Archive | April, 2014

The Revised Credible Fear Lesson Plan: Enough is Enough!

25 Apr

Originally published on the AILA Leadership Blog

This is not just a blog post, but a call to action. Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees. The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

dog and pony

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees. While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process. It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system. Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution. In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted. Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview. If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution. Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar. With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system. Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

                                                                                                                                                   central america

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum. We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement. We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law. And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers. Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers. In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes. In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before. Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.” Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions. The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net. The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

safety net

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor. The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications. These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards. Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States. Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources. Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations. I don’t know about you all, but for me, “Enough is enough!”ENOUGH

As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.

Written by Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair

GUEST BLOG: Catholic University Law Students Win Asylum Case…23 Years in the Making

24 Apr

Ana and MartinAna and Martin

By Ana Victoria Perez and Elmer Martin Uribe, Student Attorneys with the CUA Immigration Litigation Clinic

“Asylum has been granted. Congratulations.” Those are the magic words that Judge David Crosland uttered on the morning of April 21, 2014. As he said those words, a flood of emotions overcame all of us. Happiness, relief, and excitement were felt throughout the small courtroom where Bill had just been granted asylum, twenty-three years after arriving in the United States. His mother and cousin, who were present at the time, could not contain their tears of joy as we hugged and celebrated the positive outcome of his case.

We met Bill on September 2013.  Only a week earlier, we had a chance to review his case file and study his immigration history for the first time. Bill greeted us with a smile; we shook hands and sat down with him to hear his story. His smile faded quickly as we delved into the general outline of his story. At first, Bill was reluctant to go into too much detail, and he made general statements about certain aspects of his life. It was at this point that we realized that our client was trying to block out some of the more painful moments of his life and he was hesitant to tell us about his current personal struggles. Fast-forward to April 2014; after several long nights, many discussions with our client and his family, and endless research, we knew our client’s life experiences as if they were our own. His story is filled with traumatic experiences, terrifying events, and personal struggles that few people ever encounter in their lifetimes, yet Bill overcame his own insecurities and fears and gained the courage to apply for asylum. Thanks to his determination, his family’s encouragement, and the amazing support team behind his two student attorneys, Bill is now able to celebrate his safety and freedom in the United States.

Bill’s Story

Bill came to the United States in 1991 fleeing the brutality of the First Liberian Civil War. Because of his father’s associations with Sierra Leone and his mother’s Americo-Liberian background, the family was perceived as supporters of either side and made them a target for any of the warring factions involved in the conflict. However, the most painful event that Bill endured was the day soldiers trespassed into his cousin’s house where they were hiding. The soldiers ordered the women to one side and lined up the men against the wall. As Bill stood against the wall, he pleaded for his life and heard his mother do the same. The soldiers did not listen to reason and beat the men with their weapons, but just as the soldiers were getting ready to execute them, the ECOMOG peacekeeping forces arrived. The soldiers relented from their attempt to execute the family and the ECOMOG forces transported the family away.

After that incident, Bill’s family decided to escape Liberia. Bill and his younger brother were sent to the United States to live with their older brother and sister. After arriving in the U.S., Bill suffered from intrusive flashbacks, nightmares, exaggerated startled responses, anxiety, and various other symptoms associated with Post-Traumatic Stress Disorder (PTSD).

As if suffering through a brutal civil war was not enough, Bill also had to deal with his own personal struggles. During his teenage years, Bill began to realize that he was not like the other boys his age. While the other boys talked about girls and had girlfriends, this was a topic that did not interest him. He pushed his emotions and confusion aside and decided to focus on academics and athletics at school. As he grew up, he began to think that he was gay, but this thought scared him because he knew what happened to anyone who was perceived as gay in Liberia. He was haunted by his uncle’s story of being brutally beaten, arrested, and detained for almost a week in Liberia because his persecutors perceived him as gay. Bill knew that Liberian society was not open to homosexuality and he did not want to put himself in that position, so he denied his own identity, refused to accept his true self, and suppressed his feelings towards men.

