On the same day in December 2012, two events highlighted continuing challenges for asylum seekers in New York. One was the unsealing of nine indictments announced by the U.S. Attorney for the Southern District against 26 individuals, including six attorneys, for conspiring to make allegedly fraudulent asylum claims.1 The other was the release of the Second Circuit’s opinion in Gashi v. Holder,2 which rejected attempts by the Board of Immigration Appeals (BIA), the highest administrative tribunal in immigration law, to make it harder for legitimate applicants to obtain asylum.

The indictments were the result of an investigation originally prompted by the New York Asylum office of the U.S. Citizenship and Immigration Services (USCIS), and which eventually involved the combined efforts of the FBI, the NYPD, and USCIS. They demonstrate that unscrupulous counsel for immigrants—the subject of years of advocacy in the legal community—and fraud on immigration applications remains a real problem. At the same time, it is critical to note, as the Gashi case illustrates, that much of the difficulty in representing New York asylum seekers has been in obtaining meaningful adjudication from immigration judges and the Board of Immigration Appeals. Ultimately, however, these issues have the same solution: competent, affordable or appointed representation for all potential asylum seekers in New York.

Continuing Crisis

The presence of legal assistance can make a tremendous difference in asylum cases. In 2011, the Study Group on Immigrant Representation, led by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, published Part I of its New York Immigrant Representation Study.3 Katzmann’s group found that while 74 percent of represented immigrants in New York won their cases in immigration court, only 13 percent of unrepresented immigrants achieved a favorable outcome. When immigrants were detained, only 3 percent were able to stop their deportations.

Asylum seekers, by definition, are a vulnerable group. A given asylum applicant has likely survived a harrowing journey, crossing precariously to reach American borders, and arriving with little or no money or resources. However, under the Immigration and Nationality Act (INA), the primary source of U.S. immigration law, asylum seekers have no right to government-funded counsel to make their cases. According to Katzmann’s group, this means that more than one-fourth of immigrants in New York, including asylum-seekers, never receive counsel at all. Among detained immigrants, the rate is even higher: 60 percent are never represented. Worse yet, the desperate circumstances of asylum seekers are compounded by sheer volume; thousands of asylum seekers arrive every year desperately in need of pro bono counsel.

The indictments recently unsealed by the U.S. Attorney’s Office show that an additional effect of the crisis of immigration representation is that asylum seekers are ripe for abuse. According to a survey of New York immigration judges performed on behalf of Katzmann’s group, the performance of attorneys in Immigration Court was rated as “adequate” or better in just 53 percent of cases, with 14 percent of representation by counsel rated as “grossly inadequate.” Given their desperate circumstances, it is no wonder that asylum applicants are often victimized by unscrupulous attorneys, along with non-attorneys such as fly-by-night travel agents, “application preparers,” immigration “consultants,” and “notarios.”

As Katzmann himself has said, “In all too many cases, I could not but notice a substantial impediment to the fair and effective administration of justice: the too-often deficient counsel of represented non-citizens.”4 And while the U.S. Attorney should certainly be commended for rooting out unscrupulous actors from the asylum system, there has been little discussion about how the alleged crimes mentioned in these immigration fraud indictments result fundamentally from the ongoing immigration representation crisis in New York.

What ‘Gashi’ Reveals

Azem Gashi was one of the asylum seekers able to obtain a reputable attorney. Yet Gashi seemingly faced an additional challenge, and one very much related to the representation crisis for asylum applicants more generally: restrictive adjudication practices, stemming from high volumes of asylum claims, by immigration judges and the BIA.

According to the Second Circuit opinion in his case (Judge Pierre Leval writing; joined by Judges Amalya Kearse and Denny Chin), Gashi was an ethnic Albanian living in Kosovo during the Balkan wars of the 1990s. At this time, Albanians in Kosovo were oppressed by the region’s Serbian population. Gashi joined a resistance group, which eventually fell into conflict with another Albanian resistance organization. In order to incite Gashi’s group into further conflict, one Haradinaj, a leader of the rival group, viciously attacked Gashi, shooting him in the leg and beating Gashi and his friends with rods, gun butts, and a baseball bat.

In 2004, United Nations war crimes investigators began making inquiries in the village where Gashi had been beaten in preparation for a trial of Haradinaj. Gashi spoke with the investigators, and soon after began to receive threatening telephone calls, purportedly from people still sympathetic to Haradinaj. Gashi was then attacked by sets of masked men on two different occasions, and then fled to the United States.

The immigration judge denied Gashi’s asylum application. Gashi then appealed to the BIA and lost. However, the Second Circuit reversed the BIA, noting that the immigration judge, and by extension the BIA, had used several incorrect legal standards in evaluating Gashi’s claim. Indeed, the agency had not made sufficiently clear the standard it used to decide one aspect of the case at all. Thus, in reversing the BIA, the Second Circuit did not formulate a new rule of law, or even apply existing law to a novel fact pattern. Instead, Gashi merely reminded the BIA of legal standards it should have used in the first instance.

Unfortunately, the Gashi case shows that a long pattern of criticism of the BIA and immigration judges by the federal courts does not seem to have led to fair and consistent adjudications. Summary disposal of cases by the BIA has only added to a system in which massively overburdened immigration judges—some of whom render up to five opinions per day—can be expected to issue unpredictable and sometimes senseless decisions which add to the workload of the Courts of Appeal, thus deepening the representation crisis. In one case, Judge Richard Posner held for the U.S. Court of Appeals for the Seventh Circuit that “[t]he elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the [BIA] in this as in other cases.”5

For the Second Circuit’s part, judge Jon Newman noted back in 2006 that “When overburdened [immigration judges] decide their high volume of cases hurriedly with oral findings…and then their decisions are affirmed [by the BIA] in a one-word ruling, the courts of appeals often lack the reasoned explication that is to be expected of a properly functioning administrative process.”6 According to Judge John Walker, “one of [his] court’s problems with the BIA is that it rarely seems to adjudicate the outstanding legal issues in a case.”7 The U.S. Court of Appeals for the Ninth Circuit started one opinion by saying, “This case presents for review a literally incomprehensible opinion by an immigration judge.” The BIA had affirmed that opinion with a two-line decision.8

In this context, Gashi’s admonitions that the immigration judge, and thus BIA on appeal, “offered no explanation,” “did not indicate what standard of persecution [was] employed,” and applied “probably an incorrect allocation of burden of proof” reflect the Second Circuit’s continuing dissatisfaction with the quality of decision-making by immigration judges and the BIA.

In such a system it is also not particularly difficult to imagine how potential applicants may see the odds so stacked against them that they are swayed by the promises of foolproof benefits offered by immigration “consultants” and notarios. Helpfully, though, as much as the Gashi case can be seen as continuing to sound the alarm on the procedural effects of the representation crisis for both applicants and the administration of justice, Gashi also demonstrates a welcome effort on the part of the Second Circuit to hold the line against narrow substantive interpretations of immigration law by the BIA and immigration judges.

Asylum Opportunities

The key substantive requirement in asylum cases is that an applicant must establish a threshold likelihood of future “persecution” in his or her home country. In case law, the Second Circuit has noted that persecution is more than mere “harassment” or “discrimination,” but that persecution need not require a showing of physical violence.9

Additionally, it must be established that persecution occurs “on account of” a characteristic protected under asylum law. While persecution based on race, religion, ethnicity, and political opinion make perhaps the most intuitive asylum claims, there is also a fifth basis for asylum: membership in a “particular social group.” Claims made on this basis have extended protection to deserving applicants who might not otherwise qualify on the other asylum grounds, including those fearing persecution based on sexual orientation or female genital mutilation. Although the potentially broad reach of the “particular social group” concept has led courts to impose additional requirements for social group claims, in order to prevent opening the floodgates to millions of asylum seekers, Gashi illustrates that social group claims can still be a useful tool for dedicated and creative asylum advocates.

The “particular social group” asserted in the Gashi case appears to have been “potential witnesses against Haradinaj.” The Second Circuit first reaffirmed the primary “immutability” test for “particular social group” claims, which requires that members of a “particular social group” share a characteristic that is “beyond the power of the individual to change” or “so fundamental to individual identity or conscience that it ought not be required to be changed.”10

In Gashi, the Second Circuit correctly found that there was no way for the respondent to change his identity as a member of his proposed group, since his membership was based on past actions of witnessing Haradinaj’s war crimes and speaking to the U.N. about them. Gashi also reaffirmed a “particularity” requirement for particular social group claims, which refers to the requirement that a social group for asylum purposes be definable to some extent in objective terms. The Gashi court noted that the group of potential witnesses in that case, given the singularity of the war crimes investigation at issue, was acceptably discrete and verifiable.

