Abigail Moyer 0000-00-00 00:00:00
The courtroom was filled with a nervous and expectant silence, punctuated only by the sound of the judge’s rustling papers. Mr. G, an asylum-seeker from Eritrea, North Africa, and his pro bono attorney recruited through the South Texas Pro Bono Asylum Representation Project (ProBAR), were sitting at the counsel table in front of the courtroom, anxiously awaiting the judge’s decision, either granting or denying Mr. G’s request for asylum in the United States. Mr. G., with the help of his pro bono attorney, Catherine Palmore, from The Woodlands, had just spent the past two days explaining to the judge why he had fled his home country and was now seeking protection in the United States. Mr. G. had explained to the judge that, as a student, he had converted to Pentecostal Christianity and had begun regularly attending Christian house prayer meetings, despite the Eritrean government’s prohibition on such gatherings. At one such meeting, Mr. G. testified, government soldiers had arrived at the home, arrested all the participants, and taken the male participants, including Mr. G., to a prison about an hour away. Mr. G. further testified that he was then imprisoned for two months, including in a metal shipping container alone, interrogated about his religious beliefs, and tortured by being tied up with ropes for hours under the hot, North African sun. Mr. G. explained that he had managed to escape imprisonment after being taken to a hospital for the treatment of his malnutrition, but that not long afterwards he was again arrested when he attempted to flee the country without the government’s permission. Because he had attempted to escape from Eritrea, Mr. G. testified, his government again imprisoned him, this time for almost two years. After escaping from prison, and finally, from Eritrea, Mr. G. spent the next three years traveling through a multitude of countries in Africa and Central America, often on foot, bus, or train. None of the countries that Mr. G. passed through, however, offered him permission to stay legally, and so he was forced to continue on his journey, working as he went in order to feed himself and pay for his next step of the journey. In April 2012, Mr. G. arrived at the border of the United States and Mexico. There, Mr. G. went to the Port of Entry at Hidalgo, Texas, where he approached U.S. Customs and Border Protection officers and explained that he wanted to apply for political asylum in the United States. The officers then interviewed, processed, and transported Mr. G to the Port Isabel Detention Center, in Los Fresnos, Texas, where he was detained for months, over the duration of his asylum proceedings. Burden of Proof As an applicant for asylum in the United States, Mr. G. would need to prove that he met the definition of a “refugee” as defined in Section 101(a)(42)(A) of the Immigration and Nationality Act (INA): “[A]ny person who is outside any country of such person’s nationality…and is unable or unwilling to avail himself or herself of the protection of, that country because of the persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” This definition, which was first offered in the 1951 United Nations Convention relating to the Status of Refugees and the 1967 U.N. Protocol relating to the Status of Refugees (Protocol), was created in response to the horrific acts of World War II and reflects the universal principles that no human being should ever be persecuted because of an innate characteristic such as religion, race or the color of skin. In 1968, this standard was incorporated into U.S. law. In order to demonstrate that he qualified as a refugee under the standard articulated in the INA, Mr. G. would need to pass through a series of lengthy and complicated steps, including an interview with an asylum officer and then repeated appearances in immigration court before an immigration judge. If Mr. G. failed to demonstrate that he qualified as a refugee, or for any other related form of protection in the United States, Mr. G. would be deported back to Eritrea, where he expected he would again face imprisonment and torture. In fact, the burden of proof lies with asylum applicants to prove they meet the definition of refugee as defined in INA §101(a)(42)(A). Lengthy Legal Process Despite the extraordinarily high stakes involved, the INA provides that non-citizens such as Mr. G., including those in immigration detention centers, have no right to governmentfunded counsel when presenting a claim in immigration court. The results, therefore, can be harsh: a detained asylum-seeker such as Mr. G. has the choice of paying money to retain private counsel, or if he does not have the resources to do so, he can go to court alone. The challenges of preparing and presenting an application for asylum without the assistance of a legal advocate are multitude. For many asylum-seekers, the first challenge is making sense of the often unpredictable, confusing, and opaque immigration processes unfolding in one’s life, particularly the processes encountered by detained asylum-seekers. One formerly detained asylum-seeker explained the confusion he felt during the initial period of detention: “Although I expected to be detained, I never thought it would last for several months. For the first several weeks during weeks of my detention, I was never officially informed why I was being kept for that long, and what my options were, if there were any at all. I expected them to inform me officially of the immigration process I was going through.” When, if ever, a pro se asylum-seeker understands the lengthy legal processes he faces in order to apply for asylum in the United States, he then faces the new challenge of preparing and presenting his application in a court of law. First, among other requirements, an applicant for asylum must complete and submit with the court an I-589, Application for Asylum and Withholding, an application that contains important legal nuance and consequence. No matter the applicant’s English language proficiency, the application must be completed in English and translators are not provided to assist asylum-seekers with their applications. Additionally, the asylum application will likely be scrutinized for errors, with the government attorney often arguing that errors in the application are a reflection of the applicant’s doubtful veracity, rather than a reflection of his limited language skills. Second, the asylum-seeker must attempt to gather documents to corroborate his claim. For a detained individual with limited resources, obtaining corroborating documents, particularly without the assistance of an advocate, is often virtually impossible. Lastly, an asylum-seeker must appear in immigration court before an immigration judge, where he will face a government attorney employed by Immigration and Customs Enforcement. The ICE attorney seeks the denial of the Respondent’s application for asylum and the asylum-seeker’s deportation from the United States. If the asylum-seeker is unrepresented, he will present his case to the judge, while facing cross-examination from the government attorney. Generally, at the end of a hearing, the government attorney presents arguments to the judge regarding why the asylum-seeker’s application should be denied, and the pro se asylum-seeker is left to try to understand the arguments and to defend against them. As one formerly detained asylum-seeker explained: “Most asylum-seekers I met spent several months in detention centers in several different countries, and don't have pennies to their names. The support they receive from the pro bono attorneys goes a long way in helping them tell their stories to the courts properly, get the necessary supporting documents, and most of all, someone to walk them through, what is to some an unimaginably complicated legal process.” Creation of ProBAR In response to these tremendous challenges, ProBAR, the South Texas Pro Bono Asylum Representation Project, was created in 1989 as a joint effort by the American Bar Association, the American Immigration Lawyers Association, and the State Bar of Texas to respond to the overwhelming need for representation of asylum seekers in South Texas. ProBAR’s mission is to provide a venue for recruiting, training, and mentoring pro bono attorneys to represent indigent, detained asylum-seekers before the Immigration Court. Each year ProBAR works with about 50 volunteer attorneys to provide representation to noncitizens in removal proceedings applying for humanitarian forms of relief including asylum. Despite the significant difficulties involved in representing a detained asylum-seeker, many pro bono attorneys find the experience highly rewarding. Catherine Palmore, for example, the pro bono attorney who represented Mr. G., explained, “The highlight for me was, obviously, when the judge made his ruling that my client would be granted asylum. I have practiced law for 10 years and that was, by far, the most rewarding moment of my legal career.” Michelle Reed, an attorney with Akin Gump in Dallas, echoed Palmore’s sentiments, “My work for asylum-seekers through the incredible support of ProBAR has given me a vision of hope for clients who have suffered immeasurably in their home countries. The exuberant smile and warm embrace of a client who has been granted asylum is the greatest reward of my pro bono practice.” Another ProBAR pro bono attorney, Martin Whittaker from Chicago, highlighted a different reward that often comes with representing an asylum-seeker: building a relationship with the client. He explained: “I know that is pure cliché…but it is very rewarding to get to work closely with a good and admirable person. And even more rewarding when the work brings a good result.” For Mr. G. and his attorney, the long silence in the courtroom was eventually broken by the immigration judge’s rendering of a decision, granting Mr. G. asylum in the United States. With this decision, Mr. G. was able to be released from the immigration detention center and is now in the process of applying for a work permit and integrating into U.S. society. Abigail Moyer is a Harlingen-based staff attorney for ProBAR/American Bar Association Commission on Immigration.
Published by State Bar of Texas. View All Articles.