
Dana Marks, president of the National Association of Immigration Judges.

Complaint investigations often take years and focus on alleged behavior that
may have occurred four or more years before the investigation began, she
added.

"It's unfairly prejudicial to everybody that this process lasts so long,"
Marks said. "There should be some consideration of the totality of a judge's
record as well."

Marks said her union's concern with OPR proceedings stem from the Justice
Department's position that immigration judges are attorney-employees, not
judicial officers.

"Immigration judges welcome transparency into our conduct," she said. "The
proper standards to evaluate judicial performance as well as discipline are
not being implemented by the department because immigration judges are
treated as attorneys, not as judges. We think the proper standards are the
American Bar Association's model code of judicial conduct."

The department proposed a code of conduct for immigration judges three years
ago - not the ABA model code. It has not gone into effect and is the subject
of negotiations with the judges' union.

DEFENDING SOLOW

Solow may not be able to speak in his own defense, but he is not without
defenders. A number of veteran immigration practitioners in interviews with
The National Law Journal attested to his fairness, compassion, high
standards for lawyers appearing before him, legal knowledge and humor in
many cases.

"He is a judge I am confident of getting a fair hearing from," said Randy
McGrorty, chief executive officer of Catholic Charities Legal Services in
Miami. "He goes out of his way to see that people get adequate
representation. Is he direct? Absolutely. In my experience with him, which
goes back 17 years, he has never ever been inappropriate."

Solow is now represented by nationally known immigration lawyer and scholar
Ira Kurzban of Miami's Kurzban & Kurzban. Kurzban said OPR has no
jurisdiction to investigate immigration judges unless there is an allegation
of corruption.

"The procedure that OPR uses to reach its conclusion is just violative of
due -process," he said. "They refuse to give us notes of their interviews
and a transcript of his interview. The process is ludicrous."

He also questioned an investigation into allegations about a five-year-old
case.

The Board of Immigration Appeals' decision to reopen the Campbell case based
on the OPR findings is "an important precedent," said Holland's Nugent,
adding, "There is no statute of limitations for complaints against attorneys
for ethical misconduct. Isn't that the same principle here? In the final
analysis, Roscoe Campbell was vindicated, thanks to the grace of the board." Read more!

Burnout

After I posted my first couple of pieces on this blog in December, I realized that I had stirred some strong feelings in my fellow non-profit colleagues on the issue of burnout. One friend, a public defender, immediately commented to me that, " I almost cried when I read about feeling burnout. Sometimes I can't tell where my frustration comes from. You are so right that it comes from seeing injustice dumped upon helpless people everyday." Her admission struck me, so I thought I'd briefly return to the topic.

My colleagues and I, employed in direct service non-profit legal organizations, work in the "trenches" -- we have day-to-day contact with clients who are desperate for legal representation but cannot afford the luxury of private counsel. They often come to us with a lot of hope; little understanding of the law and the means by which it can and cannot solve one's problems; and sometimes with doubts about our abilities since we are free lawyers. I once had a prospective client ask me why I did not charge any money for my services. Was it because I had not passed the bar exam? Daily, we see the good and the bad of human nature. We are worn down by dishonesty, manipulation and constant demands, yet invigorated by sincere gratitude, candidness and the victories we obtain for the underserved in our population. We perform our work without the benefit of assistants and secretarial staff. One colleague laughingly told me that when she started working in non-profit, after having been at a prestigious law firm, she had to be taught how to use the fax machine. At my current job, I had to learn how to operate a postage meter.

In the non-profit sector, there is no doubt that we lawyers are sometimes called upon not only to solve legal problems the way we were educated and trained to do, but also to virtually perform miracles and provide basic social services to our vulnerable clients, whether or not this appeals to us. I have found myself attempting to locate housing for a homeless client, pick up another at the bus station in a frigid night, loan a third the fare for a bus ticket (without reimbursement despite the promise to do so), provide warm clothing for the winter months, and even buy a pair of shoes for one who was desperately poor. For this reason, we must consistently remind each other not to take our work home with us. The emotional toll might overwhelm and leave us indifferent, and I’ve certainly been through many bouts of burnout in my two-decade career. There is even a report that was published about a year ago indicating that lawyers who represent asylum-seekers may suffer secondary post-traumatic stress disorder given the tales of horror to which we are consistently exposed, as well as the demands we must meet to "save" our clients from future pain. Secondary trauma results from the natural emotional consequences of learning about trauma and helping or wanting to help its victim. (See, Secondary Trauma in Asylum Lawyers, Bender’s Immigration Bulletin, March 1, 2009). The same source points out that burnout is different. Burnout results from a working environment characterized by high stress and low rewards, the epitome of which is employment in the non-profit sector. Imagine if one suffers from both burnout and seconday PTSD! Regardless of this possibility, we inevitably still let certain clients and their conflicted lives get to us. It's hard to let go of your humanity just because you leave the office.

A young, dedicated immigration attorney, whom I had once had the pleasure of mentoring, recently informed me after reading my blog for the first time, and sympathizing with my tales of burnout, that she was changing jobs in order to handle fewer cases and more administrative duties. She'd spent the last several years representing the indigent in immigration court, like I. She told me frankly that, "working with clients is really, really difficult and I'm glad that someone else shares my frustrations." Initially I thought that her decision was premature and made too early in her career. After all she'd only graduated from law school a few years earlier. But I understand. The exhaustion creeps up on you, and when it stares you in the face, all you can think of is to run. Run far away and never look back. The key, however, is coming back to your senses after you feel there's no other solution but to jump ship. How we each do this varies from one person to the next, and I have no remarkable insight on how to reach this point, although obviously I've hung around for over twenty years. For me, it just happens. I have a good day and forget about the previous bad day(s). I suppose it helps that, ultimately, I truly like my clients and their stories. My friend, on the other hand, really needs a change of pace for the time being.

A feeling of burnout is particularly disheartening when family and friends inadvertently contribute to it by questioning the motives for which you engage in this type of work. The most common offending line is, "don't you want to make more money?" I suppose that, given the reputation that the legal profession has for being a lucrative career, people find it hard to comprehend why some of us might practice in non-profit and virtually live paycheck to paycheck. One former colleague simply did not tell her family about her exact career choice. As she explained it to me, "they wouldn't understand it. They think lawyers make lots of money." It's no wonder that she left the non-profit sector after an extremely short stint for a more traditional legal position with the government. I also thought such a change might help when I joined private practice for a brief three years. I learned, however, that the field was not really so lucrative, but that I had many more limitations on what cases I chose to handle since, naturally, legal fees and profit were the underlying goal of the law firm. I guess I value my freedom more than money.

A good friend of mine who was one of my first mentors in the profession, himself the son of immigrants and someone to whom I turn regularly for all sorts of insights given his years in the field, says that he finds solace in his faith, which is reflected in a quote by the late, brave Archbishop of El Salvador, Oscar Romero: "We cannot do everything and there is a sense of liberation in realizing that. This enables us to do something and to do it very well." He adds that "stoking the passion that led me to work for the poor is essential to combating burnout." I agree. He, like I, admits that he has less patience with clients as time goes on, whether it is a result of age or experience. There is no doubt that sometimes you want just to admonish your client, "how could you do that?" or "what the hell were you thinking?" "You made your bed, now lie in it!" I remain conscious that some of my clients have put themselves in the situation in which they find themselves by poor decision-making or inappropriate behavior, and I remember that I am simply not responsible for it or its consequences. I get handed my deck of cards and I am not a magician. I cannot change the bad hand that people bring to the table with them.

My "old" friend and former mentor also says, "as long as I have a sense of caring, I know I have not burned out." I too rely on my empathy to keep trudging forward, and try to recall the moments with clients that touched me. I once had a Vietnamese Amerasian client who wasborn in the midst of the war. He was unrecognized by his American father, rejected by his mother, and then abandoned by those who "adopted" him as soon as they had used him to immigrate to the United States under a special program for Amerasians. He explained to me how, as a child, he could not attend school because of the discrimination he faced as a child of the "enemy," and how he wore tattered clothes and owned no shoes. No one loved him, he candidly told me in his heavily accented English. He said that the other kids had their mothers and fathers to hug. He hugged only trees. When I think of such a story, shared with me so trustingly, I know I am where I should be. Perhaps that's my little secret. Read more!

Angel Island: 100 Years Old

As a follow-up to my post, "The Islands:" http://www.contracostatimes.com/news/ci_14241518?nclick_check=1

"The Angel Island station was built after passage of the Chinese Exclusion Act of 1882, a race-based doctrine that limited immigration. While some were welcomed to America, others - typically Asians - found themselves stuck on Angel Island for months, or years in some cases." Read more!

