Pro Bono Training Representing Asylum Seekers

Transcription

1 Pro Bono Training Representing Asylum Seekers Drinker Biddle & Reath LLP January 20,

2 Welcome Lisa Koop Managing Attorney, National Immigrant Justice Center

3 About the National Immigrant Justice Center The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. For more than 30 years, NIJC has been unique in blending individual client advocacy with broad-based systemic change. NIJC serves more than 8,000 immigrants annually with the support of a professional legal staff and a network of over 1,500 pro bono attorneys. NIJC s pro bono opportunities asylum special immigrant juvenile status VAWA & U visas NIJC s pro bono programs Conduct in-depth case screening, assessment and acceptance Place cases with pro bono attorneys Provide case management, attorney support and technical assistance

4 About NIJC s Asylum Project NIJC s Asylum Project represents asylum seekers through pro bono attorneys at law firms in Illinois, Wisconsin, and Indiana. NIJC has more than 200 open asylum cases today. The majority of NIJC s asylum clients currently come from Eritrea, the Republic of the Congo, the Democratic Republic of the Congo, and Central America. NIJC maintains a 90 percent success rate in representing asylum seekers. Nationwide, USCIS and EOIR only approve about 30 percent of all asylum cases each year. In FY2011, NIJC and its network of pro bono attorneys obtained asylum and other protection-based relief for over 100 individuals.

5 The Basics of Asylum Law Lisa Koop National Immigrant Justice Center

6 Asylum: Definition An individual is eligible for asylum if she meets the definition of a refugee. Immigration & Nationality Act (INA) 208(b)(1)(A). A refugee is any person who is outside any country of such person s nationality... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A) Definition based on international law: UN Protocol Relating to the Status of Refugees, Art I(2) Statutory and regulatory standards: INA 208; 8 CFR 208

7 Asylum: Elements 1. Well-Founded Fear 2. of Persecution 3. Perpetrated by the government or an entity the government cannot control 4. On account of the following factor(s) Race Religion Nationality Political Opinion Membership in a Particular Social Group

8 Well-Founded Fear Standard = reasonable possibility Lower than preponderance of the evidence one in ten chance of persecution (INS v. Cardoza-Fonseca, 480 U.S. 421 at 431) Has objective and subjective components - Applicant must have fear (subjective) - Fear must be reasonable, i.e., well-founded (objective)

9 Well-Founded Fear May be established two ways: 1. Past persecution: creates a legal presumption of future persecution. (8 CFR ) - DHS can only rebut with proof by a preponderance of the evidence of changed circumstances or reasonableness of safe internal relocation. 2. Fear of future persecution Advantageous to argue both when possible

10 Persecution Not defined in the INA look to case law Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011): most recent 7th Circuit definition. A credible threat to inflict grave physical harm may constitute persecution. Behavior that threatens death, imprisonment, or the infliction of substantial harm or suffering. Sayaxing v. INS, 179 F.S3d 515, 519 (7 th Cir. 1999)). Detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture (Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995)) Poverty, discrimination, harassment generally do not rise to the level of persecution The level of harm a child must suffer to constitute persecution is less than that required of an adult. (See INS/USCIS Guidelines and 7th Circuit case law)

11 Government Actor To be eligible for asylum, the persecution suffered or feared must be inflicted by government police, soldiers (interpret broadly) OR Entity the government can t/won t control Gangs Women who perform FGM Guerilla/rebel/paramilitary groups

12 Ana s Case: Ana grew up in El Salvador. In 2008, Ana met Juan at her job and they began dating. Juan became controlling and began verbally abusing Ana. In December 2009, Juan began to physically abuse Ana. While beating her, he often told her that she was his woman. Ana called the police during one violent incident, but the police only detained him for 24 hours and then let him go. When Juan returned home, he grabbed a pair of scissors and threatened to cut out Ana s tongue for calling the police. Ana fled El Salvador two days later and entered the United States on May 6, ANALYSIS: Can Ana meet the governmental element of the asylum definition? What evidence would help Ana meet the governmental element?

