Once an "aggravated felon," always an...

I have written numerous times about the the aggravated felony provision in U.S. immigration law on this blog (See My Message to Congress, below). The consequences of being deemed an "aggravated felon" are drastic, and have caused upheaval in too many lives.

I am very pleased that the press has now addressed this issue in such a thoughtful way as the article posted here. Indeed, Nina Bernstein of the New York Times has, in the past, written about immigration law and revealed the more shameful aspects of the law and the system. http://www.nytimes.com/2010/02/19/nyregion/19judge.html?ref=todayspaper

Judge Keeps His Word to Immigrant Who Kept His
By NINA BERNSTEIN
Published: February 18, 2010

"The judge and the juvenile had grown up on the same mean streets, 40 years apart. And in fall 1996, they faced each other in a New York court where children are prosecuted as adults, but sentenced like candidates for redemption."


February 18, 2010
Judge Keeps His Word to Immigrant Who Kept His
By NINA BERNSTEIN
The judge and the juvenile had grown up on the same mean streets, 40 years apart. And in fall 1996, they faced each other in a New York court where children are prosecuted as adults, but sentenced like candidates for redemption.

The teenager, a gifted student, was pleading guilty to a string of muggings committed at 15 with an eclectic crew in Manhattan’s Chinatown. The judge, who remembered the pitfalls of Little Italy in the 1950s, urged him to use his sentence — three to nine years in a reformatory — as a chance to turn his life around.

“If you do that, I am here to stand behind you,” the judge, Michael A. Corriero, promised. The youth, Qing Hong Wu, vowed to change.

Mr. Wu kept his word. He was a model inmate, earning release after three years. He became the main support of his immigrant mother, studying and working his way up from data entry clerk to vice president for Internet technology at a national company.

But almost 15 years after his crimes, by applying for citizenship, Mr. Wu, 29, came to the attention of immigration authorities in a parallel law enforcement system that makes no allowances for rehabilitation. He was abruptly locked up in November as a “criminal alien,” subject to mandatory deportation to China — the nation he left at 5, when his family immigrated legally to the United States.

Now Judge Corriero, 67, retired from the bench, is trying to keep his side of the bargain.

“Mr. Wu earned his second chance,” the judge wrote in a letter supporting a petition to Gov. David A. Paterson for a pardon that would erase Mr. Wu’s criminal record and stop the deportation proceedings. “He should have the opportunity to remain in this country.”

The letter is one of dozens of testimonials, including appeals from Mr. Wu’s fiancée, mother and sisters, who are all citizens; from the Police Benevolent Association, where Mr. Wu used to work; and from his employers at the Centerline Capital Group, a real estate financial and management company, where his boss, Tom Pope, calls Mr. Wu “a shining star.”

But under laws enacted in 1996, the same year Mr. Wu was sentenced, the immigration judge hearing the deportation case has no discretion to consider any of it. For Mr. Wu, who remains in a cell in the Monmouth County Correctional Institute in Freehold, N.J., the best hope may be that the Manhattan district attorney will retroactively allow him the “youthful offender” status that would scrub his record clean.

“The law is so inflexible,” said Judge Corriero, now executive director of Big Brothers Big Sisters of New York City and the author of “Judging Children as Children: A Proposal for a Juvenile Justice System.” The 2006 book calls for a justice system that reduces future crime rates by nurturing those who can learn from their mistakes, instead of turning them into career criminals.

That was his aim, he said, when he presided over the special court known as the Manhattan Youth Part, his views shaped by his own childhood. The son of a longshoreman and a factory seamstress, he grew up in a tenement across the street from the Tombs — the Manhattan House of Detention — and was schooled by both Roman Catholic missionaries in Chinatown and the Mulberry Street Boys. While he avoided serious trouble, he saw how easily a careless choice could lead to culpability instead of accomplishment.

The neighborhood pressures were not so different decades later, when Mr. Wu hung out at video arcades while his mother worked long hours in a garment factory and his father cooked at Chinese restaurants out of state. A friend from that period recalls seeing a shoe print on the teenager’s back from a street beating. He looked to his pals for self-defense that turned predatory.

In December 1995, he and two other teenagers, one of them pretending to have a gun, took a jacket from a young boy. In two episodes in April 1996, he and others robbed elderly men of money, knocking one down and punching another; he took part in a fourth mugging that June, records show.

“I’m sorry and I really hope that you will forgive me for all the pain and trouble I made them go through,” the teenager said when he was sentenced.

The judge called the case a tragedy, according to the court transcript. “But this is not the end,” he told the youth, who had scored in the 98th percentile in mathematics. “This is really the beginning of a new period for you. I want you to educate yourself. Continue to read, follow the rules.”

“You will want to get a job and become a meaningful, constructive member of society to help your family,” he added. “I will be there to make sure that you can.”

Long after Judge Corriero had forgotten the case, Mr. Wu remembered those words. In 2007, confident that he had redeemed himself, he applied for citizenship, disclosing his record. Later, learning he was not only ineligible but also deportable, he tried to withdraw his application. But immigration authorities summoned him to their headquarters at 26 Federal Plaza.

“He said, ‘If I don’t show up, I’m going to be labeled a fugitive,’ ” his sister Jenny Gong, 31, recalled.

So he went to the interview, and was led away in shackles.

“Being permanently banned from the U.S., that’s the biggest stress I’m under,” Mr. Wu said in a telephone interview from jail. “That’s the harshest penalty any person can ever receive.”

Under the 19th-century legal doctrine still at the heart of much of modern immigration law, however, neither detention nor deportation counts as punishment, just as administrative remedies for the failure to exclude an undesirable foreigner in the first place, experts say. The definition of undesirability has changed over time, but the 1996 laws eliminated most case-by-case judgment in favor of expanded categories of criminal convictions.

The shift was part of a national crackdown on crime, and the perception that immigration judges had been too lenient, allowing noncitizen felons to remain in the country and sometimes commit new offenses.

“This administration is committed to smart and effective immigration policies that place an emphasis on the deportation of criminal aliens,” Brian P. Hale, a spokesman for Immigration and Customs Enforcement, said Thursday. “While we are not able to discuss any individual cases, ICE will enforce the law, and if an individual has been convicted of a serious or dangerous crime, we will take the appropriate action, including deportation.”

But the policy is hard for Mr. Wu’s supporters to understand. “We’re losing a great guy — for nothing,” said Mr. Pope, director of Centerline’s Internet technology operations. “Qing Wu is somebody you’d interview two or three times in your entire career. Nobody works as hard and as well as Qing.”

Mr. Wu’s mother, Floren Wu-Li, 57, blames herself. Interviewed in the tiny sixth-floor walkup on Spring Street where Mr. Wu lived with his fiancée, she acknowledged that he would have derived citizenship if she had secured it for herself while he was still a minor. But she was naturalized only four years ago, when she was allowed to take the test in Chinese.

“We were very poor and worked very hard and had no time to look after Qing when he was a child,” she said, weeping as her daughter translated. “I had no time to learn English back then.”

Now widowed and ailing, she cleans at a casino in Connecticut but relies on her son’s financial help. His fiancée, Anna Ng, 27, a compliance officer for a hedge fund, said they had been scrimping to save for a place large enough for her parents and his mother to move in. Those savings are now going to legal fees.

Ms. Ng said she would want to follow Mr. Wu to China if he were deported, but speaks no Mandarin. “What if we end up homeless?” she asked.

His sister spoke up: “New York City is his home.”

To Judge Corriero, the case shows the long reach of laws that force judges to impose indelible convictions on adolescents — often, as in Mr. Wu’s case, based on guilty pleas made without knowledge of the dire immigration consequences to follow.

Efforts to free Mr. Wu, championed by the New York chapter of OCA, an Asian-American civil rights organization, now include a motion to vacate his 1996 guilty plea as legally defective because his lawyer wrongly advised him that it would not affect his green card. The group’s president, Elizabeth OuYang, also plans on Friday to meet with Peter Kiernan, counsel to the governor, to discuss the petition for a pardon, which Mr. Kiernan said was “being seriously considered.”

The heart of the case lies in a letter Mr. Wu wrote to the judge when he was detained in November, recalling their pledges to each other years ago. When Judge Corriero checked the old court transcript, he said, he felt a mix of pride and anger.

“Here was a young man who did everything we expected of him,” he said. “It really cries out for some kind of justice.”

. Read more!

GOOD COP, BAD COP: Protecting Criminal Informants

Cops are unpredictable. On a frigid winter day, I had the pleasure of having lunch with two very amiable police officers at an all-American diner to discuss the case of one my detained clients who faced deportation from the U.S. Both were very supportive of his plight.

Normally defense attorneys do not have much positive interaction with law enforcement officers. In my twenty-year career I've never had a cop as a witness in a case and, as my lunch companions admitted, they'd never once testified for the defense during their even lengthier careers. But this time, these police officers were up to the task, and I did not need a subpoena to convince them. They were genuinely motivated by a deep sense of commitment to the ideals of their profession--that of saving people from harm. They were going to help me by testifying on behalf of a noncitizen criminal informant who was in removal proceedings and risked deportation to his native country, where he'd likely get killed for cooperating with these men in the arrest and prosecution of some of his compatriots for murder and drug dealing. So there I was preparing two cops as witnesses over a meal of BLT sandwiches and fries.

The paradox in all of this, of course, is that, over the years, countless clients who've had frequent and unfortunate contact with law enforcement have shared with me their tales about dirty cops who set people up, rough them up, or lie on the witness stand. Added to this is my personal bias with how the police are charged with enforcing certain laws that I consider unfair, such as those that penalize the simple possession of marijuana, when their attention could be directed towards more serious societal problems. I was also clearly baffled by the fact that any law enforcement types would be sympathetic to my client since he had a relatively lengthy criminal history. I found it almost comical that I could not convince the officers, who were extremely sensitive to my client's fate, that other clients of mine with similar rap sheets deserved equal consideration. While I easily argued to them that it was unjust for the federal Government to try to deport a mentally ill Vietnamese refugee who had been convicted of only two petty larcenies his life, they did not agree that someone who'd only once sold a vial of crack should be spared from deportation. Or at least they had a good time kidding me about this because when I brought up the latter scenario, they immediately looked at one another and said "deport 'em," and then laughed heartily at my expense.

