NIJC Pro Bono Asylum Training

1. NIJC Pro Bono Asylum Training JENNER & BLOCK LLP November 3, 2006

2. Introduction & Asylum Basics Lisa Koop, Asylum Project Supervising Attorney National Immigrant Justice Center

3. NIJC’s Pro Bono Asylum Program The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, is a non-profit, immigrant legal aid organization. NIJC provides direct service to and advocacy on behalf of the most impoverished and needy refugees, asylum seekers and immigrants.

4. NIJC’s Pro Bono Asylum Program What we do: • Case screening, assessment and acceptance • Placement with pro bono attorneys • Case management • Attorney support and technical assistance

5. Asylum: Definition • “[A]ny 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.” • International standard: UN Protocol Relating to the Status of Refugees, Art I(2)

6. Domestic Law • Immigration and Nationality Act (INA) / Title 8, United States Code, Aliens and Nationality • INA § 101(a)(42)(A) defines refugee • INA § 208 covers asylum • Title 8, Code of Federal Regulations, Aliens and Nationality • Case Law • Supreme Court • Seventh Circuit • Board of Immigration Appeals (BIA)

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 probability” • Lower than preponderance of the evidence • “one in ten” probability • 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” Matter of Mogharrabi, 19 I& N. Dec. 439 (BIA 1987) • Possesses belief or characteristic persecutor seeks to overcome • Know or likely to become aware of characteristic • Capability to punish • Inclination to punish

10. “Well-Founded Fear” • May be established two ways: • Past persecution • Future persecution • Advantageous to argue both when possible

11. Past Persecution Cases • Legal presumption of future persecution • 8 C.F.R. § 208.13 • DHS can rebut with proof by a preponderance of the evidence of changed circumstances or reasonableness of internal relocation

12. Future Persecution Cases • Look to past incidents and country conditions to show Mogharrabi standards • Experts are important in these cases • Remember your burden: “reasonable possibility”; can be as low as 10% risk of harm

13. “Persecution” • Not defined in the INA – look to case law • Poverty, victim of crime, bad luck not enough • Behavior that “threatens death, imprisonment, or the infliction of substantial harm or suffering.” • Sayaxing v. INS, 179 F.S3d 515, 519 (7th Cir. 1999). • “Hallmarks” of persecution are: • 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)

14. “On Account Of” • Must establish nexus between well-founded fear of persecution and … • …at least one of the five protected grounds • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group

15. Race, Religion, Nationality • Race: Broad meaning • Religion • Nationality • Not just citizenship • May be ethnic or linguistic group • May overlap with race • E.g., Bosnian-Muslim [religion, nationality]; Dinka Sudan [race, nationality, religion]

16. Political Opinion • Actual • Imputed • E.g., daughter of a political activist persecuted for the activities of her father

17. Membership in a Particular Social Group • “common, immutable characteristic” • Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985) • “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” • E.g., gay male persecuted for his sexual orientation

18. What is your legal theory? • Which grounds apply? • Past or Future Persecution Case? • Past persecution • Single incident • Cumulative • well-founded fear of future persecution • Minor past incidents that don’t rise to past persecution but indicate risk • Change in status/country conditions that give rise to new risk (refugee sur place)

19. One-Year Filing Deadline • MUST file 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. § 208.4 (a) • Limited Exceptions • INA § 208(a)(2)(D); 8 C.F.R. §208.4(a). • Changed circumstances • Extraordinary circumstances (e.g. illness, incapacity)

20. Withholding of Removal • Alternative remedy; INA§241(b)(3)(A) • Same statutory definition as asylum (“refugee”) • Heightened burden of proof • “more likely than not” = >50% • Available if missed 1 yr. filing deadline • Non-discretionary, but no pathway to residency

21. UN Convention Against Torture • Alternative remedy; 8 C.F.R. §208.16 • Definition “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%

22. Real ID (Part 1) Real ID applies to NEW applications filed on or after May 11, 2005 Burden of Proof • Protected ground must be “at least one central reason” of persecution

23. Real ID (Part 2) Corroborating evidence • can be required “unless the applicant does not have the evidence and cannot reasonably obtain the evidence” • finding of fact (non-reviewable)

24. Real ID (Part 3) Credibility • Can be based on demeanor, candor, inherent plausibility, consistency of statements (made any time/any circumstance)

25. Material Support to Terrorism Bar • REAL ID & Patriot Act • Expanded class of individuals inadmissible for terrorist activity • Material support = support of any kind given to a group conducting “terrorist activity” in violation of the laws of the country where the activity takes place • At present, no duress or de minimis exceptions • In re S-K-, 23 I&N Dec. 936 (BIA 2006)

