MIHRC Pro Bono Asylum Training

1. MIHRC Pro Bono Asylum Training BAKER & MCKENZIE October 19, 2004

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. US Asylum Process: Affirmative & Defensive 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

6. 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)

7. 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

8. “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.

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. 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

16. Key Law • 8 U.S.C. § 1101(a)(42)(A) • 8 C.F.R. § 208.13 • 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

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

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

19. 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.

20. 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

21. 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

22. 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

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

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

25. 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

26. What to file • Cover letter/legal memorandum • Appearance form (G-28) • Application for Asylum (I-589) • www.asylumlaw.org • www.uscis.gov • Client affidavit/declaration • Supporting documentation • 2 photos (immigration specifics) • No filing fee

27. 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

28. 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

29. Notice to Appear • Charging document • Review allegations & charges • Correct with IJ or trial attorney

30. 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!

31. Other Issues Fingerprinting • Request from Chief Counsel • (55 E. Monroe,17th Fl.) • Copy of I-589, E-28; client signature • Forensic Testing of Documents • Discuss issue with trial attorney • Copy IJ on correspondence

32. Is your client eligible to work? • Eligible after 150 days; issued after 180 days • VERY difficult to obtain • “Expedited” vs. “non-expedited” case • Effect of your client’s request for a continuance

33. The Merits Hearing David Berten Competition Law Group

34. 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

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

36. 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

37. 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

38. 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

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

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

41. After the Merits Hearing • If you win: • Social Security Card & Benefits • Work Authorization (I-765) • Family Petitions (I-730) • If you lose, the case is not over: • Reserve right to appeal • Appeal to BIA

42. THANK YOU! Midwest Immigrant & Human Rights Center Keren Zwick: (312) 660-1307 kzwick@heartlandalliance.org