Moreover, it even struck me as humorous that neither of the officers considered my client a violent man, even though he'd been convicted of a couple of assaults. When I confronted the two cops about these offenses, they shrugged their shoulders indifferently and said that the injury in question was a minor knife cut on someone's hand that did not even require medical attention; but since they'd had a victim and a weapon, they were required to make an arrest. It goes without saying that the immigration judge who heard this testimony on the witness stand was even more stunned than I by the explanation. The judge stared straight at the cop, raised his voice, and said, "you think he's not violent?" "No," answered the officer without emotion. Honestly, the response pleased me, especially at that moment, because I think that the seriousness of a client's crime is sometimes overblown by judges in proportion to the prospect of his deportation and its severe consequences. When one must regularly consider the spectrum of possibilities, with cold-blooded murder at one end and simple possession of a drug for one's own use at the other, it is easier perhaps to put such things into perspective.

In a striking contrast to the men with whom I shared a lunch, I recently came across a couple of news reports, one from National Public Radio (NPR) and the second from the Associated Press (AP). Both stories portray a different type of law enforcer, one that is quite dissimilar from my own two police witnesses: the one who treats noncitizen informants as mere "commodities" to be used as necessary and then thrown away despite any potential risk to their lives. See, http://www.npr.org/templates/story/story.php?storyId=122357350 and http://www.google.com/hostednews/ap/article/ALeqM5hGqZSpgYyTCZProzX5ulr7vYoTSQD9DRO6V80 The articles confirm that there exists a special non-immigrant, or temporary, visa for those who assist local, state or federal agencies with criminal investigations and prosecutions. These "S" visas must be obtained by a government entity on behalf of an informant who has or will assist in law enforcement activity, and only 200 such visas are available annually. One report cited in the NPR piece divulges that the visas are underutilized. However, the lack of use has clearly more to do with the reluctance, or downright refusal, of the authorities to apply for them than the need for them on the part of criminal informants.

Interestingly, in both of the articles, the local cops, like those with whom I'd had lunch, are relatively sympathetic to the foreign-born informants and believe that they should be immunized from deportation. "I thought I should do right by them," said one police officer quoted in the AP story about Argentinean siblings who served as informants to Immigration and Customs Enforcement agents in Saugerties, NY. The federal agents, in contrast to local police, seemed to completely lack empathy for the informants, and the report underscores how the feds even reneged on past assurances to protect the Argentineans and sponsor them for an S visa. This echoed the situation I faced with my "good" cops, who had sought assistance with my client's case from federal agents, only to have their efforts quite unexpectedly rebuked. The same officer quoted by the AP, though he had never before dealt with ICE, best summarized the reaction, "I assumed it was just another law enforcement agency and the rules would be the same." I myself have certainly learned that law enforcement agencies do not necessarily share the same objectives.

If an "S" visa is not sought for a criminal informant, then the only possible relief from the threat of removal is under immigration laws which protect those who fear persecution or torture if returned to their native country. These provisions are critical to informants since, in most cases, they have betrayed their fellow countrymen or women, and if returned to their homeland, they will not only face severe retribution for collaborating with the police, but also, because of corruption and collusion between cops and criminals in some societies, will not be protected from the harm.

Unfortunately, under immigration law it is very difficult to make a case for protecting criminal informants from deportation to where their lives may be at risk. There are a couple of major hurdles. First, most informants are criminals themselves. It is obvious that a successful informant working for the police is not going to be someone without a criminal record. Such a spotless person could never effectively infiltrate a gang, a drug operation or any other criminal enterprise. Criminals are very apprehensive about whom to trust. However, the law holds that if one has certain criminal convictions, she or he is ineligible for asylum and may only resort to other protective provisions under immigration law. These have higher burdens of proof, and are thus much more difficult to obtain.

Secondly, in a short-sighted, but precedential legal decision, Attorney General Ashcroft ruled in 2001 that criminal informants were not eligible for any special protection from removal when they feared death upon return to their native countries. The A.G.'s decision leaves the clear impression that the life of one who has been involved in crime is of a lesser value, and warrants no protection from harm even if she or he cooperated with law enforcement. This is a troubling precedent. Only one federal court, the 8th Circuit Court of Appeals, has so far challenged the Attorney General's reasoning by affording a criminal informant the right to make a claim for protection in the United States. In that case, the criminal informant had worked closely with U.S. authorities against powerful Mexican drug dealers. He was also able to prove that the Mexican police were so closely aligned with the drug cartels such that he would not receive any protection from the legal authorities in his native country. This scenario is not so uncommon.

I recognize that it may be difficult for some to appreciate the plight of a person who has violated the law; but when a deal is made, it should be respected. Tit for tat as they say. You rub my back and I'll rub yours. If a person puts his well-being on the line to help law enforcement, he or she deserves help in return, especially when one's well-being is a stake on account of their cozy relationship with the police. While cop shows would have us believe that solving crimes is a black and white endeavor-- the good are always good, and the bad always bad-- the real world indicates that the colors are much more blurred and muddy. As summarized in the NPR piece above, if we don't help those who have been informants in the past, how are we going to recruit other people to find drug traffickers and other serious criminals? Or perhaps it's simply about basic human decency.

I might finally add that the good cops paid for my lunch. Read more!

SHAME

A crazed G.I. was arrested for waterboarding his 4-year-old daughter because she wouldn't say her ABCs.

There are so many stories behind this one story. Here are just a few: It confirms the consequences of the offensive notion, which was propagated by the former Administration, that waterboarding is not torture. If it is not torture and it is simply an innocuous tool of interrogration, then isn't it just another means of “discipline” as well?

Who told this man that his four year old child should even know her “ABCs” at this age? We have become so sadly focused on our children’s achievements that we’ve lost sight of what is normal development. Our schools "teach for the test," and we end up with unrealistic expectations that all kids develop at the same rate.

War has extraordinarily severe effects on the emotional well-being of those who fight, and if we choose to wage war, we need to properly address the physical and mental health consequences on soldiers, their families, and our society.

http://www.nydailynews.com/news/national/2010/02/08/2010-02-08_us_soldier_joshua_taber_waterboarded_his_daughter_4_because_she_couldnt_recite_a.html

U.S. soldier Joshua Tabor waterboards his daughter, 4, because she couldn't recite alphabet: police
BY Helen Kennedy DAILY NEWS STAFF WRITER
Originally Published:Monday, February 8th 2010, 9:05



A crazed G.I. was arrested for waterboarding his 4-year-old daughter because she wouldn't say her ABCs.

Cops said Army Sgt. Joshua Tabor, 27, who served 15 months in Iraq, admitted to punishing his daughter by holding her down on the kitchen counter in suburban Washington State and repeatedly pushing her head backward into a full sink.

"He explained she's deathly afraid of water," said Todd Stancil, police chief in Yelm, Wash.

"He would lay her down on her back and push her head into the water right up to her eyeline. He was open about it. He did it all the time. To him, that was an acceptable form of punishment - because she wasn't able to say the alphabet."

Stancil said neighbors told cops that he also ran water over the flailing girl's face, taking her to the edge of drowning, but Tabor denied that.

"It was hot! The water was hot!" the girl said, according to the police report.

Tabor, who was arrested Jan. 31, will be arraigned Feb. 16.

"We originally booked him on third-degree assault, but if he did put the water over her face, that would constitute a more tortuous type of crime," Stancil said. "We are looking into those allegations."

Waterboarding, in which water is poured into an immobilized target's nose and mouth, was used by the CIA on prisoners in Iraq until President Obama banned it in January 2009.

Tabor is out on $10,000 bail and restricted to his base, Ft. Lewis, in Tacoma, Wash.

He was arrested after his girlfriend called the cops at 2 a.m. to say he was drunkenly stalking around the neighborhood brandishing his Kevlar helmet and threatening to break windows.

The girlfriend then told cops Tabor beat his daughter. Cops found the little girl hiding in the bathroom.

"She had just multiple bruises all over her body, from the ears to the legs," Stancil said. "She said, 'Daddy did this.'"

The child had only been in her father's court-ordered custody for two months.

Her father had barred her from contacting her mother's parents, who had raised her. When police put the worried grandma on the phone, the little girl cried from happiness, the police report says. Read more!

Studying Arabic is a National Security Threat

I previously posted a piece about my cyberspace Arabic studies, as well as one on "flying-while-Arab", so when I came upon this article, I knew I had to share it. Thank goodness I never pulled out my "Arabic for Dummies" book at an aiport.

http://www.post-gazette.com/pg/10042/1035098-84.stm

TSA sued for detention over Arabic flashcards
Thursday, February 11, 2010
By Spencer S. Hsu, The Washington Post




WASHINGTON -- A student at Southern California's Pomona College filed a federal lawsuit Wednesday alleging that he was abusively interrogated, handcuffed and detained for five hours at Philadelphia International Airport in August because he carried a set of English-Arabic flashcards as part of his college language studies.

Nicholas George, 22, represented by the American Civil Liberties Union and its Pennsylvania chapter, charged that three Transportation Security Administration officers, two Philadelphia police officers and two FBI agents violated his constitutional rights to free speech and freedom from unreasonable seizure.

"I want TSA agents to do their job to keep flights safe. ... I don't understand how locking me up and harassing me just because I was carrying the flashcards made anybody safer," Mr. George said in statement released by the ACLU. "No one should be treated like a criminal for simply learning one of the most widely spoken languages in the world."

TSA spokeswoman Ann Davis said she could not comment on pending litigation. FBI and Justice Department representatives in Washington, where most of the federal government was closed because of a severe winter storm, did not immediately respond to requests for comment on the suit, filed in the U.S. District Court in Philadelphia.

Philadelphia police, who also were dealing with the storm, had no immediate comment.

According to the suit, Mr. George, 22, a college senior from Pennsylvania's Montgomery County, majoring in physics and Middle Eastern studies, was returning to school when TSA screeners randomly selected him for extra screening. When Mr. George emptied his pockets, he took out the flashcards.

Authorities detained him in the screening area for 30 minutes before he was questioned by a TSA supervisor, the suit states.

