BAY WINDOW: Can you tell me how Rosita came to the United States and how she ultimately applied for asylum?

ROBERT JOBE: Rosita came to the United States by bus from El Salvador. She traveled up through Central America into Mexico, and attempted to cross the border, I think more than once. The first time she attempted to cross, she was captured by Mexican federales. They attempted to return her I think to Guatemala. She crossed the border into the United States, applied for asylum affirmatively. At the time that she applied for asylum, the first time she was unrepresented. She filed an application, she was interviewed by an asylum officer. This was back before the asylum reforms. At that point in time the asylum system was completely broken.

As an El Salvadoran at that particular point of time, she had almost no chance of being granted asylum anyway. Her case was a very strong one but at that particular point in time, interviews could last less than fifteen minutes. There really wasn't an attempt to try to find out what had happened to the applicant, and particularly when somebody wasn't represented by a lawyer. She went into this interview, I think by herself and her case was denied. At that point we entered an appearance and we asked that she be re- interviewed and we submitted a mountain of documentation and country conditions, discussing the fact that she'd been raped, that hadn't been raised in the interview. We asked for a re-interview. The case just sat around for years with the immigration service. There was a sympathetic asylum officer there that was interested in having her case re-heard but he was promoted. He moved up to the General Counselor's office in Washington and so her case just basically languished, which was the situation and continues to be a situation for people that applied at that point in time.

People who applied in the early 1990s, for example, still have not had interviews. Ten years have passed and they're still waiting for an initial interview. Her case languished for a number of years. Eventually she was placed in deportation proceedings. She drew one of the judges that you wouldn't generally want to draw. He proceeded very slowly and then when the new legislation for Salvadorans and Guatemalans and Nicaraguans was enacted, she was going to be able to qualify for permanent residence based on the fact that she'd been here for such an extended period of time. But if she had been granted permanent residence, she wouldn't have been able to bring her kids to the United States for another six years. Despite the fact that she was eligible for permanent residence, we asked the judge to also consider and grant the asylum claim. In a very unusual decision I thought from the judge, he agreed to grant her asylum. He did it based on the severity of the persecution that she'd suffered before coming here.

BAY WINDOW: All these people from Central America who applied for asylum in the late or middle 1980s, before the reform, were sitting around for years waiting for their cases to be heard. They are separated from their families because they couldnât bring their family up while their case is pending.

ROBERT JOBE: It's a tragedy. It really is. As I was saying, right now the system is that the immigration service interviews the cases most recently filed. If you filed an application today, you're going to get an interview in about six weeks. A decision typically comes two weeks after that. The system is fast. But for those people in the backlog, and the backlog consists of tens of thousands, more than 100,000 cases, you will be waiting for an interview until hell freezes over. They're interviewing cases, but very slowly. People that applied in 1990, 1991 and 1992 still have not been interviewed. During that entire period that they're waiting for an interview, they can't bring their families to the United States. Their kids are growing up without them. You can ask to have an interview, you can ask the asylum office to pull your case out of the backlog and schedule an interview based on the fact that you've been separated from your family but they rarely actually act on those requests. People's families are just basically destroyed. Marriages are destroyed. Imagine being separated from your wife or husband for a ten year period and all you can do is write letters, if you can write. Most of the time you can't really afford to call home because our clients don't have that kind of money. They can call occasionally, but communication is sparse. Marriages disintegrate. Relationships with the kids grow to be non-existent.

BAY WINDOW: When the reform law went into place, how did it change the asylum process?

ROBERT JOBE: Until five years ago the system absolutely didn't function at all. It just didn't work. The asylum officers, the people who were adjudicating cases, they had no training. They knew nothing about country conditions, they knew nothing about asylum law. They didn't spend the time. They didn't have the resources for one thing. There were very few officers. They were flooded with cases and they just didn't spend the time to really try to understand a case and interview an applicant in any detail.

Interviews could be decided in fifteen minutes or less. By way of an example, I had a husband and wife and this was under the old system just prior to the reform. The husband was a military officer in El Salvador and he'd been threatened by the guerrillas repeatedly because of his affiliation with the army. One day the guerrillas came looking for him. Obviously they were going to kick him out, they were going to kill him if they could find him. They couldnât find him. He wasn't home. They captured his wife. They interrogated her about his whereabouts. They weren't satisfied with the answers. They took out a knife and they sliced her up and down her arms hundreds of times. If you look at her body it's just covered in scars. Both of her arms and both of her legs. Hundreds of scars. They gang-raped her, left her bleeding, just brutalized on the floor of her house.

They both came to the United States. We decided to file separate applications, one for the husband, one for the wife. The wife went in first. The wife was interviewed by an asylum officer under the old system and after this very compelling testimony the asylum officer told her, I just don't think you qualify for asylum . It's clear that although they harmed you, they weren't really interested in you, they were interested in your husband. You don't have a case but maybe your husband does. But coincidentally the husband was interviewed by that same asylum officer just two weeks later. The husband went in, gave the same account basically as to what had happened to his wife, how the guerrillas were looking for him. The exact same asylum officer who had interviewed the wife said I'm sorry, you don't have a case, maybe your wife has a case because she was brutalized but you, they've actually never harmed you so you don't qualify. This is just typical of the kind of decision making that was going on back before the reform.

About five years ago, by 1995, the Clinton Administration revamped the regulations. They increased the number of asylum officers. They really invested some time and energy into training and the asylum court at this point is a thousand times better than it was before the reforms. The basic goal of the reform was to deter people from filing claims that were not meritorious. They decided to put everybody on a fast track. If you file an application, you're going to be interviewed very quickly. It's the last filed, the first interviewed. You'll be interviewed within six weeks. Your case is going to be decided two weeks after that. The critical thing is that you don't get employment authorization until your case is granted or until your case has been pending for a six month period.

Their goal is to have all cases decided in a six month period so that no one who isn't granted asylum gets employment authorization. It's reduced the number of people filing applications for asylum but the one critical problem with the system is that it has left these tens of thousands of older cases in a backlog that really has almost no chance of ever clearing up.

BAY WINDOW: What happens when someone arrives at San Francisco International Airport without valid paperwork?

ROBERT JOBE: What's supposed to happen is that that person is supposed to be questioned about whether or not he or she has a fear of returning to his or her home country. If that person expresses a fear, then the person is supposed to be interviewed by an asylum officer. A determination is supposed to be made about whether that person has expressed a credible fear and if she has then the person is placed in proceedings and has an asylum interview. If the person doesn't express a fear, she's going to be removed to her home country and a five year bar on reentry will result. If the asylum officer makes a determination that that person's fear is not credible, same thing. A person could be returned, there's some perfunctory review by an immigration ju dge, but the bottom line is the person could be returned to his or her country, and can't come back to the United States for a period of five years. This expedited removal system and the credible fear process I think really depends on what city you arrive in.

Here in San Francisco, the officers that perform the credible fear interviews are generous in their treatment of arriving refugees. They're of the belief that the benefit of the doubt should be given to the applicant. They provide most people arriving here with a hearing before a judge. But that's not always the case. I recently saw a woman, a transgendered Mexican client who has a very compelling case. Because she is from Mexico, it was I think presumed that she had no asylum claim. If you look at the statistics out of thousands of Mexican asylum cases filed, a tiny fraction are granted.

During the course of her short lifetime she had been repeatedly arrested because she's transgendered. But when she arrived at San Francisco International Airport, she was forced to disrobe. The immigration officers, according to her testimony, were brought in basically to poke fun at her. They had her disrobe. According to her, the INS officers were laughing, slapping each other on the back. She was humiliated. Even though she has a very compelling case, she just wanted to get released from immigration detention. So she took the expedited removal. As a consequence, she was barred from re-entering for a five year period. She didn't stay in Mexico because it was unbearable for her there, so she came across the border. She's here in the United States living underground. She's not eligible for asylum because of the expedited removal order against her. If she's ever picked up, she might be able to apply but, again, she's forced to live underground basically because she was subjected to this expedited removal in a fashion that was a gross miscarriage of justice. But the problem with expedited removal is there's no supervision, there's no review. We can see what's in a file but there's no way to correct that mistake except to go to federal court. The chances of prevailing in a case like this are not high.

BAY WINDOW: The INS director tells us if the person seeking asylum has ties to the community, has equity in the community, and can post a bond that they're almost never detained past their credible fear hearing. Is that your experience?

ROBERT JOBE: No. Nowadays, the immigration service is more willing to release arriving asylum applicants but the reason for that is that they have no space to detain them. When the immigration service has the space to detain people, community ties, strength of asylum claim, none of that matters. They detain people, at least here in San Francisco, until they're granted asylum . They give bonds now because they have no space to detain them. In other areas of the country that may be true, but here in San Francisco that borders on being dishonest.

BAY WINDOW: Is detention criminalizing potential asylees or is it protecting our society at large?

ROBERT JOBE: In certain cases, there may be reason to detain. But generally the policy is to detain people and that's a problem. We've had clients who were detained for years. Nowadays because the process can move along relatively swiftly, if you win your case at the first level, detention can be a matter of months. We've represented people that were detained three and four years and then they prevail on their asylum claim. There is absolutely no reason for that.

Often times the denials are based on technicalities. There's no doubt about the person's identity. We know who this person is, the judge has found his story to be credible, but the judge doesn't think that he's made a close enough connection between the torture that he suffered and his political opinion. While that person litigates that technical question, the immigration service is going to keep him detained? That is just preposterous. A person like that who everybody agrees has been tortured, everybody agrees we can confirm that person's identity, there is no reason to detain that person, let alone detain that person for three to four years. That's how long it can take if somebody's going to utilize their various appeals.

BAY WINDOW: Do you see any solutions to these problems with the system?

