nijc pro bono training mcdermott will & emery december 4, 2008
TRANSCRIPT
NIJC Pro Bono Training
www.immigrantjustice.org
McDermott Will & EmeryDecember 4, 2008
Welcome
Mary Meg McCarthy,Executive Director
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. Throughout its 30-year history as an organization and nearly 25-year history of pro bono service, 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 maintains a 90 percent success rate in representing asylum seekers.
In FY 2008, NIJC successfully represented 14 individuals seeking protection in the United States before the U.S. Seventh Circuit Court of Appeals.
About the National Immigrant Justice Center
What we do:Case screening, assessment and acceptancePlacement with pro bono attorneysCase managementAttorney support and technical assistance
NIJC’s Pro Bono Programs
Pro Bono Opportunities with NIJC:AsylumDetentionSIJSVAWA & U-visasCitizenship ClinicsI-730s & Asylee Adjustments Clinics
NIJC’s Pro Bono Programs
Mary Meg McCarthy
National Immigrant Justice Center
The Basics of Asylum Law
“[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)
Asylum: Definition
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)
Domestic Law
1. “Well-Founded Fear” 2. of “Persecution”3. Perpetrated by the government or an entity the
government cannot control4. On account of the following factor(s)
– Race– Religion– Nationality– Political Opinion– Membership in a Particular Social Group
Asylum: Elements
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)
“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
“Well-Founded Fear”
May be established two ways:- Past persecution- Future persecution
Advantageous to argue both when possible
“Well-Founded Fear”
Legal presumption of future persecution - 8 C.F.R. § 1208.13
DHS can rebut with proof by a preponderance of the evidence of changed circumstances or reasonableness of internal relocation
Past Persecution Cases
Look to past incidents and country conditions to show Mogharrabi standards
Experts are important in these casesRemember your burden: “reasonable
possibility”; can be as low as 10% risk of harm
Future Persecution Cases
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)
“Persecution”
To be persecution, must be inflicted by government or by an entity the government is unwilling or unable to control
Government- Police- Soldiers
Entity government can’t/won’t control- Gangs- Women who perform FGM- Guerilla/rebel groups
“Government Actor”
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
“On Account Of”
Race: Broad meaningReligionNationality
- Not just citizenship- May be ethnic or linguistic group- May overlap with race
E.g., Bosnian-Muslim [religion, nationality]; Dinka Sudan [race, nationality, religion]
Race, Religion, Nationality
ActualImputed
– E.g., daughter of a political activist persecuted for the activities of her father; NGO employee who works in an area controlled by rebels.
Political Opinion
“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
Membership in a Particular Social Group
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,
lawful status)
One-Year Filing Deadline
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 year filing deadlineNon-discretionary, but no pathway to
residency
Withholding of Removal
Alternative remedy; 8 C.F.R. § 1208.16 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%
UN Convention Against Torture
Real ID applies to NEW applications filed on or after May 11, 2005
Burden of ProofProtected ground must be “at least one
central reason” of persecutionMatter of J-B-N- & S-M-, 24 I&N Dec. 208
(BIA 2007)
Real ID (Part 1)
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. §1208.13(a): “The testimony of the
application, if credible, may be sufficient to sustain the burden of proof without corroboration.”
Real ID (Part 2)
CredibilityCan be based on demeanor, candor, inherent
plausibility, consistency of statements (made any time/any circumstance)
Real ID (Part 3)
REAL ID & Patriot Act
Expanded class of individuals inadmissible for terrorist activity
Material support = support given to any terrorist group (including any group of two or more which engages in “certain terrorist activities”) that is against the laws of the country where the activity takes place
Matter of S-K-, 23 I&N Dec. 936 (BIA 2006)
Exceptions and waivers are very limited and completely discretionary
Material Support to Terrorism 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
Persecutor Bar
Ashley Huebner,Asylum Project Attorney
National Immigrant Justice Center
Preparing and Presenting Your Case
United States Asylum Process
File Affirmative Application
Asylum Office Interview
Grant Referral
Client in DHS systemClient in US; not in system
“Notice to Appear” Issues
Master Calendar Hearing
Merits Hearing
Merits Hearing
First step in the process for individuals with no prior contact with immigration authorities
Role of USCIS Asylum Office is to identify legitimate asylum seekers
Specialized, well-trained officers adjudicate cases
Prepare the case completely!
The Asylum Office
Appearance form: G-28 Legal memoApplication for Asylum (I-589) and 1 photoClient affidavit/declarationAnnotated Index of Supporting DocumentationSupporting Documentation
Including Identity Documents, Possible Expert Affidavits, and other Corroboration
No filing fee!
What to File
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.
Asylum Office Procedure
Day 1: I-589 Rec’d by Nebraska Service Center.Day 10: Receipt IssuedDay 15-30: Fingerprint Appointment NoticeDay 20-30: Interview ScheduledDay 40: Interview at Asylum OfficeDay 50: Decision by Asylum Office
Asylum Office: Case Timing
The most important documentStatement of the client in his/her own voiceBalancing detailChronologicalBulk of your prep time will be hereCover the 5 Ws + H
Client Affidavit/Declaration
Everything matters- Facts: Dates/times/flights/distances/etc.- Physical evidence: Pictures/police
reports/receipts/ticket stubs/etc.- Affidavits from witnesses
Medical EvaluationMental Health Evaluation
Documents: Specific Corroboration
Country conditions- U.S. State Dept. Reports- UN/Amnesty Int’l/Human Rights Watch- Lexis/Westlaw News Searches
asylumlaw.org- Key documents- Experts and knowledgeable attorneys- SuperSearch: up to 15 human rights databases at
once - Discussion board
Documents: General Corroboration
Expert Witnesses - Academic- Medical & Psychological
Fact Witnesses - Similarly situated people- People who can corroborate identity
Use to support theory of case
Witnesses
Verify authenticity of documentsEstablish chain of custody
- Ask you client how he/she obtained the document
If you doubt the authenticity of a document, leave it out
Corroboration- Real ID
Obtaining Documents
Charging documentReview allegations &
charge(s)Correct with IJ
Court Proceedings: Notice to Appear
Non-detained Cases- Expedited: a week to six months from MC to merits
hearing. INA §208(d)(5)(A)(iii)- Non-Expedited: about a year from MC to merits
hearingDetained Cases
- A week to a month from MC to merits
Timing in Proceedings
Appearance Form (EOIR-28) Admit/deny charges Concede removability Decline to designate country for removal Relief sought (asylum, withholding, CAT) Request interpreter Discuss forensic testing of documents Receive instructions and, possibly, pre-trial order
YOUR CLIENT MUST ALWAYS APPEAR!
Master Calendar Hearing
David Berten
Competition Law Group LLC
The Merits Hearing
United States Asylum Process
File Affirmative Application
Asylum Office Interview
Grant Referral
Client in DHS systemClient in US; not in system
“Notice to Appear” Issues
Master Calendar Hearing
Merits Hearing
Merits Hearing
Trial begins with review of master calendar proceedings
Review of exhibits in recordReview of exhibits submitted with trial brief
- Exhibits typically offered and admitted at this time
- Frequently no objection from DHS
Merits Hearing: Trial Procedure
Federal Rules of Evidence “Do Not Apply” - E.g., Doumbia, 472 F.3d 957 (7th Cir. 2007)
Test: Is evidence “probative and fundamentally fair”
”Fundamentally fair” means "in accordance with the reasonable opportunity guaranteed by 8 U.S.C. § 1229a(b)(4).”
Merits Hearing: Evidence
“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”
Merits Hearing: § 1229a(b)(4)
Notice to Appear Issues
FOIA for additional documents
Examine the Evidence Against the Alien
Written: The Trial Brief & Documents– Application/Statement– Country condition reports– Other documents– Deadline: 15 days before hearing, unless IJ order– Page limits: know the IJ practice!
Oral Testimony– Applicant– Fact witnesses, especially to corroborate identity– Experts
Present Evidence on Behalf of the Alien
Frequently no government witnessesGovernment evidence untimely/does not
conform with Immigration Practice ManualCredible Fear Interview ImproperAssessment to Refer ImproperAsylum Officer’s Notes ImproperForensic Inspection ImproperOverseas Investigation Improper
Cross-Examine the Government’s Witnesses/Common Objections
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
Merits Hearing: Opening Statement
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
Direct Examination of Witness
Have your client maintain the same demeanor on cross as he has on direct
The MOST IMPORTANT Advice
BriefInclude focus on credibilityQuestions from Court are good
Closing Argument
If you win:– Consult with NIJC– 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
After the Merits Hearing
Ashley Huebner
National Immigrant Justice Center
Practice Pointers & Other Forms of Relief
Before meeting client, learn about country conditions Provide an interpreter, if necessary Interviewing
– Gender dynamics– Trauma– Build rapport
Have your Client Prepare a Written Statement Anticipate the Client’s Questions
– What are my chances?– How long will it take?– Can I work in the meantime?
Preparing for Your First Meeting
Eligible 150 days after filing of asylum application; issued after 180 days
VERY difficult to obtain“Expedited” vs. “non-expedited” caseEffect of your client’s request for a
continuance– If your client asked for a continuance to find an
attorney, he/she stopped the “clock”
Can Your Client Legally Work While the Case is Pending?
Know the history of your case– No discovery: 8 C.F.R. §1208.12(b)– 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 SecurityNational Records Center150 Space Center Loop, Suite 300Lee’s Summit, MO 64064-2140
Fax: 816.350.5785 Email: [email protected] (for subsequent inquiries)
Planning for Your Case: FOIA
Fingerprints are good for 15 months.– Applications filed on or after April 1, 2005
• 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.
– Applications filed before April 1, 2005• File with local immigration office (101 W. Congress Parkway)• Submit: Cover Sheet, I-589, Referral Notice from Asylum Office,
E-28, and Notice of Next Hearing• Complete this request 3 months in advance.
– If FPs not current, NO RELIEF!!! Judge cannot grant discretionary relief if fingerprints are not current.
Planning for Your Case: Fingerprints
Available to minors who have been abused, abandoned or neglected by parents/guardians
Must be made a dependent of the state (If minor is detained, must receive specific consent
from DHS before seeking state dependency order) After dependency order, seek SIJ After SIJ, seek adjustment of status (green card) Often advisable to apply for asylum and SIJ
simultaneously
Special Immigrant Juvenile Status
Available to immigrant victims of certain crimes
Often an option for people not eligible for VAWA relief
Requires certification from law enforcement agent
Ultimately leads to lawful permanent residency and citizenship
U-visa
Available to victims of severe forms of human trafficking
Examine act, means and purposeRequires reasonable cooperation with law
enforcementProvides short and long term immigration
reliefUltimately leads to lawful permanent
residency and citizenship
T-visa
Spouse of a U.S. Citizen who entered the country with a valid visa may adjust status and become a lawful permanent resident without leaving the country
Must be a good faith marriageContact NIJC if your client marries
Family-based Petitions
National Immigrant Justice Center
For more information contact:Megan Baumann: (312)660-1307
THANK YOU!