NIJC Pro Bono
Training
McDermott Will & Emery
December 4, 2008
www.immigrantjustice.org
Welcome
Mary Meg McCarthy,
Executive Director
National Immigrant Justice Center
About the National Immigrant Justice Center
 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.
NIJC’s Pro Bono Programs
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
Pro Bono Opportunities with NIJC:
Asylum
Detention
SIJS
VAWA & U-visas
Citizenship Clinics
I-730s & Asylee Adjustments Clinics
The Basics of Asylum Law
Mary Meg McCarthy
National Immigrant Justice Center
Asylum: Definition
 “[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)
Domestic Law
 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)
Asylum: Elements
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
“Well-Founded Fear”
 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”
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”
May be established two ways:
- Past persecution
- Future persecution
Advantageous to argue both when possible
Past Persecution Cases
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
Future Persecution Cases
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
“Persecution”
 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 (7th 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 (7th Cir. 1995)
“Government Actor”
 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
“On Account Of”
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
Race, Religion, Nationality
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]
Political Opinion
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.
Membership in a Particular Social Group
“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
One-Year Filing Deadline
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)
Withholding of Removal
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
UN Convention Against Torture
 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%
Real ID (Part 1)
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 2)
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 3)
Credibility
Can be based on demeanor, candor, inherent
plausibility, consistency of statements (made
any time/any circumstance)
Material Support to Terrorism Bar
 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
Persecutor Bar
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
Preparing and
Presenting Your Case
Ashley Huebner,
Asylum Project Attorney
National Immigrant Justice Center
United States Asylum Process
Client in US; not in system
Client in DHS system
File Affirmative Application
Asylum Office Interview
Grant
Referral
“Notice to Appear” Issues
Master Calendar Hearing
Merits Hearing
Merits Hearing
The Asylum Office
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!
What to File
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!
Asylum Office Procedure
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 nonadversarial.
Asylum Office: Case Timing
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
Client Affidavit/Declaration
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
Documents: Specific Corroboration
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: General Corroboration
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
Witnesses
Expert Witnesses
- Academic
- Medical & Psychological
Fact Witnesses
- Similarly situated people
- People who can corroborate identity
Use to support theory of case
Obtaining Documents
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
Court Proceedings: Notice to Appear
Charging document
Review allegations &
charge(s)
Correct with IJ
Timing in Proceedings
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
Master Calendar Hearing
 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!
The Merits Hearing
David Berten
Competition Law Group LLC
United States Asylum Process
Client in US; not in system
Client in DHS system
File Affirmative Application
Asylum Office Interview
Grant
Referral
“Notice to Appear” Issues
Master Calendar Hearing
Merits Hearing
Merits Hearing
Merits Hearing: Trial Procedure
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: Evidence
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: § 1229a(b)(4)
“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”
Examine the Evidence Against the Alien
Notice to Appear Issues
FOIA for additional documents
Present Evidence on Behalf of the Alien
 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
Cross-Examine the Government’s Witnesses/
Common Objections
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
Merits Hearing: Opening Statement
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
Direct Examination of Witness
 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
The MOST IMPORTANT Advice
Have your client maintain the same demeanor
on cross as he has on direct
Closing Argument
Brief
Include focus on credibility
Questions from Court are good
After the Merits Hearing
 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
Practice Pointers &
Other Forms of Relief
Ashley Huebner
National Immigrant Justice Center
Preparing for Your First Meeting
 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?
Can Your Client Legally Work While the Case is Pending?
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”
Planning for Your Case: FOIA
 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)
Planning for Your Case: Fingerprints
 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.
Special Immigrant Juvenile Status
 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
U-visa
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
T-visa
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
Family-based Petitions
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
THANK YOU!
National Immigrant Justice Center
For more information contact:
Megan Baumann: (312)660-1307
mbaumann@heartlandalliance.org