MIHRC Pro Bono Asylum Training

1. MIHRC Pro Bono Asylum Training June 24, 2005

2. Introduction and Asylum Law Basics Mary Meg McCarthy, Director Midwest Immigrant & Human Rights Center

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

4. MIHRC’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.” 8 U.S.C. § 1101(a)(42)(A). • International standard: UN Protocol Relating to the Status of Refugees, Art I(2)

6. Asylum: Elements • “Well Founded Fear” • of “Persecution” • Based on following factor(s) • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group • Nexus • Government is persecutor or cannot control persecutors

7. “Well Founded Fear” • “reasonable probability” • Lower than preponderance of the evidence • Has objective and subjective components • Applicant must have fear (subjective) • Fear must be reasonable, i.e., “well founded” • “one in ten” probability • INS v. Cardoza-Fonseca, 480 U.S. 421 at 431.

8. “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

9. “Persecution” • 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)

10. 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]

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

12. 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

13. Importance of Past Persecution • 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

14. One-Year Filing Deadline • MUST file application within one year of most recent arrival to the United States • 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 • Exceptional circumstances (e.g. illness, incapacity)

15. 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

16. 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%

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

18. 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)

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

20. Summary: Basics • Ultimate goal: “well founded fear of persecution” based on 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

21. 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

22. Working with Your Client Mirna Adjami, Equal Justice Works Fellow Midwest Immigrant & Human Rights Center

23. Relating to Your Client • Before meeting client, learn about country conditions • State Department Reports • Interviewing Techniques • Gender dynamics • Trauma and its effects

24. Working with a Translator • Translator’s Ability • Ask your translator about his/her experience with your client’s language. • The Translator’s Role • Not his/her job to expound on answers • Offer translator a separate opportunity to provide comments. • Who Should Translate? • Don’t use family members • Try to use the same person throughout.

25. 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

26. 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

27. 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

28. 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

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

30. Preparing and Presenting Your Case Elissa C. Steglich, Managing Attorney Midwest Immigrant & Human Rights Center

31. 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

32. What to file • Appearance form: G-28 (Affirmative) or E-28 (Court) • Legal memo (Affirmative) or Legal Brief (Court) • 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!

33. Asylum Office Procedure • Submit application to Nebraska Service Center • Receive receipt & fingerprint notice • Receive interview appointment (w/in 45 days) • Non-adversarial interview • Most cases, decision 10 days later

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

35. 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!

36. 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

37. 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

38. 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

39. 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

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

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

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

43. Perspectives from the Bench Honorable Robert Vinikoor, Immigration Judge Chicago Immigration Court

44. Working with Torture Survivors Marianne Joyce, Licensed Clinical Social Worker Marjorie Kovler Center for the Treatment of Survivors of Torture

45. Case Timing & General Issues Keren Zwick, Asylum Project Coordinator Midwest Immigrant & Human Rights Center

46. Timing: Affirmative Cases (Part 1) • Affirmative Asylum Cases are resolved more quickly than court cases. • Client’s application must be received within one year of arrival. Interview will be within 43 days of receipt. • Interview will last about 2 hours

47. Timing: Affirmative Cases (Part 2) 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

48. 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 1 week – 2 months later.

49. Is your client eligible to work? • Eligible after 150 days; issued after 180 days • Not 150 calendar days, 150 days on the “clock” • 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”

50. Planning for Your Case: Forensics • Forensic Testing of Documents • Discuss issue with trial attorney • Copy IJ on correspondence • Process can delay case for several months