Posted by: nabilabuhary | March 19, 2012

Merits hearings and grants of asylum

 My last day was the 24th of February, 2012. It was great. I spent the morning at the UN (the tour – which was the last thing to tick off my list) and the afternoon shredding documents, eating cupcakes and chatting to my colleagues at HRF. We had gone out to drinks a few days before, and I’m happy to say that I had a wonderful experience learning and working with people that I respect and admire.  I’m now back in Melbourne reflecting on my time at HRF.

In terms of the actual interaction I’ve had with clients, I’m limited in what I can say for confidentiality reasons.  All I can say is that the clients I had met with sought asylum for political reasons.

Here are a few negative observations I’ve made.  Lack of effective representation: Many are taken advantage of. Unfortunately not all lawyers (or attorneys in the U.S.) take on asylum cases for altruistic reasons. Lori Adams has published an article in the Cardozo Law Review about the Asylum Representation Project and the Leon Levy Fellowship at Human Rights First. The article outlines the need for pro bono legal services and the problems associated with lack of effective representation for asylum seekers in removal proceedings.  During my second week at HRF, I remember wondering why someone would decide to take a case and perform, for lack of a better term, dismally. I had an intake with Lori, who is the managing attorney at HRF. The client was from Russia and had been residing in the U.S. for a few years. For political reasons she was unable to return to Russia. This particular client had been represented at her first master calendar hearing. We asked her why she decided to leave her attorney.  She told us that she had seen two lawyers before deciding to come to HRF. The first lawyer attended hearings but he did not file any documents. The client told us that at one point her attorney pretended not to know who the client was when asked by immigration officials (for reasons that I cannot go into here). The second attorney ignored the client for weeks and then abruptly told the client, through her secretary, that she no longer wished to represent her. As Lori states in her article, unfortunately many low-income immigrants are unable to pay for legal assistance. This means they are “at risk of being taken advantage of by predatory… or unscrupulous attorneys.” Asylum seekers do not have work rights in the U.S. and many cannot afford to pay for legal representation. Fortunately we were able to offer the client pro bono representation and she has now been placed with a firm that is willing to take on the case for free.

Positive observations: There are some genuinely good people working within the immigration system. The immigration court is located downtown at the Federal Plaza. It’s a huge building with government departments on every floor, security guards, airport-like security checks and one snack store on the bottom floor. I went to give a client a document stating that they were going to receive representation from the pro bono program at HRF. The letter simply asked that their case be postponed until we could find them an attorney. After passing the security checks I made my way to the 14th floor. The immigration court is confusing. The hallways are winding, the rooms are not labeled and you can’t really ask anyone for help. Everyone looks just as lost as you feel. I found the client and decided to sit with her in the courtroom while she attended her master calendar hearing. There were a lot of applicants in the room and many were represented. For the clients that had no representation, the judge made sure to point out that they could find affordable or pro-bono representation. She handed them a list with the relevant names and contact numbers and postponed their hearing date until they could find a lawyer. The judge in this particular instance was calm, patient with those clients who could not speak English, and appeared to be genuinely helpful.

I attended my first merits hearing at the Federal Plaza. The U.S. offers two forms of relief for asylum seekers as by the Refugee Convention and the Immigration & Nationality Act (INA). The first is asylum and the second is withholding of removal. It should be noted that the applicant presents their case in front of the judge and the DHS (Department of Homeland Security) attorney. DHS acts on behalf of the U.S. government and is able to appeal a grant of asylum. I don’t want this blog to be too long, so I may leave this particular story for a later blog. I can say that this applicant was successful and it was the highlight of my time at HRF!

The second merits hearing I attended was not so successful. The client had initially agreed to my presence, but later became nervous and asked me to leave. In this case the client did not file within the one-year deadline. The INA states that an applicant is barred from asylum if he or she fails to file an application within one year of his or her arrival in the United States. The statute does provide exceptions under s 208.4. The applicant must show that there are changed circumstances that affect their eligibility to apply for asylum or that extraordinary circumstances contributed to the delay. In this particular case the client had waited over 5 years. I can’t go into the details of the case for confidentiality reasons, but I can say that the judge did not believe that the applicant had a legitimate reason for this delay. She did agree that the applicant had a credible asylum claim, as did the DHS attorney. Unfortunately, the DHS attorney stated that he would only offer the client withholding of removal and, if the judge were to grant the applicant asylum, would appeal the decision based on the one-year filing deadline issue. I personally feel that the one-year filing deadline is an unfair restriction on asylum applicants. Applicants may not file because they have little understanding of U.S. asylum law, suffer from depression or mental illness as a result of being persecuted, or fear for the safety of their family in their home country. This particular client did not want to draw attention to him/herself and felt that an application may be brought to the attention of the government in his/her home country.  I had spoken to Lori and Gina (who is the Leon Levy Fellow at HRF) about this issue. HRF’s official stance is that this provision should be abolished. More information about the one-year filing deadline can be found in the HRF publication The Asylum Filing Deadline: Denying Protection to the Persecuted and Undermining Governmental Efficiency at The client in this case decided to take withholding of removal.  This form of relief means that an individual cannot leave the country, petition to bring their family to the U.S., or apply for permanent residency. They can live and work in the U.S.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: