IRANIAN WOMEN PROTESTORS IN IMMIGRATION COURT

My first exposure to asylum law came when I interned as a law student in Jan Pederson’s immigration law firm in Washington, D.C. in the fall of 1983. Jan was a solo practitioner at the time, and most of her clients were Iranians applying for asylum and other immigration benefits.

The international definition of a refugee, originating in the 1951 Convention Relating to the Status of Refugees, was adopted almost verbatim into the U.S. immigration statute in 1980: “The term ‘refugee’ means (A) any person who is outside any country of such person’s nationality (…) and who is unable or unwilling to return to (…) that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The concept is popularly referred to as political asylum, but as you can see from the definition, “political opinion” is only one of five possible grounds for a grant of refugee or asylum protection. The foregoing language is a minefield of legal terminology, which gives lawyers and courts enough grist for the mill to keep hordes of legal professionals happily occupied, arguing the meaning of each individual word and phrase. You could say that I have spent my entire legal career doing so.

When I worked for Jan, the asylum law was still a very new creature, and the courts’ interpretations of it were setting precedent that would have impact for decades to come. It was an exciting time to be entering the field. Given that passage of the new domestic asylum law had happened practically simultaneously with the occurrence of the 1979 Islamic Revolution in Iran, Jan’s expertise and contacts in the Iranian community positioned her well to receive scores of asylum applicants.

Jan ran an all-girl law firm. She was willing to make an exception for me, she explained, because of my background as a journalist working overseas, experience that would be helpful in my delegated role of researching and writing up the asylum applications for her office.

It was my job to conduct interviews with the clients, work their stories into compelling affidavit form, and help document their cases by researching background country reports. Over the course of eight months in Jan’s firm, I worked with dozens of clients who had tragically only recently fled their homes and their country. Many had come from wealthy backgrounds before suddenly having to leave with whatever they could pack into suitcases. The Iranian refugees came by way of Cyprus or Europe to the U.S., having no idea of their future — still trying to comprehend their loss.

I was their voice. My work helped determine the success of their bid to stay in the U.S. Our clients included former commercial airline pilots, military jet pilots, former generals, colonels, doctors, engineers, scientists — people who had spent their lives scrambling to the top. Now, in their land of refuge, they worked on road crews, construction crews, in parking garages, hotel maintenance — perhaps wondering if what had happened to them was Allah’s will. For some insight into the shared dilemma of Iranian refugees in the U.S. at that time I recommend that excellent film starring Ben Kingsley, based on the even better book of the same title, House of Sand and Fog.

Jan was a micromanager, so I wasn’t just thrown out on my own to possibly mishandle her clients’ cases. She reviewed everything I wrote a dozen times, driving me crazy but in the process teaching me how to write a powerful statement — a most crucial skill for an attorney.

Another invaluable lesson — she would allow me to sit in on her initial meetings with clients while she evaluated their situations and sized up how to best achieve what they were seeking in the immigration context. She had an excellent manner of drawing the essential information from a client while cutting through the chaff. That is a skill that takes some time to learn, especially in such a complex area of law.

Over the years after my internship with Jan Pederson I continued to be involved with a number of very moving Iranian asylum cases, both as a lawyer representing their cases and later as a judge. My immersion at Jan’s office into the history and culture of Iran served as a strong foundation. During the eighties, Washington continued to be a hotbed of Iranian opposition politics, except that now the opposition was not to the Shah’s regime but rather to that of the Mullahs. Taking my lunch breaks at Farragut Square, I would frequently see Iranian protest marchers disrupting lunch-hour traffic with their anti-Khomeini banners and loud bullhorns, on the way to the White House — just another typical Iranian rally.

Beginning in 1986, when I personally began representing many Iranian asylum applicants in immigration court, I found many of my clients seemed to be living in a cloud of paranoia. They were sure that Khomeini’s secret police were on the lookout, monitoring them at rallies, listening in on remarks they made during campus debates, and reporting back to the fundamentalist regime. And I received many indications that their paranoia was well-founded.

