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
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