1. NIJC Pro Bono Training www.immigrantjustice.org McDermott Will & Emery December 4, 2008

2. Welcome Mary Meg McCarthy, Executive Director National Immigrant Justice Center

3.  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

4. What we do:  Case screening, assessment and acceptance  Placement with pro bono attorneys  Case management  Attorney support and technical assistance NIJC’s Pro Bono Programs

5. Pro Bono Opportunities with NIJC:  Asylum  Detention  SIJS  VAWA & U-visas  Citizenship Clinics  I-730s & Asylee Adjustments Clinics NIJC’s Pro Bono Programs

6. Mary Meg McCarthy National Immigrant Justice Center The Basics of Asylum Law

7.  “[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

8.  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

9. 1. “Well-Founded Fear” 2. of “Persecution” 3. Perpetrated by the government or an entity the government cannot control 4. On account of the following factor(s) –Race –Religion –Nationality –Political Opinion –Membership in a Particular Social Group Asylum: Elements

10.  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”

11. 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”

12.  May be established two ways: - Past persecution - Future persecution  Advantageous to argue both when possible “Well-Founded Fear”

13.  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

14.  Look to past incidents and country conditions to show Mogharrabi standards  Experts are important in these cases  Remember your burden: “reasonable possibility”; can be as low as 10% risk of harm Future Persecution Cases

15.  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 (7 th 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 (7 th Cir. 1995) “Persecution”

16.  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”

17.  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”

18.  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] Race, Religion, Nationality

19.  Actual  Imputed –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

20.  “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

21.  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

22.  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 deadline  Non-discretionary, but no pathway to residency Withholding of Removal

23.  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

24. Real ID applies to NEW applications filed on or after May 11, 2005 Burden of Proof  Protected ground must be “at least one central reason” of persecution  Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) Real ID (Part 1)

25. 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)

26. Credibility  Can be based on demeanor, candor, inherent plausibility, consistency of statements (made any time/any circumstance) Real ID (Part 3)

27.  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

28.  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

29. Ashley Huebner, Asylum Project Attorney National Immigrant Justice Center Preparing and Presenting Your Case

30. United States Asylum Process File Affirmative Application Asylum Office Interview GrantReferral Client in DHS systemClient in US; not in system “Notice to Appear” Issues Master Calendar Hearing Merits Hearing

31.  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

32.  Appearance form: G-28  Legal memo  Application for Asylum (I-589) and 1 photo  Client affidavit/declaration  Annotated Index of Supporting Documentation  Supporting Documentation  Including Identity Documents, Possible Expert Affidavits, and other Corroboration No filing fee! What to File

33.  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

34. Day 1: I-589 Rec’d by Nebraska Service Center. Day 10: Receipt Issued Day 15-30: Fingerprint Appointment Notice Day 20-30: Interview Scheduled Day 40: Interview at Asylum Office Day 50: Decision by Asylum Office Asylum Office: Case Timing

35.  The most important document  Statement of the client in his/her own voice  Balancing detail  Chronological  Bulk of your prep time will be here  Cover the 5 Ws + H Client Affidavit/Declaration

36.  Everything matters - Facts: Dates/times/flights/distances/etc. - Physical evidence: Pictures/police reports/receipts/ticket stubs/etc. - Affidavits from witnesses  Medical Evaluation  Mental Health Evaluation Documents: Specific Corroboration

37.  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

38.  Expert Witnesses - Academic - Medical & Psychological  Fact Witnesses - Similarly situated people - People who can corroborate identity  Use to support theory of case Witnesses

39.  Verify authenticity of documents  Establish 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

40.  Charging document  Review allegations & charge(s)  Correct with IJ Court Proceedings: Notice to Appear

41.  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 hearing  Detained Cases - A week to a month from MC to merits Timing in Proceedings

42.  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

43. David Berten Competition Law Group LLC The Merits Hearing

44. United States Asylum Process File Affirmative Application Asylum Office Interview GrantReferral Client in DHS systemClient in US; not in system “Notice to Appear” Issues Master Calendar Hearing Merits Hearing

45.  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 Merits Hearing: Trial Procedure

46.  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

47.  “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)

48.  Notice to Appear Issues  FOIA for additional documents Examine the Evidence Against the Alien

49.  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

50.  Frequently no government witnesses  Government evidence untimely/does not conform with Immigration Practice Manual  Credible Fear Interview Improper  Assessment to Refer Improper  Asylum Officer’s Notes Improper  Forensic Inspection Improper  Overseas Investigation Improper Cross-Examine the Government’s Witnesses/ Common Objections

51.  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

52.  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

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

54.  Brief  Include focus on credibility  Questions from Court are good Closing Argument

55.  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

56. Ashley Huebner National Immigrant Justice Center Practice Pointers & Other Forms of Relief

57.  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

58.  Eligible 150 days after filing of asylum application; issued after 180 days  VERY difficult to obtain  “Expedited” vs. “non-expedited” case  Effect 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?

59.  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 Security National Records Center 150 Space Center Loop, Suite 300 Lee’s Summit, MO 64064-2140  Fax: 816.350.5785  Email: ice-foia@dhs.gov (for subsequent inquiries)ice-foia@dhs.gov Planning for Your Case: FOIA

60.  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

61.  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

62.  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

63.  Available to victims of severe forms of human trafficking  Examine act, means and purpose  Requires reasonable cooperation with law enforcement  Provides short and long term immigration relief  Ultimately leads to lawful permanent residency and citizenship T-visa

64.  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 marriage  Contact NIJC if your client marries Family-based Petitions

65. National Immigrant Justice Center For more information contact: Megan Baumann: (312)660-1307 mbaumann@heartlandalliance.org THANK YOU!