Archive for February, 2010

Our Mistake: Please pay $585

Sunday, February 28th, 2010

In the normal experiences of most of us, if someone makes a mistake and it costs someone else money, the person who makes the mistake reimburses the person who is out the money. Certainly, the victim does not have to pay more money to correct the mistake. Such is not the case with United States Citizenship and Immigration Services, USCIS. USCIS charges hefty fees for the services it provides. For example, the fee for an application to adjust status to that of a permanent resident, Form I-485, costs $930 and the mandatory fingerprints fee is an additional $80. It is not unusual for USCIS to deny a Form I-485 by mistake. If a mistake is made, an applicant is allowed to seek reopening or reconsideration by USCIS. One does this by filing a motion to reopen or a motion to reconsider, which costs $585. The regulations, at 8 CFR §103.5(a)(2), lays out the bases for reopening or reconsidering a denied case:

1. USCIS asked for additional documentation that was not necessary and the application was denied because the applicant did not send it;

2. USCIS asked for additional documentation and did not notice that it received the evidence on time;

3. USCIS sent a request for additional evidence to the wrong address;

4. USCIS denied the application based on an incorrect application of law or USCIS policy.

Note that all four of these reasons are the mistakes of USCIS.

An alien makes an investment of $1010 for an application for permanent residence. The alien is then denied adjustment of status because USCIS made a mistake. To rectify the mistake, another $585 must be paid.

This unique policy should change. Here is my proposal. To file a motion tor reopen or reconsider a fee of $585 is charged and placed into a trust account. If USCIS determines the case was denied based on its error, the case is reopened and the fee is returned – and an apology is sent. This would make USCIS consistent with the universal practice of correcting one’s mistakes and not charging more to fix one’s mistake.

In the interest of fairness, the San Diego USCIS office allows an applicant to request reopening or reconsideration based on USCIS error without paying a fee. The problem with that is that there is a deadline, usually 30 days, to file a motion to reopen and reconsider. If USCIS does not acknowledge the mistake and 30 days has passed, there is no option other than re-filing and paying the $1010 filing fees all over again. If you pay the $585 within the time limit, a separate appellate body within USCIS will independently determine whether USCIS made a mistake or not. A calculation thus has to be made – pay $585 for the independent review or pay nothing and hope the local office in San Diego acknowledges its mistake. I am no gambler, but it is rarely I would think it is worth it to pay the $585 – to pay $585 to save $1010 when there is a good shot, if the USCIS error is obvious, that you will have to pay nothing at all and USCIS will acknowledge its mistake and reopen the case. Of course, not all attorneys think this way – especially when they are not paying the $585; their client is.  February 28, 2010.

 

Court deference in asylum case leads to another sad decision

Sunday, February 14th, 2010

It seems when I am not discussing detention issues, I am griping about Ninth Circuit decisions. The mainstream media, like Fox News, will often characterize the Ninth Circuit as a liberal court. Students of the court will tell you that if this was true in the past, it is less true now. At least in the immigration context, during President Bush’s eight years in office new judges have taken their place on the court who you can count on ruling against the immigrant every time. When you see your panel, you know if you are cooked or have a chance. Even in the good old days, there were some judges who you could count on voting against the alien no matter what. I once spent a day looking up the immigration cases of one judge and could not find one decision in decades where he sided with the alien over the government. To be fair, this is not necessarily the result of xenophobia, but rather a belief in deference to the executive in matters of execution of the law. Not that I think that this is a good or proper philosophy for a judge, but I believe they are at least consistent. That the alien is always screwed is just a collateral consequence of a deferential judicial philosophy.

A recent asylum case highlights this deferential tendency. Aden v. Holder, an asylum case, to me is flabbergasting in its holding. This is how the court summarized Mr. Aden’s life:

“In 2003, when Hassan was fourteen, Hawiye men invaded the family home, and while he hid under the bed, they raped one of his sisters and abducted a woman who was visiting. The Hawiye men got Hassan Aden out from under the bed, pointed a gun at him and threatened to kill him, and beat him with a metal pole. Another time, Hawiye men accused him of spying for the Darod clan and beat him into unconsciousness. The Hawiye beat him again at a Hawiye militia checkpoint when he could not come up with a sufficient bribe.

Three of Hassan Aden’s brothers (he had ten siblings and seven half-siblings) were killed, one by a bomb, one accused by Hawiye men of spying for the Darod, one at a Hawiye militia checkpoint.”

Under immigration law, to get asylum an alien must face persecution on account of his or her race, religion, nationality, political opinion, or social group. The persecution the alien experienced or fears in the future must be on account of at least one of these grounds.

Mr. Aden sought asylum based on his belonging to a social group. He testified that he is from the Bilisyar (or Biliser) sub-clan of the Wardey clan, though he also stated that the name of his clan was Warduy-Ali or Madaheweyne.

The problem Mr. Aden faced when he made his way to the United States and asked for asylum, all the while detained in an immigration detention center, was that the immigration judge did not believe him. He did not believe that bad things happened and he did not believe in Mr. Aden’s clan affiliations . Some reasons were that there was a picture of Mr. Aden in Somalia wearing nice clothes, he had a book where he wrote numbers, and he seemed to understand some English while in his removal proceeding. And, “most centrally,” the Aden court wrote, the immigration judge did not believe that the clans that Mr. Aden identified himself as belonging to actually existed. To prove his clan membership, Mr. Aden submitted three unsworn affidavits attesting to the existence of the clans, but the immigration judge rejected the declarations because one declaration had a different spelling of Mr. Aden’s name, only one of the declarants asserted that knew Mr. Aden, and no anthropological evidence showed that there was a Wardey or Bilisyar clan. Mr. Aden and the declarants identified the area from which Mr. Aden came as the lower Juba region.

Based on a highly deferential standard of review, the court of appeals concurred with the denial of asylum based on this missing evidence.

It is too bad no one sat and played with Google for 15 minutes – apparently not Mr. Aden’s lawyers, government lawyers, or any clerks or judges at the court of appeals. This is what they would have learned in 15 minutes:

There is a village called Bilis Yar. It is not in lower Juba, rather in the Gedo political region in Somalia. The Gedo region is part of the historic Upper Juba Region of Somalia.

As clan members lived together, it would not be unusual for a town to have the name of the clan. Further, if clan members relocated, the town could keep the name while not being inhabited by the namesake people. Thus the Bilis Yar clan could have once lived chiefly in Bilis Yar and then moved leaving a town without the clansmen. This is quite common. The town of Samaria no longer is inhabited by Samarians and Sioux City, Iowa, has few Sioux.

As for the existence of Wardey, Warduy-Ali, and Madaheweyne, A Wikipedia article states:

“The Dir in Ethiopia are represented by the Madahweyn Dir. The madahweyn consists of : Gariir, Gurgure, Guure, Layiile, and Akisho. Other Dir clans in Ethiopia are Issa, Garre-Quranyow Maxamed, Gadabuursi, Gadsan, Fiqi Muhumand, Qubey (Fiqi Yahye and Fiqi Cumar), Agoon-Fiqi Khayre, Mandaluulg, Layiile, Guure, Baajimaal, Jiido and Wardaai.”

Thus, the Madahwene/ Madaheweyne are a clan and the Wardaaii are a sub-clan.

Of course, clan affiliation is a combination of geneology and family and clan mythology. Mr. Aden associates himself as a Wardaaii / Wardey and a Madahwene/ Madaheweyne because that is what the tradition of his lineage is past down to him with all the distortions of time that any person who traces his lineage would have. An analogy is the Chaldeans, the largest group of Christians in Iraq, who trace their heritage to the Aramaic speakers of the time of Jesus. Chaldeans live in Iraq, not Jesus’s Palestine. While Chaldeans assert their language is the Aramaic of Jesus, they do not understand or consider the Aramaic found throughout the Jewish prayer book as Aramaic, nor do the understand the Kaddish or Kol Nidre, both Aramaic Jewish prayers. Chaldeans consider themselves Aramaic speakers dating back to Jesus because that is their tradition. Similarly, Mr. Aden considers himself a Wardaii and a Madahwene of Somalia.

All the names and places exist and are consistent with his story. Regarding the availability of anthropological evidence, the supposition that Somalia has been painstakingly studied by anthropologists so that treatises are available that have studied every remote clan in a large, arid country is not correct. There are few studies of this complex nation. Tribal and clan boundaries extend into Ethiopia and Kenya making research difficult. Many tribes and clans are nomadic. There a often migration because of drought and war. Further, Somalia has been virtually inaccessible to anthropologists since 1991, when civil war broke out. The supposition that identifying a clan can be accomplished easily through academic sources is a speculative proposition.

Mr. Aden was also disbelieved because he knew some English. The immigration judge was dubious when Mr. Aden stated he knew some Englush because he saw American movies on a VCR, as he claimed, as if Somalia town dwellers do not have access to VCR’s (not cutting technology, one should note – Mr. Aden did not boast of seeing Avatar in 3D in Somalia) or American movies. On the contrary, I do not believe there is any reason not to believe that Mr. Aden watched American movies and even drank a coke at some time in Somalia.