What About Haitians in Detention (Part Two)?

According to U.S. Government figures, up to 200,000 Haitians present in the United States as of January 12th will apply for Temporary Protected Status (TPS). I do not know whether this number includes those who are in detention or not, but I think it remains to be seen exactly what will happen to those who are detained by Immigration and Customs Enforcement (ICE). Today I was asked by someone to explain the concerns I had about detained Haitians. Here are three general issues on this subject which I hope to see addressed favorably by the Government very soon.

First, there needs to be a directive by ICE headquarters to release all detained Haitians who are prima facie eligible for TPS and have not yet been ordered removed from the U.S. by an immigration court. Additionally, immigration courts should administratively close all removal proceedings pending against Haitians who qualify for TPS during the time that they remain in valid status. This is not a novel idea. It was implemented in 1990 when nationals of El Salvador were first granted TPS status. Obvioulsy, if an individual qualifies for TPS she or he has not been convicted of a felony or two misdeamenors, and presumably, poses no danger to the community. On the other hand, it costs the U.S. taxpayer approximately $90 per day to hold an immigrant in detention, and there is no reason to do so if the immigrant is clearly eligible for relief. Once free, these men and women can seek assistance to complete a TPS application from a lawyer or knowledgeable advocacy group who speak their native language. In detention, the language barrier makes it almost impossible to successfully prepare an application. Very recently, I met with two detained Haitian men who are clearly TPS eligible, and through a mix of English and French we were able to muddle through the lengthy form. However, it was far from an ideal situation, and one of the men would have clearly benefitted from communicating in his native Creole. This ensures that there are no misunderstandings and errors made in the process. As well, once free from custody, these men could more easily obtain the money required for the TPS filing fees. And of course, we as taxpayers would save the detention cost, as well as the Government's expense to litigate a deportation case, which is also clearly borne by the taxpayer.

Second, the Department of Homeland Security (DHS) must urge all of its attorneys to agree to reopen the removal cases of Haitians who are prima facie eligible for TPS, but were ordered deported before TPS was implemented. The U.S. announced last week that it would not enforce orders of removal to Haiti. The country simply cannot integrate deportees at this point in time when it is struggling beyond measure to aid its desperate population. At the same time, there is no reason to keep individuals who qualify for TPS in detention under an order if removal for all of the aforementioned reasons. The normal process when there is an order of removal issued and an immigrant becomes eligible for some form of relief, is to make a motion to reopen the removal proceedings to apply for the relief. Given the 90 day statutory time limitation to file a motion to reopen, some Haitians may find that they are time-barred from reopening their case unless, as the law dictates, the Government agrees to the motion to reopen. For this reason, it is critical that DHS attorneys be directed to join in motions to reopen so that the case may then follow the process set forth above.

Third, and perhaps most difficult to address, is how we should deal with those Haitians who do not qualify for TPS on account of criminal convictions, but cannot be removed from the United States even if ordered deported. As stated in my first post on this subject, there are certain procedures currently in place for such situations. I would only add that release from detention should be strongly encouraged as a matter of policy when the individual poses no danger to the community and no flight risk.

Finally, from a humanitarian point of view, a person whose family and/or friends have just perished in one the world's greatest tragedies should not be held in detention. It is not healthy for the psyche, and not conducive to healing. The men with whom I recently met had both lost family in the earthquake. One lost his two year old daughter and her mother. The other lost his father and several siblings, and had stopped eating. The pain and exhaustion of the trauma was visible on their faces. They need their community now more than ever and should be freed so they can mourn among people who care for them and understand their sorrow. Read more!

Filing for TPS: "Buyer Beware"

As the immigrant advocacy community nationwide gears up to help 100,000 to 200,000 Haitians in the United States to apply for Temporary Protected Status (TPS), a concern has arisen that unscrupulous individuals and organizations will crop up, as they often do in similar situations, to meet the unmet demand for help. It is very important, therefore, for Haitians to know who are the reputable attorneys and other legal advocates in their communities whom they should trust in this important filing process. Vulnerable immigrant communities, desperate for legal assistance in times like this, can fall prey to those who offer legal services but are wholly unqualified to give immigration-related information and representation—even just to complete and file forms. The consequences of inaccurate legal assistance can have a serious and lasting effect on one’s future immigration status.

While I cannot begin to list those entities which provide qualified and responsible legal assistance, I can set forth a few guidelines that may help a TPS applicant identify when there may be a problem, such that if that problem is not raised or addressed by the person assisting a Haitian to file for TPS, it may be a warning sign to seek help from someone else.

First and foremost, an eligible applicant has 180 days from January 21, 2010to file a TPS application. Only those Haitians who resided in the U.S. as of January 12, 2010are eligible. Those who arrive after that date are not eligible!

Secondly, not every Haitian is eligible for TPS even if she or he meets the qualifications listed below. A person convicted of a felony or two misdemeanor offenses is not eligible. Additionally, a person with criminal convictions who is not a U.S. citizen may be placed in deportation proceedings if s/he has a criminal conviction. If one has had police contact in the past, it is highly advisable to speak to a reputable and knowledgeable lawyer about this issue before submitting a TPS application.

These are the general requirements for and things to know about filing for Temporary Protected Status for Haitians:

1) TPS is temporary. TPS does not lead to permanent residency and anyone who promises a “green card” as the result of filing TPS should be viewed with caution. If a person is granted TPS, the status will be valid for 18 months. After such time, the U.S. Government must decide whether to extend the status. If so, a new application will be required.

2) TPS allows one to obtain employment authorization and a separate application for a work authorization is required when filing for TPS is required unless you are under 14 or over age 65. The application for TPS is an I-821. The application for a work permit is an I-765. These applications, as well as all of the very good information the U.S. Government has produced about TPS, may be found at the website of U.S. Citizenship and Immigration Services (CIS) at www.uscis.gov. CIS will also be launching a blog exclusively addressing TPS for Haitians.

3) An employment authorization document is generally valid for a specified, limited period of time. After such time, it must be renewed using the I-765 application.

4) There are fees to file for TPS, although fee waivers are available as stated below. The fees are: $50 for the I-821; $80 for biometrics (biometrics are photos and fingerprints taken at a CIS office, but they are only required for those over age 14); and $340 for the I-765. However, you are not required to file for a work permit if you do not want or need one and you are under 14 or over age 65. Two color passport style photos are also required.

5) Fee waivers are available for those unable to pay the fees and can prove financial need. The CIS website offers guidelines about obtaining a fee waiver.

6) You must be a Haitian national or a person without a nationality who last habitually lived in Haiti to qualify for TPS. You will be required to prove your citizenship with a copy of a passport (even if it is expired) or a copy of your birth certificate or your Haitian national ID card. If you do not have these documents, the Government may accept other forms of proof of nationality, but this depends on the document. This matter may be complicated and USCIS has guidance on what documents may be provided available at www.uscis.gov. Also note that, according to the Haitian Consulate in Miami, any child born outside of Haiti to a Haitian mother or father is a Haitian national.

7) You must have continuously resided in the United States as of January 12, 2010 (the date of the earthquake in Port-au-Prince). If you first arrived in the U.S. after that date, you are not eligible for TPS. You will have to prove your residence and continuous presence in the United States with rent receipts, payroll stubs, bank statements, school records, etc.

8) When you are granted TPS, you may be able to obtain a document, called "advance parole," which allows you to leave the U.S. However, before leaving the United States for any reason, you should consult a reputable attorney. The law says that anyone who has lived in the U.S. illegally for six months or more at any time may be barred from returning to the country, even if s/he has special permission to travel, like advance parole, through TPS. Be careful about leaving the country when you have lived in the U.S. out-of-status. The law on this issue is complicated and you should seek a legal consultation before applying for this permission.

9) The TPS application contains many questions which require an applicant to check "yes" or "no." Anyone who answers one of these questions, "yes," should seek a consultation from a reputable lawyer since a "yes" response may raise issues about eligibility for TPS or even one's right to be in the United States.

10) After you file for TPS, you will be sent an appointment notice for your biometrics (See #4 above). Do not miss this appointment. It may be a good idea to bring a translator to this appointment if you do not speak English. Some locations of CIS in the U.S. will have Creole interpreters, but not all. Bring valid photo I.D. to this appointment if possible.

11) You may still apply for other immigration benefits for which you qualify even if you file TPS. Read more!

COMING OUT

“When she was a top student in her Chicago high school French class last year, Reyna Wences tried every excuse to avoid a planned field trip to Quebec. She knew she'd be arrested if she tried.”

This article reflects why we need to pass the DREAM Act, legislation which would allow high school graduates who seek to attend college, and who were brought to the U.S. illegally as small children, to gain permanent residence. For more information, click here. There is even a Facebook campaign in place for this struggle. Join at OBAMA: Pass the DREAM Act by clicking here Read more!

MY MESSAGE TO CONGRESS: Enough of the 1996 law, It's Time for a Change!

"The same law shall apply to the native as to the stranger who sojourns among you." Exodus 12:14

On this weekend when we commemorate the legacy of Martin Luther King, Jr., one of the world's renowned civil rights activists who recognized human dignity and freedom above all else, I wish to send my own powerful message to Congress.

As explained in my earlier posts, "The Myth of the Aggravated Felon" and "The Price of Justice," immigration law became wholly unforgiving in 1996. At that time Congress passed an extraordinarily mean-spirited law affecting people who had legally immigrated to the United States and established their lives here. It is now time for Congress to roll back immigration law and (re)enact the pre-1996 provisions pertaining to lawful permanent residents ( also known as "green card holders") before more lives are unjustly ripped apart.

Under the current law, a host of crimes, including misdemeanors and non-violent offenses, are deemed "aggravated felonies." Congress decreed that permanent residents who were convicted of these so-called aggravated felonies were ineligible to present a case before an immigration judge setting forth all of the favorable circumstances in their lives in an attempt to avoid deportation. That is, a judge is stripped of the authority to balance an immigrant's equities against their criminal acts and any other negative factors to determine whether, in spite of the criminal conviction(s), the permanent resident should be given a second chance to remain in the United States. I have been a repeated witness to the cruel consequences this law has had over its lifespan of fourteen years. It has split families, left children without a parent, forced mothers and their children onto welfare, and sent men and women back to countries which they left, and in some cases fled, decades ago.

While our country should indeed address the status of some 12 million hard-working undocumented immigrants who have made this country their home following their dream of a better life, we must absolutely address the pain we have wrought upon permanent residents whom we already invited to live and work in our country and to grow deep roots in this land. I sincerely hope that the "throw-away" mentality that permeates many aspects of American culture has not gone so far as to include human beings. We should be willing to forgive those who have made mistakes, even serious ones, when they can establish compensating circumstances. And, of course, we should give them back their day in court, a fundamental democratic principle. It is clear that the impact of the 1996 law mirrors broader, and quite problematic, trends in the United States as manifested by the mass incarceration and punishment of those who violate drug laws, as opposed to any attempts at successful rehabilitation; by the strikingly disproportionate imprisonment of people of color; and by the continuous promotion of a greedy prison industrial complex which places profits above all. I am reminded of the statement made by Fyodor Dostoyevsky: "The degree of civilization in a society can be judged by entering its prisons." (from The House of the Dead).


Prior to 1996, only the most serious of crimes were aggravated felonies under immigration law. Generally, in order to constitute an aggravated felon, one's offense had to carry a sentence of imprisonment of five years. All other permanent residents would have available a hearing to prove they deserved to stay in the U.S., and judges had the discretion to grant a waiver of deportation if the crime was found to be outweighed by family ties, a long period of residency in this country, a steady employment history, rehabilitation and remorse for their wrongdoing, and other favorable conditions. So decisions about whether one should be deported were left in the able hands of immigration judges who heard testimony and considered evidence on all of these equities. A judge could consider the overall effect of deporting the individual to determine whether s/he merited another chance. Plenty of people were deported under this former scheme, but the deserving stayed and rebuilt their lives. Then Congress intervened, believing it knew better, and struck that power from the judges. Since then, I have sat with grown men and watched them break down when they learn this aspect of our law. They are truly stunned when
I tell them that they will be deported without the chance to present a defense.

At the detention center not too long ago, I represented a fortyish year old Laotian man who came to the United States as a twelve year old refugee, after spending five years of his young life in a refugee camp in Thailand. He was ordered deported as an aggravated felon. His aggravated felony offense? In 1987, he had forged his brother’s signature on a check and was sentenced to one year of imprisonment, though he actually served less. He was helping a crack-addicted girlfriend get money for a fix. Under the law, a crime of theft with a one-year sentenced imposed, whether or not it is actually served, is an aggravated felony. So one night, while he was home having dinner with his family, the man was picked up by agents for the Department of Homeland Security, ten years after he'd been released from jail for the forgery. He was ordered deported to Laos, a country from which he and his entire family had fled 33 years earlier. His brother forgave him for the offense when my client paid him back the money he'd stolen. However, the U.S. never did.

Here are more examples of people whose stories will never be heard because they are "aggravated felons":

A Ghanaian man I met recently came to the United States in 2000 with his parents and siblings after they'd won the "green card lottery." Shortly after he immigrated he enlisted in the U.S. Army and was sent to Iraq. According to his DD-214 papers, he was honorably discharged from the military after his five years of service. He was then convicted of selling a drug. The sale of any quantity of any drug at any time is an aggravated felony under Congress's draconian law. He will return to Ghana if he has not already. No one will hear about the trauma of war and how it might lead someone to use drugs to still his nerves. Yet, how much more American can one be? This young man was prepared to sacrifice his life for his adopted homeland. I've known the same to happen to Gulf War veterans, as well as those who were drafted in the U.S. war in Vietnam. In one case, a client of mine had immigrated in 1958, and was a grandfather as well as a veteran. Not surprisingly, his experiences in Vietnam led him to a heroin addiction, which later resulted in a drug sale to support the habit. In fact the problem seems all too common according to sources:
Here and Here and Here

In a "Know Your Rights" session conducted in Spanish at the detention facility, one of the men looked at me quizzically as I spoke to the assembled group. He was born in Central America but could not understand Spanish since he had immigrated to the U.S. as a child and never returned to the country of his nationality. He was now the young father of a disabled boy and a little girl, and was desperately trying to patch his life up. Foolishly, he had sold $200 worth of ecstasy. Coincidentally, in the same group there was a Dominican citizen who had immigrated with his entire family in the 1960's at the age of four, much like me. He was an aggravated felon based upon an offense for which he had been convicted a decade earlier. The Government alleged that it was a violent crime for which he had received a one year sentence, but the criminal system had released him after eight months. He admitted to me that he had developed an alcohol addiction after the death of his beloved father, which had led him into trouble, although he had managed to overcome it.

In the years immediately after passage of the unforgiving 1996 immigration law, I attempted to help a woman with a relatively troubled past involving drug abuse and the sad incidents that plague those who are addicts. She had arrived in the U.S. from Europe as a three-year-old with her mother. She had never known her father. She was deported as an aggravated felon. Upon arrival at the airport in her native country, where the former Immigration and Naturalization service officers left her after accompanying her on the journey back, she had no idea what to do. She lived in the airport for a few days and then decided to contact her estranged father. He came to meet her, but explained that so many years had passed and he had moved on with his life. There was no room anymore for a daughter he hadn't known or seen in over thirty years. He handed her a few hundred dollars and left. But for the Grace of God go I...

EPILOGUE
"And why did they not become U.S. citizens?" I am often asked, "then they would not have been deportable." "Because," I answer, "many felt like citizens already." I sympathize because I know this personally. I immigrated when I was three years old and remained a permanent resident until the age of 22 when I enrolled in law school. I knew that legally I was not a citizen because I kept a "green card" in my wallet which I had to produce whenever I traveled abroad. But I felt like an American; I spoke English as well as any American, and knew this country's history and culture intimately. So why was a piece of paper proving my citizenship necessary?

It is also important to note that the cost of filing for naturalization is also prohibitive for many low income and working class people. The current fee to file a citizenship application is $595. plus the $80. cost for the required biometrics. Add to that the price of two passport photos, which are also required, and you might realize why immigrants do not consider naturalization a priority. Read more!

HAITI

- By Sami Hanna

To see the smell of death
dashing through the gates of broken eyes.
Where did the wave of the great tremor
send the remains of my last sighs
before it ripped the disk of the land astray?
They rose carrying a glimpse of soft decay
they came knocking at the wall of the eternal dusk.
With a few droplets of salt
they lifted the sea from beneath its bed
to let it breathe the blast of sleep.
The tree that I grew up memorizing
raced away with my stolen arm.
The tea kettle awaits the dwellers of invisibility
the empty water glass lusts after tired lips
the unfinished cigarette suffocates and dries.
To have witnessed flowers’ end.
The poor march along the hymn
of the red path of sorrow
they pluck a child from its orbit
and fling it against the sun.
I live with my dead neighbor
just down the road from my truncated mother
and we spent the night of howls
remembering the slope
where we both meandered
before the moon fell below its knees.
To have witnessed flowers’ end.
Lives drop behind my ears like a wintery sky
they pass the barrier of shatter with a thud
they collect their little veins in capped shrieks
until the night draws nearer to the edge.
I saw the muscle that twitched in grey soil
I heard the cells that drank the sea.
How deep is the bottom?
Is it deeper than a cry?
Is it shallower than the leveled earth?
Close that lid of wires and let me
blow away my fingertips
so I can pinch that lonely flower
out of its fear, into its ashes. Read more!

And what about Haitians in Immigration Detention?

US halts deportations to Haiti, illegal immigrants will remain in detention centers

Upon learning the news yesterday that the U.S. would not execute deportation orders to Haiti in the aftermath of Tuesday's devastating earthquake and the ensuing chaos, I wondered what might happen to those Haitians who are detained by the U.S. immigration authorities and already have been ordered removed. I wondered whether they would be entitled to "post-order custody review" and eligible for release from detention.

Under the law, the United States has 90 days to execute a final order of removal. This means that when immigration authorities are unable to deport a detained immigrant who has been ordered removed by a court, the immigrant is entitled to request release from custody after 90 days if s/he has not be returned to the native country. However, release is not mandatory, and requires that the detainee prove s/he is not a flight risk or danger to the community. This is called a "post-order custody review" and the decision to release or not release is made exclusively by Immigration and Customs Enforcement (ICE) officials.

The reasons why the U.S. Government may not be able to deport an immigrant who has been ordered removed may vary. Sometimes it is due to the immigrant's stateless status, or because of the lack of diplomatic relations between the U.S. and the home country. It may also occur on account of the native country's lack of cooperation in issuing the required travel document. Obviously, in the case of Haiti, it is because it is impossible to effectuate a deportation under the current tragic circumstances.

Clearly then, it would be unjustified for ICE to keep Haitians languishing in detention when they cannot be deported for reasons clearly beyond their control. While it remains to be seen exactly what will happen, the attached news article, citing a Department of Homeland Security spokesperson, states that detained Haitians will remain in ICE custody. This is troubling news.

On the other hand, Florida Representative Kendrick Meek is quoted in the article suggesting that the issuance of Temporary Protected Status (TPS) for Haitian citizens in the U.S. is imminent. This would be very welcome news. (For a discussion on TPS, and what it is, see article below, "Ede Ayiti"). Not only would TPS halt deporations to Haiti for both those who are detained and those who are not, but it would allow detained Haitians to seek immediate release from immigration custody if they indeed qualify for the benefit.

Read more!

Edwidge Danticat

The Haitian-American writer, Edwidge Danticat, whose work I recommend and cite in the post below, appeared on Democracy Now! this morning to speak about the disaster in her native country. See, Democracy Now here. Read more!

"Ede Ayiti!"

By now the world has learned of the devastating 7.0 magnitude earthquake in Haiti and its wicked toll on the lives of thousands. It is the strongest earthquake in more than 200 years according to the Associated Press, and Port-au-Prince is described as "total disaster and chaos." Haiti is a land of brave men and women who have endured extreme political violence and natural disasters throughout their history. Only five years ago, the nation suffered the impact of Tropical Storm Jeanne, which caused massive flooding and killed over 3000 people. While Haiti was the first of the European colonies in America to proudly obtain its independence on January 1, 1804, and the first republic established by former black African slaves, it is today the poorest nation in the Western Hemisphere.

Note: The title to this post is "Help Haiti" in Creole. I chose the title because there is a beautiful work, designed in 1937 for a French anti-Fascist pamphlet by the Catalan artist Joan Miro, called "Aidez Espagne." The piece is a call, in French, to help the Spanish Republic during Spain's brutal civil war. Beneath the image, it is handwritten, "...immense creative resources will provide Spain a burst that will astonish the world." A postcard of Miro's "Aidez Espagne" has hung on my wall for many, many years.

In the U.S. there are large Haitian communities in New York, Miami, Boston, Chicago, and Philadelphia. A 1998 law allowed qualifying Haitians to obtain a "green card" if they had applied for asylum and been present in the United States as of December 31, 1995. During the lifespan of that legal provision, approximately 15,500 gained permanent residence. However, with the exception of the aforementioned law, Haitian migrants to this country have not fared well, especially compared to their Cuban neighbors.

Regularly, Haitians attempt to make the dangerous voyage to Miami on rickety boats which are intercepted by the Coast Guard and immigration authorities. In September 1981, the Reagan administration entered an agreement with Haiti to interdict Haitian boats and return prospective immigrants to their homeland. Those who make it to our shores, like other migrants, have very limited means to gain legal residence and must live underground. Many apply for asylum in an attempt to gain protection from return to Haiti because of past persecution or a well-founded fear of future persecution, though only 17% were granted asylum between 2001-2006 (by comparison China and Colombia also have high asylum application rates, yet 50% of Chinese are granted asylum and 34% of Colombians. Some Haitians come to the U.S. with special temporary visas to cut cane in Florida's sugar industry, or pick crops in other parts of the country.

In contrast, Cubans who set foot on U.S. soil are permitted to enter the country, obtain a work permit, and may apply for permanent residence one year later, regardless of whether they have a genuine fear of persecution in Cuba. Even the attempt by Haitians to obtain "temporary protected status" (TPS) in the past has been met with resistance by the U.S. Government. TPS is a measure which allows citizens of designated countries to remain in the U.S. for a limited time while their nation suffers the severe consequences of a natural disaster, widespread political turmoil or war. Over the decades Somalia, Liberia, El Salvador, Honduras, Nicaragua and Sudan, for example, have been designated for TPS status and their nationals protected from deportation and granted employment authorization during their stay.

Despite the repeated political and environmental disasters in Haiti, Haitians have never enjoyed this benefit. The Government generally cites the fear of a mass exodus of Haitians as the ground for denying TPS to them. In a troubling precedential decision issued in 2003 by former U.S. Attorney General Ashcroft, Haitians were deemed a "national security threat" in order to justify their detention in the U.S. when arrested by U.S. immigration officials. The Attorney General went so far as to reason that the allegedly massive migration of Haitians by sea diverted required resources necessary to combat terrorism.

In light of the devastation and human suffering caused by Tuesday's earthquake in Haiti, I turn to my friend Nicole Lee, currently on maternity leave as the President of TransAfrica Forum in Washington, DC. Nicole lived and worked in Haiti for several years. What can we do to help Haitians? Nicole posted this message on her Facebook page yesterday: "Call your Senator and Representative and demand that the U.S. send emergency personnel, equipment and aid immediately. Also, tell them to grant Haitians Temporary Protected Status. Support charities doing proven sustainable work like Partners in Health,
(For updated information on Haiti, click here) Read more!

Now the fruit is rotting on the tree

The recent attack on African farmworkers in southern Italy simply breaks my heart. There's no other way to put it, especially when Reuters reported on January 10, 2010 that the incident is reminiscent of 1960's Ku Klux Klan attacks against black citizens in the United States, and the anti-Berlusconi press in Italy is running headlines declaring that the migrants' wholesale expulsion from Rosarno, the Calabrian town where the attacks occurred, was tantamount to "ethnic cleansing."

The BBC indicates that the migrants, mostly from Ghana and Nigeria, were fruit pickers who camped in abandoned factories and other decrepit buildings without utilities and were paid only about $30 per day. This recalls Edward R. Murrow's brilliant work, "Harvest of Shame," exposing the abhorrent conditions under which African-American migrant laborers worked in this country in the 1950's, and also the desperate characters from "The Grapes of Wrath." Despite toiling in the most miserable of circumstances, the workers in Italy were deemed a threat by the residents of Rosarno, and thus were violently attacked. What could those residents have been so desperately afraid of I must ask, albeit rather rhetorically.


Clearly, people are afraid of those who are not like them. It is the definition of xenophobia and this offensive fear exists throughout the world. What happened in Italy is not unique to the Italian character. The French, plagued by turbulent riots in their immigrant-dominated "banlieus" (working class suburbs inhabited primarily by ethnic and racial minorities), and their controversial laws prohibiting the display of religious symbols, such as wearing yarmulkes and hijab, have received international attention and condemnation. And Spain, formerly a poor, emigrant nation like Italy, has struggled with anti-immigrant sentiment, and has engaged in an aggressive practice of intercepting the arrival to its shores of boats of migrants from Africa. Similarly, in November 2009, the Swiss voted to ban future construction of minarets on mosques in their country, an act which offended Muslims far beyond the borders of Switzerland. As well, European nations are adopting the American model of detaining people found unlawfully present inside their borders regardless of whether or not they present a danger to society. (See, http://www.globaldetentionproject.org/home.html). Nonetheless, an Italian friend finds the incident in his homeland shameful, and compares it to the treatment of Jews in Italy a generation or two earlier. He is undoubtedly, and thankfully, not alone in this assessment.

To their credit, both the Pope and the U.S. Catholic Church have expressed sympathy toward victimized migrants. On January 11th, The Guardian of London on reported that "In his traditional Sunday sermon to the crowd in St. Peter's square yesterday, the pope said: 'Immigrants are human beings, different in culture and traditions, but nevertheless to be respected. Violence ought never to be the way for anyone to resolve the difficulties.'" It reminds me a bit of the slogan often used in pro-immigrant rallies here, "no person is illegal." Indeed, it is noteworthy that Italians themselves, upon their immigration to the United States at the turn of the century, were viewed with disdain by the white Anglo-Saxon Protestants who held power in this country. They were but dirty Southern Europeans who were less intelligent than their Northern peers, and most immigrants at that time, coincidentally, were Calabrian and Sicilian. So now the discriminated against have become the oppressors. Power corrupts.

The Guardian further revealed that a growers' association leader from the region stated that Italians do not want to do such farm work, and with the evacuation of the migrants, 800 kilograms of citrus fruit remains rotting on the tree. My Italian friend confirms that a relative, who is an employment specialist in that country, finds that while Italians complain about the foreign-born invading their country, no Italians respond to announcements for jobs in farm labor, and Romanian and Albanian women have become the primary caretakers of the elderly and infirm.This rings quite familiar. In the U.S., Mexicans and Central Americans take on the tedious and dangerous work on our acres and acres of farmland, and Caribbean women in cities like New York care for our parents and children. The issues of integration and tolerance have become commonplace discussion in the U.S., and we are now engaged in a national debate on immigration reform. Is there a lesson here we might share with our European brethren?

NOTE: For an excellent view of the racial and ethnic tensions in France's poverty-stricken neighborhoods, I recommend two films available on DVD: La Haine (Hate)(1995) and The Class (PG-13, 2008). The former is filled with offensive language and troubling scenes. It should not be watched by children or sensitive adults. For a peek at immigrants in Italy, watch Rahil's Secret (2006). Read more!

BOOKS TO READ IN 2010 (and one DVD)

I've compiled this short list of books about migration which have impressed me because they quite pointedly address migration's very human dimensions. They are not new, but are very compelling and worth reading if you have an interest in this subject.

Luis Alberto Urrea, The Devil's Highway (2004) is the painful yet enlightening story of 26 Mexican men who slowly died of heat while attempting to cross into the U.S. after their smuggler abandoned them to the fierce elements of the scorching Arizona desert. While the book is written as a documentary account of a true event that occured in May 2001, its author is also a talented novelist, and thus the work is thoroughly descriptive and quite emotional. This story presents a critically important point of view in the debate about immigration from Mexico.

Dave Eggers, What is the What: the Autobiography of Valentino Achak Deng (2006) is a "best-selling" and harrowing account of the life of one of Southern Sudan's "Lost Boys" and his journey from Sudan to Kenya, and ultimately as a refugee to the U.S.

I have represented a couple of "Lost Boys" who were unfortunately convicted of crimes after their admission to this country as refugees. It is clear to me that the criminal behavior in those matters was directly attributable to the men's previous exposure to incomprehensible brutality, and obviously, they are not alone. For many of the refugees who seek peace and stability in the U.S., there are personally destructive consequences which may result from their past sufferings. I wish more could be done to assist psychologically traumatized individuals who arrive to this country. We have a moral obligation to address the mental turmoil caused by war, barbaric violence, and any past persecution refugees have endured so that they may all lead more emotionally healthy lives. It is in the best interest of our society as a whole to do so since, as we already know, scarred souls may turn to alcohol, drugs and violence to assuage their lingering pain, and this will ultimately cost us all.

Edwidge Danticat, Brother, I'm Dying (2007) is by a wonderfully gifted writer of Haitian descent whose body of work offers a marvelous look at long-suffering, but proud Haiti and her people, culture and history. The title reflects the author's beloved uncle's last words to an immigration officer when he was apprehended and detained while legally entering the U.S. The book details the uncle's remarkable life in his native country and how he came to land in Miami on that fateful day. It is an important contribution to the current discussion about detention standards in the U.S. and the deaths of over one hundred migrants in the past few years while held in the custody of the U.S. Government. See, http://www.nytimes.com/2010/01/10/us/10detain.html?pagewanted=1&hp

Of course, anyone who has never read the Grapes of Wrath by John Steinbeck should do so. This American classic defines migration and the overwhelming poverty and desperation which universally leads to it and will continue to do so as long as the world remains a place of marked differences between the obscenely rich and abject poor.

Finally, the way in which the aforementioned books affected me, the striking film Sin Nombre (R, 2009) equally impressed me. Here is a description of the film from Netflix:
"Fleeing retaliation from the violent Central American street gang he has deserted, young hood Casper boards a northbound train, where he takes refuge on top of the moving freight cars and hopes for a fresh start in a new country. Dodging authorities and other dangers, he finds a new friend in Sayra, a Honduran girl also making a run for the American border. Cary Fukunaga directs this exciting thriller."

The film, in Spanish with English subtitles, depicts a growing debate in immigration law about whether former gang members, fleeing the life-threatening consequences of abandoning or betraying their gang, should be offered asylum protection in the United States. The touching film is violent and disturbing at times, but such a story cannot be accurately told without these components. Read more!

Tackling Arabic in Cyberspace

Laying on my desk is a bold yellow and black copy of "Arabic for Dummies," a dependable book touted as a "fun and easy way to start speaking Arabic." I've marked up many of the first few pages with various comments designed to help me better understand the lesson of each chapter. After one month, I'm only on chapter three, but I'm in no hurry. I knew this wouldn't be an easy endeavor. I initially thought I'd try and learn the language the way I'd heard my Spanish-speaking clients tell me they'd learned English-- on the job-- and started out googling a number of basic Arabic websites for simple language instruction. It started out well enough as I learned greetings and expressions that I repeated to the Arabic-speaking men at the immigration detention center where I give "know your rights" presentations. They were receptive to my attempts to speak their language. Inevitably, I'd solicit a sincere smile, maybe a chuckle, and oftentimes a response I could not understand. In turn, they might try to teach me a word or two, or correct my pronunciation. With one, I'd briefly exchanged English words for Arabic words, so that we might both increase our newly acquired foreign vocabularies. I was satisfied that I'd created a degree of connection, and it served as an inspiration to keep moving forward, though at times I felt like I was climbing a thick stone wall and would never reach the other side.


I'd decided to tackle the study of Arabic to create a rapport with clients, especially during the uncertain times for Arabs. Along the way I have wondered whether it made any sense to undertake such a complicated language. I will doubtfully never speak and understand it well enough to fully overcome the language gap, and I was raised speaking English, Spanish and French effortlessly, so it would have been more logical to learn another romance language instead of one that required knowledge of a new alphabet and sounds I have never before made. But I guess with language, logic plays a smaller role than the basic, intimate desire to learn. So I stopped worrying about what made sense.

The "Dummies" book alone could never have gotten me through this particular trial. Luckily, I also have the benefit of a dedicated tutor, and most of my language instruction takes place via the internet. Call it cyber-immersion. So in addition to correcting my grammar and teaching me words, phrases, and sentences which I can dissect to discern nouns and verbs, my tutor, with his broad vision of language learning, sends me to all sorts of websites about the Middle East and the Arab world. These cultural navigations are varied and vibrant. I have read at length about the volatile politics of this newsworthy region, have discovered blogs and short stories describing an array of experiences had by Americans who have lived there, have listened to funky, remixed "debke," and 15th century Andalusian music, have seen exquisite photographs of the land, and have enthusiastically downloaded recipes for baba ghanoush, stuffed grape leaves and baqlawa, all of which I’ve made with varying degrees of success.

Films too are part of the lesson plan, and they serve especially well for learning obscenities and cultural subtleties. I have at least a half dozen Arab-language movies in my Netflix queue. I am exposed to a fantastic brew of facts, ideas, opinions, debates, sounds and visual images to challenge my language education or simply lift me from the tedium of day-to-day grammar lessons. I can wrap my imagination around a beachfront house on the Eastern Mediterranean coast with a small yard full of trees bearing ripe figs, a red poppy blooming on a damp, verdant mountainside, a Crusader fortress or other magnificent structure crumbling ever so slowly in the brittle desert sand, or an enchanting souk filled with vivid colors, musky smells, and impatient Arabic voices steadily rising in the charged air. I must reach deep to summon these images given my inexperience with the subject matter, but when I do, they engulf me, at least for a while, until reality seeps back in to muddy the landscape and halts my lesson for the time being.

My tutor is a serious, albeit charming, teacher, and this is a good quality in a tutor, since language instruction is a serious business. He has developed another unconventional teaching theory which is quite student-friendly. He calls it "the monodose approach to holistic language learning." Go out for a few beers in order to lower all four language skill inhibitions: reading, speaking, listening and writing. Unfortunately, I found that I am not a good learner of anything when under the influence, though I am certainly not opposed to this creative learning opportunity. More recently, I have thought that I might visit the Middle East. Were this to happen, it would undoubtedly complete the language immersion cycle. I would be forced to use my skills to communicate with people in their environment and not mine, even after a few too many drinks.

I met my tutor when he volunteered to act as a translator when I needed to communicate with a client who was detained for removal. From this brief engagement, an unconventional commitment to the Arabic language developed between us, and he became my personal tutor, free-of-charge no less. He is earnest and dedicated to his profession having taught English to Arab speakers in his native country before coming to the U.S. with a prestigious fellowship to earn his doctorate. He provides thoughtful responses to the multitude of inquiries I have related to the language, its culture, politics and people. I am admittedly intrigued by his resonant voice and British-tinged English, and enjoy those occasions when we do meet face-to-face over drinks allegedly for language practice. These meetings add a unique beat to the usual rhythm of my cyber-education, and are a pleasurable distraction from the relatively dry "Dummies" book I pore over regularly to learn the grammatical rules of this enigmatic language.

Whenever I receive an email from my tutor, I know I’m in for an entertaining lesson. I once found "de-arabizing falafel" on the subject line of one such email. Attached was a link to an article about the wholesale Israeli acquisition of falafel, as though Arabs had played no role in the creation of this ancient national dish. Obviously, this article was a metaphor for a greater conflict in the Middle East. Other emails have been entitled "sun and moon letters," regarding the challenges presented by certain letters in the Arabic alphabet; "fertility," addressing Palestinian and Israeli reproductive practices and their broader political implications; and "virtue soup for president," a report on the problems of transliteration during an American electoral campaign. Fortunately, literature is not absent from my instruction since I am an avid reader. Not only have I discovered humorous memoirs by Arab-American writers that expose the nuances of bicultural life in the U.S., but I have added a list of new authors to my already overflowing library: Nawal Saadawi, Sahar Khalifi, Fatema Mernissi. Their names alone require practice by my fossilized tongue.

During a vacation I took to New York City, my tutor coached me so that I could communicate my food order in Arabic to two Egyptian halal cart vendors, Mohammed and Mahmoud. Charmed by my limited Arabic, the halal vendors insisted on teaching me a few words, after announcing proudly that "Arab men verrrry good!" "Oh," I cautiously answered since it was clear that they weren't affirming Arab men's pedagogical abilities, but their prowess in seduction, and I didn't want the conversation to head down that road. They then smiled knowingly at one another, and bantered about in their native language while I strained my ears in a fruitless attempt to understand what they might be devising. "We teach you Arabic," one then repeated to me, while the other nodded vigorously. I hesitated to learn from anyone other than my reliable tutor, and half jokingly had the men assure me that they were not going to teach me dirty words that I might unsuspectingly repeat. Immediately they responded, "no, no, no. Good words--sabah al-nour wal bannour." Turns out that what the vendors taught me was the lovely greeting, "morning of goodwill and flowers." And, of course, the word for "my love," "habeebti."

It was also then, because I had to order food, that I learned the word for eggplant, "al-bazinjan," a word with an apparently ominous meaning in some circles. In a news article I read about the trial of alleged terrorist Jose Padilla, I was informed that this particular term had circulated among the plotters' emails as a code word for "ammunition." It made me wonder whether the innocent emails my tutor and I sent back and forth almost daily in my quest to learn Arabic might not land on some overzealous counterterrorist specialist’s desk, subject to the scrutiny of several domestic intelligence experts in an attempt to de-code any subversive language. The idea that our emails might be intercepted may seem like absurd paranoia in a country that prides itself on freedom of expression, but times are tense and people suspicious. My tutor once told me about an Arab man escorted off a plane because he held in his hand a piece of paper with Arabic text written on it. An anxious passenger sitting next to him tipped off the flight attendant as to her concern. Apparently, it was nothing more than a shopping list, probably scribbled by his wife that morning: "honey, pick up these things on your way home from the airport... diapers, milk, toothpaste, bread..." With this troubling story in the back of my head, I advised my tutor of my concern about eggplant and he immediately suggested that from then on we only use the French word, "aubergine," to detract any pursuit by law enforcement. Needless to say, this advice came to me via the internet in Arabic. Similarly, we are careful never to write via cyberspace about my tutor's parish priest back home, Father Jihad-- yes, Jihad.

My tutor is very thorough in his teaching, even if his pupil is ill-prepared for her lessons. If I once knew what a fricative and a glottal were, I have long forgotten, and this may pose an unfortunate impediment to my acquisition of the Arabic language, since Arabic seems to be full of such sounds. I have been instructed that a certain sound "is given the symbol ħ in the IPA chart, which corresponds to the Arabic letter ﺡ, and that this is a "voiceless pharyngeal fricative." The other one, ﻫ, is symbolized by the H, and is a "voiceless glottal fricative." Same as the previous one, but the tongue is even more neutralized, and similarly, the air comes out of the lungs directly...." I am uncertain what to make of this precise explanation. I am neither familiar with the IPA chart or human vocal cord anatomy. I do recall in first grade learning to read and write in a novel system called "ITA," which was phonetically based such that "people" was written "peepl," but I think the method was quickly abandoned because I have never, ever since met anyone who remembers teaching or learning it. In any case, ITA did not properly prepare me for IPA so I am forced to rely on the simpler explanation in my "Dummies" book on how to make this certain sound. It instructs me to "breathe heavily through the esophagus and then intermittently choke off the airflow so that you create a staccato noise." I am still at a loss. This may be layman’s terminology, but it requires a contortionist vocal ability and perhaps a knowledge of CPR in case I choke off my airflow too aggressively.

Sometimes during my lessons, the world closes in on me and becomes more personal than I would have ever thought. Early on during my Arabic cyber-immersion, I discovered that a maternal great uncle of mine had served in the French military at the time of the First World War and had gone to Syria to defend France's colonialist claim in the region in light of mounting revolt by the indigenous population. As well, I learned that a fiercely pro-Arab French writer, whose framed black and white photo hung for several years on my mother's study wall, prompting me as a child to think he was her ex-boyfriend, not the subject of her doctoral thesis, was in fact the author of a powerful and haunting testimonial of the massacre at Shatila, a Palestinian refugee camp, 25 years earlier. So history becomes deeply personal and not just about grand events and dead men, and language gives us access to much more than just other people. Read more!

A Detention Center Mea Culpa

"The U.S. government is imposing greater restrictions than are necessary on most aliens detained for immigration violations, according to a charge made by — surprisingly enough — the U.S. government." Read more: http://www.texastribune.org/stories/2010/jan/06/ices-self-examination/#ixzz0c3JrbzUW Read more!

The Myth of the Aggravated Felon

When I look at the small photo on his visa face sheet, the document created by a U.S. consulate when it has granted someone a visa to enter the country as a permanent resident, I see only innocence and lots of hope. Even if the document is just an imperfect, black and white copy, I notice the broad grin, deep brown eyes, and the large, goofy ears of the six year old who is now a grown man sitting beside me in the attorney visitation room of the detention center. I also cannot help but think about his mother. Back then, when Henry was only seven years old, she and her children were about to start their lives over in a country not too far from the patient and fertile shores of their native Jamaica; a prosperous country filled with much more promise for them. I know she would have never guessed then that, almost thirty years later, her son would face banishment from their adopted land for having once sold a rock of crack. She wanted for her sweet boy what all mothers want for their children--a stable and accomplished life.


In the U.S., soft-spoken Henry was raised in a fairly quiet town a hundred miles or so from the chaos of New York City, where other relatives of his had settled. It is not a place where one might have expected to find Jamaican immigrants, but it provided the family with a degree of sanity and comfort they could not have found in New York. Henry graduated from high school and attended vocational school, hoping to become a carpenter. At 19, his girlfriend gave birth to their first daughter. The baby and her mother lived in a nearby town. Though he was not yet ready for marriage, Henry visited as often as possible and provided as best as he could for his little girl. He tried to spend every Saturday or Sunday with her when he was off from work.
In the years that followed, Henry had a couple of minor brushes with the law—a petty larceny charge that was dismissed and a two assault convictions for which he spent no time in jail. He finished his probation for the second assault in three years, and thought he’d left trouble behind him for good. Soon, a second daughter was unexpectedly born, yet Henry was equally committed to her as he was to his first child. He took fatherhood seriously for a young man raised without his own dad.

Henry was close to his mother and had never really known his father, an altogether too common experience these days, especially for men in jail. Henry’s mother had worked as a nurse’s aide in a local senior home for over two decades. She worked long, tiring hours at miserable wages to support her three children by caring for the aged and frail parents of others. Still, she did as much as she could for her kids to instill in them strong values and ensure they would thrive in the world. First and foremost she insisted that they attend church and school. She also proudly clung to her Jamaican roots, though she traveled back only once when her own mother passed away. Time and money were always too short for vacations. Henry spoke to me lovingly about his mother, and in particular, about her traditional cooking. He’d rattle off the dishes she made with a greedy smile on his face: oxtail stew, curried goat, jerk chicken, fried dumplings, red peas and rice. He now wished she had taught him how to cook, but he’d been too "macho," and always too distracted to learn.

Henry was also grateful for the effort his mother had made to keep her children out of harm’s way. He remembered how she would wait outside their apartment building as the sun set with her hands on her hips, until all three of her children were safely inside. He had a friend in Brooklyn whose drug-dealing father had been gunned down before his eyes when the boy was only ten years old. Henry knew that life in "The City" would have posed much more of a challenge for him. There, mothers worked two or three jobs to make ends meet and had little time to keep an eye out for their kids, even if they’d wanted to. Even in the town where he grew up, though, in what seemed like idyllic America, Henry had his share of problems, and he began to challenge his mother’s strictness as soon as he got old and bold enough.
After the upheaval of three convictions, Henry seemed ready to settle down. He married the woman with whom he’d been living for the previous four years, and together they bought a "fixer-upper" at auction. He opened a small clothing store, and worked a part-time job to make ends meet. He saw his daughters as often as he could, and sent them money regularly. Henry’s youngest sister, who was studying engineering at a local university, found her brother inspiring. He pushed her to do her best. Henry’s eldest sister called him a good, solid father and a generous man.

And then, no one can really recall when exactly, Henry was lured by crack. Like many, he had tried drugs in the past from time to time, but this time, they slowly overwhelmed him. They took his mind off his troubles, especially when the bills were too much and his girlfriend and he argued over money, or when he missed his little girls and felt he wasn’t doing enough for them. He got in deeper as much as he tried to resist. He spent more and more of his income on the festering addiction, and unfortunately, spent more time hanging out with other users. His girlfriend often threatened to leave him.
One day, on his way home from work, Henry picked up a guy he’d met at a party a couple weeks earlier. He thinks the man’s name was Mike, but it could have been Marty. The guy was on a street corner smoking a cigarette, and when he recognized the car at a traffic light, he waved for Henry to stop. Henry gave him a ride to someone’s house in a corner of town to which he rarely ventured. Henry had never been to the place before and didn’t know who lived there or what Mike’s business was. He probably should have asked some questions because when he pulled over the car, the police were right behind him. They ordered the two men out of the car, searched it and found six grams of crack, a pipe and several hundred dollars in his passenger’s backpack.

Upon the advice of his defense attorney, Henry pleaded guilty to possession with intent to sell cocaine and was sentenced to a three year term of imprisonment. Luckily, he was eligible for SHOCK, a prison program which operates like a military boot camp, with the aim of rehabilitating non-violent offenders, mostly those convicted of minor drug crimes. According to the U.S. Department of Justice, the programs seeks to foster involvement, self direction, and individual responsibility though a regimen that involves strict, military-style discipline, unquestioning obedience to orders, and highly structured days filled with drill and hard work. I can always easily tell when one of my client’s has been incarcerated in SHOCK. They respond to my questions with either a "ma’am, yes, ma’am" or a "ma’am, no, ma’am." Certainly, Henry reasoned, the fact that the criminal court system had deemed him a candidate for SHOCK indicated that he wasn’t an evil person—the law recognized he’d made a mistake, but was not forever enmeshed in a life of crime from which he could never escape. What he really needed was help with his drug habit.

Unfortunately, immigration law is not the least bit forgiving, thanks to Congress’ "reforms" in 1996. Apparently fed up with crime and illegal immigration, Congress targeted permanent residents who had been convicted of crimes, and overhauled various provisions of the law that affected them. Most notably, it expanded the definition of which crimes to include in the category of "aggravated felonies," and then provided that those who had been convicted of these so-called crimes would no longer be eligible for a special waiver from deportation no matter how long they’d lived in the U.S. legally. What people often do not realize is that an "aggravated felony" can include a misdemeanor or other minor offense.

Since Henry had never applied to become a U.S. citizen, he was deportable for his drug conviction despite the years he’d lived here with a "green card" and the roots he had firmly planted. Even worse, as one convicted of an offense related to the sale of a drug, he was an aggravated felon, and Henry lost the right to tell an immigration judge about his strong ties to the United States, his loving family members, his past accomplishments, and his sincere effort at overcoming his addiction. The Government was basically entitled to put him on a plane back to Jamaica without the chance to be heard. The first time Henry ever heard any of this was on the day he met me. His criminal defense attorney never mentioned this drastic part of the sentence. Henry could not believe he had no hope of remaining in the U.S. There was no one left for him in Jamaica. So instead of being released to the streets after graduating from SHOCK in six months, Henry was picked up by Immigration and Customs Enforcement for deportation and was taken to the federal detention facility in Batavia, a farming town just off the New York State Thruway, halfway between Buffalo and Rochester.

By the time of his release from SHOCK, Henry’s mother had learned that her son was likely to be deported from the United States unless his last conviction could be overturned. She hired a criminal defense lawyer, who agreed to a payment plan for his fees, to look into the possibilities to save her son. The lawyer relied on a provision of law that allows for the vacatur of a conviction that was not properly obtained. In this case, Henry’s lawyer argued that since Henry had never been advised of the immigration consequences of his plea to a drug sale, the conviction should be vacated, or erased from his record. As I told Henry, this wasn’t a slam dunk. The law on vacaturs in New York is tough.

Unfortunately, the conviction had not yet been vacated by the time Henry appeared before the immigration judge for his deportation hearing. He did not have an attorney with him there because immigration law does not provide a lawyer at government expense. There are no public defenders in immigration court, and Henry’s mother’s meager savings were wiped out by the attempt to undo his criminal conviction. Given the state of the law, Henry was ordered deported to Jamaica.

Somehow luck still shone on Henry, and he found an attorney who was willing to appeal the deportation order for a modest fee that his girlfriend could afford. By then, the drug conviction was successfully vacated, though the family was absolutely broke and completely disillusioned by their ordeal. After over six months of immigration detention, more than he’d spent serving for his crime, Henry realized how fictitious his legal rights in the U.S. could be, and how easily he had become undesirable to the community he called home. A legal creation—the term aggravated felon—had turned his life upside-down. He’d come desperately close to losing everything that had meaning for him without the chance to tell his side of the story.

A week after his release from several months of immigration detention, I called Henry. He was at work. When I asked how he was, he sighed in relief. "I’m so happy to just be working." The simple contentment Henry felt struck me. Read more!

Migrant women

These lovely images were taken several years ago in Buffalo, NY by a photographer who prefers to remain anonymous. We do not know where these women may be today.

Read more!

The Islands

My father and I have both put into words the simple story of our own small family's migration by ship from Cherbourg to New York at a time when the controversial U.S. war in Vietnam occupied the minds of millions around the world. I wrote, "A Migrant Life" (see post below), and he wrote the following story, "Ellis Island," in his native language. The piece reflects a visit that he, my daughter, and I made there a few years ago from his home in Manhattan. As he describes it, Ellis Island could also be known as "The Island of Hope" or "The Island of Tears," depending on the perspective of the poor soul who crossed its threshhold. There is no doubt that this humble island in New York Harbor captures the imagination of many and is also a fascinating place to visit. See, http://www.history.com/content/ellis-island

Another island which features in the U.S.'s immigration history is located in San Francisco Bay. Angel Island, truly a a place of tears, stands as evidence of a shameful part of our history, in the way that the Japanese internment camps of WWII are a deep blemish on this country's treatment of the foreign born and the perceived foreigner. For thirty years or so, the Chinese, seeking a more prosperous life here, like the European immigrants passing through Ellis Island, were detained and interrogated under miserable conditions at Angel Island.
See: http://www.angel-island.com/history.html

