Interview with Santosh Giri - Nepalese Lawyer in the US

Santosh Giri is working as an immigration paralegal with The Chugh Firm in Santa Clara, USA since January 2006. His primary concentration areas are immigration laws such as Specialty Occupation (H), Intra Company Transfer (L), Extraordinary Ability (O), TN Visas, Permanent Employment and Residency Process and Legal Drafting such as RFE and Appeals. He is also a certified Legal Researcher on West Law and LexisNexis. He obtained his Bachelor in Law in 2000 from Nepal Law Campus, followed by Master of Laws in Commercial Law (LLM) in 2002. In 2005, he completed an Orientation in USA Law Program from University of California Davis and UC Berkeley Boalt Hall. He graduated from Golden Gate University (GGU), San Francisco in May 2007 with a LLM concentrating in immigration law. He is currently pursuing a Post Graduate Diploma Specialization on Immigration (Refugee and Asylum) Law at GGU. He started to practice law in Nepal as a pleader since 1998 and as an advocate since 2001. He is currently preparing for his Attorney License Examination from State Bar of California. Prior to joining The Chugh Firm, he worked as a research assistant in an asylum project at Golden Gate University on discrimination against Sikh asylum seekers based on improper translation, interpretation and representation. In Nepal, he practiced corporate law and served as a company secretary and legal advisor for some leading private and public companies. He worked under supervision of advocate Krishna Prasad Bhandari. He practiced public interest litigation and human rights law through leading national and international human rights organizations in Nepal such as Peace Brigades International; Lawyers National Campaign against Untouchability; Human Rights and Environment Protection Nepal; Forum for Women, Law and Development and LAWYERS. He is also the coordinator of an ad-hoc organization Association of Nepalese Lawyers in the United States [ANLUS]. He has also been providing US Immigration related information through his personal blog.

As a lawyer, what are the differences you found between practicing law in Nepal and in the US?
Practice of law remains the same in both jurisdiction and is subject to the rules of professional responsibility. However, the professional responsibility rules in the US seem to be rigid, transparent and active in comparison to Nepal. I am not a lawyer in the US yet but as a law student and observer of the legal practice in the US, I can say that the US legal practice is extremely developed and systematic because of the immense resources available for legal research such as LexisNexis and Westlaw; structured legal practice such as specific forms and information required for immigration law; prompt, fair and approachable justice system in comparison to the Nepalese justice system.

There are many Nepalese in the US who have successfully obtained asylum. What are the requirements for asylum?
Convention against Torture (CAT) is the basis of political asylum. A torture victim has the right to seek protection in the nation where he can be protected from being deported to the nation where he/she fears that their life is at stake due to persecution in the past and/or continuous threat of persecution.

CAT defines torture as:
Article 1
1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The basis asylees can seek protection is:
Article 3
1. No State Party shall expel, return (”refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
In order to qualify for asylum, you must establish that you are an asylee who is unable or unwilling to return to his or her country of nationality, or last habitual residence in the case of a person having no nationality, 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.

This means that you must establish that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for your persecution or why you fear persecution. (See section 208 of the INA; 8 CFR sections 208 and 1208, et seq.)

An asylum application is also considered to be an application for withholding of removal under section 241(b)(3) of the INA, as amended. It may also be considered an application for withholding of removal under the Convention Against Torture if you checked the box at the top of Page 1 of the application form, or if the evidence you present indicates that you may be tortured in the country of removal. (See 8 CFR sections 208.13(c)(1) and 1208.13(c)(1).) If asylum is not granted, one may still be eligible for withholding of removal. In order to qualify for withholding of removal under section 241(b)(3) of the INA, you must establish that it is more likely than not that your life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion in the proposed country of removal. If you obtain an order withholding your removal, you cannot be removed to the country where your life or freedom would be threatened. This means that you may be removed to a third country where your life or freedom would not be threatened.

The Convention Against Torture refers to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. To be granted withholding of removal to a country under the Convention Against Torture, you must show that it is more likely than not that you would be tortured in that country.” Torture” is defined in Article 1 of the Convention Against Torture and at 8 CFR sections 208.18(a) and 1208.18(a). For an act to be considered torture, it must be an extreme form of cruel and inhuman treatment, it must cause severe physical or mental pain and suffering and it must be specifically intended to cause severe pain and suffering. Torture is an act inflicted for such purposes as obtaining from the victim or a third person information or a confession, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing the victim or a third person or for any reason based on discrimination of any kind. Torture must be inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. The victim must be in the custody or physical control of the torturer. Torture does not include pain or suffering that arises only from, is inherent in or is incidental to lawful sanctions, although such actions may not defeat the objective and purpose of the Convention Against Torture.

Since the Maoists are now part of the government, do you think it has now become harder to convince the US officials?
Below is a chart that shows the asylum data for the Nepalese asylum seekers. The approval rate is roughly 50%.

The following is the up-to-date data of Nepalese Asylees who have been approved under affirmative and defensive asylum since 1997 till 2006.

Now coming to the part about the Maoist inclusive government and its impact on Nepalese asylum seekers, the first thing to consider is that threat or persecution may still be prevalent because of the following:

1. Splinter Groups such as those in the Terai
2. Radical organizations such as YCL
3. Threats on account of race such as Madheshis vs. Pahades
4. Threats on account of social discrimination and torture such as caste, gender and transgender discrimination coupled with severe physical and mental torture
5. Threats on account of religion such as minorities being subject to persecution
6. Threats based on political affiliations such as being associated with the pro-monarch political parties.

It is likely that new cases will be continued to be filed in the days to come and there is also a possibility of emergence of newer bases of persecution.

In your opinion, what are the urgent changes required in Nepalese legal system?
- There are numerous things to be changed and the Nepalese legal system is already in the verge of transformation. The recent initiatives taken by the Rt. Hon. Chief Justice and the preceding CJs in the areas of e-judiciary, online tracking system of cases, intra-court networking, security procedures, judicial academy, and specialized bench provision are some of the milestones which should be considered as the lay bricks of the foundation of a sound judiciary.
- Secondly, the notion of independence of judiciary must be preserved and separation of powers and check and balance must prevail under all political conditions. Judiciary has been the only functional state mechanism throughout these years of political turmoil where a legislative based on a popular-will ended in 2002 and an executive based on such legislative was never present since then. The 2006 revival of the parliament and the executive formed thereby have been interim in nature but significant in transformation of the nation to a true democracy.
- Thirdly, there are other areas where the changes must be initiated immediately, to name a few:
- Revision of the Rules of Professional conduct of the Lawyers and strict action against defaulters
- Hourly billing system which shall ensure approachable and convenient justice system, ensuring uniform expenditure to all instead of chaotic legal fees
- State sponsored pro-bono legal services instead of the current ‘show-off’ legal aid so that the legal aid becomes actually available to the stakeholders; a proper and clear socio-economic standard must be set to identify the stakeholders. Initiatives should be taken to institutionalize and integrate widespread legal aid services available throughout the nation through various organizations. Local Bar Units should be used as the ultimate point of contact for the pro-bono stakeholders. This shall also ensure potential employment and opportunity for the local lawyers.
- Adequate raise in the benefits, perks and remuneration for the appointee-lawyers (Baitanik Wakil) and judiciary employees which shall ensure decrease in corruption. A significant raise and benefits and annual revision shall curtail corruption completely in the long run.
- Online filing, procedural and decision system in the quasi-judicial areas such as Company Registrar Office, Patent, Design and Trademark, Copyright, Land Revenue, Land Reform, Tax, Labor etc. Online system will guarantee swift and prompt justice along with elimination of corruption in these areas which is extremely rampant based on my personal practice experience as a corporate lawyer in Nepal