WP Photo on African Gays

Then, in 2012, Liberia introduced two bills in their legislature that would make homosexuality a crime. These laws were used as a rallying point by several politicians and it spurred intensified homophobic sentiments in the streets. Several organizations reported that Liberian sexual minorities were being discriminated against, stigmatized, harassed, and subjected to violence by neighbors, friends, strangers on the streets, and even family members. Whenever one of these victims attempted to seek protection from the police, the Liberian National Police would either ignore their requests or charge them with engaging in “deviant behavior” and arrest them. The Human Rights Watch report on Liberia and the LGBT community highlights these incidents with the police. One particularly compelling story came from the report. Hassan, a 23-year-old gay man, said “he considered the police to be complicit perpetrators, in demeaning and insulting victims and their friends. He recalled an incident in which he was detained together with his friend Leroy after reporting being attacked by a gang of neighborhood boys. He said the police disregarded his report and concentrated on the counter allegation about their sexual orientation. [He said] ‘I have lost all faith in the police. They act like gays deserve the abuse and humiliation.’” With the backdrop of this intensified homophobic atmosphere in Liberia, Bill began to fear for his safety if he had to return to Liberia. It was not until 2013 that Bill finally accepted his true self and worked up the courage to tell the person he loved most about his sexual orientation. Bill was nervous when he told his mother, but once he saw that she loved him and accepted him regardless of who he was, he felt a like huge weight had lifted off his shoulders.

HRW report liberia

Road to Asylum

Shortly thereafter, Bill began the process of applying for asylum. When we first met him, he had a happy-go-lucky attitude that did not fully reflect all the experiences he had endured up to this point. He always brushed aside questions about his time in Liberia during the civil war and his own sexuality. It was a long process, but week after week, we met with him and slowly gained his trust, discussing all the details of his case.

We spent almost eight months preparing for that one day, April 21st, the day that would decide our client’s fate. We collected every piece of evidence necessary to meet our burden of proof that Bill had a subjectively genuine and objectively reasonable fear of going back to Liberia. We also reached out to several experts on Liberia and LGBT issues, as well as respected psychiatrists who were willing to donate their time and expertise to strengthen our case and assist Bill in overcoming an over 20-year filing delay.

Balt Imm Ct

On the day of the hearing, we were ready for every possible scenario that the DHS attorney and the immigration judge could throw at us. We reviewed our closing arguments with our supervisors while Bill silently sat with his mother and cousin, who had come to testify on his behalf. He was clearly nervous the whole ride to Baltimore; he barely spoke. He kept repeating that he wanted it all to be over soon. We had been preparing for this day for many weeks, and when we heard the DHS attorney say she would stipulate to asylum, we almost could not believe our ears. All of our efforts to prepare the best case possible had paid off. For us and for Bill, it was vindication of so many late nights, excess of caffeine, and several months of arduous work solely focusing on our client. It was the best result we could have ever hoped for, and we learned a very valuable lesson that we will carry with us into our careers: win the case before setting foot in the courtroom.

We have so many anecdotes of our time working with Bill and his family while building our case for his asylum claim. While we would like to share them all, we will leave you with one of the most recent ones. As we drove back from the Baltimore Immigration Court, after Bill was granted asylum, a song played on the radio called: “On Top of the World” by Imagine Dragons.

Shortly thereafter, Bill started singing the lyrics to the song, and a flow of emotions consumed us all. There is, literally, no better description to how we all felt at that moment – on top of the world! Few things in life can give you greater satisfaction than how we felt that day. To make such a remarkable difference in Bill’s life is more than we could have asked for, and while we helped make his life better, Bill made a difference in our lives too. He taught us that, despite the many challenges that life can place in front of us, hope, courage, and perseverance must never die.