ELLIS ISLAND
Por Carlos Feal

Desde que llegué a Nueva York, hace ya unos años, me liberé del coche. Liberación, ésa es la palabra. Depender del coche para todo –ir al trabajo, de compras o a algún espectáculo-- acabó resultándome penosísimo. Eso pasa en las ciudades norteamericanas que no tienen un buen transporte público y, sobre todo, a quienes viven en las afueras. Nueva York es otra cosa. Entre el metro, el bus y alguna que otra vez un taxi uno va a todas partes.
A mí me gusta sobre todo el metro. Creo que esta afición se originó en mis años de estudiante en Madrid. Reconozco que el metro de Nueva York es vetusto, inferior al de muchas grandes ciudades, pero cumple su misión de llevarnos con facilidad de un lugar a otro. Viajo casi siempre sentado en uno de los bancos que hay a lo largo del vagón. Me gusta observar a los viajeros que se sientan en el banco de enfrente, en su mayoría gente humilde: negros, hispanos, indios, asiáticos. Salgo de mi pequeño mundo para integrarme entonces a esa sociedad multirracial, en vez de huir a las afueras donde se concentran los blancos, los anglos, hoy ya en retroceso.
Hace poco iba en el metro con mi hija Sophie, quien vino a Nueva York aprovechando un fin de semana. Quería visitar Ellis Island, tan próxima a Manhattan y a nuestra casa en Greenwich Village. La islita de Ellis fue, como sabrán, parada obligatoria durante largos años de los emigrantes que llegaban a los Estados Unidos. También emigrantes, o hijos de ellos, de todas partes del mundo, eran muchos viajeros con quienes nos mezclábamos ahora. Sophie, como abogada, defiende (en inglés) a seres de otras razas. Habla en español con los hispanos; o en francés con los huidos de Haití.
--Las leyes son muy duras para todos, a excepción de los cubanos, si logran poner pie en esta orilla.
--No es fácil poner pie.
--No, muchos se ahogan en el Caribe.
Bajamos en South Ferry. Después de guardar larga cola en Battery Park embarcamos rumbo al lugar que hoy (como tantas memorias de un pasado doloroso) es ya mera atracción o diversión turística. Lo que fue para unos Isla de la Esperanza y, para otros, Isla de las Lágrimas. Allí se repitió el desconcierto que ya había sentido en el metro. El barquito a Ellis Island me parecía el trasatlántico que nos trajo a estas tierras.
Ascendimos mi hija y yo la gran escalera, al final de la cual esperaba a los antiguos emigrantes un equipo de médicos. Intentaban éstos detectar posibles síntomas de fatiga en alguno de los que subían.
--Bien, papá –dijo Sophie risueña--. Has superado la prueba.
Yo sólo jadeaba un poco.
Recorrimos luego las salas del siniestro edificio donde sometían a los llegados a múltiples exámenes de salud física y mental antes de permitirles entrar al país. Y yo me imaginé en la piel de aquellas gentes yendo de sala en sala. Aunque a nosotros nos examinaron (eran otros tiempos) en la embajada de USA en Francia, donde entonces vivíamos. Pero Rose, la madre de Romy, mi mujer, sí pasó por Ellis Island, junto con sus padres, pobres sicilianos. Tenía entonces tres años, la misma edad que Sophie cuando vinimos nosotros.
--Costó mucho levantarte para ir a la embajada. Llorabas sin parar; casi tuvimos que arrastrarte. La cita fue a una hora muy temprana. Las calles de París estaban llenas de grafitos contra la guerra del Vietnam.
Hicimos el viaje, desde Cherbourg a Nueva York, en un trasatlántico. Preferimos el barco al avión a fin de transportar nuestras humildes posesiones: varias maletas y un baúl, si no recuerdo mal. Mucho más ricos éramos, sin duda, que aquellos que antaño cargaban sus fardos como bestezuelas.
Al desembarcar en Nueva York nos hicieron una foto, que todavía conservo. La madre de Sophie en primer término, dándole a ella la mano. Con su otra manita agarra nuestra hija un cabás. Yo, rezagado, al fondo. Ninguno de los tres sonríe y Sophie parece más bien asustada. Tal vez la sorpresa de la foto; ninguno esperaba este recibimiento. Esperábamos lluvia, a juzgar por el modo en que aparecíamos. De impermeable madre e hija y yo con un paraguas en la mano.
Siempre que miro esa foto me pregunto qué objetos habría en el cabás. Y mi paraguas ¿no era acaso un falo simbólico para abrirme camino en un mundo ajeno, además de ancho?
El día era espléndido. Ya a la luz del sol, fuera del tristón edificio de aire carcelario, contemplamos gozosos la vecina Estatua de la Libertad, presta siempre a acoger a los pobres y humillados de este mundo (Give me your tired, your poor, / Your huddled masses yearning to breathe free).
Debemos regresar a Manhattan.
--Hemos perdido a tu madre –le digo a Sophie.
--Ya la encontraré.
--No le gustaban los Estados Unidos. Lo mismo les pasa a muchos franceses.
--También a españoles.
--No digo que no. ¡Qué herencia la tuya!
--Este es mi país. No hay para mí otro mejor, pese a sus defectos.
--Lo entiendo. Si no fuera por la guerra, la maldita guerra…
Llegamos a Manhattan. Nuestra llegada a Nueva York en un trasatlántico se confundía ahora con ésta desde Ellis Island. Habíamos cumplido los trámites que nos daban acceso a los Estados Unidos. El curso de una vida adulta –profesor y padre-- se extendía entre esas dos ocasiones.
Recité unos versos de T. S. Eliot:
--In my beginning is my end… And where you are is where you are not.
--Siempre dando lecciones de literatura –dijo Sophie.
--Para eso vine a este país, ¿no?
--Para vivir también.
--Sí, pero vivir simplemente no da ningún dinero.
Teníamos hambre. Paramos en un puesto ambulante a comprar comida libanesa, muy del gusto de los dos.
--¿Adónde vamos ahora? –pregunté.
--A casa, ¿no?
--¿Qué casa? ¿La de Ann Arbor, mi primer destino en América? Donde nació tu hermana.
--¿Por qué dices eso?
--No sé.
Sophie me miraba perpleja.
--Ha concluido mi periplo –proseguí--. De Nueva York a Nueva York. El sueño americano. Ya puedo partir otra vez con todos los rotos de este mundo.
--Tú no eres ningún roto. Rehiciste tu vida después de divorciarte.
Vi entonces a mi hija con su pequeño cabás. (¿Qué tesoro escondía?) Y a mí, detrás, dispuesto a hacer (o rehacer) la América. Desde donde estaba o no estaba.
--In my end is my beginning –dije abriendo el paraguas de la foto, pues empezaba a lloviznar en ese justo momento.

To read more from Carlos Feal:

http://vagamundosmoleskin.wordpress.com/2009/05/18/la-rosa-mudable-autor-carlos-feal/ and http://vagamundosmoleskin.wordpress.com/2009/03/16/parada-y-fonda-autor-carlos-feal/ Read more!

A Disturbing Story

"If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear. Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008." By Jacqueline Stevens in The Nation (December 16, 2009). http://www.thenation.com/doc/20100104/stevens/single Read more!

MY SOFT SPOT

Between the stark, white slabs of concrete prison walls which they call the attorney visitation room, I meet with clients whom I will represent in their fight to stay in the U.S. There, I spend colorless hours while the men recount their woes and the troubled life that led them there. Inevitably, I tend to develop a soft spot for many of my clients, even if logic and experience tell me they really have no chance.Outsiders may call me a sucker for even getting in the ring, but one must believe in another's humanity to do this kind of work.

I once fell for a drug dealer. He told me I was his angel-- a remarkable woman-- but I warned him, like I have all of the others, that I couldn't work miracles. We live in a world of black or white, bad or good, wrong or right, and he was black, bad and wrong. In the tiny sterile cell where we met, I coaxed him to tell me his story of crack and guns, blood and violence, a murdered father, ten felonies, nine misdemeanors, eleven bullets in the gut, and fourteen dreary years of prison. And still I believed in him as he in me. I thought naively that he would stay and start over. Maybe I should have realized that I was the only one who thought so. He knew much too much about the streets and how they crept their way into one's being. In another life they might've called him a sociologist and he would've had theories about how to keep young poor men of color like himself from danger. Instead he left this country forever, taking nothing with him and finding nothing there. Despite his promises, I've heard nothing of him since, and know I never will.

His mother died and was buried in New York City a few months before he was deported. She, too, had been a decent woman he told me. There was always good food on the table since she worked twelve hour shifts as a maid in other people's homes and never complained because she just loved people. Unfortunately, at the end of the day she had little time and strength for his problems. She'd already solved so many. But he'd never blame her. He wanted to visit her grave and say I'm sorry.Good-bye. He never had the chance. Read more!

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. Read more!