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Apparently, there was some Big News recently about immigration. I am not sure about that, but there was some other news this week, a bit under the radar, also about immigration: The United States has offered Temporary Protected Status (“TPS”) to people from Liberia, Guinea, and Sierra Leone who are currently present in the United States. The reason: Ebola.

"I'm 25% more dangerous than Ebola."

“I’m 25% more dangerous than Ebola.”

This means that people from those countries will not be removed from the United States, and they are eligible for a work permit. The TPS is designated to last for 18 months, and then could be renewed or ended, depending on conditions in West Africa (and political considerations in North America). Applications for TPS must be submitted before May 20, 2015.

How does this contrast with our current policy towards Central America and Mexico? People in that part of the world do not face a threat from Ebola, but they do face a threat from cartel and gang violence, domestic violence, and–increasingly–government-sponsored violence related to the drug trade. So here’s a question: Which of these two scenarios is more likely: A person from Liberia dying from Ebola, or a person from Honduras dying by violence? Let’s take a look at some numbers.

According to the Center for Disease Control, 2,964 people in Liberia have died due to Ebola. The total population of Liberia is 4,092,310. This means that approximately 72 out of 100,000 Liberians have died from Ebola. Compare this to Honduras, where the murder rate is about 90 per 100,000. For those of you who like numbers, this means that a Honduran person is about 25% more likely to die from violence than a Liberian person is to die from Ebola. 

The story is similar for the other TPS countries. Sierra Leone has had 1,250 Ebola deaths, with a population of 6,190,280, or about 20 deaths per 100,000 people. And Guinea has had 1,192 deaths with a population of 10,628,972, or about 11 deaths per 100,000 people.

Other Central American countries are less violent than Honduras, but still very dangerous. The homicide rate in El Salvador is about 41 per 100,000 and Guatemala is 39 per 100,000. The rate in Mexico is about 21 per 100,000, but I suspect that that figure is out-dated, as violence there has been escalating.

In other words, generally speaking, a person in Mexico or Central America is more likely to die from violence than a person from Liberia, Guinea or Sierra Leone is to die from Ebola. And yet we have offered TPS to West Africans and nothing to Central Americans. Why?

I suppose one reason is the nature of the problem. Ebola is a new threat and it is likely to be short-lived. Also, it is very frightening and its potential victims are completely innocent. Finally, there probably aren’t a whole lot of people currently in the U.S. who will qualify or apply for TPS; maybe a few thousand. Gang and cartel violence, on the other hand, is more complicated. The problem is endemic and it does not look to go away anytime soon. Victims of this type of violence might also be perpetrators, and so offering them protection can seem dangerous (though I would argue that we can effectively weed out the bad guys). Last, there are a lot of people from Mexico and Central America currently in the United States. To offer them TPS would be a long-term, large scale commitment.

Which all brings us back to the Big Announcement of the week: Deferred Action for many people who have been in the U.S. for 5+ years. This certainly is a humanitarian benefit, in that it will keep many families together. But it is not a humanitarian benefit in the sense that it was created to protect people from harm. People in Central America and Mexico are facing a crisis. Violence there is out of control. While I am glad that we are not requiring people to return to places with Ebola, I think we should recognize that there is a certain hypocrisy in offering TPS to such people while offering nothing to our Southern neighbors.

The danger faced by Mexicans and Central Americans is equal to–or worse than–the danger faced by West Africans. It’s just that the source of the danger is different. And so in the wake of the TPS and Deferred Action announcements, I am wondering whether we should be doing more to help people fleeing the gang and drug violence that is killing so many. 

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Earlier this week, Rasmea Odeh, the associate director of the Arab American Action Network in Chicago, was convicted of one count of Unlawful Procurement of Naturalization. She faces up to 10 years in prison, a fine, and possible deportation from the United States.

Convincing Ms. Odeh's supporters proved easier than convincing a jury.

Convincing Ms. Odeh’s supporters proved easier than convincing a jury.

Ms. Odeh is a Palestinian who was convicted in Israel in 1970 for involvement in two bombings, one of which killed two university students in a supermarket. She was sentenced to life in prison, but she was freed in 1979 as part of a prisoner exchange between Israel and the Popular Front for the Liberation of Palestine. Ms. Odeh maintains that she is innocent of the crime, and that she was coerced into confessing under torture by the Israeli authorities.

In the mid-1990s, she immigrated from Jordan to the United States, and in 2004, she became a U.S. citizen. By all accounts, she did well in her adopted country:

Rasmea Odeh has been with the Arab American Action Network (AAAN) since 2004 and is the Associate Director and Community Adult Women Organizer…. She has worked as a teacher and then a lawyer after she completed her law degree. She gained valuable community experience through her work and service in various associations including women’s and workers’ unions, family and domestic violence groups, human right centers and the Red Cross. She created a successful community writing group at the AAAN to encourage women to tell their colorful stories and experiences while living in the United States in a creative and exciting way.

Ms. Odeh’s current troubles stem from her failure to report her conviction and sentence on her immigration and naturalization forms. Those forms ask such questions as “Have you ever been arrested, cited, or detained by any law enforcement officer… for any reason?” and “Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense?” (emphasis in original). In response to these questions, Ms. Odeh answered “no.”

In a sense, this is an open-and-shut case. Whether or not Ms. Odeh is guilty of the underlying crime (the bombing), she certainly provided false information on the immigration forms. But of course, nothing connected to the Israeli-Palestinian conflict can ever be simple, and Ms. Odeh’s case is no exception.

The first complicating factor is Ms. Odeh’s alleged torture by Israel. This became relevant because the defense hoped to prove that Ms. Odeh did not “knowingly” lie on the immigration forms; rather, her “post-traumatic stress disorder” somehow caused her to answer the questions incorrectly. The judge disallowed this defense in a pre-trial order, and it will no doubt be one of the claims raised on appeal. To me, the PTSD defense is simply not believable. Many of my clients are torture victims and possibly suffer from PTSD, but I’ve never seen a case where the client isn’t able to answer a yes-or-no question about whether she was arrested. Maybe she does not want to talk about the arrest, but she knows it happened and can complete the form properly. Even if the judge had allowed this defense, I doubt that the jury would have accepted it.

Deprived of her PTSD defense, Ms. Odeh argued that she misunderstood the questions related to her criminal convictions. She said that she thought the questions were about her time in the U.S., and that she had nothing to hide and did not need to lie. She apparently testified about her alleged torture at the United Nations in 1979, and as her lead attorney said, “It was well known that she was convicted, and traded [in a prisoner exchange]. The U.S. Embassy knew it, the State Department knew it, and Immigration should have known it.” Neither of these points is very convincing. First, Ms. Odeh clearly had a very good reason to lie–if the U.S. government knew about her conviction on terrorism charges, she would likely have been denied a visa and citizenship. Second, her attorney’s claim that she did not have to answer the questions truthfully since the U.S. government was already aware of her conviction is simply bizarre (as if some USCIS bureaucrat in 2004 would magically be aware of Ms. Odeh’s testimony before the UN in 1979).

The most (and to me, only) convincing argument made by Ms. Odeh is that her prosecution stems from an improper government investigation that targeted Palestinian activists and others who were exercising their First Amendment rights. Ms. Odeh filed an unsuccessful motion to dismiss relying on this theory. The investigation in question was brought against 23 anti-war and Palestinian activists, and after 3+ years, has not resulted in any indictments. During the course of the investigation, the government of Israel turned over documents to the United States. It is these documents that purportedly led to the discovery of Ms. Odeh’s imprisonment (and hence the discovery that she lied on her immigration forms). The failure of the underlying investigation to reach any conclusion suggests that it might have been improper and, if so, perhaps the discovery related to Ms. Odeh was unlawful (fruit of the poison tree and all that). I suppose we will see what comes of this argument on appeal. But of course, even if Ms. Odeh is correct about the improper investigation, and even if she ultimately wins with this issue on appeal, that does not change the fact that she lied on her forms.

Finally, it is interesting to see how people’s views of the Israeli-Palestinian conflict affect their views of Ms. Odeh’s case. To her supporters, this case is about Israeli torture of Palestinians. They seem to accept Ms. Odeh’s explanation that she is innocent, that she was tortured into confessing, that any mistakes on the form were either a misunderstanding or a result of her PTSD, and that the whole case is an effort by the U.S. government to undermine the Palestinian cause.

While I largely sympathize with the Palestinian side, I find Ms. Odeh’s explanations hard to accept. To me—and apparently to the jury—the case is much simpler than all that. The question is, Did Ms. Odeh knowingly lie on her immigration and naturalization forms? The jury found that she did. Despite all the craziness surrounding her case, and whether she is a victim or a villain, the simplest and most likely explanation here is that Ms. Odeh lied about her imprisonment in order to obtain an immigration benefit from the United States. If so, she received the conviction she deserved.

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There is only one state in the Union without a refugee resettlement program–Wyoming. Late last year, the state’s Republican governor, Matt Mead, took some tepid steps toward establishing a public-private partnership to help resettle refugees in the Equality State. Predictably, those efforts were met by fierce resistance, both from inside and outside the state.

WyoMing the Merciless.

WyoMing the Merciless.

First, a bit of background. The United States accepts more refugees for permanent resettlement than any other country (though many countries temporarily host significantly more refugees than we do). In FY 2012, we accepted 58,238 refugees for resettlement. These refugees came from Bhutan, Burma, Iraq, Somalia and many other countries. With the help of the Department of Health and Human Services (HHS) and various NGOs, the refugees were resettled in 49 states plus the District of Columbia. Some states took many (California: 5,173; Texas: 5,923) and other states took few (Montana and Hawaii: 1 each; Mississippi: 8; Arkansas: 10). Only Wyoming took none.

A former refugee, and now a Wyoming resident and high school math teacher, Bertine Bahige, began a campaign to change the situation and encourage Wyoming to join the rest of the country and establish a refugee resettlement program. As a result of his efforts, in September 2013, the Governor made some preliminary inquiries with HHS about establishing a resettlement program.

But once word got out that Wyoming was considering thinking about possibly creating a resettlement program, hundreds of people called the Governor’s office to express opposition to the plan. In response, a spokesman for the Governor issued a statement, “Wyoming is not setting up a refugee camp…. This is still very preliminary.”

Since its tepid beginnings, the Governor’s inquiry has made zero progress. In its most recent statement, the Governor’s office backed away from any resettlement plan:

“Constituents asked the governor to look into the possibility of a program, and he did that,” [said a spokesperson. Governor] Mead believes any effort to establish a program must be led by community interest. But… “no interested group has offered a recommendation to establish a program to date.”

Of course, the fact that there is no program and there has been no progress in creating a program has done little to assuage the anger of the anti-refugee faction. Last week, a (seemingly small) group called Citizens Protecting Wyoming, held a rally at the state capitol where they expressed their fear that refugees would bring Ebola to Wyoming, take cash from the government, and drain the state of resources.

The key note speaker at the rally was Don Barnett, a fellow at the Washington, DC-based Center for Immigration Studies (“CIS”). In a bit of a non-sequitur, Mr. Barnett claims to have “gained his expertise in immigration and refugee policy during an assignment in the U.S.S.R. while employed with the U.S.I.A. [United States Information Agency].” His organization, CIS, generally favors reduced immigration, and advocates (not always intellectually honestly) to restrict asylum and refugee admissions. Mr. Barnett’s main concern seems to be that the federal government pays charities to help resettle refugees, and he wants to bring this information “out of the shadows.” (I suppose he is less concerned about the private prisons that make Bank by detaining tens of thousands of asylum seekers and immigrants each day). Mr. Barnett is also concerned with fraud in the refugee system. Of course, fraud and costs are legitimate concerns, but so is protecting refugees, and to me, Mr. Barnett’s throw-the-refugee-baby-out-with-the-bathwater approach mischaracterizes and unfairly distorts the life-saving work of the religious charities.

In connection with the rally, Citizens Protecting Wyoming issued a press release, noting that, “The people of Wyoming are caring and generous… Yet that does not mean we are OK with being forced to increase the burden to our health, safety, welfare, medical, community and educational programs via our tax dollars.” Hmm, isn’t giving assistance to people who legitimately need it the very definition of caring and generous? You’d think they could at least be honest about who they are. How about this for their next press release:

While the citizens of Wyoming are generally caring and generous, we here at “Citizens Protecting Wyoming” couldn’t give a damn about disease-carrying, welfare-grubbing foreigners, who probably left their countries just to steal from the American tax payer. And even though the rest of the country does its share to support refugee resettlement, which is an important component of American foreign policy, we’ll let others carry this burden for us. Wyoming is the “Equality State,” and to us, that means we get equal benefits, but we shirk equal responsibility.

I take some comfort from the fact that there was a substantial counter-protest by people who support expanding the refugee resettlement program to Wyoming. In some ways, though, this is all a tempest in a tea pot. I doubt Wyoming would ever accept more than a handful of refugees (although it is a large state, it has a small population), and so in practical terms it wouldn’t mean much one way or the other. However, in symbolic terms, I think it is important. The United States has committed to protect a certain number of refugees each year. This commitment reflects our values as a nation and our position as the leader of the Free World. In fulfilling our commitment, it would be nice to see all 50 states doing their share. So come on Wyoming, we’re all waiting for you to join us. I think you will be glad you did.