Cancellation Victory (well, sort of)

22 Apr

A couple of months ago, I got to enjoy my fifteen minutes of fame when my client became the poster child for problems caused for immigrants in immigration court by the government shutdown.  I wrote a blog piece, wrote another for the American Immigration Lawyer’s Association and, next thing I know, I am speaking to Robert Siegel of NPR’s All Things Considered and people I have not heard from in decades called me to say they heard me on the radio.  But, eventually, my fame wore off and I still had to fix this young woman’s situation.

what-up-with-that

As way of background, my client, a 21 year old college junior who has been here since she was four years old, applied for cancellation of removal from the Immigration Judge.  Cancellation is available to an individual who has been unlawfully present in the U.S. for at least ten years, possesses good moral character and whose removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child.  Congress has decided that only 4000 cancellation cases should be granted every year.  For many years, the 4000 quota was enough for the entire country.  However, as the Obama administration put many more people into removal proceedings, more people applied.  And guess what?  Given a day in court, more people were able to convince judges that they were good people with longstanding ties to the U.S. and deporting them would cause their families tremendous hardship.  By December 2012, the Office of the Chief Immigration Judge announced that they had run out of cancellation visas for the entire fiscal year, which had started barely two months earlier.  My client had a hearing in December 2012, in which she was informed by the Judge that there were no more cancellation grants available and the case would need to be continued.  The case was reset until October 2013.  The irony at that time was that she had originally been scheduled in October 2012, when cancellation numbers were available, but had to be rescheduled when the court was shut down due to flooding in lower Manhattan as a result of Hurricane Sandy.10155981_741506099222830_2694746367904436600_n

Fast forward to October 2013 and the government shutdown cancels her latest hearing.  The New York, upon reopening, quickly sent out a hearing notice for March 30.  However, on March 28, the court called me to inform me that the case would need to be rescheduled because the judge had been selected for jury duty!  We were rescheduled for April 18 at 2:00 PM, a date that greatly concerned me as it was Good Friday.  Sure enough, the court called the day before and asked us to come in earlier, which we happily did.  At the hearing, the government informed the court that it agreed with our request to grant our client cancellation of removal.  It took all of fifteen minutes.  The Judge was glad to do so, but explained that there are no cancellation numbers and that my client would be placed in the queue based upon the date and time of her case and would be notified when a number became available to her.  The case could not be “granted” until then.  So, my client, while relieved that she will ultimately be granted, remains in a precarious limbo by another absurd anomaly of our immigration laws- that only 4000 of these may be granted in a given year.  Who knows where Congress got that number?

Here's where Congress got the 4000 number!

Here’s where Congress got the 4000 number!

My client is just one of millions of people left in a state of limbo by Congress’ inability to address the crisis of immigration law.  In this case, my client has DACA and I probably could have gotten the removal case dismissed.  The government stipulated to relief, meaning she would get her green card.  It is hard to say that, in this one case, the problem is the administration.  Like all other arbitrary caps and quotas, such as the H-1B cap, the former cap on asylee adjustment, and caps on immigrant visas, Congress needs to act.

GUEST BLOG: Gender-Based Asylum Victory in Virginia by the George Washington University Law School Immigration Clinic

15 Apr

This post was written by Sydney Barron, a law student at George Washington University Law School and a member of the school’s Immigration Clinic, under the direction of Professor Alberto Benitez.  Benach Ragland periodically offers this space to law students and non-profit organizations to discuss their immigration cases.  If you are a law school professor or a non-profit organization that wishes to tell the story of one of your immigration cases, please write us at acbenach@benachragland.com.

 

On March 11, 2014, my client, Julia[1] won the asylum that she requested over a decade ago. Julia fled horrific domestic violence in her home country, Guatemala, and came to the United States in 2002. Unfortunately, Julia was not able to bring her children with her when she fled. After she entered the United States, the George Washington Immigration Clinic helped her file her asylum claim. Julia had to live with uncertainty for over a decade as her case wound its way through the immigration system. By the time Julia was finally granted asylum twelve years after fleeing her abuser, she had appeared before three different immigration judges, and worked with twenty different student-attorneys from the GW Immigration Clinic.

Sydney Barron Photo

GWU Law Student Sydney Barron

Julia filed for asylum in 2003. There was insufficient time for all of her testimony and cross-examination at her first individual merits hearing in 2004, so she had an additional individual merits hearing scheduled. The next hearing was not held until 2006 because the immigration court was so busy at the time.

When Julia first filed for asylum, the law of asylum for victims of domestic violence was far from favorable. At that time, the immigration courts were waiting for regulatory guidance on the issue of granting asylum to victims of domestic violence, but were hesitant to grant asylum while such guidance remained pending. For this reason, the immigration judge administratively closed Julia‘s case in 2006. This situation provided only temporary protection, and her case could be reopened at any time. Additionally, even though Julia could remain in the United States while her case was administratively closed, she could not bring her children here unless she was granted asylum.

A year later in 2007, the Department of Homeland Security (“DHS”) requested that the case be reopened. In June 2009, the immigration judge issued a written decision finding that Julia was credible and had suffered harm rising to the level of past persecution, but there was no “nexus” between the harm she suffered and her membership in a particular social group. The immigration judge therefore denied Julia‘s asylum claim.

The GW Immigration Clinic assisted Julia in appealing her case to the Board of Immigration Appeals (“BIA”). Before Julia‘s appeal was decided by the BIA, the law on asylum for victims of domestic violence shifted and became more favorable. The most well-known case on the eligibility of victims of domestic violence for asylum is Matter of R-A-. In Matter of R-A-, a Guatemalan woman suffered terrible abuse from her husband.[2] Fourteen years after R-A- applied for asylum, in December 2009, an immigration judge granted R-A-’s request for asylum.[3] Another central case regarding asylum for victims of domestic violence, Matter of L-R, ended in 2010 with a grant of asylum.[4] In both Matter of R-A- and Matter of L-R-, DHS submitted briefs describing the circumstances that they considered sufficient for a domestic violence victim to be eligible for asylum.[5] Given these two historic asylum grants, a prior student-attorney at the GW Immigration Clinic submitted a Motion to Remand Julia‘s case with the BIA.

When I first met Julia, she had not yet heard back from the BIA about the Motion to Remand. During my first semester in the GW Immigration Clinic, the BIA remanded Julia’s case to the Arlington Immigration Court. My first appearance in immigration court was for Julia‘s master calendar hearing. The GW Immigration Clinic Director, Professor Alberto Benitez, and my other supervisor, Mr. Jonathan Bialosky, prepared me to ask for a grant of asylum at this hearing. They explained that this was an unlikely outcome, and was extremely unlikely without DHS’s support. However, if I were able to convince DHS to agree to a grant, the immigration judge might grant Julia asylum given the prior immigration judge’s findings on credibility and the violence Julia suffered.

On the day of the master calendar hearing, the DHS trial attorney had not yet received Julia‘s file from the BIA, and could not support a grant. Luckily, the immigration judge recognized that Julia had already been waiting for over a decade, and scheduled the merits hearing for March 11, 2014. This was a huge relief to Julia, and myself, since some cases are scheduled up to two years from the master calendar hearing date.

In preparation for the individual hearing, I met with Julia multiple times a week. Her family members had alerted her to continued threats made by her abuser, including threats to beat, rape, and kill her. I submitted affidavits from Julia and her family about these threats.   I also submitted evidence from a psychiatrist, which supported Julia‘s testimony, and multiple articles about Guatemala and its institutionalized acceptance of domestic violence.

Before the individual merits hearing with the immigration judge, the GW Immigration Clinic held a moot hearing with Julia. Professor Benitez and Mr. Bialosky explained that I should not have a set of questions written down, because they had seen student-attorneys become dependent on a list of questions, ignoring what their client was actually saying. I wrote out the main issues that I wanted to get Julia to testify about, and practiced asking non-leading questions with other student-attorneys.  On the day of the moot hearing, I realized the difficulty of an actual direct examination, especially the difficulty of asking non-leading questions to get Julia to provide necessary details. Additionally, Professor Benitez and Mr. Bialosky asked the student-attorney playing the role of the trial attorney to try to surprise and rattle me by objecting to my evidence and submitting new evidence during the moot. The moot hearing taught me the importance of carefully listening to the client’s testimony and asking sufficient follow-up questions to ensure the client mentions all relevant details. It also taught me the importance of projecting confidence in my questions and responses, especially when unexpected issues arise.

The day before the hearing, I called the trial attorney who was assigned to Julia‘s case. I left her a message asking if she had received my pre-trial filing, and offering to answer any questions she might have. That afternoon the trial attorney returned my call while I was in class, and while I was able to excuse myself to an empty room, I did not have any of my notes with me. My lack of notes initially worried me; however, once the trial attorney started asking me questions about the case, I realized that the months of preparation had hammered all of the facts into my head, and I could easily discuss the case without any notes.   We discussed the procedural history of the case and the evidence that Julia’s abuser continued to threaten her. After answering all of the trial attorney’s questions, I felt confident that the trial attorney appreciated the grave danger that Julia would face if she were forced to return to Guatemala.

On the day of Julia’s individual merits hearing, Professor Benitez, Mr. Bialosky, and many of the other student-attorneys who came to support Julia were present in the courtroom. Immediately before the hearing, the trial attorney informed me that she would not be opposing a grant of asylum. Julia was extremely excited, but I explained that nothing was certain until the immigration judge granted her asylum. The immigration judge requested that I do a short direct examination of Julia, and after my direct examination the trial attorney did a short cross-examination. After Julia returned to her seat, the immigration judge gave his oral decision granting Julia asylum. To the surprise of everyone in the courtroom, Julia asked the judge if she could hug him. The judge explained that he could not hug her in person, but that he would “hug” her from where he was. Both Julia and the immigration judge hugged the air in front of them in a very touching moment. Julia also hugged the trial attorney after the hearing was over. Professor Benitez told me later that it was the first time that he had ever seen a client ask to hug the immigration judge or the trial attorney.

I am grateful to the GW Immigration Clinic for the opportunity to assist Julia in her search for safety. I am grateful to my supervisors, Professor Benitez and Mr. Bialosky, who guided me through the process, set up moot hearings, and provided feedback on my pre-trial filing and hearing preparation. I am grateful to all of the other student-attorneys for their help throughout the year, providing feedback and helping to prepare Julia for cross-examination. Finally, I am grateful to Julia, an inspiring woman who persevered with immense strength. The opportunity to help protect her from further abuse and finally bring her a sense of peace and closure was an amazing gift.

 

[1] My client’s name has been changed to protect her identity.

[2] Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008).

[3] Lisa Mendel-Hirsa, Recent Landmark Victories in the On-Going Struggle for U.S. Immigration Law to Recognize and Fully Protect Women’s Human Rights, Empire Justice Center (Nov. 19, 2010), http://www.empirejustice.org/issue-areas/domestic-violence/battered-immigrants/articles/domestic-violence-and.html#.U0Ac3fldVHI.

[4] Id.

[5] Department of Homeland Security’s Position on Respondent’s Eligibility for Relief,

Matter of R-A-, 22 I. & N. Dec. 906 (Feb. 19, 2004) (File No. A 73 753 922); Department of Homeland Security’s Supplemental Brief, Matter of [L-R-, redacted] (Apr. 13, 2009).

If Nigella Lawson was Found to be Inadmissible, that Finding is Suspect and, Even if she is, she has a Terrific Case for a Waiver!

3 Apr

Nigella

From across the pond comes word now that Nigella Lawson, she of the cookbook and lifestyle empire, has been denied admission to the United States, due to reports of her testimony regarding her use of cocaine and marijuana.  Now, Nigella Lawson has never been convicted of illegal drug possession or distribution.  So what gives?  Well, what appears to have happened is that Ms. Lawson was determined to be inadmissible to the United States because she may have “admitt[ed] to having committed  . . . a violation of any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”  This ground of inadmissibility does not require a conviction of a drug offense, just an admission.  But is Ms. Lawson’s apparent admission in a United Kingdom court sufficient for her to be found inadmissible?  It seems highly doubtful.