For somebody in Nepal aspiring to practice law in US, what suggestions do you like to give him/her?
- Practice in the US for a law practitioner from Nepal comprises of a specific road-map. States such as California, Texas and New York allow foreign lawyers to take the bar exams. If the law student is not yet licensed in a foreign jurisdiction, he/she may be required to complete additional credit hours of law study from the American Bar Association accredited law school. Therefore the first step is to be licensed in Nepal to take this privilege.
- Bar Exam test on various major areas of law and consume a vast amount of time and energy for the preparation. There are various bar exam preparation classes that are available which are costly and tightly scheduled.
- It is advisable to complete a LLM Program before the Bar exam for the better understanding of the common law of the US and the black letter law of the corresponding state.
- If the student’s legal vocabulary is weak, there are various legal English courses available during summer in nearly all states. It is advisable to attend one of these schools as well.
- While studying in law schools there are various practical training opportunities available through various law firms and organizations. One should focus on such practical training, internship, externship and even volunteer for the sake of first hand experience of the actual law practice
- Several law schools offer scholarship based on merit and need to students of developing nation ranging from 25% to full scholarship. It is wise to plan, prepare and contact several law schools before taking a final decision.

You are also involved with The Association of Nepalese Lawyers in United States (ANLUS). Can you tell us more about this?
Association of Nepalese lawyers in the United States (ANLUS), is an ad-hoc non-for-profit (proposed IRC Section 501(c)(3), founded on June 19, 2006 by a group of Nepalese Lawyers and Law students present in the United States. We are still in a developing stage due to presence of our associates in various states. Currently ANLUS serves as a database and a common point of contact for the stakeholders. We are planning for our first annual meeting in 2008. Association of Nepalese lawyers in the United States (ANLUS) primarily aims at conservation, development and modernization of our Nepalese Legal System through its own resources viz. law students, law academics and lawyers from Nepal and practicing Nepali attorneys in the US. Details can be found at http://www.anlus.wordpress.com/
The main objectives of ANLUS are :
-To create a platform for Nepalese Lawyers and Law students for better coordination and cooperation for academic and professional career in the United States;
-To organize conferences, seminars and interaction on issues related to rule of law in Nepal and legal career;
-To facilitate Nepalese Lawyers and Law Students in attending law schools in the United States and lobby for scholarship on their behalf

How are Nepalese people doing in terms of legalizing their status as compared to other communities? What are the major hurdles faced by Nepalese in the US?
- Nepalese or not, all nonimmigrant are and should be aware of the legal consequences by one way or other and therefore should not risk their legal status. Per my observation, Nepalese are on a safer side compared to other so-called “illegal immigrants”. It may be due to the minimal percentage of presence in the US. We are the minority among the minority.
- There are numerous people from our community who have been out of status for one reason or the other. Some are hoping for a new immigration reform agenda which shall be probably initiated again after the 08 GOP elections under a possible democrat government.
- There are also hopes among us for immunity or amnesty:
- The first United States amnesty was in 1986, and it allowed millions of illegal immigrants to receive a Green Card which could then lead to U.S. citizenship in later years. Before this first amnesty was granted, the United States government had only given amnesty on a case by case basis. In the cases where the government gave amnesty to illegal immigrants, it was only done on a small scale. For a period of over 200 years this was how the government granted amnesty, but in 1986 Congress introduced new immigration legislature. They passed the Immigration Reform and Control Act or IRCA which gave approximately 2.8 million illegal immigrants legal status in the United States. In addition, their immediate relatives or dependents which included about 143,000 individuals also qualified for the same status. The result of the amnesty introduced by Congress was that illegal immigration grew in significant numbers.
- When the Immigration Reform and Control Act was passed, it was only meant to be a “one time” amnesty but it actually turned out to be the beginning of many amnesties that would follow. To date there have been additional amnesties that have been granted to illegal immigrants which include:
- Immigration and Reform Control Act (IRCA), 1986: A blanket amnesty for some 2.7 million illegal aliens.
- Section 245(i) Amnesty, 1994: A temporary rolling amnesty for 578,000 illegal aliens.
- Section 245(i) Extension Amnesty, 1997: An extension of the rolling amnesty created in 1994.
- Nicaraguan Adjustment and Central American Relief Act (NACARA) Amnesty, 1997: An amnesty for close to one million illegal aliens from Central America.
- Haitian Refugee Immigration Fairness Act Amnesty (HRIFA), 1998: An amnesty for 125,000 illegal aliens from Haiti.
- Late Amnesty, 2000: An amnesty for some illegal aliens who claim they should have been amnestied under the 1986 IRCA amnesty, an estimated 400,000 illegal aliens.
- LIFE Act Amnesty, 2000: A reinstatement of the rolling Section 245(i) amnesty, an estimated 900,000 illegal aliens
- There are currently several bills in the United States congress that could possibly create the 8th Amnesty.
- Each amnesty has been on a different scale, some granting amnesty to as little as 125,000 illegal immigrants while others have granted amnesty to almost 1 million illegal immigrants. Currently there are plans to introduce another amnesty to the approximate 12 million illegal immigrants that reside in the United States. Critics claim that immigration amnesties entice an even greater number of illegal migrants, since they hope for another amnesty which can grant them permanent resident status in the United States.
- Nepalese are mostly in the US as students or professionals. Maintaining Legal status and guidelines thereof are available easily at USCIS (United States Citizenship and Immigration Services) website www.uscis.gov. Community discussion forums such as www.sajha.com are also very helpful in these regards along with numerous immigration law related websites.
- Major hurdles faced by Nepalese communities are lack of communication and lack of initiative to gather adequate information. Costly legal services and inadequacy of Nepalese Attorneys in all parts of the US is another obstacle. Currently, lawyers from our community are in New York, New Jersey and Texas only. Although this serves adequately for our community in these states, there are numerous other states where attorneys from our community are not available. On the other hand the modern technology has made it possible for Nepalese to obtain legal services from anywhere in the US. There are also several Nepalese paralegals like me who work in immigration law firm and provide service through our attorneys.