13 On Account Of Must establish nexus between the persecution suffered/feared and at least one of the five protected grounds - Race - Religion - Nationality - Political Opinion - Membership in a Particular Social Group

14 Burden of Proof for Nexus Protected ground must be at least one central reason for the persecution Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) However, persecutor can still have mixed motives. J-B-N- & S-M-, 24 I&N Dec. at 211. In some cases, circumstantial evidence is sufficient to establish the persecutor s motives. Martinez-Buendia v. Holder, 616 F.3d 711 (7th Cir. 2010)

15 Protected Grounds 1. Race: Broad meaning 2. Religion 3. Nationality: Not just citizenship; can include ethnic or linguistic group. May overlap with race. 4. Political Opinion: Actual or Imputed (e.g. child of political activist, NGO worker in rebel-controlled area) 5. Membership in a Particular Social Group: one of the most common and most complex bases for asylum.

16 Membership in a Particular Social Group Based on a common, immutable characteristic that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) E.g., gay male persecuted for his sexual orientation; woman who fears a forced marriage; former government employees Complicated case law and a circuit split carefully examine current 7th Circuit case law when defining your social group If your client has a social group claim, please contact NIJC to strategize the best social group for your case.

17 Ana s Case Ana grew up in El Salvador. In 2008, Ana met Juan at her job and they began dating. Juan became controlling and began verbally abusing Ana. In December 2009, Juan began to physically abuse Ana. While beating her, he often told her that she was his woman. Ana called the police during one violent incident, but the police only detained him for 24 hours and then let him go. When Juan returned home, he grabbed a pair of scissors and threatened to cut out Ana s tongue for calling the police. Ana fled El Salvador two days later and entered the United States on May 6, ANALYSIS: How would you define Ana s particular social group? What is the immutable or fundamental character that forms the basis of the group?

18 One-Year Filing Deadline Govt must RECEIVE application within one year of most recent arrival to the United States - Entry October 5 Application by October 4 - INA 208(a)(2)(B); 8 C.F.R (a) Limited Exceptions - INA 208(a)(2)(D); 8 C.F.R (a). Changed circumstances Extraordinary circumstances (e.g. illness, incapacity, lawful status, unaccompanied minor)

19 Other Issues Internal Relocation Firm resettlement Criminal Issues Discretion

20 Withholding of Removal Automatically apply for withholding when file asylum application Alternative remedy; INA 241(b)(3)(A) Same statutory definition as asylum Heightened burden of proof: more likely than not (>50%) Available if missed 1-year filing deadline Non-discretionary, but no pathway to residency and no derivative benefits for spouse, children

21 UN Convention Against Torture (CAT) 8 C.F.R Apply by checking box on asylum application. Two forms of CAT relief BE SURE TO REQUEST BOTH withholding of removal under CAT deferral of removal under CAT Different definition (torture v. persecution; no nexus requirement, govt involvement) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information of a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Burden of proof: More likely than not (>50%) Non-discretionary, but no pathway to residency and no derivative benefits

22 Terrorism Bar REAL ID & Patriot Act: expanded class of individuals inadmissible for terrorist activity (INA 212(a)(3)(B)) Among other things, the statute may bar an applicant from asylum for having belonged to or any way assisted a non-governmental group (organized or not) that used violence or weapons, had a militant wing or subsection, or belonged to a coalition of groups, which included another group that may have used violence at one time even if the group was fighting an abusive and dictatorial government and even if the United States supports the group s efforts. Example: an Ethiopian woman who held bake sales to raise money for the Oromo Liberation Front, an organization of the Oromo ethnic minority group, which is frequently subjected to persecution and abuse by the Ethiopian government. The OLF has an office in the U.S. and has received Congressional support. Waivers are very limited and completely discretionary. Contact NIJC if you believe your client might face the terrorism bar.

23 Persecutor Bar Any alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group or political opinion. - INA 208(b)(2)(A) Duress, intent, and knowledge may be relevant Negusie v. Mukasey, 129 S.Ct (2009).