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In a recent press conference, the dynamic duo of Congressman Steve King and rich guy Donald Trump made some pretty frightening claims about the young people who have lately been arriving at our Southern border. Mr. King told the audience that America is becoming “a third-world country” because of “the things that are coming at us from across the border,” including illegal drugs, Central American children of “prime gang recruitment age,” ISIS… and the Ebola virus. These are some pretty serious charges, and so we here at the Asylumist decided to investigate for ourselves. What we found will shock you.

King and Trump: A couple of cards. Probably jokers.

King and Trump: A couple of cards. Probably jokers.

After flying down to Texas, I went to a detention facility that must remained unnamed. There, I met a 14-year-old boy, who we will call Juan. Juan hails from El Salvador–or so he says–and claims that members of a gang attacked his house, threatened his family, and tried to kill him. He then fled to the United States. It’s a sad tale, but is it true? I suspected that there was more to the story. You see, Juan has brownish skin, so he is likely a Muslim. Plus, when I met him, he was sweating. This, despite the fact that the detention facility is kept at a balmy 52 degrees Fahrenheit. In my book, Sweating = Ebola. I had some hard questions for Juan:

ASYLUMIST: Salaam Alaikum.

JUAN: [stares blankly]

ASYLUMIST: Salaam Alaikum.

JUAN: I am not sure what you are saying to me.

ASYLUMIST: Yeh, right. So tell me Juan, if that is your real name, why did you come to the United States?

JUAN: Actually, Juan is not my name. You just started calling me Juan for some reason. My real name is Alberto.

ASYLUMIST: For purposes of this interview, we will call you Juan. So tell me, Juan, why did you come here?

JUAN: In my town, the gang is very powerful. If you don’t join them, they threaten you, take your money, even kill you. Gang members have targeted my family because we are Evangelical Christians and we refuse to join the gang. My father is a Minister. Because we refused to join, the gang set our house on fire, they fired a gun through our window, they threatened me many times with guns and knives. Finally, they tried to kill me, so I had to…

ASYLUMIST: Blah, blah, blah. Everyone knows that you can’t get asylum in the U.S. if you are fleeing gang violence. There’s no nexus. It will open the floodgates. We have enough problems here already. We don’t need gangbangers like you messing up our country.

JUAN: But I am not a gang member! And I heard that in some cases, when a person is threatened on account of his religion, he can receive asylum in the U.S. even if the persecutor is not the government. There is a case about that called Matter of S-A-. Also, the gang targeted my whole family; not just me, and “family” is a protected category under U.S. asylum law. One case that discusses family as a social group is Lopez-Soto v. Ashcroft. Besides these published decisions, there are many unpublished decisions where people like me have received asylum in the United States.

ASYLUMIST: You seem to know a lot about asylum for a 14-year-old Salvadoran boy. Very suspicious. Let’s shift gears. Why are you so sweaty?

JUAN: I don’t have Ebola.

ASYLUMIST: Ah Ha! I didn’t even mention Ebola. Why would you bring it up unless you had Ebola. Thou protesteth too much, dear Juan. Excuse me while I relocate myself outside your six-foot danger zone.

JUAN: You mentioned it at the very beginning! And I really don’t have Ebola. I’ve been detained here for two months. If I had Ebola, I’d be dead by now.

ASYLUMIST: You’re spitting when you talk. Please stop that.

JUAN: I was not spitting.

ASYLUMIST: If you don’t have Ebola, how do you explain the sweating?

JUAN: Maybe because I am stressed. I fled my country and I’m away from my family for the first time. The gang tried to kill me. Now, I’ve been detained for the last two months.

ASYLUMIST: I’m not buying it. Didn’t you come here to take our jobs and our women, collect welfare, and spread Ebola and Jihad? Is that a prayer rug you’re sitting on? And what’s that book next to you? It looks like a Koran.

JUAN: Huh?

ASYLUMIST: You’re sitting on a Muslim prayer rug. And that book looks like a Koran.

JUAN: No, I am sitting on a towel. There was no bed space for me, so they gave me a towel to sleep on. It is not very comfortable.

ASYLUMIST: And the book?

JUAN: Pep Comics # 224. It’s about Jughead Jones and his dog named Hot Dog. The dog used to belong to Archie, but somehow Jughead got him.

ASYLUMIST: I see. Anything else you want to add before I leave this godforsaken place?

JUAN: I am just hoping to get my case heard. I am afraid to return to my country. I want to live safely and in peace. I don’t have any diseases and I am not a terrorist or a criminal. I really don’t understand the United States. You are so powerful, and yet you are afraid of a 14 year old boy. I hope you will help me. And why are you on the floor in the fetal position?

ASYLUMIST: Please don’t unleash your Jihadi Ebola attack on me! Ahh! