David Wright Immigration Law

ASYLUM AND PROTECTION

Asylum is a synonym for refuge. The law of asylum, also called political asylum, protects refugees - people who are fleeing persecution. The persecution may have taken place in the past, or the refugee may have what the law calls a well-founded fear of persecution:

1. You are in danger because of who YOU are -- the NEXUS requirement
2. Start your asylum application by writing your own story
3. How to lose your case and get deported: make things up
4. Know the facts about your country
5. Other Deportation Defense Cases in Immigration Court
6. News about asylum and protection against deportation
6.1 Illegal Reentry after Removal
6.2 Iraq and US immigration
6.3 Asylum and Sexual Orientation
6.4 Immigration Control & Enforcement -- Raids and Arrests
6.5 Material support to terrorists
6.6 Useful Links


You are in danger because of who YOU are -- the NEXUS requirement

The persecution must be on account of one of the following five grounds:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group.
  • Political opinion.

Most of my clients understand the meaning of persecution on account of race, religion, nationality and political opinion. The one few clients understand is 'membership in a particular social group.' This can include people who have returned to reclaim their homes after a civil war, people with HIV, the disabled, street children, sexual minorities, sex workers, and many other groups.

Lesbian, Gay, Bisexual and Transgender people in many countries suffer from extreme levels of violent abuse and killing. In some countries, this abuse rises to the level defined as persecution under the law of asylum. There is no special protection for sexual minorities; these are the same rules that protect people who are running away from persecution based on political opinions, religion, race or nationality. This article gives my initial advice to prospective clients who have fled their countries because of persecution based on sexual orientation, but the same advice applies to clients seeking asylum on any basis.

Start your asylum application by writing your own story

If you are considering applying for asylum, I suggest that you start by writing an account of your past experiences, and those of friends and acquaintances.

This will become the central piece of evidence in the case: your own declaration. You must show by consistent, objective, concrete statements - such as those which can only be made by an eyewitness - that you have been persecuted by the government or by persons the government cannot and/or will not control.

Please describe in detail all instances of severe discrimination you have suffered, or your friends and acquaintences have suffered. Please include all information necessary to answer all who? / where? / when? / why? / how? questions an asylum officer or immigration judge might ask. The questions boil down to the following, repeated over and over again, with every detail clarified:


For incidents that happened to you or to which you were an eyewitness:

  • When did it happen?
  • Where did it happen?
  • Who else was there?


For stories you heard from other people:

  • When did it happen?
  • Where did it happen?
  • Who was there?
  • If you were not there, who did you hear it from?
  • Is that person reliable? How do you know?

It is vital that this explanation be as detailed and explicit as possible about why you believe the actions were discriminatory, if that is not blatantly obvious, and why you know that these events happened on account of your sexual orientation. If you can remember them, include the exact words used by the attackers wherever possible, no matter how crude, rude and offensive. Remember, we are dealing with an Anglo-Saxon system of justice here: flowery, courteous, abstract explanations of why the case should be granted are totally irrelevant and useless. They want facts - just the facts. I strongly recommend writing this explanation on a computer, which allows the numerous revisions I need to do to fully develop the case.


Next, consider all the information you have written and any supporting evidence you have, try to draw your story together. You should be able to answer clearly the following questions:

  • Who is going to hurt you?
  • Why are they going to hurt you ?
  • How do you know this?
  • Can you move elsewhere in your country and find safety? If not, how do you know this?

These questions relate to what we call "a well-founded fear of future persecution." Even if bad things happened to you in the past because of who you are, you may not win asylum if you will not be in danger in the future.

How to lose your case and get deported: make things up

It is also absolutely essential that you do not make things up! Every immigration lawyer has had clients who invented some story, thinking that it was going to make his case stronger. It will not make your case stronger, it will make it weaker. In the 13 years I've been practicing law, I've had clients repeatedly tell me some made-up story, or someone else's story. In almost every case, the client's true story turned out to be as good or better, once I developed the facts and got proper support. You must tell your lawyer the whole true story. I will tell you how strong or weak your case is, and help you make it stronger.

The authenticity of your story makes a huge difference. When people make up a story or borrow someone else's story, they don't know the details in the same visceral way that you know the truth of your own story. Their way of testifying is different. They make mistakes. They get the details wrong.

Know the facts about your country

I also recommend reading the news and contacting activists in your home country to learn as much as you can about the situation for people like yourself. One of the issues we have to deal with is the impunity of killers or other persecutors. If you are still in your home country, or if you have people there who can help you, please do all you can to obtain documentation of what happens when people like you ask for protection. Are demands for protection from persecutors ignored? Are demands for prosecution laughed off? This kind of information is hard to find once you're in the United States; it is much easier to find in your country. If you can contribute to supporting activists who protect the rights of people like you, please do so; they are on the front lines and need your help. Please consider getting involved yourself.

Another issue is the issue of possible safety within your country by moving to another place. It is not sufficient to show that life in one area controlled by homophobes would be dangerous to someone like you. You'll need to show that all other cities and rural areas in your country are also dangerous. Try to find all articles documenting killings or other persecution of people like you. Remember that these articles are for submission in an official forum, so they must include the entire page of the newspaper or printout from the internet, showing the date, page number and journal name. Obtaining certification of authenticity from the newspaper's archivist is ideal.

Asylum cases are often very emotional: you have to go over terrible things that happened to you or people you know, again and again, in great detail. The purpose of asylum is protection against very, very bad treatment, so it is essential that we explain what that bad treatment is. However, it can be very liberating to know that there is a part of the law that does not discriminate against you, but instead protects you for who you really are.

This is the kind of experience that brought me into this particular specialty. When I think about the meaning of my work, these cases are among the ones that make me proudest. Sometimes, there is justice in this world.


Other Deportation Defense Cases in Immigration Court

In addition to asylum, there are various other kinds of protection against deportation -- now called removal -- from the US. They include adjustment of status to permanent resident, often through a family relationship, various kinds of waivers of inadmissiblity and removability, and cancellation of removal.

In some cases lawful permanent residents are faced with removal due to crimes they have committed. Even minor crimes can result in removal. For this reason, I often recommend that permanent residents who have been convicted of crimes have their criminal cases reviewed by, and where advisable reopened and changed. This is called post-conviction relief. I often refer clients to Attorney Norton Tooby, in Oakland. I believe he is one of the top three attorneys in the country for this sort of work, if not number one.


Please note that even "illegal aliens have rights under the US Constitution. The Constitution protects all of us.


News about asylum and protection against deportation

Illegal Reentry after Removal

A problem that is coming up more an more recently is the problem of illegal reentry after removal. After a non-citizen has been legally "removed" from the United States, federal criminal law makes it a felony for that alien to reenter (or be found in) the country without approval of the government.

"Removed" does not only mean "deported." It is defined to include people who have been:

Denied admission to the U.S.; Excluded from the U.S.; Deported from the U.S.; Removed from the U.S.; or Departed from the U.S. while an order of exclusion, deportation, or removal is outstanding. Penalties for Illegal Reentry

What Constitutes "Illegal Reentry"?

The Immigration and Nationality Act prohibits illegal reentry or physical presence in the US after any of these government acts. Punishment for illegal reentry after removal can include:

A fine; or Imprisonment for not more than two years; or Both fine and imprisonment.

Penalty Enhancements for Prior Criminal Convictions

The penalties are higher for people who have been found guilty of a felony or three or more misdemeanor convictions for drug-related crimes or crimes against persons. In that case, the punishment can include:

A fine; or Imprisonment for not more than 10 years; or Both fine and imprisonment

The penalties are higher are for people who have been found guilty of an aggravated felony. In that case, the punishment can include imprisonment for up to 20 years.

Iraq and US immigration

More news about our immigration and our allies in Iraq:

Between January and August 2007, Sweden accepted 12,259 Iraqi refugees. The US accepted 685.

The US Ambassador to Iraq has proposed granting immigrant visas to everyone who is willing to work for us. The point is, it's hard to recruit staff when taking a job with a US entity is signing your own death warrant. As Kirk W. Johnson, regional reconstruction coordinator in Fallujah in 2005 for the US Agency for International Development, put it, "If we screw this group of people, we're never going to make another friend in the Middle East as long as I'm alive."

There is a sort of precedent: we made it very easy for employees of US companies in Hong Kong to get immigrant visas around the time Hong Kong was reverting to Chinese rule. The idea was to avoid the chaos thousands of skilled professionals trying to find another country to escape to in case the hand-over went badly. We didn't want the slightest disruption. The visas were good for a much longer period than usual to provide a guarantee of safety. In contrast, hundreds of thousands of Iraqis are fleeing for their lives, and we have given visas to 133 since October 1, 2006, and 825 since we invaded Iraq. We should not give this kid of treatment to people who put their lives at risk to cooperate with us.


Original discussion:

It surprises many people, and saddens many immigration lawyers, that in spite of our deep involvement as a country in the disastrous conditions in Iraq, the US very strongly refuses to accept refugees from Iraq -- with a few exceptions that prove the rule. I am ashamed that I have had to advise clients who wanted to get their families out to get them to some other country instead of the US: the current administration does not want them here. It's not only the US that is ignoring Iraqi refugees. On the other hand, it is pretty remarkable that, as of May 2007, we have resettled exactly ONE Iraqi refugee. In contrast, Denmark -- notable as a country attacked by Islamists for allowing publication of cartoons of Prophet Mohammed -- has moved to the left politically partly because the voters were ashamed of the right-wing government's refusal to give asylum to Iraqi interpreters. Salon explains:

"But Danes were fed up by this March, when the Danish People's Party used its influence to prevent the government from giving asylum to approximately 500 Iraqis who had served as translators for coalition forces and their families, and who now had reason to fear for their lives in their home country. The DPP had staunchly supported Danish participation in the war but refused to help the Iraqis, and people thought this was cruel: "We are responsible for putting these people out of their homes and now see how we treat them" was the reaction."

BTW, Denmark has a population of a little over 5 million. The US has a population around 300 million. Maybe we can absorb a few Iraqi refugees... Here's more news about how the Danes treat their translators: before Denmark pulled out its troops -- before the troops! -- they flew 200 Iraqi translators to asylum in Denmark, to avoid them getting slaughtered.


Asylum and Sexual Orientation

The possibility of protection against persecution due to sexual orientation has finally hit the national spotlight in an article in the Washington Post. The article is worth reading particularly because it points out the challenges of winning such a case.


Immigration Control & Enforcement -- Raids and Arrests

Middle class Americans don't usually have bad experiences with the police or immigration, so it's hard to imagine what it's like to be raided by ICE - Immigration Control & Enforcement. Few people understand that if you let one officer put a toe inside the door, any number of them can come in and search the house from top to bottom - and they do so all the time. It has been a traumatic experience for every family I have represented.

Few people understand that ICE rarely has the right to come into the house: their 'warrants' are not issued by a judge, so they do not give the officers the right to enter as real criminal warrants do.

My clients are very law abiding. When someone bangs on the door, yelling, "Police! Open up!" they want to cooperate. However, the outrageous abuse and humiliation that comes along with letting ICE in the door is not worth it. Please don't let them in, and tell your friends and families not to either. You can stand at the door and answer questions, but do not let them in to get a drink of water, to go to the bathroom, nothing. These are just excuses to raid the house.

I support proper law enforcement, and I know that most ICE employees begin as good people. I'm ashamed that my government thinks this is an acceptable way to treat members of our society. The only explanation for this behavior is seen in the Stanford Prison Experiment in which a group of educated, mentally-balanced Stanford students were reduced in a manner of days to abusive behavior by being put into a very 'lite' version of Abu Ghraib. Abuse is not exceptional in the enforcement branches of Homeland Security, it is strikingly common. This abuse has to be stopped.

Some cities are opposing the raids because they discourage immigrants from reporting crimes or serving as witnesses. This sort of policy was in decline for several years due to criticism from anti-immigrant groups.


Material support to terrorists

One of the strange side effects of the so-called war on terror is the US government policy to exclude from protection many of the primary victims of terrorists. Terrorists often kidnap civilians and force them to help in various ways. The current administration decided this makes those victims supporters of terrorism. To exclude people who have been enslaved is one more bizarre element in US immigration law. On the other hand, if the terrorists you support are helping a major multinational corporation, then sometimes it's OK to pay them large amounts of money. It is often hard to tell what the government will decide about any individual case. There is a waiver for giving material support to terrorists -- yet one more reason to have good legal advice before you present an asylum case.

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Useful Links