For an interesting case that illustrates this point, I recommend the Board of Immigration Appeals decision Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). This was a case that originated in Washington during that period, and I knew the attorneys on both sides well. In that case the Iranian student Mogharrabi had gone to the Iranian Interests Section at the Algerian Embassy, Iran’s diplomatic outpost in D.C., when he needed to have his passport examined for renewed student benefits. The individual working behind the counter was another student. Mogharrabi noticed there were multiple security cameras on the walls. The two engaged in a political argument, with Mogharrabi claiming the Mullahs were religious fascists stuffing their pockets with the nation’s wealth, in response to which the embassy employee pulled a gun on him. When he hastily left the building, embassy employees pursued him to his car. This argument, traditional Iran versus the new Mullah state, was being played out everywhere in Washington within the Iranian expat community, with Iranians convinced that spies were following demonstration leaders to their cars and their homes, making lists for incarceration back in Iran.

Andrea’s Story

One of my clients was Andrea, a young woman who had been arrested and imprisoned in Tehran several times. During her last arrest, she was whipped in a public square before being imprisoned for a period of eight months, during which time she was brutally tortured. Her crime? Being seen in a car with a man who was not her relative, and applying lipstick in public. When Revolutionary Guards later came to search her house, they found political tape recordings and other opposition literature. Her brother was linked to these materials and was imprisoned and sentenced to death. Andrea was finally able to escape from prison, with the assistance of bribes from her family. She fled the country, eventually making it to the U.S.

Andrea got married in Texas to an American, who became an abusive husband, and when she became pregnant with his child, he beat her until she lost the baby. She divorced him and moved from Texas to Washington, D.C., where she met a wonderful Iranian immigrant, a car salesman who dedicated himself to becoming the stabilizing force in her life.

During the time she was with her abusive husband, she had picked up several shoplifting convictions, and had ultimately suffered a breakdown that required a period of hospitalization. This all made her court case much more difficult, because even if she were eligible for asylum on the facts, due to her fear of return to Iran, the judge could deny her case for discretionary reasons because of her criminal convictions.

The immigration judge in Arlington who handled the case was my old adversary, Craig DeBernardis, who had been an INS trial attorney in Baltimore. We had shared many cases together on opposite sides in the past. The INS trial attorney on the case was an inexperienced and insecure woman — just one of a parade of such INS and ICE attorneys who over the years mishandled cases I was involved in and who abused my clients in court on behalf of the Department of Justice. (INS=Immigration & Naturalization Service. In 2003 the prosecuting attorneys were housed in the newly created ICE=Immigration &Customs Enforcement).

I later obtained a copy of the transcript of the hearing, and the level of the judge’s outrage at this inept INS prosecutor was so intense that I used to utilize the transcript as a teaching tool in my law school classes. Excerpts are included here.

Andrea took the stand. Under our direct examination she described in excruciating detail all of the things that had happened to her in Iran that had caused her to flee the country. The INS attorney, through lengthy, tortuous cross-examination, made Andrea relive over and over again her degradation at the hands of ruthless prison guards. In the course of a long, hot July Friday afternoon, during which the court’s air-conditioning broke down, Andrea responded to nit-picking questions, and also was forced to relate the details of her mental breakdown and her imprisonment in a Northern Virginia county jail for shoplifting.

In a case like this, after it became clear that Andrea was a credible witness and her story was true, any reasonable attorney representing the government should have withdrawn opposition to the case and let the judge enter his decision. Our opponent continued to fight the grant of asylum, which infuriated the judge. He took a break and demanded that her superior, the district counsel, come into court to defend the actions of his subordinate attorney. The district counsel, who later became an assistant chief immigration judge, came into court, took one look at the case file, and bowed out, leaving his subordinate to swing in the breeze under the scathing criticism that the enraged judge heaped on her. I take the liberty of quoting at length from the transcript, a most unique literary document, to illustrate the ferocity of the judge’s ire against the government attorneys in general. The quotes are the remarks of the judge.

“I explained to (government counsel) that in my opinion, not to stipulate with regard to (asylum) in a case such as this, where a woman in Iran has been accused of being a person of loose morals, where a person had been arrested in Iran — I frankly couldn’t understand the position of the Government, and I asked (counsel) if she would be kind enough to ask the District Counsel to come to the courtroom.” p. 23 of transcript. “Nobody wants to make a decision, nobody knows anything. This case here, the Government should have come in, the Government should have said, there’s no issue (…) with regard to asylum. What does the Government expect to do here? Have every single case and every single possible issue in the case be litigated? I don’t see how that benefits the Government. And I can tell you right now, that is not the way the trial attorney’s office is supposed to work. The trial attorney is supposed to come here as a servant of justice. As a tool of the Attorney General of the United States to do the right thing. And in this case, when I look at these facts, I mean, how could anybody say that this lady’s not been persecuted in Iran? How could somebody say that? I just don’t understand it.” p. 38 of transcript.

“Not every case is supposed to be opposed by the trial attorney’s office. You guys should want to lose some cases. I mean, could you tolerate the idea that this lady could be sent back to Iran? Suppose you were able to convince me to do it. I mean, can you live with that? It’s not my purpose to tell you people how to do business, but you know (…) what I find here is very disappointing to me. Everything is litigated. Everything is appealed. This is ridiculous. Just ridiculous. It’s time to start making some decisions in the trial attorney’s office.” p. 39 of transcript.

The main argument the prosecutor advanced, as to why Andrea should be denied asylum, was that she had merely been punished in Iran for a routine criminal offense, “powdering her nose in public” as she put it, and that the mistreatment at the hand of government authorities was therefore not “persecution” by the government requiring the protection of asylum. In his decision, the judge cited at length the State Department’s annual report on human rights practices in Iran, rubbing the government counsel’s nose in the evidence: “Exhibit 8 in this record, the State Department’s Country Report for Iran for 1989, states, and I quote, ‘Iran continued in 1989 to be a major violator of human rights.’ This is on page 1400. ‘Abuses included summary executions of political opponents, widespread torture, repressions of the freedoms of speech, press, assembly, and association, arbitrary detentions, lack of fair trials, continuing repressions of the B’Hai religions community, denial of the right of citizens to change their government, and severe restrictions on women’s and worker’s rights. (…) I note that, because we have had to listen to the Government argue today that what the Iranian government did to the Respondent and her brother is not persecution; that such acts are consistent with the sovereign right of Iran. That’s not what the United Nations says. That is not what the United States State Department says. ‘Guards have threatened to torture family members of detainees, and relatives or other prisoners have occasionally been forced to watch torture. A number of prisoners, including young children, have been raped by revolutionary guards. . (…) Brutal common criminals have reportedly been introduced among political prisoners, and incited to torture and rape the other prisoners. (…) At page 1403 it says, ‘The government rejects the western distinction between a public sphere, which the state may control, and a sphere of private life, religion, culture, thought, and private behavior, which the state may not properly control. We have had to listen today to the Immigration Service argue that for the state of Iran to impose these kinds of dress restrictions on women, and restrictions on how women could comport themselves in public, is just a matter of their internal sovereignty. That is not what the State Department says.” p. 11–14 of trial transcript.

I have spent so much time with this case here, because in fact, it is not at all an unusual situation to find the government attorneys in such cases taking outrageous positions that are absurd in their posture, except that the results are devastating for the poor immigrants who don’t have such a judge as Andrea was lucky enough to have that day, one who is not afraid to take a stand against such institutionalized idiocy. This judge had spent his entire career with INS prior to his appointment to the bench, and yet could not contain his rage at the thought that Andrea might be shipped back to Iran. “I’ll be frank with you. You’re not doing it. It’s not the point of the Government to come in here and oppose everything. Conduct three-hour cross-examinations that don’t lead anywhere, that keep it so that we can’t get any work done here. It’s not the position of the Government to come in on a case like this and have no opinion.” p. 40 of transcript.