24 Pedro from Honduras: Pedro is from San Pedro Sula, Honduras. A powerful vigilante group known as Los Olanchos controls San Pedro Sula and targets anyone they believe is associated with a gang in order to cleanse the city. Pedro has never belonged to a gang, but many of his friends wear jeans and baggy shirts the style typically worn by gang members. Los Olanchos control the police through bribes. In March, 2011, Los Olanchos killed two of Pedro s friends. They have repeatedly flashed their guns at Pedro and have told him not to leave his house. In November 2011, Pedro was playing soccer with a group of friends and Los Olanchos shot and killed six members of the group. Pedro fled Honduras shortly thereafter. He entered the United States without inspection on December 20, ANALYSIS: Has Pedro been persecuted? Is there a government actor? What protected grounds apply? What relief can Pedro seek?

25 Caleb from Eritrea: Caleb grew up in Eritrea. When Caleb was 19 years old, soldiers came to his town and took all children between ages 16 and 19 to a military training camp. The military gave them very little water and many died from the harsh conditions. Caleb asked the officials why the military kept them in training and did not allow them to attend school. The soldiers punished Caleb daily by tying him up in the sun and beating him. In August 2009, military officials accused Caleb of planning to desert the military. The guards tortured and interrogated Caleb. Three weeks later, Caleb escaped. He fled to Sudan, where he spent six months, but feared the Eritrean government would find and kill him there, so he fled to the United States. After traveling through several countries, Caleb arrived in the United States on June 10, ANALYSIS: Has Caleb been persecuted? What protected grounds apply? What relief can Caleb seek? Could Caleb face any bars to relief?

26 Preparing Your Asylum Case Ashley Huebner Supervising Attorney, National Immigrant Justice Center

27 The Agencies Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) - Immigration Courts - Board of Immigration Appeals Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) Office of the Chief Counsel (OCC) = the trial attorneys Citizenship and Immigration Services (USCIS) Customs and Border Patrol (CBP)

28 The Parties ADJUDICATOR USCIS Asylum Office EOIR (Immigration Judge/Board of Immigration Appeals) US Applicant before USCIS Respondent before EOIR THEM Non-adversarial before USCIS ICE trial attorneys before EOIR

29 United States Asylum Process Client in US; not in system Client in DHS system File Affirmative Application Asylum Office Interview Grant Referral Notice to Appear Issues Master Calendar Hearing Merits Hearing Merits Hearing

30 Getting Started: Working With Your Client Establish trust before getting into the details of the case Plan to meet frequently at the beginning when drafting the affidavit Check-in with client regularly, even if there are long delays in the case Anticipate cultural differences Be prepared for questions beyond the scope of the asylum case and know who to contact for answers Communicate directly with your client Empower your client and promote independence

31 Getting Started: Preparing for Your First Meeting Learn about country conditions Provide an interpreter, if necessary Consider: Gender dynamics Trauma Have your Client Prepare a Written Statement Discuss expectations (on both sides) Anticipate the Client s Questions What are my chances? How long will it take? Can I work in the meantime?

32 Non-asylum Issues That May Impact the Case Changes in a client s life may make the client eligible for other forms of relief Marriage Victim of a crime Your client should not file applications for any other immigration benefits without consulting you first. Contact NIJC immediately if there are changes in your client s life or if you think your client might be eligible for other relief! Changes in a client s life may compromise eligibility for relief Criminal conviction Travel Marriage (in some cases)

33 What to File Asylum Office (Nebraska Service Center) Immigration Court Appearance form: G-28 Appearance form: E-28 Application for Asylum (I-589) Application for Asylum (I-589) and 1 passport photo and 1 passport photo 2 copies, plus an additional 1 copy of the I-589, plus another copy for each derivative copy served on DHS No filing fee! No filing fee! One week before the interview, file: Prior to the merits hearing, file: (with the Chicago Asylum Office) Brief Legal memo Client affidavit/declaration Client affidavit/declaration Annotated Index Annotated Index Supporting Documentation Supporting Documentation - Including identity documents - Including Identity Documents Expert Affidavits (possibly), Expert Affidavits (possibly) and other corroboration and other corroboration **Anytime you file anything with the Court, you must serve a copy on DHS

34 Credibility Most important part of any asylum case Can be based on demeanor, candor, inherent plausibility, consistency of statements (made any time/any circumstance) The adjudicator s credibility determination will be based primarily on the client s affidavit and testimony.

