The 2015 New York City Asylum Law Conference: A Brief Summary

The 2015 New York City Asylum Law Conference: A Brief Summary
Mimi E. Tsankov


On Nov. 16, 2015, the FBA International Law Section and the FBA Immigration Law Section co-sponsored a full-day legal education program entitled, “The 2015 New York City Asylum Law Conference.” Hosted by the Benjamin N. Cardozo School of Law and the FBA New York Chapter, the conference convened leaders working and researching in the field of immigration asylum law with a variety of perspectives on some of the field’s most salient issues.1 Organized by Executive Office for Immigration Review (EOIR) Immigration Judge Dorothy Harbeck, in her personal capacity, Attorney Amy Gell, Chair, FBA New York Chapter Immigration Section, EOIR Immigration Judge Amiena Khan, in her personal capacity, EOIR Immigration Judge Mimi Tsankov, in her personal capacity, and Senior Deputy Chair, FBA International Law Section, and Attorney Michael Zussman, Chair, FBA New York Chapter, the program is the first of what conference organizers hope is a yearly regional event given the significant interest in this area of the law.2 Adding to mix of perspectives developed at the program, the conference was co-sponsored by the non-profit American Friends Service Committee (AFSC) and the Kathryn O. Greenberg Immigration Justice Clinic and Human Rights and Atrocity Prevention Clinic.3

Kicking off this regional program that drew participants primarily from the states of New York and New Jersey, Mr. Zussman welcomed the diverse audience to this event which is just one of the many exciting programs on track for 2016, and invited members to attend the FBA National Conference that will convene in New York in 2018.4 The participants included a broad swath of those interested in immigration law, ranging from students, professors, and legal practitioners, to federal government officials, and a member of the federal judiciary. The varied nature of the viewpoints generated lively discussions ranging from basic concepts to heavily litigated and evolving areas.

As immigration reform has been a hot topic of debate in recent Congressional hearings,5 Matt McGhie, Legislative Counsel at the U.S. Senate, and Chair of the FBA International Law Section, appeared via Skype from the U.S. Senate Recording Studio, in his personal capacity, and provided insights into the legislative process behind the 2013 comprehensive immigration reform bill that was passed by the Senate.6 He presented background on the law-making process and insights into his work in the conference committee “mark-up” process.7

Following Mr. McGhie’s presentation, the audience broke-up into two separate tracks of four presentations each. The first track began with a panel presentation moderated by Immigration Judge Mimi Tsankov, in her personal capacity, on “Circuit Court Review Basics.”8 Hon. Michael Chagares, of the Third Circuit Court of Appeals was joined by Professor Sabi Ardalan, Harvard Law School, and New York Immigration Court Attorney-Advisor Stephanie Robins, in her personal capacity.9 The speakers delivered a comprehensive briefing on recently reported precedent decisions in the Second and Third Circuits, as well as the Board of Immigration Appeals, and discussed topics ranging from recent developments in the area of the terrorist support bar to asylum to immigration detainees subject to mandatory detention and their eligibility for bond hearings, both of which are rapidly developing areas of the law.10

Next, the subject turned to “particular social group”-based claims in asylum adjudications during this track’s second panel.11 Professor Teresa Woods, Cardozo Law School, moderated the discussion with EOIR Immigration Judge Randa Zagzoug and EOIR Board of Immigration Appeals, Senior Attorney Advisor Jeffrey Chase, appearing in their personal capacities, examining this issue at the trial and appellate court levels.12 Attorney Mark von Sternberg, Catholic Charities, offered a discussion and detailed outline of significant issues in asylum law for the benefit of volunteer lawyers seeking to represent asylum-seekers in proceedings before the Immigration Court.13 He and the others expanded on some of the key areas of concern for newer practitioners including gang-related asylum claims.14 The group referred to the National Immigrant Justice Center’s “Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G-and Matter of W-G-R” and expanded on issues surrounding “social visibility” and “social distinction” clarified by the EOIR Board of Immigration Appeals in 2014 in the cases of Matter of M-E-V-G-, and Matter of W-G-R.17

During the third panel presentation, Professor Farrin Anello, Seton Hall Law School, moderated a panel on statutory bars to asylum and withholding of removal eligibility in which practitioners Attorney George Terezakis, Law Offices of George A. Terezakis, and Attorney Linda Kenepaske, Law Offices of Linda Kenepaske, PLLC, along with Prof. Andrea Saenz, Cardozo Law School18 discussed the “particularly serious crime” bar and analyzed the types of crimes that have been found to fall within that definition.19 In addition, they explored the one-year filing deadline for an asylum application, and considered the various exceptions to this bar.20

During this track’s final panel, Attorney Usman Ahmad, Usman Ahmad PLLC, led a discussion of the material support/persecutor bar.21 The panelists were Attorney Anwen Hughes, Human Rights First, Professor Lauris Wren, Hofstra University, Marc Pachon, Attorney-Advisor, U.S. Department of Homeland Security (USDHS), Attorney Venus Bermudez, and EOIR Attorney-Advisor Alison Hollenbeck, in her personal capacity.22 With extensive written materials as support for the discussion, the panelists expanded on how Tier III persecutor determinations are made and how organizations may find themselves at risk of becoming a Tier III organization.23 They offered suggestions for defending asylum-seekers who face allegations of having engaged in terrorism-related activity.24 They explored how these issues arise in the Immigration Court context.25 The second track began with a program on tips for Master Calender hearings in Immigration Court.26 Moderated by EOIR Immigration Judge Amiena Khan, in her personal capacity, panelists EOIR Immigration Judge Mary Cheng, in her personal capacity, attorneys Daniel Weiss, Daniel Weiss, LLC, and Roland Gell, Gell and Gell, LLC, and USDHS, Immigration and Customs Enforcement (ICE) Senior Attorney Jeffrey Blivaiss, provided background and training on the purpose of these proceedings, and how to make them efficient and effective.27 They examined Chapter 4 of the EOIR Immigration Court Practice Manual, the applicable federal regulations, and the way in the policies governing prosecutorial discretion.28

The second panel addressed ethics, and was moderated by EOIR Immigration Judge Dorothy Harbeck, appearing in her personal capacity. Practitioners Michele Alcalde, Melinda Basaran, Alla Londres, and FBA Immigration Law Section Board Member Mark Shmueli offered context on real-world ethics challenges that practitioners may face in their immigration law practice.29 Among other topics, they provided an excellent summary of the so-called “Six C’s of Legal Ethics”—Competence, Communication, Confidentiality, Conflicts, Candor, and Civility,30 and discussed the EOIR attorney discipline process.

In the third panel, Professor Lori Nessel, Seton Hall Law School moderated a discussion on evidentiary issues.32 Panelist Dr. Alice Nadleman, Ph.D., provided tips on minimizing respondent and witness re-traumatization in the adjudication process,33 and practitioners Rebecca Press and Paul Grotas offered practical solutions for providing this type of evidence so that an applicant can meet one’s evidentiary burden.34

During the final panel, Attorney Amelia Wilson, American Friends Service Committee, moderated a discussion of detention issues in which non-profit practitioners Attorney Robyn Barnard, Human Rights First, and Attorney Clement Lee, Immigration Equality, provided insight into their varied experiences.35 Public defender Lauren Major, Brooklyn Defenders, and Attorney Amy N. Gell, also added comments based on their experiences as a public defender and as a longtime immigration attorney advocate.36 They discussed credible fear and reasonable fear review proceedings and the challenges presented by the regulatory mandate that these hearings be conducted in an accelerated manner.37 In addition, they discussed bond hearings and the shifting burdens in the evolving area of bond hearings as set forth in Lora v. Shanahan.28

Participants are on track to earn 6.5 general CLE credits for participation in this program, and 1.5 hours of ethics credit for attendance at the ethics panel. Feedback about the conference has been favorable, and the participants report that they enjoyed the opportunity to network in a training context.

Mimi E. Tsankov serves, in her personal capacity, as Senior Deputy Chair of the FBA International Law Section. She is employed as an Immigration Judge with the U.S. Department of Justice. She writes this article in her personal capacity, and the comments she makes do not represent those of the U.S. Department of Justice. All of the U.S. Department of Justice, Executive Office for Immigration Review, employees referenced in this article, wrote and appeared in their personal capacities. The views expressed are their own and do not represent the views of the U.S. Department of Justice.

Endnotes
1Conference Flyer, https://www.dropbox.com/sh/0synl0b4two4ex2/AACukrcHZBOai7f25h1raEXLa/NYC%20ASYLUM%20LAW%20CONFERENCE-FINAL%201.7.pdf?dl=0.
2TRAC Report, “Immigration Court Backlog Tool: Pending Cases and Length of Wait in Immigration,” http://trac.syr.edu/phptools/immigration/court_backlog/. As of December 2015, the New York and New Jersey region have almost 20 percent of the entire U.S. Immigration Court caseload pending in the region. Id. The U.S. Department of Justice (USDOJ), Executive Office for Immigration Review (EOIR) reports that in 2014 alone, almost 42,000 asylum applications were filed with the Immigration Courts nationwide. EOIR Asylum Statistics 2010 – 2014, http://www.justice.gov/sites/default/files/eoir/pages/attachments/2015/03/16/fy2010-fy2014-asylum-statistics-by-nationality.pdf (last visited January 17, 2016).
3Conference Flyer, supra, note 1.
4Conference Flyer, supra, note 1.
5Former House Representative Charlie Stenholm, “Congress Needs to Pass Immigration Reform Before 2016,” Roll Call, June 22, 2015, http://thehill.com/blogs/pundits-blog/immigration/245671-congress-needs-to-pass-immigration-reform-before-2016.
6Matt McGhie, “Federal Law Making 101” PowerPoint, available at https://www.dropbox.com/sh/0synl0b4two4ex2/AABmt6fRBkaiwb4DXSaAK8y3a/Panel%202A%20Particl%20Social%20Grps/Teresa%20Woods/Federal%20Lawmaking%20101.ppt?dl=0 (last visited January 17, 2016).
7Id.
8Conference Flyer, supra, at note 1.
9Id.
10Stephanie Robins, personal capacity, “Summaries of Recently Reported Asylum Decisions,” https://www.dropbox.com/sh/0synl0b4two4ex2/AADZ192V-9BzSXhLtRGpNyf3a/Panel 1A Circuit Court Reveiw Basics/Mimi Tsankov/Asylum Decisions for Panel.pdf?dl=0.
11Conference Flyer, supra, at note 1.
12Id.
13Mark Von Sternberg, Outline of United States Asylum Law: Substantive Criteria and Procedural Concerns, available at https://www.dropbox.com/sh/0synl0b4two4ex2/AAAxLzS_RLW28-YAccxYKKj1a/Panel 2A Particl Social Grps/Teresa Woods/asylum october 2014 revised as of september 15%2C 2015.doc?dl=0.

14
Jaclyn Kelley-Widmer, Gang-Related Asylum Claims: Looking Back and Looking Forward, 9 Immigration Law Advisor 6, June 2015, https://edit.justice.gov/sites/default/files/pages/attachments/2015/06/30/ilavol9no6.pdf.
15National Immigrant Justice Center, “Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G-and Matter of W-G-R,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACVe3VbbhX1-tEjNxlTZDAga/Panel%202A%20Particl%20Social%20Grps/Teresa%20Woods/NIJC%20PSG%20Practice%20Advisory_Final.pdf?dl=0.

16
26 I&N Dec. 227 (BIA 2014).
1726 I&N Dec. 208 (BIA 2014).
18Conference Flyer, supra, at note 1.
19Linda Kenepaske, “Criminal Bars to Asylum and Withholding,” https://www.dropbox.com/sh/0synl0b4two4ex2/AAA7gIJL4kIjNQImJHohhBZha/Panel%203A%20Statutory%20Bars/Prof%20Farriin%20Annello/FBA%20Asylum%20Particularly%20Serious%20Crimes%2011%202015.pdf?dl=0.
20Andrea Saenz, “The One Year Deadline: Statute and Regulations,” https://www.dropbox.com/sh/0synl0b4two4ex2/AABn68sGES64oN0hHApTWFC_a/Panel%203A%20Statutory%20Bars/Prof%20Andrea%20Saenz/CLE%201-year%20handouts.pdf?dl=0.

21
Conference Flyer, supra, at note 1.
22Id.
23Usman Ahmed, “Persecutor and Terrorist Bar Basics,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACQeDnpqnIzjkSB2knUcFdBa/Panel%204A%20Material%20SupportPersecution/Panel%204A%20Material%20SupportPersecutor_Additional%20Materials.pdf?dl=0.
24Id.
25Id.

26
Conference Flyer, supra, at note 1.
27Conference Materials, https://www.dropbox.com/sh/0synl0b4two4ex2/AAAHFcFtUTC1SW5ESUgCDCAca/Panel 1B Master Calendar/Amiena Khan?dl=0.
28Id.

29
Melinda Basaran, Ethics Hypotheticals, https://www.dropbox.com/sh/0synl0b4two4ex2/AABRaqv3dI8F-PrWP6oKNdHHa/Panel 2B Ethics/Hon D HARBECK/Basaran Ethics Hypos 2015.2.docx?dl=0.
30Dorothy Harbeck, “Ethical Concepts for Immigration Lawyers: The CAP of Conscience,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACSi87V8iHGcRguRPatf-oKa/Panel%202B%20Ethics/Hon%20D%20HARBECK/ETHICALCONCEPTSIMMIGRATION.docx?dl=0. See also, reprinted in the FBA Immigration Law Section, “The Green Card,” http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Fall-2015-Green-Card.aspx.
31Id. See also,
http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Fall-2015-Green-Card.aspx.
32Conference Flyer, supra, at note 1.
33 Dr. Alice Nadleman, “How to Minimize Trauma when Defending Asylum Seekers,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACk6pldXXICGGYroiVOwmUoa/Panel%204B%20Detention/Ameilia%20Wilson%20Esq/PP%20Amelia%20Wilson%20Cardozo%20Law%20School%20Nov%202015%20CRF%20RFR.pptx?dl=0.
34Conference Materials, “Minimizing Trauma While Meeting Your Burden,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACk6pldXXICGGYroiVOwmUoa/Panel%204B%20Detention/Ameilia%20Wilson%20Esq/PP%20Amelia%20Wilson%20Cardozo%20Law%20School%20Nov%202015%20CRF%20RFR.pptx?dl=0.
35Conference Flyer, supra, at note 1.
36Id.
37 Amelia Wilson, “Credible Fear and Reasonable Fear Reviews Before EOIR,” https://www.dropbox.com/sh/0synl0b4two4ex2/AACk6pldXXICGGYroiVOwmUoa/Panel%204B%20Detention/Ameilia%20Wilson%20Esq/PP%20Amelia%20Wilson%20Cardozo%20Law%20School%20Nov%202015%20CRF%20RFR.pptx?dl=0.
38No. 14-2343, (2d Cir. Oct. 28, 2015).

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