Friday, January 13, 2006

Houston Immigration Clinic Rocks!

Thanks To Cappy White for this update from Texas.

No Longer Adrift: UH Immigration Clinic Helps Answer Asylum-Seekers' Prayers

Erica Lehrer Goldman, Texas Lawyer
Monday, January 16, 2006

A 26-year-old man from Eritrea, a small country in Africa, sits in an immigration courtroom at the Houston Service Processing Center. He is so deep in prayer that he doesn't hear Immigration Judge Jimmie L. Benton announce that he has granted the man's request for asylum in the United States. It is only when the man's attorneys and translator congratulate him that he realizes his prayers have been answered.

Anne Chandler, staff attorney at the University of Houston Law Center's Immigration Clinic, remembers that day — Nov. 30, 2005 — vividly. She also remembers the day she met the man, Dawit, and the day she heard his horrific account of persecution.

To Chandler, Dawit's story is not new. Although the clinic annually handles as many as 150 immigration law-related cases, of which approximately 20 involve asylum claims, Chandler says that she has encountered only
three or four asylum cases like Dawit's with such egregious accounts of imprisonment and torture.

Chandler first encountered Dawit while giving a "Know Your Rights" presentation at the Houston Service Processing Center. Every two weeks, Chandler visits the facility accompanied by law students participating in the clinic and interpreters. They meet with detainees, inform them of their rights, explain how to get bonds and obtain documents to help their cases, and answer questions.

Chandler says the clinic has an agreement with the warden at the center that before being allowed to meet with the detainees privately, the clinic's lawyers, students and interpreters must complete a four-hour annual security training course. This year's course occurred on Jan. 12.

At the time of their first meeting, in the fall of 2004, Dawit spoke no English. So Chandler contacted the Young Men's Christian Association of Greater Houston — International Services to arrange for an interpreter who spoke Dawit's native language, Tigrigna. Dr. Kidane Araya, a Houston geophysicist who emigrated from Eritrea 22 years ago, volunteered to translate Dawit's native language into English and the attorneys' and law students' English into Tigrigna, which involved countless hours of work. He also provided them with an education in Eritrean politics and social history, which they found invaluable in supporting Dawit's asylum claim.

Dawit is not the man's real name. Texas Lawyer has agreed to use a pseudonym because of his fear for the safety of his family still in Eritrea, a small country on the Horn of Africa that declared its independence from Ethiopia in 1993. Before making his way to America, Dawit — who was born in Ethiopia of Eritrean and Ethiopian heritage — says he was tortured in Eritrea and Ethiopia because of his national origin, and later
tortured in Eritrea for supporting a political movement that was critical of the government.

"I didn't know what to do, I didn't know about asylum, I just told my story" to anyone who would listen, says Dawit, who learned English during his 16 months of detention in Houston. He says that he still has nightmares of being pursued and tortured. The deep gashes on his ankles and wrists and a scar on his face speak volumes about the torture Dawit endured — and why he fears returning to Eritrea.

In 1998, a border war between Ethiopia and Eritrea prompted the Ethiopian government to expel Eritreans and Ethiopians of Eritrean heritage, such as Dawit, thereby stripping them of their Ethiopian citizenship. Dawit says that in 1998, while he was still in his teens, Ethiopian government officials seized him as he was leaving school one day. The officials accused him of being a spy who had gone to Eritrea for "military training," which Dawit denied.

Dawit had, in fact, spent several months in Eritrea after graduating from high school the previous spring, but his purpose was to visit his mother's family and work as a volunteer, building schools and planting trees, he says. The Ethiopians who interrogated Dawit, however, knew that his mother had voted for Eritrean independence in 1993 and actively supported the separatist Eritrean party agenda. By the end of September 1998, after Dawit had been tortured, kept in isolation, interrogated and threatened with death, Ethiopian officials concluded that he had committed treason against the country, shared his mother's political inclinations and was an Eritrean spy, Dawit says. He was expelled from Ethiopia.

But Dawit says that he was not welcome in Eritrea, either. Because his father was Ethiopian, Dawit was suspected of supporting the Ethiopian cause in its war against Eritrea. Consequently, while in Eritrea, Dawit says he once again was tortured and imprisoned. He served time in Dahlak Prison — known for its inhumane treatment of prisoners — in part because of his mixed heritage and in part because, while forced to serve in the Eritrean military, he supported and participated in distributing political pamphlets put out by a group known as the G-15 movement that advocated restructuring and bringing democracy to Eritrea.

Dawit says he will never forget July 20, 2004, the night he fled Eritrea, fearing more torture, imprisonment and possible death. After swimming for hours in the Port of Massawa in total darkness, he says, he climbed the anchor of a cargo ship and hid on board.

Discovered while searching for drinking water on his first day at sea, Dawit spent the remainder of the voyage in a room under lock and key, along with several other Eritrean stowaways. When the boat landed in the Port of Houston on Aug. 10, 2004, immigration authorities took Dawit into custody. He spent the next 16 months at the Houston Service Processing Center, a detention center run by Corrections Corporation of America, a private prison company with which the government subcontracts.

Although Dawit was initially tortured in Ethiopia, his asylum claim derived from the fact that he is Eritrean, was tortured in Eritrea and cannot return to Eritrea, says Chandler, who supervised Dawit's asylum case.

"The stories from Eritrea are incredibly chilling," says Chandler. The degree and frequency with which Eritreans who return to their country are imprisoned, tortured and oftentimes never heard from again is well documented by Amnesty International, she adds. "Why we keep them locked up when they happen to float to our shores is beyond me, given that reality."

According to its Web site, the U.S. State Department's Country Reports on Human Rights Practices notes that Eritrea's record of human rights violations "worsened through 2002." The United States designated Eritrea as a "Country of Particular Concern" in September 2004 and November 2005 for its violations of human rights, particularly with regard to religious freedom. In May 2005, Deputy Assistant Secretary of State for African Affairs Donald Yamamoto, according to a U.S. State Department press release, informed the U.S. House of Representatives Africa Subcommittee that the United States has an ongoing "frank dialogue" with Eritrea's leadership about "U.S. expectations" in the areas of human rights, democracy, religious freedom and economic liberalization, particularly regarding Eritreans held without charge for political reasons.

Conditions in Eritrea are abominable, agrees Houston lawyer Robert Etnyre, who, although he is not involved in Dawit's asylum case, has worked on similar cases and regularly compares notes with Chandler about the challenges they confront when representing detainees. A partner in Royston, Rayzor, Vickery & Williams' Houston office handling admiralty and insurance coverage suits, Etnyre also regularly works on pro bono cases assigned to him by Catholic Charities of the Archdiocese of Galveston-Houston and the YMCA.

Etnyre handled the asylum cases of two stowaways who fled Eritrea on the same ship as Dawit, both of whom were granted asylum. One young man fled Eritrea because he refused to serve in the military due to his political beliefs; the other man was serving in the Eritrean military, but he found that he was unable to carry out some of his superiors' orders, because they went against his political and humanitarian beliefs, Etnyre says.

"These are not economic migrants; they are not coming here to get a job," he says. They are coming here, he says, because they know they are going to continue to be persecuted in their own country, imprisoned or killed for political or sometimes religious reasons. "These are essentially death penalty cases for someone who hasn't really done anything wrong," says Etnyre. "So you are very, very relieved when the process works."

World Events

Former immigration Judge Joseph A. Vail founded the immigration clinic in July 1999 after UH Law Center professor Ellen Marrus contacted him.

Marrus, as head of the Law Center's Clinical Program, recognized a strong community need for such a clinic, Vail says. Marrus convinced the deans of the law school that a clinic was the "right thing to do" for the community, the students and the law school, adds Vail.

"It was quite amazing to me that the fourth largest city in the United States, with three law schools, did not have an immigration clinic," says Marrus. Some of the UH law students are immigrants or first generation U.S. citizens for whom immigration issues are important, she adds.

As a teaching tool, she says, the clinic is unparalleled, a place where law students can learn how to represent clients. "An immigration clinic lets students work on their advocacy skills in a less threatening environment since they are administrative hearings and do not follow all the rules of evidence," explains Marrus. Moreover, interviewing a client who has suffered traumatic experiences and speaks little or no English tests the students' abilities to communicate with people from all walks of life. "These are important skills for new attorneys to know and begin to master," she says.

UH law Dean Nancy B. Rapoport says the clinic "supports the very foundation of our country — - the idea that immigrants can come here and make new lives, free from political prosecution or terror." She adds, "To be able to teach our students how to save people's lives in this way is one of the most powerful demonstrations of why law schools — especially public law schools — exist."

The idea of a clinic appealed to Vail. Like Marrus, he was floored by the fact that Houston had the fourth-largest immigrant population in the nation and few legal-aid resources for immigrants aside from Catholic Charities and the YMCA, each of which, he says, had only one staff attorney at the time. The UH Law Center was eager to launch the program; and there was a "pool of untapped talent here in the law students," Vail says.

In addition to running the clinic, Vail, who is board certified in immigration and nationality law by the Texas Board of Legal Specialization, teaches immigration law.

Besides Vail and Chandler, three other staff attorneys work at the clinic: Thomas Perkinson, Diana Velardo and Jennifer Moya.

Chandler says the clinic is funded by a combination of private and state funds. The private funds primarily result from the clinic's annual fundraising event, dubbed "The Arrival Awards," in which three immigrants now living in the Houston area who have achieved financial success in this country are honored at a formal dinner. Last year's event netted over $100,000, Vail says. The 2006 Arrival Awards will take place on Feb. 1 at the Hilton Americas in Houston.

State funds include grants from the Texas Equal Access to Justice Foundation (TEAJF), a nonprofit corporation created by the Texas Supreme Court in 1984 to provide Texans with equal access to justice, regardless of income. In 2005, TEAJF awarded two grants totaling more than $62,000 to the clinic, including a $32,545 Interest on Lawyers Trust Accounts (IOLTA) grant as part of a coalition with Catholic Charities and YMCA International Services, and a Crime Victims Civil Legal Services (CVCLS) 2005 grant of $30,000 toward representing low-income, indigent victims of crime. Chandler says that the IOLTA grant for 2006 has been increased to approximately $50,000.

In addition to the IOLTA and the CVCLS funds administrated through TEAJF, the clinic also receives approximately $49,000 through an Office of Victims Assistance Grant from Texas Attorney General Greg Abbott.

Dawit says he owes his release from the Houston detention center to Chandler, Vail and law students Megan A. Long and Peter D. Kim. Crucial to his release, too, and greatly assisting the attorneys, were the efforts and emotional support of Araya, the interpreter, who continues to be a guiding force in Dawit's life.

In the clinic, the students gain real-world experience while immigrants receive free legal representation. Chandler and Vail estimate that the typical asylum case takes somewhere between 100 and 200 attorney hours. Cases requiring a translator and/or expert witnesses often require additional time.

Working with a detainee who doesn't speak English, Spanish, Arabic or French — what Chandler calls "your traditional four languages" — is incredibly difficult, she says. Detention facilities only permit interpreters on their premises who have submitted to a security screening. Thus, lawyers must find an interpreter willing to reveal personal information to gain clearance. Given the often complex factual issues involved in asylum cases, an interpreter may need to visit a detainee numerous times to develop a statement laying out the facts to support the asylum claim. In Dawit's case, the statement, which was chock-full of facts, names, dates and details, was 27 pages long. The process of preparing his statement required getting Dawit to trust the lawyers and translator, to understand the amount of detail they needed, and to recall specific facts and incidents over a span of eight years, even though he was experiencing post-traumatic stress. "You're walking on eggshells, " says Chandler.

Typically, each semester 10 students elect to participate in the immigration clinic, for which they receive four hours of class credit, but for the spring 2006 semester, which began on Jan. 11, 20 students signed up for the clinic — 17 first-timers and three who are returning for a second semester. Each student commits to putting in 240 hours a semester in the clinic.

With regard to asylum cases, Chandler estimates that, at any given time, the clinic has one or two cases before a Houston immigration judge, one or two cases before the U.S. Citizenship and Immigration Services (USCIS) Asylum Office, three to four cases before the Board of Immigration Appeals and 5th U.S. Circuit Court of Appeals, and about six to 12 cases pending in other stages of the legal process, such as when an individual granted asylum seeks to have his spouse and children enter the United States or seeks to become a legal permanent resident.

In Dawit's case, Chandler and Vail met with law students Kim and Long weekly, and evaluated court filings, correspondence and briefs before they left the clinic to be filed. Vail had the law students hold two mock hearings, each about four hours in length, over which he presided as "judge" to prepare for Dawit's real hearing before Benton. The mock hearings also gave Dawit a chance to experience what they would entail in terms of giving testimony.

Long, who is working toward her LLM in international law after practicing immigration law for three years with a firm, decided to sign up for the immigration clinic because she had never done asylum work. She estimates that she has spent 120 to 130 hours since August 2004 working on Dawit's case, work that included obtaining and analyzing documentation and legal research relating to Dawit's nationality claim based on his mixed heritage.

"To me it was one of the most rewarding experiences," she says. "He had been detained for nearly three years of his life [first in Ethiopia, then in Eritrea], and I was thinking, how would that feel? At the same time, it was a lot of pressure because the consequences of losing are huge. If he had had to go back, he would have been killed. It was a lot of pressure if you thought about it that way. You just wanted to do everything you could for him."

Kim, a second-year law student from Dallas, describes the clinic as a rigorous but intellectually and emotionally worthwhile experience. "I learned how to be diligent," he says. "Everything was new. I had to learn the terminology." There was a lot of preparation, he adds, noting that it is not the typical law school experience to be in the courtroom conducting direct examination of a client before a judge firing off questions. "The consequences of saying "I don't know' would have had serious repercussions," says Kim. "I had to think on my feet and analyze every word the judge said."