35 Client Affidavit/Declaration The most important document Statement of the client in his/her own voice Balancing detail Chronological Bulk of your prep time will be here Cover the 5 Ws + H Consider length

36 Example #1: I m scared to go back to Cameroon because I was severely beaten, gang raped and vaginally cut by government officials in my home country. They took me to a tiny cell at a military camp that held 22 other women. The cell was ten feet by ten feet and was filthy and overcrowded. I was held there for three days. During this time, the security forces took me out of the cell six times. They would take me to another room where they would slap and kick me and beat me with a baton. On the second day that I was at the military camp, three soldiers took me from the cell and tied my hands and feet together. The head guard raped me and the soldiers knocked out some of my teeth when they slammed my head against the ground. The next day, five more soldiers raped me.

37 Example #2: I was born in Baghdad, Iraq. I am seeking asylum because I posses a well founded fear of persecution inflicted upon me by insurgents whom the government is unable to control in Iraq on account of my membership in the particular social group of high profile athletes in Iraq. Additionally, I fear persecution because of my membership in my immediate family; which is perceived by insurgents to be sympathetic to the American presence in Iraq.

38 Example #3: 1.My name is Carla Sanchez. I am seeking asylum in the United States because I was beaten and raped by members of the Mara Salvatrucha gang in El Salvador after I refused to be the girlfriend of one of the MS gang members. 2. I was born in Puebla Chica, El Salvador in I lived there all my life until August of Puebla Chica is a farming community. I attended school until I was about ten years old. Before I was married in May of 2000, I lived with my mother and a nephew in my mother s house. We made food for ourselves and for the workers on my family s land. 4. My problems started in about January of Several men approached me in the street near where I lived. They all wore black masks that covered their entire heads and faces, with holes for their eyes. The men had tattoos on their hands. Some of the tattoos were the letters MS, other tattoos were of animals. I knew from their masks and tattoos that they were gang members. One of them spoke to me and asked if I wanted to be his girlfriend. I was terrified of the men and said no, then ran away. I did not know the men. I had heard of the MS gang, but had never seen any gang members in Puebla Chica until that day. I did not tell anyone about that incident because I was frightened and did not think the police would help me.

39 Corroborating Evidence can be required unless the applicant does not have the evidence and cannot reasonably obtain the evidence finding of fact (non-reviewable) Also remember 8 C.F.R (a): The testimony of the application, if credible, may be sufficient to sustain the burden of proof without corroboration. Corroborate each element of the asylum claim or provide evidence as to why your client cannot reasonably obtain corroboration.

40 Obtaining Corroboration Everything Matters! Country Conditions Client-Specific Past Persecution Future Persecution State Dept Human Rights Reports Facts: dates, times, flights, date of entry Forensic Medical Evaluation Evidence of past incidents that may not rise to persecution Amnesty Intl & Human Rights Watch Physical Evidence: pictures, police reports, receipts Mental Health Evaluation Affidavits from similarly situated individuals who have suffered harm UNHCR Refworld Witness Affidavits Medical Reports Expert Affidavits Domestic and Foreign News Sources Google Earth, Hand Drawn Maps Pictures Country Conditions

41 Obtaining Documents Always verify document authenticity with your client. Establish chain of custody. Ask you client how he/she obtained the document Provide evidence of the document s origin (e.g. copy of the envelope containing the postmark from the country of origin) If you doubt the authenticity of a document, leave it out. All foreign documents must be translated into English.

42 The Brief/Legal Memo Keep it brief Legal Memo (for cases before USCIS) < 10 pages Legal Brief (for cases before EOIR) < 30 pages Follow the elements Case law: Supreme Court Federal Circuit Court of Appeals - Rapidly evolving and active area of law Board of Immigration Appeals (BIA) precedent decisions Preserve all arguments and claims to relief Consult the BIA Practice Manual for citations: eoir

43 Filing Format Asylum Office: No format requirements, but try to follow Court requirements in case your client is referred to the Immigration Court EOIR: Follow the Immigration Court Practice Manual If filing requirements are not met (tabs, pagination, two-hold punch, certificate of service, etc.), the Court may reject your filing. Check with the IJ s clerk for filing limits (generally between pages) Be sure to annotate your index and highlight important information in country condition reports

44 Presenting Your Asylum Case Ashley Huebner & Lisa Koop, National Immigrant Justice Center

45 United States Asylum Process Client in US; not in system Client in DHS system File Affirmative Application Asylum Office Interview Grant Referral Notice to Appear Issues Master Calendar Hearing Merits Hearing Merits Hearing

46 Asylum Office: Case Timing Day 1: I-589 Rec d by Nebraska Service Center. Day 10: Receipt Issued Day 15-30: Fingerprint Appointment Notice Day 20-30: Interview Scheduled Day 40: Interview at Asylum Office Day 50: Decision by Asylum Office

47 Asylum Office Advocacy Before the interview Obtain an interpreter and practice with interpreter & client Prep client with open-ended questions Explain non-adversarial nature of interview At the interview Attend interview with your client Expect informal setting You must provide an interpreter Take cues from the asylum officer Prepare a closing, but be flexible No same-day answer

48 After the Asylum Office Decision If you win: Let NIJC know immediately (30-day deadline for benefits) Work Authorization, Social Security Card & Benefits Advise client to contact NIJC to apply for derivative family members (Form I-730) If you lose, the case is not over: Referral to the immigration court for de novo review DHS issues Notice to Appear (NTA) placing client in removal proceedings Client is now seeking asylum as a defense to removal Consult with NIJC re: timing and next steps

49 Court Proceedings First Steps Once your client s case is before the immigration court, review: NIJC Asylum Manual Immigration Court Practice Manual (

50 Court Proceedings Location The Chicago Immigration Court and ICE Office of the Chief Counsel have Moved! Chicago Immigration Court ICE Office of the Chief Counsel 525 W. Van Buren St. Ste W. Van Buren St. Ste 701 Chicago, IL Chicago, IL Phone: Phone: The ICE OCC office is not open to the public. To serve documents on ICE OCC, attorneys must mail them or send them via .

51 Court Proceedings: Notice to Appear Charging document Review allegations & charge(s) Correct with IJ

52 Master Calendar Hearing What it is: a status hearing: If your client already filed for asylum with USCIS, the IJ will have a copy of the entire asylum application. File appearance form (E-28). No other documents are due. If your client has not yet filed for asylum, prepare a skeletal application for the master calendar hearing, but do not file supporting documents Hearing procedures: Arrive Early! YOUR CLIENT MUST ALWAYS APPEAR! Admit/deny charges Concede removability Decline to designate country for removal Relief sought (asylum, withholding, CAT) Request interpreter, with specific dialect Discuss forensic testing of documents Receive instructions and, possibly, pre-trial order

53 Immigration Court Case Timing Non-detained Cases - Master Calendar hearing: file I-589 Expedited hearing: a week to 6 months from MC to merits hearing. INA 208(d)(5)(A)(iii) Non-Expedited: about 1 ½ 2 years from MC to merits hearing Asylum clock > 75 days on date of referral from the asylum office, not eligible for expedited hearing Detained Cases: ~ three months from MC to merits

54 Can Your Client Legally Work While the Case is Pending? Eligible 150 days after filing of asylum application; issued after 180 days VERY difficult to obtain Expedited vs. non-expedited case Effect of your client s request for a continuance If your client asked for a continuance to find an attorney, he/she stopped the clock Check the number before filing ( )