That afternoon, during several court recesses, I noticed in the hallway that two men in “suits” were lingering about, as if they had nothing better to do. I took little notice of them — maybe they were just traveling salesmen waiting to hawk a new software system to the court or something.

Finally, at five p.m. on that sweltering Friday afternoon, the judge granted the case for asylum. We were all physically and emotionally exhausted. Andrea would be able to go home and celebrate with her new family, and relax for the first time in years with the knowledge that she was in no danger of being deported. Her husband had faithfully waited the whole day in the hallway. We went to the elevator, in a celebratory mood, stepping in when the doors opened. I was congratulating the two of them, when the two men in the suits got on with us, and as the doors closed they pulled badges. They placed my client under arrest for an outstanding warrant from the Northern Virginia criminal court. The allegation was that she had not paid a court-ordered fine after her last shoplifting conviction. Their presence was clearly the result of that INS attorney having made a call to their office.

Because it was Friday afternoon, and the courts were already closed, Andrea had to spend the weekend in jail. I visited her in jail on Saturday and heard the whole story. Yes, it was true she had been ordered to pay a fine, and she had given the money to her criminal defense attorney to pay it. Seems the attorney had never paid the court!

On Monday, in front of the original sentencing judge, she was able to produce a receipt that she had paid the money to her attorney, and the matter was dismissed. (She was later able to reach a settlement in an action against that attorney for his bungling and/or fraud in the case).

Ms. Voegel’s Story

Years later, when I was an immigration judge serving in first Philadelphia and later San Francisco, I continued to see Iranian cases from time to time in my courtroom. One of the most incredible examples of mule-headed intransigence on the part of the ICE prosecutor that I experienced was the case of a poor woman whom I’ll call Ms. Voegel. She had been granted asylum from Iran in the U.S. years earlier, and had married an American citizen with whom she had several children together. Tragically, in recent years she had developed schizophrenia, for which she was receiving treatment. When she went too long without her medication, she tended to commit petty crimes, which is how she got into trouble with ICE and ended up in my courtroom — actually very similar to Andrea’s story in the way the process worked.

The nature of her disease was that she would become particularly aggressive and anti-social if she went unmedicated, flinging verbal assaults and obscenities in all directions. On several occasions, when making appearances in front of me for short procedural matters, she started spitting out invectives, as if deliberately trying to antagonize me. Other times, she would sit quietly, staring in my direction as though she were giving me the evil eye. Even though she had a family that wanted to support her, and she was able to obtain the pro-bono services of a very capable attorney, the ICE prosecutor insisted on going forward on charges of deportability, actually trying to get an order to send the poor woman back to Iran.

In our hearing, her attorney presented strong evidence that in Iran, a woman with Andrea’s condition would surely be detained and tortured in prison for the kind of behavior that she was exhibiting here, which included taunting the guards with sexual innuendo (that kind of thing would be considered an expression of loose sexual morals). A female Iranian psychiatrist testified for the defense that the state of the art of psychiatric services for such a person in Iran was still somewhere in the Medieval era and that Ms. Voegel’s fate in Iran was surely one of detention and extreme abuse. That witness clinched the case for me.

I felt that I had heard enough and that Ms. Voegel certainly was worthy of a grant of asylum which should set her free from immigration detention. After all, Iran was now designated by our Commander-in-Chief George W. Bush as part of an ‘Axis of Evil.’ I granted the case, feeling good about doing the right thing. But the ICE lawyers didn’t see it that way. They appealed the case, keeping the poor woman locked up and separated from her family for additional needless months until the appeals court finally affirmed my decision.