During Dawit's immigration hearing, which Kim and Long handled with Chandler's and Vail's supervision, the judge "grilled on every point, argued with students about the law and put them to the test," Vail says. Under 8 C.F.R. 292 law students are allowed to represent individuals before the Department of Homeland Security and the Executive Office of Immigration Review (EOIR) within the Department of Justice, as long as the representation is part of a clinical program, under the supervision of a licensed faculty member, for no remuneration and with the permission of the court.

Waves of Cases

Vail and Chandler note that asylum cases come in waves, depending on world events. Five or six years ago, the clinic handled more asylum cases involving West Africans, people fleeing Sierra Leone, Liberia, Cameroon and Somalia due to political turmoil in those countries. Lately, however, more Eritreans have sought asylum in the Houston area, primarily based on religious and political persecution.

Chandler and Vail estimate that over the past few years, the clinic has handled approximately four asylum cases involving Ethiopians or Eritreans and at least 15 to 20 involving other Africans seeking asylum.

Under U.S. asylum laws, specifically 8 C.F.R. §208.5, an alien stowaway who informs an immigration inspector or other official on a vessel that he is unable or unwilling to return to his "country of nationality" because of persecution or fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion shall be promptly removed from the vessel when it reaches its destination. The alien stowaway is then referred to a U.S. asylum officer for what is called a "credible fear determination," pursuant to 8 C.F.R. §208.30. This is also true if the alien expresses a fear of torture upon return to his or her country. Pending adjudication of an asylum application, and, in the case of a stowaway, a credible fear determination and any review thereof, the alien may be detained by U.S. Immigration and Customs Enforcement (ICE), an investigative arm of the Department of Homeland Security.

Chandler says that in Houston, the government is reluctant to release a stowaway from detention pending an immigration judge's decision on his asylum application unless the detainee's lawyer can demonstrate that the detainee's release is a "significant public benefit" or there is an "urgent humanitarian reason" as further defined by 8 C.F.R. 212.5.

Asylum seekers and others in removal proceedings are not entitled to appointed counsel. As the government informs them, pursuant to 8 C.F.R. 246.5(b), they only have a right to representation if it is "at no expense to the Government." Thus, indigent asylum seekers must find attorneys or legal clinics to represent them for free or at reduced cost, or they must represent themselves. According to 2004 American Bar Association statistics, applicants who are represented by counsel are four times more likely to be granted asylum than those who represent themselves.

"Just because you are going to be killed in your country does not mean you will be granted asylum," Vail says. A successful asylum claim must be related to one of five things: the detainee's race, nationality, religion, political opinion or membership in a particular social group, such as a union, student body or ethnic group.

Dawit's claim for asylum derived from his nationality and political beliefs, Chandler says. Everybody who spoke with Dawit, including the immigration and asylum officers who interviewed him while he was detained, found he had a "credible fear of being persecuted," she says. "Yet the man stayed detained for 15 months."

"At the end of it all, the judge did the right thing and granted asylum," Vail says.

Even after he won asylum, Dawit was detained for 30 more days while the government decided whether it would appeal the grant of asylum, Chandler says.

The government attorney in Dawit's case, Assistant Chief Counsel James Manning, reserved his right to appeal, but did not. Deputy Chief Counsel Donald W. Cassidy of Houston's Office of Immigration Customs Enforcement says lawyers with the office cannot comment on cases.

Dawit now lives in Houston with an Eritrean roommate who also received asylum. Araya, the interpreter, has served as a mentor and father figure to Dawit, and has introduced Dawit to other Eritreans and Ethiopians in Houston, including his own two sons who are in their 20s.

Legally, Chandler says, Dawit is an "asylee." Asylees have the right to petition for their spouses and their children under age 21 to come to the United States to seek asylum and they have the right to obtain refugee travel documents that allow them to travel to any country except the country from which they fled. One year after being granted asylum, asylees can apply for legal permanent residency in the United States, the first step on the road to becoming a citizen, a process Chandler says can take three to eight years.

Chandler says that the most rewarding moment in representing Dawit came when she visited him two days after the judge granted him asylum. Looking at her with rested eyes, Dawit said that for the first time in ages, he had slept through the night "like a child sleeps," and that it was a joy to remember what it is like to simply sleep.

A 26-year-old man from Eritrea, Africa, begins work at an air conditioning company in Houston on Jan. 3, just one week after receiving his Texas identification documents and employment authorization. He earns $9.20 an hour and plans to work six days a week. He has joined a church. He hopes to move to a new apartment and to return to school. He dreams the American dream.

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