55 Pre-Merits Hearing Issues 15-day filing deadline for non-detained cases (unless the IJ tells you otherwise) Other filing requirements Check with IJ s clerk See Immigration Court Practice Manual Contact DHS Trial Attorney Make sure fingerprints are current

56 Fingerprints It is the responsibility of the asylum applicant/attorney to obtain a fingerprint appointment in Court Proceedings Fingerprints are good for 15 months. How to request a fingerprint appointment: File with Nebraska Service Center Submit: Cover Sheet, Partial I-589, and E-28 This request should be submitted at least 6 months in advance. Contact NIJC if you file the request, but your client has not received an appointment in the mail. If fingerprints are not current, NO RELIEF! IJ cannot grant discretionary relief if fingerprints are not current and could deny the application for abandonment. See NIJC Fingerprint FAQ in the manual

57 Merits Hearing: Evidence Federal Rules of Evidence do not apply - E.g., Doumbia, 472 F.3d 957 (7th Cir. 2007) Test: Is evidence probative and its admission fundamentally fair Fundamentally fair means "in accordance with the reasonable opportunity guaranteed by 8 U.S.C. 1229a(b)(4).

58 Evidence: 8 CFR 1229a(b)(4) Reasonable Opportunity : 1. to examine the evidence against the alien 2. to present evidence on the alien's own behalf 3. to cross-examine witnesses presented by the Government

59 Examine the Evidence Know the history of your case Review court file/hearing tapes File FOIA request right away Request Track 3 if case is in proceedings Include NTA and Hearing Notice Address: FOIA Office, Department of Homeland Security National Records Center 150 Space Center Loop, Suite 300 Lee s Summit, MO Fax: ice-foia@dhs.gov (for subsequent inquiries)

60 Present Evidence Written: The Trial Brief & Documents IJ page limits! Oral Testimony Applicant Fact witnesses, especially to corroborate identity Experts

61 Merits Hearing: Opening Statement Offer a concise roadmap Brief review of the facts J. is Chinese Persecuted for opposition to one-child policy Forced sterilization Witness testimony Medical corroboration Brief mention of other major issues

62 Role of the Immigration Judge IJ has the authority to interrogate, examine, and cross-examine a witness, including the respondent. INA 240(b)(2); 8 U.S.C. 1229a(b)(1). IJ is also permitted to limit the extent of testimony and even frequently interrupt the applicant s presentation. Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003). IJ control is not absolute and must be balanced with the respondent s constitutional right to have a meaningful opportunity to be heard and a reasonable opportunity to present evidence. Giday v. Gonzales, 434 F.3d 543, (7th Cir. 2006).

63 Direct Examination of Witness Key issue is credibility Don ts Don t script answers Don t ask leading questions Don t waste time on irrelevant matters Do s Do follow a chronological story; use declaration as guide Do draw the story out Consider using visual aids, particularly maps Make your record

64 Preparing Your Client For Cross Examination Anticipate questions Prepare client for leading questions Empower client to request clarification Remember cultural obstacles Expect questions from judge Remind client to maintain demeanor Practice practice practice

65 Common Objections Common Objections on Cross Examination Objection to translation Question has been Asked and Answered Question is irrelevant Question calls for a conclusion the witness is not qualified to make Compound question Question assumes facts not in evidence Question is confusing or unclear *** OBJECT STRATEGICALLY ***

66 Common Objections Re-direct Conduct if necessary Rehabilitate Clarify

67 Closing Argument Take cues from the judge Make the legal argument Make the record Respond to issues

68 After the Merits Hearing If you win: Let NIJC know immediately (30-day deadline) Work Authorization, Social Security Card & Benefits Refer client to NIJC to apply for derivative family members (Form I-730) If you lose, the case is not over: Reserve right to appeal Consult with NIJC Appeal to BIA

69 Other Ways to Support NIJC Follow NIJC on Friend NIJC on Facebook: Watch NIJC on You Tube: Sign up for NIJC s Action Alerts:

70 THANK YOU! National Immigrant Justice Center For more information contact: Claire Coogan: