nijc pro bono training mcdermott will & emery december 4, 2008

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: ice-foia@dhs.gov (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

mbaumann@heartlandalliance.org

THANK YOU!