Here’s what we know.  Nigella Lawson is a highly successful businesswoman.  She has authored a number of cookbooks and lifestyle books.  She has had her own television shows and has appeared in a number of tv shows about cooking and entertaining.   Her private life burst out into the open in July 2013, when she was photographed being grasped around the neck by her husband, Charles Saatchi.  Shortly thereafter, Ms. Lawson was a witness in the fraud trial of two of her assistants, who had been accused of wrongly using Saatchi’s credit cards.  Their defense was that their use of the credit cards was allowed by Lawson in exchange for them not revealing her drug use.  Lawson testified in court and stated that she had used cocaine and marijuana.  Fast forward to last weekend.  At London’s Heathrow airport, Lawson was apparently denied boarding a flight to Los Angeles.  Apparently, Ms. Lawson has been found to be inadmissible due to her admission of a violation of a law relating to a controlled substance.

U.S. law allows the Department of Homeland Security to find a person inadmissible if she has admitted to a violation of a law involving a controlled substance.  It would seem simple enough.  However, the process required to make that finding is tightly controlled by longstanding caselaw.  Specifically, in the 1957 decision in Matter of K-, the Board of Immigration Appeals held that, in order to find someone inadmissible for admission of a controlled substance, these steps must be followed: (1) the individual must be provided with a definition of the offense with all essential elements; and (2) the individual must be provided with an explanation of the offense in laymen’s terms.  Since the statute does not makes someone inadmissible for use of an illegal drug, but the violation of a law related to a controlled substance, DHS must identify the statute violated and the person must be provided with an explanation of the elements of the crime and must admit to all those elements.  This process is usually undertaken at a port-of-entry between a Customs and Border Protection (CBP) officer and an applicant for admission.  A person can not be found to be inadmissible if these requirements are not satisfied.

This is why the explanation for Nigella Lawson’s inadmissibility in unconvincing.  Perhaps there were other reasons why she could not board that plane.  But, if she were indeed deemed to be inadmissible based upon her admissions of cocaine and marijuana use in UK court, it would seem that these procedural requirements were not honored as it does not appear that any sort of interview between DHS and Lawson ever occurred.  In addition, it seems unlikely that Ms. Lawson, in her testimony ever specificallty admitted to violating a specific law.  In other words, Lawson probably did not testify as follows: “Yes, I knowingly and willfully possessed a substance that I knew to be cocaine.”  And it is unlikely that someone then said, “Aha!  So you admit violating the Misuse of Drugs Act of 1971?”  To which, she probably did not reply, “Yes.”  It is not enough for inadmissibility for a person simply to say “I used cocaine.”  They must admit violating a law and that law must be identified.  Where?  When?  Was it really cocaine?  All these questions need to be answered.  And Lawson has an absolute right under U.S. law to say that she is “not guilty.”  Therefore, it seems that, if she was denied boarding that plane on these grounds, she was wrongly found to be inadmissible.

If she is, in fact, inadmissible, Lawson would be an excellent candidate for a waiver of inadmissibility.  The law provides a generous waiver of inadmissibility for people seeking to enter the U.S. temporarily.  Known as a 212(d)(3) waiver, the waiver allows inadmissible people to enter the U.S. despite their inadmissibility.  In considering an application for a waiver, the DHS must weigh the following factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the ground of inadmissibility and (3) the reasons the applicant is seeking admission.  In assessing a potential Lawson application for a waiver, it would seems that she has a very strong case.  First, it can not be seriously argued that Ms. Lawson is any threat to U.S. society if allowed into the U.S.  Second, it is hard to say that this is a very serious ground of inadmissibility.  It is not a conviction, it does not relate to violence, the sale of drugs, or weapons.  It deals with the recreational use of illegal drugs in the past, an act that many millions of Americans have engaged in.  As far as grounds of inadmissibility go, this would seem to be on the lower end of the serious scale.  Finally, certainly Ms. Nigella 2Lawson has very good reasons to enter the U.S.  An accomplished businesswoman overseeing an empire of lifestyle media, her commercial ties to the U.S. are substantial.  U.S. businesses would lose out if they are unable to continue to collaborate with Ms. Lawson.  Applications for 212(d)(3) waivers are made to the State Department and the Department of Homeland Security and both must agree to grant the waiver.  The legislative history and the caselaw show that the the waiver is supposed to be generously given.

In the end, Ms. Lawson should be able to get on with her life and her travel to the U.S.  For now, no doubt she is reeling from this latest indignity.  If you are reading, Nigella, there is hope.  We can help!