There is a talk in Nepal about allowing some sort of dual citizenship arrangement for NRNs. How critical is this issue for the Nepalese living in the US?
Dual citizenship or dual nationality is simply being a citizen of two countries. The United States allows dual citizenship. Dual citizens can carry two passports and essentially live, work, and travel freely within their native and naturalized countries. Some dual citizens also enjoy the privilege of voting in both countries, owning property in both countries, and having government health care in both countries. Dual citizenship is becoming more common in our increasingly interconnected, global economy. Many countries are now seeing the advantages of dual citizenship and are liberalizing their citizenship laws (India, the Philippines, and Mexico are recent examples). Dual citizenship has the advantages of broadening a country’s economic base by promoting trade and investment between the dual citizen’s two respective countries. In a developing and transforming nation such as ours, it is prominent that Nepal allows dual citizenship, keeping in mind NRN investments in place of foreign investment in the restricted investment areas, providing voting rights ensuring complete participation of Nepalese in nation-building, property ownership and real estate development in global standard, participation in politics etc are some areas which should not restrict a NRN from participating.

What are your future plans? Are you planning to return to Nepal?
- I am definitely returning possibly within 3-5 years.
- I want to become an attorney first and get a professional experience of being an attorney for Nepalese community in the west coast of the United States.
- I want to develop my legal knowledge in areas of transnational corporate law, international trade, multinational corporations and immigration law. I want to be established as a transnational lawyer practicing in multiple jurisdictions.
- I am confident that the IT industry in Nepal will get its boom sooner or later because of increasing number of IT professionals in Nepal and the infrastructure currently developed such as optical-fiber, IT Village and broad IT legislation. There is much to accomplish but the basic requirements have been set. I want to serve as a legal liaison for the Nepalese IT companies and its professionals and the US IT corporations such as Yahoo, AMD, Webex, and Google which are based in the Silicon Valley. Business Immigration law, Intra-company Transfers, Immigrant Visas, Specialty Occupation Visas, Establishment and Stockholding of Branch or affiliate companies are some of the areas to name a few.
- Politics has always been an area of prime interest for me and I would definitely enter the arena in future. I was born and raised in a rural village Parsa Dewad in Mahottari and in Dhanusha district. I have been a resident of Kathmandu since 2042 BS. The rights of the people of Terai has been infringed since hundred of years and are continuously suppressed. I would follow the non-violent path of politics rather than a violent one.
- A possible career in the judiciary is also my area of interest.

Fact, figures and data presented have been derived from the sources (in part and in full) from www.uscis.gov, www.usimmigrationsupport.org, www.newcitizen.us, www.santosgere.wordpress.com, www.anlus.wordpress.com