Further, Mr. Aden was detained in a detention center when he came to the United States, probably for many months. The decision in Aden is quite sparse in providing dates – a more sympathetic panel would have noted how long he was detained. Just because Mr. Aden is an illiterate or semi-literate Somali does not mean he is an idiot1. Locked up with English speakers for months and months would result, most certainly, with the learning of English – and as he was locked up in a U.S. immigration detention center – probably a fair amount of Spanish. I have experienced foreigners who could not communicate with me in English when I began to represent them, and were able to communicate quite adequately with me by the end of their cases. I have seen the “Aha, you speak English,” gambit raised many times in court – as if the Somali speaking asylum seeker who fled his country after suffering severe persecution and often torture was actualy raised in the Court of St. James because he understands some basic English like “How many brothers do you have?” after months and months in detention – and engagement in the preparation of his or her removal case.

The court could have taken judicial notice of the information on the Internet had it looked for it or if an attorney looked for it. In one case, Singh v. Ashcroft, the Court of Appeals itself took notice of facts in a foreign country that the alien did not provide corroboration of and the BIA did not know of or look for.

It is quite clear to me that if the panel of judges in the Aden case had heard the Singh case, Mr. Singh would have been deported because no judge on the panel would have spent a few minutes learning anything commonly known about India, just like no one wanted to play around on the Internet for a few minutes to learn about Mr. Aden’s tribal heritage.

As for disbelieving Mr. Aden because the declarants in the letter did not know him imposes a burden on asylum seekers to come to the United States only if they know people here. I know no one in France. God forbid I must seek asylum there if such a requirement exists there as well.

One final observation. The Somali language has been essentially an oral language. The current written form was adopted in 1972. Spellings are new and use Latin letters. Because the sounds of the Somali language do not coincide with English, letters have different sounds than English speakers make. Spelling mistakes are frequent. For example, C’s are sometimes silent. A man named Ilmi will spell his name Cilmi. The H sound can be represented by an X, hence, Maxamuud is Mahaamuud which we know as Muhammad or Muhammed or Muhamed or Muhamet and other variations because the sounds in the word do not dirctly correspond to English sounds. It is silly to assume that a Somali is lying because the spellings of a word in a language with sounds we do not have in English by people dealing with a relatively new transliteration system and who are not educated well are inconsistent. The difficulties in consistently transliterating Somali is heightened when Somalis then try to conform their understanding of the sounds of letters to how English speakers pronounce letters. I have seen a judge disbelieve an alien because of perfectly understandable spelling variations in his name. It is sometimes hard to wrap your mind around the fact that a letter we pronounce one way can be pronounced another way in another language – and could be a sound we do not have in English. This despite the fact that anyone who has studied a foreign language after the age of 12 quickly figures out that the vowel sounds in the foreign language are different from the vowel sounds in English and a foreign language learner is bound to sound like a foreigner forever when speaking the new language – what we call an accent. I recall a Mexican client who, when I asked him where he worked, told me he worked in the Sports Arena district of San Diego. The name of the business was a word I could not understand so I asked him to write it down. He wrote “Swami.” I took me a while to figure out that he worked on weekends at the Sports Area “Swap Meet.” Japanese do not mix up L’s and R’s because they want to sound goofy, but because they are trying to pronounce sounds that do not exist in Japanese and the sound they do have is a sound close to an L and R and is their all-purpose substitute for both. All this to explain that spelling discrepancies in a Somali case is a lame (irrational) basis to find a lack of credibility.

The game in the case of Mr. Aden seemed to be, “Find Ways to Deny the Alien.” Despite plenty of information in the public arena to confirm Mr. Aden’s assertions, the court was not supplied this information and relied on a lot of speculation. It would be pretty funny except for the fact that if Mr. Aden is returned to Somalia, he stands a great risk of being killed – a grim fact the system finds expedient to overlook in favor of the principle of deference to the agency.

1 Jared Diamond, in Guns, Germs, and Steel: The Fates of Human Societies, posited that the primitive natives of new Guinea were smarter than westerners because the amount of information they needed to keep in their heads to simply survive meant it was brains and not brawn that was selected in the evolutionary scheme. It would not be surprising if Mr. Aden’s survival skills are a function of natural selection of the most resourceful. When we see starving people on TV, like the victims of famine, or we encounter refugees with little education fleeing for their lives, we may have a tendency to assume their lack of education and/or development are indications of lack of intelligence. That is an unfair mistake I see in immigration court.  Published February 14, 2010.