ROBERT JOBE: The system is much, much better than it used to be, but it's still racked by bias andprejudice. We in San Francisco, we do a lot of cases based on sexual orientation. There are some judges here in San Francisco that you just wouldn't want to have a sexual orientation case in front of. They're homophobes. The judges on the asylum court need some sensitivity training. A lot of the judges, frankly, still just don't know the law and some of the judges, they just don't want to grant asylum to anybody. When you know which judge is going to be handling your case, you know right then or there whether you have a chance of winning or not. Some judges, their approval rate is going to be less than 1% on asylum . They may be willing to grant other sorts of immigration benefits but on asylum, you're just not going to win.

The only way you're going to win is if you go up on appeal and you reverse that decision. You might come back to the judge and then he might be compelled to grant it. But justice, not only does it move slowly, often times, it depends entirely on the personality of the decision maker. You have no control over that. The exact same case in front of one judge you know for sure it's a signed doc, you're going to win. That case in front of a different judge, you know for sure you're going to lose, and obviously that shouldn't be. The only way to equalize the treatment of these various people is through the appeals process and that can take years. A lot of people obviously if they're going to be detained during that period, they're not going to want to fight it. There really isn't equal justice.

BAY WINDOW: This would be a daunting process to be in without an attorney.How often does it happen that people aren't represented because they don't know how to get representation?

ROBERT JOBE: They can't afford representation. One big problem is that there are agencies that handle cases pro bono but they are very limited. The vast majority of the people that we're dealing with here are people of very limited means. They can't afford lawyers. Many of them go through the process without legal representation. They don't know what's important. They're reluctant to tell the immigration service the most personal details of their lives. These things are horrible for them to talk about. They don't want to talk about it, and until they've had counselling from a therapist, or a lawyer, they're not going to be as forthright often times as they should be about what happened to them. Often the most important portions of their stories go untold and they end up getting denials. A lawyer can make a huge difference.

BAY WINDOW: How fast is the process if you don't have an attorney?

ROBERT JOBE: It depends on the personality of the adjudicator. There are some adjudicators when they're faced with somebody who's unrepresented by counsel, they're going to take their time. They're going to take on the role of the lawyer. And there are others who don't deserve to be in their positions and they see somebody unrepresented as easy prey, a way to build up their numbers. Ultimately, immigration judges aare judged not by the quality of their decisions, they're judged based on how many decisions they make during the course of a year. That is the most important criteria in their review at the end of the year. They need numbers.

BAY WINDOW: Rositaâs daughter, who raised her brothers, is still in El Salvador and can't come here based on her mom's asylum status. She has to wait until her mom is a resident before she can come here.

ROBERT JOBE: Somebody that enters asylum can petition for and bring certain family members, but not everybody. They can bring their spouse and any unmarried children under age 21. Once a child is twenty-one years of age, you're not eligible to bring that person into the United States as a derivative asylee. You can only bring that person once you've been granted permanent residence and then file a visa petition. But there's a cap on the number of asylees who can be granted lawful permanent residence each year. That cap is 10,000.

There are many more people granted asylum than that each year. Right now the immigration service estimates that it's going to take about four years to be granted permanent residence after you file your application for permanent residence. You need to wait a year after you're granted asylum before you can file your application for permanent residence. So you're looking first at a five year period between the grant of asylum and a grant of lawful permanent residence. Then you need to turn around and file a visa petition and that's going to take another six years. In order for Rosita or somebody in her position to bring a twenty-one year old child to the United States after the grant of asylum, you're looking at ten years or more. She's been already separated from her kids for more than a decade.

BAY WINDOW: Is there a problem in the language barrier between the officials and the applicants?

ROBERT JOBE: In viewing the film Well-Founded Fear, the thing that struck me the most was the inadequate translation. It's amazing how much is going past the asylum officers because the translation just isn't up to par. Half of the translators don't speak English let alone are able to translate from English to the person's native language, but it happens even in the court house. The translators in the court house are approved, often times by Berlitz or they're on the staff of the immigration court. It's not at all unusual for a translation mistake to be the difference between winning and losing. In order to rectify that you need to go back, get the tapes, listen to the version in that person's native language, get somebody to listen and translate that accurately and then take that up on appeal. But the big problem with that is that usually the person's actual testimony in their native language isn't recorded. The microphones are supposed to be picking up everything but typically when you go and listen to the tapes often times the only thing that you can actually hear is the interpreter's translation. Often times you can't hear the actual testimony. That leaves you in an impossible position to prove a translation mistake.

BAY WINDOW: What part of the process is working?

ROBERT JOBE: For a period of twenty years now the one truly bright spot in the asylum process has been the U.S. Court of Appeals for the Ninth Circuit. The Court of Appeals is probably the most frequently reversed court of appeals in the United States. It's not a favorite of the United States Supreme Court, but it's my favorite. For the last twenty years, it has rendered very progressive, intelligent decisions in asylum. Those decisions have forced the immigration judges and the Board of Immigration Appeals to really improve both the process and the decision making. It's the one place where poor, uneducated, often times unrepresented asylum seekers have been able to get justice. Its impact has been tremendous.

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