Gashi, however, pushed back against the BIA and immigration judge interpretations of the “visibility” requirement for particular social groups, which requires membership in what would be understood to be a discrete social group by a significant portion of the population in a person’s country of origin. The court prudently rejected efforts by the immigration judge and Board of Immigration Appeals to locate the “visibility” requirement in physical aspects of a person’s identity, such as recognizable ethnicity. The BIA’s interpretation potentially would have doomed social group claims based on sexual orientation, for example, which have been accepted as valid for decades. One needs only to consult Courts of Appeals cases in which immigration judges have been chided for denying asylum on the basis of sexual orientation to applicants who did not “look gay” to understand why the Second Circuit was right to understand “visibility” as referring to social visibility, and not its physical counterpart.

The Gashi court rightly found that multiple incidents of persecution aimed at keeping Gashi from testifying, along with reports of intimidation of other potential witnesses, demonstrated that the group of potential witnesses in the Haradinaj case was sufficiently “visible” in Kosovar society. In the process, the Second Circuit kept the avenue of particular social group claims well open for future creative asylum applicants.

Future of Cases in New York

Dedicated advocates continue to push for the right to competent and ethical counsel in all immigration proceedings, including for those who face persecution in their country of origin.11 Until that day arrives, however, the Second Circuit’s decision in Gashi shows that there is a wealth of opportunities to help non-citizens make meritorious claims of asylum despite the roadblocks that stand in their way. Indictments of allegedly unqualified and dishonest application preparers should not discourage the bar from taking on the challenge of representing some of the most vulnerable New Yorkers in their journeys to liberty and safety. Nor should immigration judges and the BIA be allowed to address the representation crisis by restrictively interpreting laws to reduce caseloads before applicants have had a proper day in court.

Short of requiring appointed counsel, the immigration representation crisis will only be solved by concerted efforts of pro bono lawyers to assist non-citizens in need, and for all lawyers in immigration proceedings to take advantage of cases like Gashi as they advise and represent their clients.

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Jesse Rockoff, a law clerk, and Nancy H. Morowitz, counsel, assisted with the preparation of this article.

Endnotes:

1. Press Release, U.S. Attorney’s Office, Southern District of New York, Dec. 18, 2012, available at http://www.justice.gov/usao/nys/pressreleases/December12/AsylumFraudChargesPR.php.

2. No. 10-2584-ag, 2012 U.S. App. LEXIS.25835 (2d Cir. Dec. 18, 2012).

3. Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings, Study Group on Immigrant Representation, December 2012, available at http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf.

4. “Bench, Bar, and Immigrant Representation: Meeting an Urgent Need,” Remarks of Judge Robert A. Katzmann, Federal Bar Council, New York, NY at 3 (May 1, 2012), available at http://www.federalbarcouncil.org/vg/custom/uploads/pdfs/Proceedings_of_2012_ Law_Day_Dinner.pdf.

5. Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2004) (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)).

6. Judge Jon O. Newman, U.S. Court of Appeals for the Second Circuit, Statement before the Senate Judiciary Committee 8 (April 3, 2006).

7. Judge John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, Statement before the Senate Judiciary Committee 3-4 (April 3, 2006).

8. Recinos de Leon v. Gonzales, 400 F.3d 1185, 1187 (9th Cir. 2005).

9. See Beskovic v. Gonzales, 467 F.3d 223, 225-27 (2d Cir. 2006); Ivanishvili v. U.S. Dept. of Justice, 433 F.3d 332, 340-41 (2d Cir. 2006); Chen v. INS, 359 F.3d 121, 128 (2d Cir. 2004).

10. Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds, Matter of Mogharrabi, 19 I.&N. Dec. 439 (B.I.A. 1987).

11. See Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings, Study Group on Immigrant Representation, November 2012, available at http://www.cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf.