Why Can’t Refugees Get Lawyers?

New York Times (Op-Ed)

By Katherine Reisner and Catherine Crooke

July 28, 2015

Why Can’t Refugees Get Lawyers?

IN 2006, as violence in Iraq skyrocketed, a Sunni carpenter named Ahmed panicked when his wife found a death threat in their garage. It came from the militia that controlled the family’s neighborhood: “You need to join our militia or we will kill you or kidnap your kids,” it said.

At first, Ahmed hoped a low profile would protect him, so he avoided leaving home. (Ahmed is a pseudonym; he asked that his real name and home city not be disclosed to protect family members who remain in Iraq.) But soon, his neighbor — another Sunni man who was similarly threatened by the same militia — was killed. Then he learned that his daughter was hospitalized with a rare, life-threatening kidney disease, and his wife struggled with their intellectually disabled son. Ahmed knew then he had no choice, and he, his wife and five children fled to Jordan.

There, the United Nations referred Ahmed’s family to the United States Refugee Admissions Program, which assigned him an interview with a Department of Homeland Security officer. This interview would be their sole opportunity to prove they met the definition of a “refugee” under American law: a person who has a “well-founded fear of persecution” in his home country because of “race, religion, membership in a particular social group, or political opinion.”

Our federal courts have spent many decades defining these few terms. If your life depended on such a complex legal determination, you’d probably want a lawyer. Yet the Department of Homeland Security explicitly bars refugees from bringing counsel to their interviews. How could Ahmed, with no legal experience, anticipate the law’s vast technicalities and tripwires?

From Ahmed’s perspective, his family needed resettlement for numerous reasons — not just the militia’s threats. Perhaps weighing most heavily on his mind was the critical medical attention his children needed, accessible only in America.

Ahmed tried to explain each of these considerations during his 30-minute interview. The officer asked Ahmed about his birth, his work history, his children’s medical needs and the threats from the militia. Asked what would happen if he returned to Iraq, Ahmed said he would be killed.

Weeks later, he received a letter informing him that his request had been denied. In English, it explained that the officer didn’t doubt that Ahmed might be killed in Iraq, but that Ahmed had failed to prove the crux of his case — known as the “nexus requirement” — between that danger and one of the legally protected characteristics.

If Ahmed had had a lawyer present, he might have better proved his case. Strangely, in asylum proceedings for refugees already in this country, those seeking to stay must likewise meet the “nexus requirement,” but they are also allowed counsel, per their constitutional rights. Not surprisingly, asylum applicants with counsel have a higher success rate — three to four times higher, according to several studies.

This isn’t a matter of a new government program to provide attorneys; refugees can obtain counsel on their own, either privately or through a nonprofit organization like ours. It wouldn’t even require a change in the law; all it would take is a change in the current Homeland Security procedural guidance.

So why does the policy persist? The Department of Homeland Security argues, for one thing, that allowing counsel in hearings would be more time consuming and less efficient. But that’s wrong: By reducing the frequency of miscommunication between the applicant and the interviewer, counsel makes the process more efficient. According to the American Bar Association, a legal advocate helps the government interviewer by “bridging linguistic, cultural, and psychological gaps.”

Take Ahmed: As a Sunni under threat from a militia and, more broadly, Shiite extremists, he did meet the nexus requirement; he simply didn’t know which parts of his case were most important. (Eventually, he won on an appeal, but only after years of effort on both sides.)

And if the department is worried about lawyers dragging out the interview, it could limit counsel’s role in such interviews to a brief period for comments at the end, or submission of comments in writing.

The other main objection is that these interviews aren’t adversarial, and so lawyers don’t need to be present. But according to many applicants, the interviews do get adversarial, and frequently violate mandatory operating procedures. Having a lawyer in the room would prevent that, or offer a witness if it did happen.

Ahmed now lives in Oregon, where his children have medical care and the local community has embraced his family. Had a lawyer been at his first interview, Ahmed would have reached safety years earlier, and the government would have saved time and resources.

America receives over 80 percent of the world’s resettled refugees. For the system to work efficiently and fairly, applicants need to be able to make their best cases.

For more information, go to:  www.beverlyhillsimmigrationlaw.com