I saw two other Iranian cases as a judge, in which the asylum applicants had converted from Islam to Christianity — a crime under Islam called apostasy. The Koran authorizes any devout Muslim to take matters into his own hands and punish someone who has committed the crime of abandoning Islam for another religion. And our own State Department Country Reports make it clear that in Iran the crime of apostasy is likely to be punished by death. Nevertheless, in cases where the evidence was abundantly clear that the Iranian applicant had indeed become a practicing Christian — cases where the evidence included a parade of church members in court as witnesses — the ICE attorneys had the gall to argue, with straight faces, that I should exercise my power as judge and order the individuals deported back to Iran. I could only wonder how they slept at night.

I heard a final Iranian case during my last year as an immigration judge in San Francisco. A young Iranian man, I’ll call him Reza, who was a permanent resident, was in deportation proceedings because of a couple of criminal convictions. He was a classic screwball who kept getting himself into trouble for the most ridiculous things. Perhaps the most bizarre conviction was for stealing a UPS van for a joyride. In addition there were a couple of charges of spousal abuse, and he had been convicted of one charge and served six months in jail. It was that deportable offense that brought him into my courtroom.

Before his most recent conviction for spousal abuse, he and his wife had been living in the Lake Tahoe area, one of those dream landscapes in northern California. He’d had odd jobs and experienced periods of unemployment. One might ask, why let this clown stay in America? Why not ship him home if he’s such a trouble maker? Good question. The answer is that his lovely and hardworking wife, an Iranian national and naturalized U.S. citizen, came to court twice, traveling long distances to support him, taking the stand to testify on his behalf. My heart went out to her, and I basically thought, if she wants him so bad, she can have him.

His application for relief was cancellation of removal, which would essentially allow me to waive his minor convictions, in my discretion, balancing the positive factors, his relationship with his wife and many years of residence in the U.S., against the negative factors, his sophomoric attitude and convictions. It was the type of case that I had relished sinking my teeth into as a defense attorney. He had a good, conscientious lawyer making the arguments for him.

Reza had never gotten a serious grip on life. He had an explanation for every arrest and conviction, always ending with either, ‘I didn’t do it’ or ‘It wasn’t my fault.’ He claimed it was his friend who’d stolen the UPS truck that time and then picked him up for the ride. I didn’t particularly like the man, but he had two things going for him in my courtroom: I didn’t want to order him to be shipped back to Iran, land of the Mullahs, and his wife pleaded for mercy on his behalf. I couldn’t help recalling during the hearing how many times I had advocated in court for Iranians when I was a defense attorney, managing to keep people like Reza in the country so they could stay with their family and have another chance.

After hearing all the evidence and testimony, I was hopeful that his recent jail experience and the realization of how close he’d come to deportation would finally wise him up. I told him, “I’m not doing this so much for you as for this fine lady, who has come to court and allowed herself to be subjected to cross examination about the most intimate details of your relationship so that she can keep you here and start a family with you. It is only because she has so persuasively begged for you to be given a second chance that I have decided to do so. You are a very lucky man, and hopefully you will realize that now and make a commitment to lead a productive life with her.”

It was a close case, but the female ICE attorney agreed with my decision and waived appeal. I felt good about the decision, I felt wise about my choice of words, I was happy that this good woman, so deserving of a good husband, was going to get her wish to resume a life with Reza and live happily ever after in Lake Tahoe, California. And I reflected on my experience as a student intern twenty years earlier, thankful that Jan Pederson had taught me about Iran and the fundamentals of the practice of immigration law. (Jan is still a leading light in the immigration lawyer community).

A year later I saw Reza’s lawyer at a conference and asked him how the couple was doing. A serious look came over his face.

“Judge, that was a really tough case for you, I know it, and I really respected how you grappled with your decision.”

“That’s fine, but how are they doing?”

“I’m afraid not so good, judge. They had a fight and he broke her jaw. He’s back in prison.”

All these memories have flooded back as I see the daily news reports, how the brave women of Iran are now demonstrating and dying in the streets with the hopes of finally putting an end to the extremist fundamentalist regime in Iran.

Excerpt from My Trials: Inside America’s Deportation Factories, by Paul Grussendorf Photo by Craig Melville on Unsplash