Helping To Gain Asylum As A Rewarding Pro Bono Activity

Monday, August 2, 2010 - 00:00

Editor: Please tell our readers when you began your pro bono asylum work.

Sternhell: I first worked on an asylum case when I was a summer associate at Kramer Levin. When I graduated from NYU Law School in 2002 and joined the firm as a first-year associate, I continued to work on pro bono matters. In addition to my asylum work, I represented indigent tenants in housing court as an extern in Kramer Levin's externship program with South Brooklyn Legal Services. For the past several years, I also have been very active in our litigation on behalf of several ethnic Uighurs who were wrongfully detained in the Guantánamo Bay Detention Camp.

Frankel: As a first year associate, I worked on my first asylum case. Our client was a gay man who was afraid that if he were sent back to Egypt, he would be killed - the Egyptian government had just commenced a major crackdown on the gay community, including rounding up over seventy suspected homosexuals. We were able to get him asylum by showing that his life would be in danger if he were returned to Egypt. On hearing that he had been granted asylum, our client told us that we had saved his life. It was so rewarding to put our legal skills into action to help someone in that predicament. Since then, I have had the opportunity to work on many other asylum cases.

Editor: Is there a typical asylum case?

Sternhell: Most of our asylum cases fall into one of two broad categories. The first are affirmative applications for asylum in which we represent a client who is filing an application with the Department of Homeland Security (DHS).

In theory, the application for asylum is relatively straightforward. We interview the client to determine why they fear persecution in their home country, and we research the country conditions to understand how people in similar circumstances are persecuted in that country. We then assemble the asylum application and draft a brief and other supporting materials that explain why our client fears persecution and submit it to DHS. Within a couple of months, we accompany our client to an interview with an asylum officer who is a representative of the U.S. Citizenship and Immigration Service, which is part of DHS.

The asylum officer interviews our client to determine if he or she has stated a valid claim for asylum and if his or her written and oral testimony is credible. Usually about two weeks later, we learn if DHS has granted the asylum application.

If our client hasn't been granted asylum, the case is referred to the immigration court, which is the second category of cases we handle. In immigration court, we submit essentially the same written materials, but the ultimate adjudication occurs at a hearing in front of an administrative law judge. It is a much more formal process than occurs before the asylum officer. We present direct testimony from our client, and the government attorney cross-examines our client. There also may be an opportunity to elicit testimony from supporting witnesses.

Editor: What is the basis in the U.S. for granting asylum?

Frankel: Someone is entitled to asylum if he has a well-founded fear of persecution because of his race, religion, nationality, political opinion or membership in a particular social group. It is a broader category than just political asylum. The key to an asylum case is not as much a legal issue as it is showing that the victim belongs to one or more of these groups. It is because of their membership in that group that they have a well-founded fear of persecution.

Editor: What constitutes a social group?

Frankel: A social group is any group of people that have some common characteristic that would expose them to persecution. A social group could include membership in a tribe or a particular occupation.

Editor: Could you list an occupation that might qualify?

Sternhell: If you were a teacher operating a school for girls in Afghanistan under the Taliban, this probably would qualify as membership in a social group. We would argue that the applicant could be persecuted on the basis of her membership in a social group, meaning teachers who were teaching girls. In this situation, the client also might have a claim for asylum based on her political views. By operating a girls' school in Afghanistan under the Taliban, the applicant was implicitly rejecting the stated policy of the Taliban not to educate young women.

Editor: You said that you represented a gay man from Egypt, but you didn't list sexual orientation as one of the protected groups. Is that one of the protected groups?

Frankel: When we were representing that client, the government had just started to recognize that sexual orientation could constitute a social group that would qualify someone for asylum. In the years since then, there have been many successful asylum claims based on sexual orientation, and now it is widely recognized as a basis for asylum. Similarly, over the years, victims of female genital mutilation have been recognized as belonging to a persecuted social group.

Editor: What is the size of your firm's asylum program?

Frankel: We currently have 14 active asylum applications, and we accept a dozen or more cases each year. In 2009, Kramer Levin attorneys and staff donated over 6,000 hours of time to asylum and other pro bono immigration matters.

Editor: Who refers asylum cases to you?

Frankel: We are proud of our long partnership with Human Rights First, which has sent us many asylum cases. One of our name partners, the late Judge Marvin Frankel, was one of its founders and chaired its board of directors for many years. In 2008 Human Rights First selected Kramer Levin for the 2008 Marvin Frankel Award, given each year to a law firm for its pro bono asylum work.

We also have had a long-standing relationship with Immigration Equality, which is an organization that serves the immigration needs of the LGBT community and HIV positive individuals. My first case was referred to our firm by them. I found it such a rewarding experience that I worked on several other cases with the organization, and eventually I was asked to join their board of directors. We have represented nearly two dozen clients whom they have referred to us. Kramer Levin is proud to have played a part in the process of helping Immigration Equality to establish the precedent for LGBT-based asylum cases.

We also work with Sanctuary for Families, which typically refers domestic violence cases to us, and SongTsen, which helps Tibetan refugees.

Editor: Kramer Levin has received the Marvin Frankel Award from Human Rights First for its pro bono asylum work, including on behalf of Guantánamo detainees. Tell us about your human rights work at Guantánamo.

Sternhell: In late 2005, we began representing three Uighur men, members of a persecuted ethnic minority from western China, who had been imprisoned at Guantanamo since 2002. Soon after we filed a lawsuit seeking their release, the Bush administration acknowledged that our clients were picked up by mistake and were not enemies of the United States. Although everyone agreed they were innocent, they couldn't be sent back to China because they were considered political dissidents and almost certainly would have been incarcerated, tortured and possibly executed. And because of pressure from the Chinese government, no other country was willing to take them. Our clients were caught in this untenable situation in which everyone acknowledged that they were innocent, but they had no place to go. Eventually, as a result of the petition for habeas corpus we filed on their behalf, they were released in May 2006 and granted asylum by Albania, where they now are living as free men.

We subsequently signed on to represent an additional four clients, also Uighurs, who were mistakenly classified as enemy combatants. Despite that classification, for several years the U.S. government had represented that it was making every effort to engage in diplomatic discussions to convince another country to take these men. In court, we argued that there was no reason why these men had to be detained in Guantánamo while those negotiations continued. They should have been released temporarily in the U.S. until the State Department could find them a permanent home. The Justice Department strenuously opposed that request and fought vigorously in court to prevent their release here. After several years, as a result of our litigation, the government finally admitted that these men were innocent and were not enemy combatants. A federal district court judge therefore ordered their release in the United States. Although that order was later reversed on appeal, the litigation pressured the government to step up its diplomatic efforts. Eventually, the small Pacific island nation of Palau agreed to take these men, and all but one of our clients are now living there in freedom.

Editor: You mentioned domestic violence. Is being a victim of domestic violence considered a social class, and therefore a victim could seek asylum in the United States?

Sternhell: Yes, it is. When domestic violence is the basis for the credible fear of persecution, the woman who is fleeing the violence can't rely on the police or local authorities to protect her. We also have represented several clients who were victims of female genital mutilation or victims of forced marriage or attempted forced marriage. In these cases, a woman is being forced into an arranged marriage against her will and can't rely on protection from the government or local police in their country of origin.

Editor: What if refusing an arranged marriage is a crime in the woman's country? Would that still be the kind of case that would qualify for asylum?

Sternhell: Many of the clients whom we have represented over the years have been arrested or charged with a crime in their countries, but the basis of the charge really goes to the heart of the persecution that they have suffered. The fact that they were charged with a crime or arrested in their country wouldn't be a barrier if the charge was itself a violation of their human rights.

Editor: What is a derivative asylum application?

Sternhell: Someone who has been granted asylum also can make what is called a derivative asylum application on behalf of their immediate family who still may be living in the country from which they fled. If their family can find a way to leave that country, they would be entitled to asylum once they arrive in the United States. Our firm also participates in derivative asylum applications.

Editor: Your clients may need the services of social service agencies when they arrive in the United States or while their applications are pending. Do you coordinate with social service agencies on behalf of your clients?

Sternhell: There are several great organizations in New York that can help them with getting English lessons, job training or various other forms of assistance to help them make a successful transition to life in the United States. We try to ensure that our clients have the information they need to find those organizations.

Frankel: Applicants for asylum are entitled to apply for work authorization while their case is pending, which we always assist them with. Almost without exception, once our clients have work authorization, they find employment and are able to take care of themselves. Sometimes they require some help from social service organizations to get started, but once they do, they become productive members of the economy. The social service organizations are also helpful in assisting our clients to apply for permanent residence. Our clients have gone on to become filmmakers, teachers, chefs and more.

Please email the interviewees at afrankel@kramerlevin.com and msternhell@kramerlevin.com with questions about this interview.