SundayReview | OPINION
The New York Times
Locked Up for Seeking Asylum
By ELIZABETH RUBINAPRIL 2, 2016
I RECENTLY received a phone call from Alabama. It was Samey Honaryar, an Afghan who had worked as an interpreter with the United States military and had fled Taliban persecution hoping to find asylum here. Samey is not accused of committing any crime. Yet for nearly a year, he’s been locked up in Etowah County Detention Center, among the worst and most remote of immigration detention centers, with little access to lawyers or medical attention.
“I cannot take it anymore,” said Samey, who was planning a hunger strike. “I served this country. I risked my life for this country, and this is how I’m repaid.”
I have reported from Afghanistan frequently since 2001, and I know that interpreters are an essential conduit into a culture easily misread by foreigners. Nearly every translator I’ve worked with has saved my life. But once they choose to work for the military, their job becomes a political act, making them marked men and women for the Taliban.
At a time when Europeans and Canadians are sheltering over a million asylum seekers, many from conflicts created by United States policies, Samey’s treatment demands attention. Documents and witnesses show that Samey risked his life for American soldiers. But he has been cast into immigration purgatory nonetheless, his troubles caused by a toxic mix of bureaucracy, fear, prejudice and, most poignantly, his naïve faith in American honor.
We know our asylum policy is broken. In 2014, more than 108,000 asylum applications were filed. It is not an exaggeration to say that many of these cases are life or death, yet they are handled by only 254 immigration judges, who are also juggling hundreds of thousands of non-asylum cases. Samey’s case is simultaneously unique and painfully common. Yet there is a remedy.
Samey, 35, worked for the American military in Kabul from 2009 to 2012. At one point, thieves stole his car and left a note telling him to stop working with “infidels.” He gave that note to the military and the C.I.A. Days later, he was run off the road. Supervisors told him to vary his route.
Then, on his way home in 2012, gunmen smashed his car window, beat him with a rifle and tried to abduct him. A crowd gathered and the gunmen fled. Samey survived but still bears a scar on his face from the assault. Shortly after, he applied for a special immigrant visa for interpreters. His request was denied.
Afraid for his life, Samey tried finding work in India, and eventually boarded a cargo ship bound for Mexico. There, he found shelter through a Mexican he had met in Kabul. After a short stay, he took a small boat across the Rio Grande. When he encountered American border guards, he asked for asylum.
On initial review, the Department of Homeland Security found his fear of persecution to be credible. Armed with evidence of his service to the military, Taliban threats and his injuries, Samey assumed that the judge, Robert Powell, would grant him asylum. So he represented himself in court.
This was his first mistake.
Mike Williams, a retired lieutenant colonel who was one of Samey’s supervisors in Afghanistan, was grocery shopping in Wegmans when he got a call from the judge. Swearing an oath with his right hand, holding baby food in his left, he vouched for Samey’s character and performance. He told the judge that Samey’s life was in danger and that he would take responsibility for him. Samey’s aunt, an American citizen who manages a fried chicken business in New York, did the same.
“I thought it would be a fairly open-and-shut case,” Mr. Williams said. But when he heard the government’s lawyer on the phone shouting “objection” and “leading” the witness, he began to worry. “Samey didn’t know what he was doing.”
The judge ordered Samey’s deportation. Flabbergasted, Samey told his aunt he would rather die in Afghanistan than rot in jail awaiting appeal. His aunt begged him not to return home and hired a lawyer to appeal. Samey was shipped to a detention center in Alabama.
Court documents suggest Samey was right to be stunned by Judge Powell’s findings. “Common sense,” the judge wrote in his decision, suggested that real Taliban “would have assassinated him on the spot or taken him by force.” He also mused that the threatening note could have been left by car thieves.
An immigration lawyer I consulted who represents detainees at Etowah called the judge’s assertions about the Taliban “rank speculation” and said she was dumbfounded that he rejected the note Samey gave to the C.I.A.
“Nobody has evidence that good for asylum,” she said. “Under this judge’s standard no one with these types of cases could prove the nexus requirement of asylum.”
But the most extraordinary passage of Judge Powell’s decision is his rejection of Samey’s claim of persecution:
“Respondent must show that the Government was, or is, unable to control the Taliban. Although the Taliban is conducting a tenacious insurgency and terrorist campaign, country reports show that Afghan security forces are effective in controlling the Taliban in many parts of Afghanistan.”
The year 2015 was one of the bloodiest years in Afghanistan since 2001. As of today, the Taliban have infiltrated many provinces, including the capital. The Afghan Army is taking so many casualties that it can no longer recruit enough replacement troops. The government has all but ceded sections of the country to the insurgents.
Perhaps Judge Powell was doing his best under impossible conditions. Experts have urged the government to hire more judges and staff. The president of the National Association of Immigration Judges, Judge Dana Leigh Marks, said that judges are overwhelmed by the volume of cases. It’s as if death penalty cases are being handled in traffic court.
“How do you keep your heart open and remain compassionate?” she said. “I have over 3,000 pending cases. Federal District Court judges have 440, and two to three full-time lawyers. If we are lucky we have half a judicial law clerk.”
The day after Samey went on hunger strike, I emailed the Board of Immigration Appeals asking why his case had not been decided after eight months. The following day, the board announced that it would send his case back to Texas for a retrial. Would that have happened without a letter from a journalist? And what does it say about the system if a case as strong as Samey’s fails?
For one thing, it says that the system is stacked against the asylum seeker. The immigration judge works for the Department of Justice, and the government’s attorney works for the Department of Homeland Security. Meanwhile, the asylum seeker generally has no right to a public defender. Legal representation is crucial: One study found that mothers with children without a lawyer were granted asylum 2 percent of the time while those with a lawyer won 32 percent of the time.
In New York City, an immigration public defender system developed in conjunction with Cardozo Law School and funded by the New York City Council attempts to address this problem by providing legal assistance to detainees through the Bronx Defenders, Brooklyn Defender Services and the Legal Aid Society. Immigrant Justice Corps, a nonprofit legal aid group, is sending fellows to Texas to assist asylum seekers.
Today, Samey is back in detention in Port Isabel, Tex., awaiting retrial and unable to afford a lawyer. International law holds that asylum seekers should be detained only in unusual circumstances. Yet our detention centers are filling up with people like Samey.
“People say to me: ‘I came to your door. I did what I was supposed to do. And you put me in prison. I thought the United States was a human-rights country. You are not,’ ” said Grace Meng, a senior researcher at Human Rights Watch.
If the United States believes in the principles of asylum, we need to give traumatized people — particularly those persecuted for protecting Americans — a chance to be heard with an expert on their side.
MAY 24, 2016– New York, NY– Dean Melanie Leslie has announced that Neil Sirota will become Cardozo’s associate dean of career services this June. He comes to Cardozo from The Pennsylvania State University, Penn State Law where he served as assistant dean of career services. A graduate of Columbia Law School, he practiced law for six years as an associate at Skadden, Arps, Slate, Meagher & Flom LLP. In addition, he spent several years as a director and managing director for large legal recruiting firms.