26. Summary: Basics • Ultimate goal: “well-founded fear of persecution” on account of one of five factors • Past persecution important, but not required • Major sources of evidence • Client’s story • Country conditions and other corroborating evidence • Forensic evidence

27. Key Law • 8 U.S.C. § 1101(a)(42)(A) (refugee defn) • 8 C.F.R. § 208.13 (asylum provisions) • INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) • Matter of Mogharrabi, 19 I& N. Dec. 439 (BIA 1987) • UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

28. Preparing and Presenting Your Case Mary Meg McCarthy, Executive Director National Immigrant Justice Center

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

30. The Asylum Office • First step in the process for individuals with no prior contact with immigration authorities. • Role of Asylum Office is to identify legitimate asylum seekers. • Specialized, well-trained officers; non-adversarial process. • Prepare the case completely!

31. What to file • Appearance form: G-28 • Legal memo • Application for Asylum (I-589) and 2 photos • Client affidavit/declaration • Annotated Index of Supporting Documentation • Supporting Documentation • Including Identity Documents, Possible Expert Affidavits, and other Corroboration No filing fee!

32. Asylum Office Procedure • Submit application to Nebraska Service Center • Client’s application must be received within one year of arrival. • Interview will be within 45 days of receipt. • Interview will last about 2 hours and is non-adversarial.

33. 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

34. Client Affidavit/Declaration • The most important document • Work with your client on details. • Avoid vague or ambiguous statements • Statement of the client in his/her own voice • Balancing detail • Chronological • Cover the 5 Ws + H

35. Documents: Specific Corroboration • Everything matters • Facts: Dates/times/flights/etc. • Physical evidence: Pictures/police reports/receipts/ticket stubs/etc. • Medical (Physical) • Mental Health • Marjorie Kovler Center for Survivors of Torture

36. Documents: General Corroboration • Country conditions • U.S. State Dept. Reports • U.K. Home Office • UN/Amnesty Int’l/Human Rights Watch • asylumlaw.org • Key documents • Experts and knowledgeable attorneys • SuperSearch: up to 15 human rights databases at once • Discussion board

37. Witnesses • Expert Witnesses • Academic • Medical & Psychological • Fact Witnesses • Similarly situated persons • Use to support theory of case

38. Obtaining Documents • Verifying the Authenticity of Documents • Establish a Chain of Custody • Ask your client how he/she got the documents. • If you doubt the authenticity of a document, leave it out. • Corroboration • Gontcharova v. Ashcroft • Real ID

39. Court Proceedings: Notice to Appear • Charging document • Review allegations & charges • Correct with IJ or trial attorney

40. Master Calendar Hearing • Appearance Form (EOIR-28) • Admit/deny charges • Concede removability • Decline to designate country for removal • Relief sought (asylum, withholding, CAT) • Request interpreter YOUR CLIENT MUST ALWAYS APPEAR!

41. Timing: In Court Cases • If case is in court, non-expedited cases can take years. • If you begin representation several months in advance of the client’s Master Calendar (MC) Hearing, prepare case in advance of the MC. • If you’re prepared to go forward at the MC, ask for an expedited date. • Hearing will be 2 weeks – 2 months later.

42. Detained Asylum-Seekers • Expedited Hearings • Bond/Parole Issues • Communicating with Clients • Urgent Need for Representation

43. The Merits Hearing Lawrence S. Schaner Jenner & Block LLP

44. Merits Hearing: Evidence • Written: The Trial Brief & Documents • Application/Statement • Country condition reports • Other documents • Deadline: 10 days before hearing, unless IJ order • Page limits: know the IJ practice! • Oral Testimony • Applicant • Fact witnesses, especially to corroborate identity • Experts

45. Merits Hearing: Trial Procedure • Trial begins with review of master calendar proceedings • Review of exhibits in record • Review of exhibits submitted with trial brief • Exhibits typically offered and admitted at this time • Frequently no objection from DHS

46. Merits Hearing: Opening Statement • Very Brief (less than 5 minutes and probably more like 30 seconds) • Just the facts: • J. is Chinese • Persecuted for opposition to one-child policy • Forced sterilization • Witness testimony • Medical corroboration

47. 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; force detail • Consider using visual aids, particularly maps

48. The MOST IMPORTANT Advice Have your client maintain the same demeanor on cross as he has on direct

49. Closing Argument • Brief • Include focus on credibility • Questions from Court are good

50. After the Merits Hearing • If you win: • Consult with NIJC • Social Security Card & Benefits • Family Petitions (I-730) • For spouse/children not included on IJ decision • Please consult with NIJC on all immigration matters • If you lose, the case is not over: • Reserve right to appeal • Consult with NIJC • Appeal to BIA