At one point, the supervisor asked him if he knew who committed the 9/11 terrorist attacks, according to the suit. Mr. George answered, "Osama bin Laden." The supervisor asked, "Do you know what language he spoke?" Mr. George replied, "Arabic." The supervisor held up the flashcards and said, "Do you see why these cards are suspicious?"

Mr. George said he was handcuffed and held for almost five hours, during which time he was questioned by two FBI agents, who asked if Mr. George was "Islamic" or a member of a "communist group," the suit said.

One agent concluded that Mr. George was "not a real threat," the suit states.

The Los Angeles Times contributed to this report.


Read more: http://www.post-gazette.com/pg/10042/1035098-84.stm#ixzz0fQqza3J6
And this is where to type the full blog post. Read more!

The Unknown

This piece was originally published in Bender's Immigration Bulletin (Vol. 13, No. 7) on April 1, 2008.

"I've never been apart from him," she said, trying to hold back the flood of tears gathering in the back of her throat and apologizing to me for the show of emotion. I was instantly struck by her statement since I'd rarely ever heard such vulnerability expressed by the detained men I counseled regularly about being deported. Although half of all migrants in the world are women, I now almost exclusively represent men, and they are stoic, or at least act invincible around me. "Let 'em deport me. I don't wanna be here anyway," they might say, though the incomprehension is visible in their frozen stare or nervous smile. Undoubtedly they tell their women not to worry while they struggle alone to make sense of what is happening. It's what men do best under pressure and it's exactly what her husband had told Aracely. "Everything's fine," he'd said to her persuasively when she visted him at the detention facility that afternoon, and those words clearly baffled her now. "How can it be fine if you told him what you have just told me-- that he will be deported?! That there's no solution." she asked me after I told her he'd already been advised about the situation. "He's trying to be strong and not worry you," I answered gently.

At first it was hard for me to understand that a woman might never have been separated from her man. I've been on my own for so long that I maneuver through daily life emotionally and economically, raising two kids, without a man and I seldom have a reason to cry. From the men at the facility I rarely hear about how life will be forever changed for a woman when he's gone. The men seem to talk only about themselves and how deportation will alter their world. I don't often hear about what sacrifices their women will have to make to keep the relationship intact when they are gone. Women always see things more broadly, and we communicate differently. I know that. We know about the domino effect, so it didn't take me long to register Aracely's fear.

I see the resilient women who visit men in detention. They come almost daily for several months, often with young children or infants in tow in the dead of our notorious winter. They drive for hours to this unknown farming town forty miles east of Buffalo where an unassuming, yet state-of-the-art, immigration prison was built. There they wait patiently in the lobby until their names are called just for a thirty minute conversation with the man of their lives, separated from him by a wall of plexiglass. Many of these women have also emptied their modest bank accounts to pay hefty attorneys' fees in a desperate hope of keeping their family together, not realizing that redemption is not a word in the immigration vocabulary. Then one day, I no longer see a familiar woman in the lobby and I know her man is gone, most likely forever.

It's clear that some men stopped playing a pivotal role in their partner's life long ago, and all they bring her is heartache. These women don't have a lot to lose anymore and they tell me so in no uncertain terms. They're fed up with the bullshit. But this sweet woman, Aracely, loved her man. He was probably devoted to her the way a man should be, or at least I hoped so given the tenderness she obviously felt for him. It was in her voice, in her breath, in her tears. I envied her feelings, and was deeply saddened by her predicament, especially since I was the one bringing such bad news to her. But I also felt relieved when I made her giggle by telling her that Marcos was being a typical macho when he confidently told her it would all work out. "You know how men are," I said "he doesn't want to worry you further." I realized it was his way of showing a commitment to her. As the man, he's supposed to ensure her well-being, and he knew instinctively how to handle it. That's how I knew he was devoted to her and she was right in feeling lost without him.

I told Aracely the choices she and Marcos had. They could both go back to El Salvador together, or she could remain in the U.S. for a while since her hearing would not be scheduled as quickly as his. She might be here another six months, and could stay with her family in Denver making plans for whatever came next. I knew the couple wanted to go back to Canada, where'd they'd lived the past few years, and six months might be enough time for her to accomplish that goal. Marcos could join her in Canada from El Salvador when his visa became available. Aracely didn't much like the second option. It meant time apart and she wasn't sure she could be alone for so long. They'd always been together she emphasized to me again. I understood and told her she had a few days to think it through. For now, she needed to get out of the dark motel room near the detention center where she'd holed herself up, sobbing and desperately dialing lawyers who didn't return her phone calls. It was time to go to Denver and surround herself with family. I had no doubt Marcos would be okay, and I could take messages back and forth between them. She seemed calmer and more lucid when she hung up the phone.

I wonder if I will ever hear from Aracely again. Usually I have little idea about the lives people have led in their native countries and during their migration. I'm told bits and pieces, as needed, to prepare a solid case for a defense against deportation. As a lawyer I see facts narrowly and sort through them quickly to find what I deem relevant. Sometimes I fear that knowing too much may overwhelm me in the end. Today though, like other times, I wish I could follow a person's story until the end. Until she reaches that point where everything truly is fine, but that is unlikely. I'm called to solve the problem facing a person in a particular moment, and when the crisis is over, so is our contact. It makes sense, even if it doesn't always sit well with me because I've become invested and am left wondering how someone I've met, even briefly, has sorted out her pain and confusion. Did another door really open when this one cruelly slammed shut behind her? Maybe I'll never really know, but the unknown is one of the hazards of this work. Read more!

The crazy system

As a follow-up to the post below on the prosecution of illegal entry, I am posting this critique, from a federal judge, on prosecuting immigration law violations. See, http://www.statesman.com/news/local/federal-judge-questions-immigration-prosecutions-216667.html.

From The American-Statesman of Austin, TX:

In an order filed Friday, a federal judge in Austin questioned U.S. prosecutors for seeking criminal convictions in court against some illegal immigrants, writing that the practice "presents a cost to the American taxpayer ... that is neither meritorious nor reasonable."

U.S. District Judge Sam Sparks wrote in a decision that it has cost more than $13,350to jail three men and noted that charging them criminally means additional costs and work for prosecutors, defense lawyers, court personnel and others.

"The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling."

He said the assistant U.S. attorney who prosecuted the case could not state "a reason that these three defendants were prosecuted rather than simply removing them from the United States." Read more!

Hikers: Crossing the Border Illegally is Unlawful

The story of the three Americans who are currently incarcerated and facing prosecution in Iran for allegedly crossing illegally into the country raises an interesting issue. Secretary of State Hillary Clinton and the hikers' families have stated to the media that the two men and one woman were innocently hiking through the rough terrain that separates Iraq from Iran, and inadvertently crossed the unmarked border into Iran. I believe that it's true they were hiking, but whether or not they accidently crossed the border, and whether it was indeed unmarked, no one but they will ever truly know, and I do not know what the Iranian law requires to prove this violation was intentional. Nonetheless, the trio seems like a group of young people who thrive on the adrenaline of adventure, given their imprudent choice to travel to Iraq at a time of war, so who knows whether they intended or not to enter Iran and take a look around. On the other hand, I do not believe, as the government of Iran accuses, that they were spies.

Moreover, I certainly understand the fear the three must feel about being incarcerated in a foreign country known currently for its human rights abuses against anti-government protestors. I also sympathize with their families' anxiety since the three are held so far away, in a country with which the U.S. has no diplomatic relations, and it appears little can be done other than patiently await a resolution of the cases. Having said this, one should also be clear about an important fact. The United States also detains and prosecutes those who allegedly cross our borders illegally. In fact, a recent report by Syracuse University's Transactional Records Access Clearinghouse (TRAC) indicates that the rate of prosecution in this country for victimless immigration violations is rising at an astonishing rate, while the prosecution of violent and other serious crimes is diminishing. (See, http://trac.syr.edu/whatsnew/email.091218.htm and excerpt below). These prosecutions allow law enforcement to blame a high crime rate on noncitizens, while failing to report the relative harmlessness of these offenses. Further, there has been an apparently disturbing decision made by the Governmentto dedicate fewer law enforcement resources to violent crimes and white collar crimes, such as securities and mortgage fraud. Curiously, this does not make the headlines the way the arrest of the three hikers in Iran does, even though it affects many more people who are likely to be equally confused and frightened about their predicament. In fact, 92% of immigration law violations prosecuted in fiscal year 2009 involved cases of illegal entry to the U.S.

Our 3000-plus mile border with Canada is mostly unmarked except at the various ports-of-entry maintained by Customs and Border Protection. If a noncitizen crosses that border at an undesignated location, he or she will set off a sensor which alerts Border Patrol of a potential illegal entry into the U.S. Once apprehended, the noncitizen is arrested and detained. Some are prosecuted for illegal entry and serve a jail sentence. Ultimately, the person falls back into the hands of the immigration authorities and is detained and deported, except for perhaps the very few who have a defense against removal, such as asylum. And their incarceration might last many months. So I must ask, why would another sovereign nation not be justified in detaining and prosecuting foreign citizens for the same offense? And why would Iran's sensitivity towards the United States' interference in its domestic laws be any less justified than if the situation had been reversed?

Several years ago I represented a very bright and accomplished woman, a permanent resident, who had been accused of smuggling two men into the U.S. The men, friends of hers, had been passengers in her car during a trip to Canada, and on the way back, they unexpectedly asked her to drop them off a few miles before the border so they could take a walk to get some fresh air. They told her that they would cross into the U.S. on foot at the required checkpoint. She had no reason to doubt their sincerity, so the three then agreed to meet inside the U.S. at a designated spot to conclude the trip home. The men, though they had visas to come to the U.S., ended up crossing into the U.S. at an unmarked point in the woods and were immediately arrested by Border Patrol. They then turned in my client and disclosed the location where she was waiting for them. For over six years this woman determinedly fought the charge that she had knowingly aided and abetted the men to enter the country illegally. I know that the emotional toll, financial expense, and the agony of never knowing how the complicated case would conclude overwhelmed her many times. During the pendency of the case, she could not travel abroad to visit her elderly, ailing parents. Fortunately, in the end, the charge was dismissed and the removal proceedings against her were terminated because the Government could not meet its burden of proof. This woman's story has never been told by press, has never been in the media, and I know that she's not alone in having felt that her life was turned upside down by an accusation which, ultimately, proved unfounded.

From the TRAC report:

"(21 Dec 2009) The latest Justice Department data show that federal prosecutions reached an all time high in FY 2009. The surge was driven by a sharp increase in immigration filings. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), overall federal prosecutions peaked at 169,612, up nearly 9 percent from the previous year.

But the increase in immigration filings was much sharper -- 15.7 percent. This means that such prosecutions now make up well over half of all criminal cases brought by the government. Meanwhile, the prosecution of other major crime categories such as drugs, weapons and white collar crime was up only slightly or had actually declined...

Because of the financial crisis that continues to grip the nation, the Obama Administration has sought to emphasize its concern about securities fraud, mortgage fraud and other such illegal activities. On November 17, for example, Attorney General Eric Holder held a news conference to announce the creation of a new Financial Fraud Enforcement Task Force to coordinate the government's response. (The Bush Administration had appointed a similar task force with little visible impact during a period when the public was concerned about the Enron abuses.)
The prosecutions of these kinds of white-collar crimes, however, have never appeared to have been a major concern of the Justice Department and the investigative agencies like the FBI and the Securities and Exchange Commission. In FY 2009, for example, Justice Department data showed there were only 178 securities fraud prosecutions. While up 22 percent from 2008, this figure still only represents about a third of what it was in 2002, when there were 513 such prosecutions. For another business category, corporate fraud, the data indicate a grand total of 82 prosecutions, down to about a quarter of what it was — 322 prosecutions — in 2003, the first year this category was used. Although such cases obviously are among the most difficult for the government to prove, they seem infinitesimal when compared to the 91,899 immigration prosecutions." Read more!

Sometimes I just don't get it...

My colleagues and I always get a kick out of the fact that when a woman calls us seeking assistance on behalf of a boyfriend; she always refers to him as her fiancé, whether or not there has actually been a marriage proposal. When I meet the “fiancé” at the detention facility where I work, I inevitably learn that the couple has been together for several years but have never wed, and probably never will. I then wonder whether I have lost touch of what this word means, or whether women use the term with me believing that I am more likely to take sympathy, and represent him in his deportation case, if she is his fiancée.  I suppose I can’t blame them for trying. They certainly seem genuinely dedicated to helping their man and that is a great asset to have.

On the other hand, it consistently baffles me when a family member spends an inordinate amount of time trying to convince me of how very busy he is, and how he may not be able to assist in collecting the supporting documents I need to mount a defense on the relative’s behalf. I just don’t get this. Do such people believe that deportation is not really possible? Or do they simply not care? I have certainly had family members who contact me in tears after a relative has been ordered removed to ask what more “we” can do, and whether this or that paperwork or witness might not help the case. When I tell them it’s too late, and ask where they were when I was repeatedly seeking their assistance, they sound dumbfounded. What is more, even when I do give a clear explanation that removal proceedings present a concrete risk, it's obvious that this news is still insufficient to motivate certain relatives to get involved in the matter. Thus I’ve come to believe that some loved ones do not truly comprehend that the threat of deportation is real.

Other times, it would appear that there are people who naively believe that we lawyers can defend an individual without any outside help, which leads me to conclude that there is a serious misunderstanding about what it is that attorneys do. First of all, we do not perform magic as I often tell my own clients. We apply the relevant law to a set of facts with which we are presented, and make arguments that benefit our client based on the law and the facts. While we must often be creative and determined, we cannot change the facts, and in order to prove our points, we need evidence. That evidence must come from our client and others who are material to the matter, either in the form of testimony or documentation. And when a client is detained, as mine mostly are, we must call upon family and friends to help retrieve the information that our client cannot access from jail. For example, we need names, phone numbers, and addresses. In my field, we also need birth certificates, “green cards” and naturalization certificates, which we do not have the ability to independently obtain. And the list goes on and on. I’d like to think that if one of my family members were ever in a legal predicament as serious as one involving arrest and detention, I would move earth and sky to cooperate in his or her defense. But, as I’ve learned, this sentiment is not always shared by others.

I clearly recognize that some families may be completely fed up with a relative’s behavior. After all, my clients have generally been convicted of a crime, and many times, several crimes, and then they are subject to deportation. I remember a woman I once called at her detained boyfriend’s insistence, and she reacted quite strongly to my request for help. “The only time that ‘s.o.b.’ calls me is when he’s in trouble and I’m just sick and tired of it. I could care less if they deport him.” I certainly understood her position and assured her that I did not expect her help. From what she candidly explained to me, it was obvious that she had been on the losing end of the relationship for several years, and I agreed with her that it was time to move on. Similarly, in another case, my client had ten siblings and not a single one showed up at his trial to show the court they cared about the outcome. Less than half of them had taken the time to even write a letter of support. While I never asked directly, it wasn't difficult to realize that the family had been addressing their brother’s “behavioral” issues (and there were quite a few), including a severe drug addiction, for many, many years. Perhaps they’d simply reached the end of their rope and believed that deportation wouldn’t be so harmful to him. I hope they were correct because he was, indeed, deported.

However, I also recall when a Jamaican mother from the New York City area brought a full van load of church members up to Batavia, some 400 miles away, to support her son’s efforts to remain in the U.S. The immigration judge was clearly impressed by this broad show of support. When he granted the man relief from removal, the courtroom erupted in a unanimous “hallelujah,” and a few “praise the Lord.” In another matter, eight members of a handsome and close-knit Guyanese family arrived at the court in Batavia to testify on behalf of their brother and affirm that he was a kind, caring and helpful person despite his isolated criminal act. And each of them was dressed impeccably for the occasion: suits and ties and dresses, as it should be. For some reason, believe it or not, it is not always obvious to people that one should dress formally to attend court. I was once told about a young man who turned up for a hearing wearing a t-shirt with a marijuana leaf on it. A kindly lawyer in the waiting room suggested to him that it would be wise to turn the shirt inside-out before entering the courtroom.

The role of family and loved ones in the types of cases that I handle can be critical and can never be underestimated. For this reason, I'm so troubled when there is a lack of cooperation for no apparent reason. I'm grateful, though, that the absence of support is an exception and not the rule. Most families, particularly mothers, wives and "fiancees," tend to go well out of their way to help the men in their lives when thet are in removal proceedings. Many must even find rides from neighbors, friends or others who own decent, reliable vehicles to make the eight hour trip from a New York City borrough up to Western New York. An especially charming Dominican mother once called me frantically at 8AM from the State Thruway to explain that her nephew's older model car had broken down on the way to Batavia for her son's 1PM hearing. She then called me every half hour or so to keep me apprized of whether the car had yet been towed, the necessary part located, and of the progress of the required repair. In the end, she never made it for the hearing. She called me in tears when she realized she would not get there on time for her son's "moment of truth." During the trial, I explained all of the mother's efforts to the judge, who was sympathetic and noted on the record her sincere attempt to be present in order to testify. Fortunately, the car was repaired by late afternoon, and both the mother and the cousin were there to greet my client when he was ultimately released from custody.

Not so long ago, a pro bono attorney explained to me how her client's mother, sister and brother-in-law had left their home in Missouri in the early hours of the previous morning to drive all the way to Batavia to testify on behalf of a Mexican man who'd suffered from a drinking problem which led to an arrest. The humble brother-in-law, who had worked in the fields side-by-side with her client for many years, testified that the man had always been praised by employers for his hard work, and that he would undoubtedly be re-hired by the grower if he returned to the town where the family lived. Moreover, stated the brother-in-law solemnly, he himself would take responsibility to ensure that his relative never again indulged in alcohol. The client was granted relief and released to make the two day drive home with his caring family.
Read more!

More on "Flying While Arab"

Does discrimination have to play a part in keeping America safe?
In a response to the December 25th bomb attempt on Northwest flight 253 to Detroit, the Transportation Security Administration announced a new screening policy that requires "enhanced screening" of passengers flying into the United States from 14 countries considered either “state sponsors of terror” or “countries of interest”. Many groups have reacted strongly to the directive, which carries on the pattern of profiling and alienating members of certain communities since 9/11. See, http://restorefairness.org/2010/02/does-discrimination-have-to-play-a-part-in-keeping-america-safe/.

From the Restore Fairness blog: With the exception of Cuba, the rule targets passengers, including U.S. citizens, that are traveling from Muslim-majority or Middle Eastern countries. The additional screening procedures including full body searches, pat-downs, scans and luggage inspections, in addition to the normal processes undertaken at the airport.

Many groups have reacted strongly to the directive, which carries on the pattern of profiling and alienating members of certain communities since 9/11. But the discriminatory rule is also considered an ineffective security measure.

In a briefing aptly called Targeting Needles, or Adding More Hay?,
Jumana Musa from the Rights Working Group pointed out that in the 1990s, when law enforcement began monitoring suspicious behavior instead of profiling based on race, arrests of targeted suspects actually increased even though fewer searches were conducted.
The ACLU shares similar concerns.

Electronic strip-searching of innocent people, racial profiling and bloated, poorly managed terrorist watch lists do not stop terrorist attacks, but they do infringe upon Americans’ rights and waste valuable resources…We must invest our security resources in investigations based upon reasonable suspicion of wrongdoing so we can more effectively identify and stop attackers before they get to any airport.

These strategies are not only smarter but save valuable resources. And they avoid racial and ethnic profiling, an unreliable means of identifying criminal behavior. Similar examples have yielded no results, like the one cited in this advocacy letter.

These new procedures parallel the National Security Entry/Exit Registration System (NSEERS), put into effect shortly after 9/11. Despite tracking at least 83,000 individuals from Middle Eastern and Muslim-majority countries, the NSEERS program did not result in a single terrorism conviction. Neither NSEERS nor the new TSA standards, make us safer because they divert attention and resources away from legitimate leads and identifying suspicious behavior.
But there are other consequences besides profiling. According to the ADC,
During the past decade, similar racial, ethnic and religious profiling tactics and practices have time and again misdirected precious counterterrorism resources, damaged foreign relations with key allies, fueled the fires of extremists by giving them an excuse, stigmatized communities, and most importantly did not have any discernible impact on security. Based on precedent, these new directives will be no different than these past practices and their adverse consequences; and while such directives may appear to make us feel safer, the reality is that they discriminate against innocent persons and divert attention from real threats.

An editorial by Farhana Khera of Muslim Advocates sums it up best,
President Obama has admitted that we didn’t connect the dots in the Abdulmutallab case. Federal authorities overlooked such clues as the alleged bomber’s improper attire for the Detroit winter, purchase of a one-way ticket, the United Kingdom’s rejection of his visa request and his own father’s efforts to alert authorities about his son’s recent extremist tendencies…We shouldn’t focus on what a terrorist looks like, but on what a terrorist acts like.. Read more!

The Impact on Kids of Deporting their Parents

An important Urban Institute study, released today, concludes that the children of deported parents "experienced severe challenges, including separations from parents and economic hardships that likely contributed to adverse behavioral changes..." and "[g]iven that any overall abatement in the need for enforcement is not likely and that in many cases arrested unauthorized immigrants will have children, most of whom are U.S. citizens from birth, the nation must act to protect these children. Balancing enforcement imperatives against the best interests of children is a challenge the country must face squarely, whether or not the immigration system is more comprehensively reformed."

See, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf. Read more!

Support Our Troops: YOUR TAX DOLLARS AT WORK

In a post below entitled My Message to Congress, I briefly introduced readers to a young man from Ghana, a permanent resident, now in removal proceedings and subject to mandatory deportation because he is an “aggravated felon.” The fact that one year after he obtained his “green card” he enlisted in the U.S. Army, served five years, two of which were in combat in Iraq, and was then honorably discharged, makes no difference. He will be deported. It makes no ounce of difference that he served this country during the war, because this veteran—who is not alone in this dilemma—was convicted of attempted possession of a controlled substance with intent to sell. Under immigration law, any drug offense involving a sale is an aggravated felony, and there is no relief from removal for aggravated felons.

When I mentioned all of this to a dear friend, who is unfamiliar with the more disgraceful provisions of immigration law, he was astounded at the injustice. His straightforward reaction was, “Are you kidding me? They're deporting someone who served this country in Iraq?” When I affirmed this troubling fact, he responded to me that he was "sad, angry and ashamed all at the same time." This candid assessment from an American citizen led me to think even more about the madness of this law.


If the war veteran had simply been convicted of possession of a drug, he would not be automatically deportable. In that situation, he would have available a waiver called cancellation of removal. Therefore, logically, if we could vacate his current conviction and have him re-plead to a simple possession offense, we’d be in fairly good shape. The new conviction would allow him to appear before an immigration judge so that the judge could balance the sacrifice that the foreign-born soldier had made by serving in the U.S. Armed Forces, along with any other equities, against the seriousness of his crime and any other negative factors. One would hope that the judge would find that the former clearly outweighed the later. After all, this young man not only served his adopted country, but was injured in the line of duty. While this sounds like a good strategy, it is also, unfortunately, the point at which I believe things become nonsensical—especially for you and I, American taxpayers.

For the last few decades in the United States, our society has come to consider offenses related to drugs among the most serious of crimes. We often punish drug offenders drastically (especially in New York State under the “Rockefeller laws”), and seldom seem to consider the value of rehabilitating drug users with well-designed, effective programs to help them overcome their substance abuse.
Consequently, we invest millions of dollars in a law enforcement system that prosecutes and incarcerates. Presumably, it is for this reason that the Ghanaian was severely punished for his wrongdoing. The criminal justice system was not the least bit sympathetic that he had enlisted to serve his new homeland in a brutal war, and disabled by his military service. He was still required to plead to the more serious offense of intending to sell the controlled substance which he possessed. And after he served his county jail sentence of six months, Immigration and Customs Enforcement (ICE) placed a hold on him and brought him to their custody, at an estimated cost of $90 per day. He has now been detained by ICE for over two months.

So, if I am now fortunate enough to find a pro bono criminal defense attorney (which is proving to be a difficult task) to make a motion to vacate the conviction on behalf of the Ghanaian, because no veteran deserves deportation after having served in the U.S. military during war, then the already overburdened criminal justice system will be required to once again take a look at this case. Chances are, given what I am told by those with more experience than I in such matters, we would likely prevail in vacating the conviction. But what does this lengthy process realistically cost us? We have already paid for the arrest, prosecution and incarceration, as well as two months of immigration detention in this matter. And, if we are successful in vacating the charge, what does this say about the crimes our society ostensibly considers serious? Isn't it a bit illogical to initially make someone "pay" for a certain offense, then later change our minds when we realize the ramifications and regret our decision? Wouldn’t it have been more efficient to handle such a matter fairly in the first place, and consider all of the relevant factors before accepting the plea, including the defendant’s status as a noncitizen veteran potentially subject to automatic removal from the U.S.? To consider my questions fully, I invite you to read my first post on this blog, The Price of Justice. You may also end up shaking your head in disbelief, like my friend, at all the irrationality. Frankly, the only winners that I can identify in the system that led to the above–described result are lawyers who get paid for their services. But the taxpaying public sorely loses, not to mention the grave impact all of this has on the war veteran and his/her family.

My critique is not limited to the criminal process. I also think there is a major flaw in the immigration system as I have detailed fully in previous posts on this subject (and the recent ABA report confirms this, see post below). However, now I will add one more issue to this debate. Those who represent the interests of the U.S. Government in the removal process are entitled to exercise prosecutorial discretion. This means that they do not have to arrest and/or “prosecute” every deportable immigrant they encounter. Honorably discharged veterans of armed conflict are just the kind of people for whom such discretion should be exercised. It would certainly save a great deal of expense and grief if the Government regularly considered this option as a matter of policy in the true spirit of the bumper sticker, "support our troops." Instead, it would appear that immigration officials would prefer that the immigrant veteran pursue the expensive option of vacating a conviction, which if successful, would render him/her eligible for a defense against removal. However, ultimately, this tactic puts the person in virtually the same position as if the Government had exercised prosecutorial discretion in the first place, yet at much more expense to the taxpayer. And what if the detained, indigent immigrant cannot afford such a costly strategy and no pro bono lawyers are willing to help?

Finally, I must once again turn my frustration to Congress, the branch of Government that passes these laws without fully comprehending their reach, their unjustified cost, and their potential malice.

Note: For more information on the Rockefeller Drug Laws, see http://www.drugpolicy.org/statebystate/newyork/rockefellerd/ and http://www.nyclu.org/issues/racial-justice/rockefeller-drug-law-reform; an excellent book on the issue is Life on the Outside by Jennifer Gonnerman (Picador, 2005).

Note: I am very fortunate to work in a jurisdiction where my opposing colleagues are reasonable, and they have exercised discretion in the past when they believed that the facts warranted it. However, with cases involving drug convictions, I would guess that without a directive from above, they would feel uncomfortable going out on a limb no matter what they think personally about the case. Therefore, a nationwide policy from DHS is imperative unless Congress changes this law. Read more!

Bad News for the Government

Report urges overhaul of immigrant removal adjudication system
Marcia Coyle
February 02, 2010

The article below is from The National Law Journal
See, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202441782897

To see the Executive Summary of the ABA report: http://www.abajournal.com/files/Reforming_the_Immigration_System_Executive_Summary_advance_1_25_10.pdf

Neither the Department of Homeland Security nor the nation's immigration courts — both overwhelmed by exploding caseloads and inadequate resources — are ensuring fair decisions and due process for noncitizens, according to a top-to-bottom investigation of the system for removing aliens from the United States.

A pro bono team of 50 lawyers and legal assistants at Washington's Arnold & Porter spent more than a year examining the removal adjudication system at the request of the American Bar Association's Commission on Immigration.

In a 500-plus-page report to be released today, the law firm details its findings, including inconsistent positions taken by DHS on asylum and other issues, high levels of stress and burnout among immigration judges, inefficient circuit court review of removal orders, unsupportable disparities in decisions by immigration judges, a dramatic expansion of the grounds for removing noncitizens based on "aggravated felony" convictions, and too many judges who display bias or intemperate behavior on the bench. An example of one judge's behavior and the consequences it had for an immigrant family were chronicled by The National Law Journal last month.

The report also urges a major restructuring of the adjudication system by elevating immigration courts to Article I status and makes roughly 60 other recommendations, about half requiring action by Congress and other non-legislative steps, to address the myriad of problems with the system.

"The last round of comprehensive immigration reform failed," said Karen Grisez, chair of the ABA commission and a partner in Fried, Frank, Harris, Shriver & Jacobson. "We thought if it does come back in Congress, it would be great if we had a marker out there that had credibility and offered really in depth, thorough recommendations for improving the system."

Although there have been other studies of the system, "This one is comprehensive in covering the full process — from the issuance of notices to appear by DHS, which starts the process, to the end of adjudication," said Lawrence Schneider, head of Arnold & Porter's international trade practice and a leader of the study. "We began by looking at all of the literature out there — a massive search as a beginning point. Then we interviewed scores of people about their experiences, ideas and reactions with respect to the current system. So with that combination, we've created what hopefully will be a great guidebook for policymakers as they consider changes." Schneider said Arnold & Porter logged 13,000 hours on the study.

The report's recommendations that would require legislation include:

• Hire 100 additional immigration judges as soon as possible, but at least within the next three to four years, and increasing the number of law clerks from the current one per four judges to one per judge;

• Establish a right to representation in adversarial removal proceedings and for individuals in groups with special needs, such as children and the mentally ill;

• Amend the definition of "aggravated felony" which is now so broad that DHS has initiated removal proceedings against persons convicted of misdemeanors and other minor crimes and that has contributed to the overwhelming immigration caseload;

• Eliminate or narrow the law's mandatory detention provisions to target persons who are clearly flight risks or pose a threat to national security, public safety, or other persons;

• Amend the law to permit courts of appeal to remand cases to the Board of Immigration Appeals for additional fact finding.

• Non-legislation recommendations include:

• Increase the use of prosecutorial discretion by DHS officers and attorneys, for example, to stop litigating a case after key facts develop to make removal unlikely;

• Increase training opportunities for immigration judges and require more written, reasoned decisions by the judges;

• Reduce the use of detention, expand alternatives to detention, expand use of parole for asylum seekers, and address concerns related to the location and transfers of detainees.

Immigration law scholar Andrew Schoenholtz of Georgetown University Law Center, a member of the ABA commission, called "ground-breaking" Arnold & Porter's analysis and recommendation for the restructuring of the immigration courts. The firm examined other Article I courts, independent agencies and a hybrid of the two before recommending Article I status for immigration courts — a change that has garnered support from the judges' union, other legal groups, academic experts and even some federal judges.

"There is no question in terms of addressing these issues that I'd love to see immediate changes in caseload and resources," said Schoenholtz. "We need more judges and more DHS trial attorneys, but we need fewer cases. When you combine the two, you begin to shape a system where DHS can prioritize who to prosecute, who to remove, and you get better quality of decision-making by judges."

Commission Chair Grisez said that for her personally, the recommendation on representation of noncitizens was "most significant" in improving the system.

"I am extremely concerned about the fact that persons in these proceedings, including children and the mentally ill, are forced to go through the process without lawyers unless they're lucky enough to find a pro bono lawyer."

Grisez said she asked Arnold & Porter to undertake the study because of the breadth of the firm's involvement in immigration matters, its strong pro bono commitment and its understanding of the systemic problems in the immigration system.

Marcia Coyle can be contacted at mcoyle@alm.com.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202441782897
Read more!

DEPORTATION AS WEAPON

I have just finished reading "A Dangerous Woman: The Graphic Biography of Emma Goldman" by Sharon Rudahl (2007) which I received as an unexpected, but very welcome gift. As one might imagine, Goldman's life fascinates me for several reasons, among them her idealism and unwavering activism on behalf of the working class and the poor; her struggle for the rights of women (although she did not support the right to vote given the tenets of anarchism), including collaboration in the efforts of Margaret Sanger to free women from the oppression of constant child-bearing; her deportation from the U.S. on political grounds; and her relationship to Rochester and Buffalo, NY. As well, Goldman’s story is a thread in the history of immigration and the unjustified deportation of those who are deemed undesirable. As a token to the memory of the people's historian Howard Zinn, I've chosen to dedicate this post to a brief and very simple historical account of immigration law and policy, and to those who were kept out or sent "home."

A few years ago, at the invitation of the instructor of a university media class, I screened a film entitled “Out of Status” about immigration law and policy post-9/11, and hosted a panel discussion following the film. The presentation was an overview of immigration history and those who have been identified as undesirable throughout the decades. Reading Goldman’s biography made me think of that presentation, so I went back to my notes. In preparing for the class, I learned that, quite interestingly, a survey of international legal opinions indicates that there was no consensus among nations about the right to control migration into one’s territory until the 20th century. Not surprisingly, it can also be discerned that the primary forces for immigration control revolve around economics (“they are stealing our jobs!”); creating an ideal society, such as one that conforms to Eurocentric norms; and a crisis attributed to the foreign-born, such as the threat of radical politics or today’s "war on terror." Various agencies in the Government, including the Treasury Department, the Department of Labor and the Department of Justice, all have been charged at some point with the enforcement of immigration law since the U.S. Supreme Court determined in 1875 that such responsibility fell on the federal government.

The Bureau of Citizenship, a forerunner to the Immigration and Naturalization Service (INS), which was abolished in 2003 after more than 60 years of existence, was created during the Civil War to encourage immigration from Northern Europe. It hired “Chinese Inspectors” who were stationed at ports of entry to limit the admission of Chinese nationals to the country. Such positions were maintained by the INS in later years. Obviously cheap labor was sorely needed in the U.S. in the late 19th century, and the Chinese were among the greatest contributors to the construction of the transcontinental railroad. Nonetheless, the U.S. sought to keep them from settling here after exploiting their labor. Indeed, Asians who came from nations as far west as Afghanistan were among the earliest victims of the U.S.'s racist exclusionary laws and policies. Angel Island in the San Francisco Bay was opened one hundred years ago as a detention facility to hold Asians seeking to enter the U.S., and it was in operation until 1940 (See posts about Angel Island below). These discriminatory migration laws were also extended to the Japanese. The Japanese internments during WWII are perhaps the most offensive evidence that the profiling of Asian people in the U.S. lasted well into the mid-20th century.

In spite of the aforementioned, open borders were the norm in this country until the late 19th century. The Government was not so much concerned about the border, but rather about who sought to cross it. For example, the Alien and Sedition Acts of 1798-1802 called for the arrest of those who were “dangerous to the peace and safety of the U.S.,” and the Know Nothing Party of the late 19th century rallied against the Irish and other Catholics deemed a threat to Anglo-Saxon Protestantism. The chronology of immigration laws which sought to exclude the so-called undesirable is more or less as follows:

— 1875 law bars convicts and prostitutes from entering the U.S.
— 1882 law bars “idiots, lunatics, convicts and persons likely to become public charges”
— 1891 law bars those who suffer from contagious diseases
— 1902 law bars anarchists

Today’s immigration law still renders inadmissible those likely to become a public charge and those likely to engage in prostitution, those convicted of most criminal offenses, those with contagious diseases (and until very recently it included those with the HIV virus), as well as Communists. Homosexuality was also deemed a ground of exclusion in past decades. Since President George H.W. Bush's declaration of a "war on drugs" to combat the perceived drug crisis in this country in the mid-1980's, no single offense, other than than the obvious terrorist-related violation, has more serious immigration implications than drugs. Rehabilitation is not an option in law enforcement's arsenal (See posts below regarding "aggravated felonies.)

The National Origin Quota System of 1912 was in effect until the mid-1960’s, and its primary purpose was to limit Southern and Eastern European migration to the U.S. The law also maintained an “Asiatic barred zone.” Discrimination against Italians was quite visible during WWII. Some 58,000 Italians living on the West Coast were required to relocate, and certain German and Italian nationals were also interned along with the Japanese. One may recall when Senator Pete Domenici sadly disclosed his Italian mother’s arrest and detention by immigration authorities in the mid-1940’s when he was just a frightened little boy. In fact, during those debates on immigration law in 2006, Senator Arlen Spector also described his parents' migration from Russia only to find anti-Semitism present in the U.S.

Border control gained prominence at the beginning of the 20th century following the Mexican Revolution, and the fear that its “radical” ideals would spread northward. This led to an increase in the presence of agents on the Southern border in 1917, although there still were no quotas on migration from the Western Hemisphere countries until the mid-1920’s. Mexican agricultural labor was desperately needed in the United States and border enforcement remained lax. Moreover, until only about a half century earlier, the Southwestern U.S. had been Spanish, and then Mexican territory, and people were accustomed to venturing back and forth over the Rio Grande with relative ease. However, when the economy turned sour, American politics changed accordingly. During the Great Depression there were mass deportations of 415,000 Mexicans, some of whom were U.S.-born citizens, and no due process was ever afforded to the victims during these drastic practices. Prior to this time, the focus of border agents had been on the smuggling of alcohol into the country during Prohibition, especially from Canada. However, by 1933 immigration enforcement began to focus on Mexicans and the Southern border. When WWII produced labor shortages in the U.S., Mexicans were again encouraged to migrate North. The notoriously exploitative “bracero” program was created in 1946 to bring farm labor to work in the booming U.S. agricultural industry. (Its bitter legacy of abuse is one of the primary reasons why reaching an agreement today about an appropriate visa program for unskilled laborers is so difficult.) Although no formal restrictions against Mexican migration really existed until 1968 after the end of the “bracero” program, “Operation Wetback” was instituted in 1954, which in turn led to massive round-ups of suspected undocumented Mexicans in the Southwest. A record number of deportations ensued.

The Red Scare of the 1920’s, which led to the Palmer Raids, arguably set a historical precedent for today’s “war on terror.” Hundreds of immigrants, mostly Italian and Jewish, including Emma Goldman and Marcus Garvey, were deported for unionizing and/or for their “radical” political opinions and activism. Anarchists were deemed particularly threatening after the assassination of President McKinley in 1901 at the Pan American Exhibition in Buffalo by a Polish-American anarchist. The accused, Leon Czolgosz, who was born in Detroit, was arrested, tried and hanged in a little more than one month from the date of McKinley’s death. Goldman was suspected of having participated in the assassination plot, though Czolgosz always insisted that he had acted alone and that Goldman was innocent of any wrongdoing.

This is the period in American history during which J. Edgar Hoover rose to power, turning the Federal Bureau of Investigation (FBI) into a massive bureaucracy, and using the agency to effectively suppress all dissidence which he deemed subversive, including anti-war protests during WWI and the rising labor movement. Labor organizing, in particular, involved many immigrants since they were already quite sensitive to issues of exploitation (For example, in John Sayles' film "Matewan," set in the early 20th century, the Italian immigrants, while initially viewed skeptically as outsiders, are ultimately called upon to tip the balance in favor of the miners' efforts unionize). Hoover had begun his career at the Justice Department as the head of the Enemy Aliens Registration Section. In fact, even John Lennon had to fight Hoover to obtain a “green card” in the 1970’s due not only to a marijuana possession conviction, but because of his popular political activism. (See the film “The U.S. v. John Lennon” ). As is also well known, Senator Joseph McCarthy led a witch hunt for Communists in the 1950’s, and operated his mission to rid the nation of leftists. He operated parallel to the House Committee on Un-American Activities, which was active from 1938 until 1975. Many of those brought before the Committee, like those accused of suversion in earlier years, were simply implicated through guilt by association.

Illegal migration in general became a crisis for the U.S. in the 1960’s and 70’s, although its targets in those years were still Mexicans and subsequently Central Americans, especially during the civil wars in Guatemala and El Salvador. It was not until 1980 that Congress passed the Refugee Act, formalizing the process by which those seeking safe haven in the U.S. could apply for asylum, something which, until then, seemed reserved exclusively for Soviets and other fleeing Communism. During the 1980’s, as the war in El Salvador became intensely violent, and the well-documented human rights atrocities committed against civilians grew fierce, Salvadorans fled en masse to this country for protection. Disturbingly, only about 5% of them were granted asylum status due to the U.S.'s support of the repressive Central American regimes primarily responsible for persecuting their own citizens. Out of this obvious injustice grew the sanctuary movement which was dedicated to helping Central Americans reach Canada, where asylum grants were much more generous (VIVE La Casa in Buffalo was founded with this objective); as well as the landmark lawsuit, American Baptist Churches v. Thornburgh, which denounced the Government for having brought Central American policy considerations into the objective asylum process. Both forever affected immigration policy and law toward Central Americans.

On September 24, 2008, I read an article in The San Francisco Chronicle reporting that Customs and Border Protection officials were inquiring about the political opinions and religious beliefs of those seeking to enter the U.S. These interrogations involved such questions as "do you hate America?" "did you attend mosque abroad?" "whom did you see while abroad?" These tactics coincided with newly instituted searches of laptops and other electronic equipment. Both measures were strongly denounced by civil rights groups and advocates for Muslims and Arabs, and have been the subject of legal action. Very interestingly, these types of policies had been previously instituted in the early 1980’s by President Ronald Reagan to question and search those returning from trips to Sandinista Nicaragua. However, even then, reasonable suspicion was required to undertake this kind of obtrusive search, and probing one’s thoughts and life was prohibited.

Excluding the undesirable, defined as such for various reasons throughout history, is most evident in deportation. The banishment of people who have made the U.S. their home is an aggressive measure, and Emma Goldman's recollection of the day when she was deported from the United States is a clear representation of the moment. Like Goldman, my own clients have frequently related to me how their own removal occurs when they are awakened in the early hours of the morning.

Below is Emma Goldman's narrative, reprinted from Emma Goldman Papers Project maintained on-line by the University of California at Berkeley:

"It was almost midnight when suddenly I caught the sound of approaching footsteps. 'Look out someone's coming!' Ethel whispered. I snatched up my papers and letters and hid them under my pillow. Then we threw ourselves on our beds, covered up, and pretended to be asleep.

The steps halted at our room. There came the rattling of keys; the door was unlocked and noisily thrown open. Two guards and a matron entered. 'Get up now,' they commanded, 'get your things ready!'...

Deep snow lay on the ground; the air was cut by a biting wind. A row of armed civilians and soldiers stood along the road to the bank. Dimly the outlines of a barge were visible through the morning mist. One by one the deportees marched, flanked on each side by the uniformed men, curses and threats accompanying the thud of their feet on the frozen ground. When the last man had crossed the gangplank, the girls and I were ordered to follow, officers in front and in back of us. . . .

I looked at my watch. It was 4:20 A.M. on the day of our Lord, December 21, 1919. On the deck above us I could hear the men tramping up and down in the wintry blast. I felt dizzy, visioning a transport of politicals doomed to Siberia, the étape of former Russian days. Russia of the past rose before me and I saw the revolutionary martyrs being driven into exile. But no, it was New York, it was America, the land of liberty! Through the port­hole I could see the great city receding into the distance, its sky­line of buildings traceable by their rearing heads. It was my beloved city, the metropolis of the New World. It was America, indeed, America repeating the terrible scenes of tsarist Russia! I glanced up at ­­the Statue of Liberty!"
Read more!

More on "Flying While Arab"

A friend who read the post below sent me this link:
http://www.cnn.com/2010/OPINION/01/29/syed.muslim.while.flying/index.html?hpt=C2.

"It seems that now someone called "Barack Hussein Obama" can be pulled aside and patted down merely because of his name. But while our president has the benefit of Air Force One, millions of us with a "funny name" (Muslim and otherwise) do not. Like me." Read more!

"I will go to the airport in my underwear!"

Not long ago after the 9/11 attack on the World Trade Center, a Palestinian-American attorney friend told me a story about her honeymoon. She's a wonderfully vivid story teller, and she recounted this tale with humor and lightness in her voice, even though it is really a reflection of these troubled times. It goes like this: When she left on an exotic honeymoon with her white, Italian-French-American husband, her own strikingly Arab name triggered a "hit" at the airport check-in. As a result, the couple's boarding passes were immediately marked with three bold letters, "SSS." And when she and her new hubby arrived at the security checkpoint, they were subjected to a special search which involved being placed on a platform with their arms outstretched and "wanded" with a metal detector. During the procedure, her lawyer husband decried the treatment by exclaiming, "you're profiling my wife, you've singled her out. This isn't right!" My easy-going friend amusingly thought to herself, "my poor white boy, he just doesn't get it!" Given his insulation from the backlash that struck Arabs and Muslims after 9/11, he was outraged by a situation that his wife had come to accept as routine. Of course, Palestinians have always been, in one way or another, deemed a people who require heightened vigilance by the West. But in a very recent conversation with another Arab friend about the new security precautions established after the "Christmas" bombing attempt by a Nigerian national, which involve full body searches of citizens of certain nations, including the one from which his family comes, he simply said with a sarcastic smile, "I will just go to the airport in my underwear!" Given recent news reports which indicate that Osama bin Laden's mug shot was updated using the google image of a Spanish politician, Spaniards may even find themselves under unusual scrutiny. After all, with black hair and darker skin tones, they have an uncanny resemblance to "terrorists."

I have several friends who themselves, or whose ancestors, are from countries that the U.S. Government (and other Western nations as well) has condemned as "terrorist havens." As a group, these men and women are highly educated, kind and compassionate, and care a great deal about the world and the communities in which they live. All of them have dedicated either their career, education or free time to the public interest, which is how I met each of them. They are both Muslim and Christian, some devout and others not so much so. The single absolute they share is that all are Arab, in a day and age when "flying while Arab" is frustrating, and sometimes downright intimidating. Yet all remain firmly proud of their heritage as they should be, but also appear resigned, without apparent bitterness, to the new status quo. I have also noted in my work, with exasperation and concern, the disturbing, yet clearly documented trend, that migrants from Muslim countries, who are arrested and detained by the Department of Homeland Security in this region of the country, are not afforded a bond. The required assessment of whether one is a flight risk or a danger to the community is ignored, and instead, a generalization is made that leads the officers to conclude that no bond will be set.

On the evening news not too long ago, I was intrigued by the anchor's statement at the beginning of the newscast, "Yemen, a country Americans know little about…," and then going on to explain how the country was a launching ground for terrorists, including the so-called Christmas bomber. Actually, I know a few things about Yemen which are quite fascinating. A friend, whose family is Yemeni, once sent me an array of beautiful photographs of Yemen, encouraging me to visit. It is a striking land. The old walled city of Shibam and the old medieval city of Sana'a, the capital, are UNESCO World Heritage Sites. Apparently, the latter was deemed so at the insistence of the Italian film director Pier Paolo Pasolini, who feared that Sana'a would succumb to the same modernization that his native land had suffered, eliminating its tranquility and unique character. I also have been quite struck by images of Al-Hajjara with its11th century mud structures rising from the cliffs. When I visited the Arab American Museum in Dearborn, Michigan, I learned that one of Cesar Chavez's loyal supporters was Negri Daifulla, a UFW member and an immigrant from Yemen. He was killed on the UFW picket line in 1973. I also recently read in The Washington Post that women from what was once known as the People's Democratic Republic of Yemen have lost significant ground since the unification with Northern Yemen (supported by the U.S.) in 1990. In the past, these women dressed casually and were professionals in several male-dominated fields such as law. Today, they feel repressed by orthodox Muslim codes and practices, as well as tribal traditions, which dominate the country. See, http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012201354.html.

There is a well-established Yemeni community in Buffalo's neighboring city of Lackawanna. Many came to work in the prosperous steel industry of the 1950's and settled here, mixing the old ways with the new. Unfortunately, today the community is almost exclusively known for the prosecution of six young men accused of attending terrorist training camps in Afghanistan prior to 9/11. (For an objective look at the case, I would recommend Dina Temple-Raston's book, The Jihad Next Door (2007).)

Syria as well appears on a number of watchlists and was condemned in 2002 by the Bush Administration as a member of the expanded "Axis of Evil." However, Syria, from where two of my friends hail, generously hosts over 1.2 million Iraqi war refugees, and still maintains a population of Palestinians which makes up at least 3% of the country. A friend tells me that when he was growing up there, schools tolerantly accommodated all of the religious holidays of the students whether they were Muslim, Catholic, Eastern Orthodox or Alawite. Syria also boasts five World Heritage Sites, including the Ancient City of Damascus, the oldest continuously inhabited city in the world, the Ancient City of Aleppo and the site at Palmyra. I've read a number of articles about Americans traveling and studying in Syria, and all unanimously confirm that the country's people are gentle and generous toward American tourists. Sadly, but understandably, Syria plans to retaliate and will now subject Americans visiting their country to stricter security measures as well.

Today citizens of Syria and Yemen are both subjected to new security measures, but nationals of Jordan, Nigeria and the U.K. are not. Obviously, these purportedly improved measures do not appear to recognize that the doctor who killed eight Americans in Afghanistan not so long ago, including CIA agents, was a Jordanian; that the accused "Christmas bomber" was a Nigerian; and Richard Reid, the "shoe bomber," was a British subject. This is not to suggest by any means that one should condone the collective punishment of any nation for the isolated acts of one, or a few, of its citizens. Indeed, as the Nigerian Information Minister pointed out, in an interview with NPR earlier this month, Nigerians now feel like lepers who were singled out for the actions of one person in a country of 150 million inhabitants. It remains obvious to me that racial or ethnic profiling in general is a wholly ineffective tool for combating crime, let alone terrorist threats. Moreover, such profiling is contrary to the fundamental norms of civil and human rights, and was rightfully denounced, several years ago, during the debate over “driving while black.” However, I cannot help but wonder whether such continued reliance on such law enforcement measures is one of the reasons why terrorists are potentially still able to do us harm-- we really do not know who they are. We only assume that we know. It is clear that the simple label of "terrorist havens" and the stereotypes imposed on Arabs completely ignore the many attributes of Middle Eastern and North African countries, and serve to dismiss, or disinform us about, an entire people and their rich cultural heritage. Read more!

Biased Judging (revisited)

At the end of 2005 I co-authored an article about biased judging entitled, “Overwhelmed Circuit Courts Lashing Out at the BIA and Selected Immigration Judges: Is Streamlining to Blame?” 82 Int. Rel. No. 48 (December 19, 2005). While the issue has not captured the attention of the media in the past several years the way it did in 2005, the latest article, posted below, makes evident that the concern is still relevant five years later.

Decision-making in asylum cases has always been intriguing given the vast disparity in rulings that seem to exist from one judge to another. Syracuse University’s ”TRAC” has addressed the concern statistically, and affirms that the disparity has declined in recent years. See, http://trac.syr.edu/immigration/reports/209/. Additionally, two newer articles on this issue, one from the Law Bulletin and the other from The Sun Times, are pasted below.

Perhaps one of the most egregious cases we wrote about in 2005 about was Fiadjoe v. Attorney General, 411 F.3d 135 (3d, 2005). In this asylum matter, the applicant, a young Ghanaian woman, had been horribly abused by her father, who belonged to a peculiar traditional sect. She testified that she had been his sex slave from the age of seven, subjected to brutal beatings and had boiling water poured on her. The immigration judge held that the testimony was not credible, even fabricated, and began to aggressively question the woman. The Court of Appeals found the immigration judge’s behavior “crude (and cruel).” The judge had tormented her so much on the witness stand that she broke down and began disassociating, a symptom of Post Traumatic Stress Disorder. The judge effectively succeeded in undoing months of psychotherapy the young woman had participated in to address her emotional pain.

More recently, the Court of Appeals for the Ninth Circuit found that an immigration judge denied an immigrant appearing before her a full and
fair hearing by unreasonably limiting her testimony. See, Rendon v. Holder, 588 F. 3d 669(9th Cir. 2009). While this was not an asylum application, the immigration judge’s conduct is equally troubling, especially since this is not the first time this particular immigration judge has been admonished for this very same reason by the federal court. In a case called Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005), the court pointed out that it had previously questioned this specific judge’s faulty legal reasoning three times. This is unusual for a federal court. Usually, the immigration judge remains anonymous and no attention is called to his or her decision-making other than the legal or factual conclusions made.

In paraphrasing my co-author, Gerald Seipp, in our 2005 article, we recognize that most immigration judges endeavor to render fair and impartial decisions. Nonetheless, it is absolutely critical to recall that most immigrants in removal proceedings cannot afford the extraordinary expense of federal court litigation, or the type of remedial effort sought by the Bahamian citizen in the post below, in order to ensure that they receive due process. Therefore, it is vital that biases and other unprofessional behavior in the immigration courts be examined, and that corrective action be taken to assure fair and accurate decisions.

For more on a closely related issue, see December post, “The Price of Justice.”



April 21, 2009 Volume: 155 Issue: 77
Study eyes disparities in asylum outcomes
By Stephanie Potter
Law Bulletin staff writer

Two Georgetown University Law Center professors are urging an overhaul of the country's immigration system, pointing to widespread discrepancies in how officials handle asylum cases.

Andrew I. Schoenholtz and Philip G. Schrag on Monday presented data from their study, titled ''Refugee Roulette: Disparities in Asylum Adjudication,'' at a discussion sponsored by various local bar groups and held at The Chicago Bar Association.

The event featured remarks from Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals, who has criticized flaws in the immigration system both in written decisions and in public forums.

Among the findings of the study was that the 7th Circuit, at 37 percent, has the highest remand rate for immigration appeals in the nation. Courts of Appeal, like other parts of the immigration system, were found to vary widely in their treatment of asylum cases.

In his comments, Posner recommended higher recruitment standards for immigration judges and more training, particularly training in the culture of asylum seekers' homelands. The discussion was moderated by Mary M. McCarthy, director of the National Immigrant Justice Center.

The study was published in the Stanford Law Review in 2007, and is to be published in the fall as a book by the NYU Press. It examined consistency — or the lack thereof — in adjudication throughout the system, from the asylum offices, where refugees make their initial applications for asylum, to the U.S. Courts of Appeal. Jaya Ramji-Nogales, a professor at Temple University's Beasley School of Law who did not appear at Monday's event, co-authored the article and book.

''Neither the government nor asylum seekers want a system where what matters most in a refugee claim is who the decision-maker is,'' Schoenholtz said.

''We don't want a system where an asylum seeker from a country that produces lots of refugees has a 5 percent chance of success before asylum officer or judge X, and an 85 percent chance down the hall, from a different asylum officer or judge."

Yet Schoenholtz and Schrag said that is just the type of immigration system we now have.

The study focused on asylum seekers from 15 countries, including China, Columbia and India.

Among the findings:

• Among six regional asylum offices, the rate at which Chinese refugees' requests for asylum were granted ranged from 15 percent to 73 percent.

• Asylum seekers have a much better chance of winning their cases in immigration courts in New York or San Francisco than in Atlanta or Detroit.

• The single greatest factor that affects whether an asylum seeker wins or loses in immigration courts is whether the applicant has a lawyer. The next greatest factor is the gender of the immigration judge. Female immigration judges grant asylum at a rate 44 percent higher than their male colleagues, the study found.

''We don't know what the right grant rate is,'' Schoenholtz said. ''We don't pretend to know that. All we know is there is no consensus.''

Schoenholtz and Schrag advanced several proposals for reform of the immigration system that they hope will be considered when Congress tackles the question.

They urged better training for immigration judges and joint judging in some cases. They also are pushing for an increase in the number of immigration judges and law clerks and a requirement of written opinions in asylum cases.

Schrag noted that there currently is one law clerk for every six immigration judges, and immigration judges in New York City conduct as many as four hearings on the merits each day.

One key recommendation is to move the immigration courts and the Board of Immigration Appeals out of the Justice Department and create an independent court in order to remove politics from the equation.

The authors also recommend providing free legal representation for indigent asylum seekers.

''If you lose a case, the chance of being sent back to a country where you may be tortured or imprisoned or killed is substantial,'' Schrag said. ''If you're faced with a year and a day in jail in the United States and you're indigent, you get a free lawyer. If you're faced with death in an asylum case, you don't.''

Posner said the study was a model of its kind, but noted that questions of uniformity of decisions and of quality of decisions are separate issues.

''It's a guess that if you have a higher quality at all levels, you would have greater uniformity, but it really is a guess,'' Posner said.

He said asylum adjudication is an inherently uncertain process because of language and cultural barriers and the unavailability of documents and witnesses.

That, coupled with the emotionally and politically charged nature of asylum cases, leads to decisions based on personal factors, Posner said.

Still, he said, certain reforms could improve the uniformity and especially the quality of immigration decisions. Posner described the work load of immigration judges and the Board of Immigration Appeals as ''crushing.''

''Certainly the number of immigration judges and the number of board members should be increased,'' Posner said.

Lisa K. Koop, an attorney with the NIJC who attended the discussion, said the findings of the study reflected her experience. She particularly noted the importance of legal representation for asylum seekers, saying it can mean the difference between life and death.

''We see so many cases where there is that level of gravity,'' she said.

Schoenholtz and Schrag said after the discussion that they are continuing their research and are now focusing on the impact of a 1996 law putting a one-year deadline on asylum applications.

The discussion was sponsored by the NIJC, the Chicago Bar Foundation, the Chicago Lawyer Chapter of the American Constitution Society for Law and Policy, The Chicago Bar Association's Committee on Immigration & Nationality, the American Immigration Lawyers Association Chicago Chapter, and the Midwest Coalition for Human Rights.



Asylum seekers have better luck with northern or female judges
Northern, female judges most likely to let them stay
April 27, 2009

BY ABDON M. PALLASCH Political Reporter apallasch@suntimes.com
http://www.suntimes.com/news/politics/1545294,CST-NWS-asylum27.article#
If you're a political refugee afraid to go back to your homeland, pray you get a woman judge or a Northerner.
A male judge sitting in a Southern court is about twice as likely to reject your asylum plea, according to research from two Georgetown University professors.
"The fact that women are more sympathetic to asylum seekers -- that is certainly a factor, and maybe Southerners don't like foreigners as much," Federal Appellate Judge Richard Posner said with a chuckle. "Maybe people in big cities are more used to having large [less] indigenous populations. Maybe it's different in more homogenous areas of the United States."
Posner has been the most outspoken appellate judge criticizing the decisions of federal immigration judges and he sits on the appellate court most likely to grant asylum pleas -- the Chicago-based 7th Circuit. Posner spoke this past week at a seminar by the Georgetown professors -- Philip Schrag and Andrew Schoenholtz who are compiling the book about how U.S. Courts handle asylum cases.
What they found was utter randomness -- some judges who refuse all asylum requests, others who grant almost all.
"There is a great deal of persecution in the world, but there also are a great deal of people who want to come to the United States -- they'll come here illegally and try to stay here with asylum," Posner said.
Using data they obtained through Freedom of Information requests, Schrag and Schoenholtz charted the progress of asylum cases from the hearing officers who first rule on the cases, to the immigration judges who those rulings can be appealed to, to the Board of Immigration Affairs (BIA) in Virginia to the federal appellate courts that represent the last hope for the refugees.
At the immigration judge stage, they found judges in Atlanta granted only 12 percent of asylum requests, while judges in New York granted 52 percent and judges in San Francisco granted 54 percent. Even within those jurisdictions, the rulings were all over the map, they said. One New York judge granted asylum in six percent of the cases; another New York judge granted asylum in 91 percent of cases.
Asylum-seekers with no attorney won only 16 percent of the time. Those with an attorney won 46 percent of the time.
One statistic that caught the professors by surprise: the 78 female immigration judges granted asylum in 54 percent of cases; while the 169 male judges granted it in 37 percent of cases.
Early on, the Bush administration slashed the number of judges on the Board of Immigration Affairs. It had the effect the administration wanted: The overworked judges began denying without comment a far greater percentage of asylum requests. That boosted the number of cases appealed to the federal appellate courts, prompting an outcry from Posner.
Posner has criticized the lawyers who represent the refugees, the front-line hearing officers, the translators, the immigration judges, the State Dept. documents those judges rely on in making their rulings, and the BIA members who often write no opinions to justify their rulings.
The Chicago district reverses more than 30 percent of the BIA's denials of asylum, compared to the next-highest district, the San Francisco-based 9th Circuit, which reverses about 20 percent of the board's rulings.
Lowering the workload of the judges would help them to take more time on each case and properly consider them, Posner said.
"The 7th Circuit doesn't have one of the heaviest workloads," Posner said, and laughed as he added, "Maybe that's why we reverse so many of the appeals."
Congressional committees have expressed interest in Schrag and Schoenholtz' work and the professors hope the new administration will use it to revamp the asylum process.

. Read more!