The forests of Central America are wild places. For those who dream of a new life in the U.S., safe from oppression in their homeland, they might find a different sort of danger here. An asylum seeker from Cameroon on a trek to obtain asylum in America saw companions die from dehydration in the dense forests of Central America. It wasn’t the only peril.
“There were poisonous snakes,” he explained. “There were people in the jungle who collected money.”
Nor were expiration from venom or thirst or threats from thieves the only dangers. “Some people cannot make it,” he said. “They give up. You see your friend dying. You cannot do anything.”
His seven-month odyssey, which took him from the West African nation to safety in the U.S., was ended with the help of Denver lawyer Shalyn Kettering.
Kettering, an associate at Davis Graham & Stubbs who works in the firm’s environmental practice group, represented the Cameroonian, still grieving the loss of his wife to a car accident and his infant son to illness, in his quest for asylum.
Kettering’s work, and that of her colleagues and several staff members at DGS who donated time and talent to represent more than 70 refugees from countries on several continents as part of the Rocky Mountain Immigrant Advocacy Network’s Preparing Asylum Seekers for Success Program during 2019, helped the firm win RMIAN’s 2020 Pro Bono Service Award.
Created with the collaboration of the Colorado Lawyers Committee and the Immigrant Justice Campaign, the PASS Program provides pro bono representation to asylum seekers detained in the U.S. Immigration and Customs Enforcement facility in Aurora. Four law firms — DGS, Gibson Dunn & Crutcher, Kilpatrick Townsend & Stockton, and WilmerHale — participate. Each of the four firms send lawyers, on a rotating basis, to assist asylees who need representation in any given week.
While DGS took home the RMIAN award this year, WilmerHale won the 2019 Pro Bono Service Award for its work representing immigrant children separated from their parents at the U.S.-Mexico border. The other two firms in the consortium have also devoted significant resources to helping people seeking asylum.
“It’s an incredible honor,” DGS staffer Melissa Kemp said. The self-proclaimed “right-hand gal” — really, executive administrative assistant — to four DGS attorneys, Kemp said her work to support the firm’s lawyers involved in the PASS Program is deeply meaningful to her.
“It makes a huge difference in these people’s lives,” Kemp said. “In a lot of ways, it can help decide their future.”
Kenzo Kawanabe, a DGS commercial litigation partner, said many of the firm’s lawyers have committed to helping asylees. “We’ve got close to 20 lawyers at DGS who are moved to help those who are fleeing persecution,” he said.
“The asylum matters [and] cases involving working for juveniles have been a really important part of our pro bono work,” WilmerHale partner John Walsh said. “The importance of getting this done right is front and center for me.”
The four firms’ work on behalf of asylees is set against the backdrop of a growing refugee crisis around the world. According to the U.N. High Commissioner for Refugees, there were nearly 80 million forcibly displaced people around the world at the end of 2019. Refugees make up 26 million of them and, as of 2018, the number of individuals fleeing from armed conflict was higher than at any time since World War II.
The U.S. admitted only 29,818 refugees for resettlement during the most recent fiscal year, the lowest amount since the enactment of the Refugee Act in 1980, though border control authorities encountered 851,508 individuals at the southern border during FY 2019, according to the Pew Research Center.
“The opportunities for people to access help through refugee resettlement programs are greatly diminished,” Jennifer Wilson, executive director of the International Rescue Committee’s Denver office, said. “People are going to do what they need to do to find the most viable route to safety for themselves and their families.” For many, asylum is the practical alternative to the more cumbersome refugee process, which generally requires registration with the U.N. The State Department estimates nearly 300,000 people will ask for asylum during FY 2021.
Few who ask for asylum will get it. Statistics made available by the Executive Office of Immigration Review, an agency of the Department of Justice, indicate that only about 20% of those who ask for it are granted asylum, a decline of about 40% from the administrations of Republican president George W. Bush and Democratic president Barack Obama, according to Human Rights First (formerly known as the Lawyers Committee for International Human Rights).
America’s asylum statute provides part of the explanation for the relatively low likelihood that haven will be afforded to those who come to the nation’s borders, specifying that asylum cannot be granted unless the claimant can prove that she has been the victim of “persecution [or has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
America’s asylum statute provides part of the explanation for the relatively low likelihood that asylum will be afforded to those who come to the nation’s borders, specifying that asylum cannot be granted unless the applicant can prove that she has been the victim of “persecution [or has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Meeting that standard is difficult. Those coming from Cameroon, a country in the throes of political turmoil, often fit the traditional notions of asylum eligibility. Asylees fleeing Central America — particularly the “northern triangle” region, which includes El Salvador, Honduras and Guatemala — are often seeking to evade gang violence or domestic violence, and it’s nearly impossible for them to be granted asylum.
“A lot of the individuals who are part of the credible fear interview process are facing very tangible violence from gangs,” Kettering said. “I don’t think I met anyone who I felt didn’t have a violent, oppression-based reason for coming to the United States. [But] the law doesn’t recognize some of those forms of violence to be sufficient.”
Kettering was referring to the first step in the process of seeking asylum, in which an applicant must convince a U.S. Citizenship and Immigration Services officer that her fears of persecution are “credible” — that the person’s fear must be considered, to a neutral observer, as objectively reasonable in addition to being genuinely felt.
The problem is that the federal immigration statute that sets out this standard was written in 1986, long before the explosion of gang violence in Central America began, which means that it’s not clear whether vulnerability to it fits within the types of persecution that qualify a person for asylum.
The federal courts have made conflicting decisions about the scope of the statute, driven in part by a 1987 U.S. Supreme Court decision that left the definition of “well-founded fear” to case-by-case clarification. “We have patchwork asylum laws in the U.S. that depend on which circuit you are in,” Laura Lunn, detention program managing attorney at RMIAN, said. In the federal judicial circuit that includes Colorado, asylum is not granted to asylees who invoke pervasive violence as the basis of their claim unless that violence is connected to one of the grounds listed in the statute.
Mairead Dolan, a senior litigation associate at WilmerHale, said USCIS asylum officers often make conflicting decisions. “When we take on an immigration matter, we have no idea of what the outcome will be,” Dolan said. “The idea of precedent isn’t really ingrained.” Her colleague Lauren Mercer, an associate in the firm’s energy and natural resources group, agreed.
“Immigration is the first field I’ve had experience in where so often we have to tell our client that the rule says this, but the government could kind of go in a different direction,” Mercer said. “There’s not a guarantee that the government will play by the rules in immigration court or [that] the rules couldn’t be changed up at the last minute.”
Immigration courts are not immune from the same inconsistency. “The immigration courts are under the executive branch, rather than the judicial branch, so there is inherently politics built into it,” Heidi Ruckriegle, another WilmerHale associate said.
Those politics emerged dramatically in June 2018, when then-U.S. attorney general Jeff Sessions announced that immigration authorities would no longer consider fear of gang violence to be grounds for asylum. In the same order, he also crippled the efforts of domestic violence victims to gain asylum. Congress, he declared, never “intended membership in a particular social group to be some omnibus catch-all for solving every heart-rending situation.” Wilson said that many immigration law experts believe Sessions’ ruling violates international and U.S. law.
Asylum applicants also face the challenge of proving the government in their native country is somehow responsible for the violence they face. “You need to have a record that the government is somehow involved in the violence,” Patricia Peterson, a DGS securities law partner, said. “That’s the hard part to explain to people, that you need to convince the person who’s doing the credible fear interview that there was government involvement. If you grow up in a culture where the government is so often an actor, but a silent actor, it’s hard to explain that.”
Lunn, the detention program senior staff attorney at RMIAN, said that proving this connection can be arduous even if records are available. “In the countries where there is an overwhelming presence, it’s hard to distinguish between who is a member of a gang and who is a member of the government because they are so intertwined,” she said.
Even as an asylee must prove her eligibility to stay in the country, she also faces imprisonment in Aurora. Data supplied by U.S. Immigration and Customs Enforcement indicates that about 7.5 percent of all agency detainees who are not convicted of crimes or held on criminal charges are paroled. Human Rights First claims that, at some ICE facilities, 96 percent of asylees are denied parole. 
The stresses of incarceration, along with the traumas that asylees seek to escape, can result in significant mental and emotional health problems. “It’s very difficult,” Sarah Plastino, a detention program attorney with RMIAN, said. “The rates of depression, anxiety, and suicidal ideation are through the roof for people in immigration detention due to the isolation and the hopelessness.” All of those factors can compound one each other and make it difficult for asylees to even talk about the dangers from which they have fled.
“[A] lot of times, the detainees will essentially bury the lede of their story. They hide the actual horrors, being burned or tortured,” David Hsu, a patent lawyer at Kilpatrick Townsend, said.
Few asylees are represented by lawyers who can help them cope with these daunting obstacles. According to the American Immigration Council, only 14% of detainees and about 38% of immigrants on parole have lawyers. There is no right to counsel in any immigration proceeding. “There are times when I need to ask for help in understanding our immigration laws and immigration system, even with things like forms and instructions,” Yamini Grema, a Gibson Dunn & Crutcher associate, said. “It’s hard for anyone to navigate, especially people who come from difficult situations and don’t understand the legalese.”
Helping their clients navigate the challenges of the country’s immigration system has been eye-opening for lawyers at each of the four firms. “It’s a disaster,” Grema said. “I think the United States has historically done a great job of inviting people over, letting them start over. More recently, despite the fact that we still have more resources than the large majority of the world, we have put up this legal and physical wall that makes people’s lives even harder. It’s a bad situation.”
“I think that, as a country, our immigration system is broken,” Kettering said. “I think that it has become unconscionable under the current administration and I think that, as lawyers, we need to be witnesses to that and work to educate ourselves as to what is happening and not turn a blind eye.”
“Even if you can’t represent an individual, which is a big ask, as lawyers we need to, at the very least, pay attention to the precedents that are being created in our federal courts and to the policies implemented by the administration and have our voice be heard in those spaces and become advocates to the best of our ability.”
Despite these challenges, lawyers at all four of the large firms are gratified by their experiences. “Personally, I think the stories of the clients I’ve had in immigration law are very inspirational,” Hsu said. “I was born in the United States and I take it for granted, a lot of the safety and opportunities we have in the United States. To see what other people go through to get there makes me more cognizant of how lucky I am and how good of a life I have when people go through so much in their home country and then so much on their journey here to be able to live in this country, frequently as a second-class person, not even to have the same rights as a U.S. citizen.”
Kettering described, through tears, her feelings on the day her Cameroonian asylee client was released to start a new life in Boston, where he now lives with a cousin. “Spending any time with any asylum seeker I’ve ever met is a privilege,” she said. “It’s taught me about living well and bravely. You get to be present when thevy see their wishes come true. You can be there with them at that moment. Nothing makes me happier.”
— Hank Lacey