Recently, we represented a young Chinese, Christian man who requested asylum from an Immigration Judge in San Francisco.
What follows is a short guide for immigrants and immigration attorneys alike in preparing a case before an Immigration Judge:
Play It As It Lays
Take the time to find out all of the pertinent facts in the case. Our client had experienced a number of extraordinary incidents in Indonesia which illustrated why he was afraid to return. On one occasion, a man with a sword attacked him shouting anti-Chinese epithets. Another time, he was robbed by a gang of hoodlums while an Indonesian policeman stood by and watched and did nothing. These and a number of other personal incidents clearly showed why our client had a subjective fear of persecution and laid the basis for demonstrating that his objective fear of persecution was well-founded.
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Preparation, Preparation, Preparation
We researched the situation of Chinese Christians in Indonesia using the Internet including the Asylum page on our web site.
We found human and religious rights reports published by the State Department, Amnesty International, Human Rights Watch and a number of other organizations. She also located and printed dozens of articles regarding the burning of churches, and rioting, rapes of and killing of Chinese in various parts of Indonesia.
We spent many hours documenting the types of abuses that our client might face should he be compelled to return to Indonesia.
Can I Get an Expert Asylum Witness?
Although nominally a Christian in his native country, our client had become a devout, “born-again” Christian in the U.S. We persuaded his pastor to testify on his behalf.
In addition, we contacted a number of organizations seeking the services of an expert witness. Most of these organizations demanded $2,000 to $3,000 upfront in order to “look” for a witness. We phoned and e-mailed a number of university professors hoping to locate a suitable expert witness. Finally, a little over a week before the hearing, we located an expert witness in Seattle who testified on our client’s behalf. The good news was that he refused to accept any fee whatsoever for his services. The bad news was that he could not come to San Francisco to testify in person.
He did, however, review our client’s application, and he submitted a multi-page declaration regarding the treatment of Chinese and Christians in Indonesia. He also agreed to serve as a witness if his testimony could be taken telephonically.
Here Come D’Judge!
The Immigration Judge granted our motions to admit our expert witness’s declaration into the record and to allow him to testify telephonically.
She obviously had experience with Chinese and Christian asylum cases, but it sounded like she usually found that these people had suffered discrimination rather than persecution, and that she usually denied their Requests for Asylum.
Nevertheless, we pressed forward with our case. Our first witness, the pastor, testified that our client was a fervent, evangelical Christian who believed that it was his obligation to spread the Gospel of Christ.
Then, our client testified about a number of incidents that had occurred in Indonesia. He had been harassed and even threatened with death due to his ethnicity. However, his attackers were always private individuals rather than government officials. Once, however, a police officer had watched passively while a gang of Indonesian youths stole his wallet and roughed him up
Clearly, if we had a chance to win his case, a lot depended on the testimony of the expert asylum witness.
With a Little Bit of Luck
One should never discount the importance of luck in winning a case in Immigration Court. However, we have noticed that the more we work on a case, the luckier we get.
This case was no exception. We spent almost 100 hours pouring over reports and articles, typing notes, speaking with the witnesses over the phone and preparing our client for both his direct and cross-examinations.
A key point in the questioning occurred when I asked our expert witness about the recent “Christmas Eve Church Burnings” in Indonesia. He quickly corrected me explaining that these were actually “bombings” rather than “burnings”. He went on to explain that the bombed churches were made of concrete and that the type of explosives used indicated that the perpetrators included members of the Indonesian Army.
The Judge questioned the witness on this point, and incorporated his testimony in her decision. In doing so, she cited 9th Circuit Court of Appeals cases which require that asylum be granted to certain individuals even where they had not established that they would be “singled out” for persecution. They were required to show that they were members of certain “disfavored groups”. Then the Court examined the “risk level” of membership in those groups, and the alien’s “individual risk level”. The more serious and widespread the threat of persecution to the group, the less individualized the threat of persecution needs to be.
Based on these precedent decisions, the Judge ruled that our client had established a “well-founded fear” of persecution, and granted his Request for Asylum.
The government did not appeal.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.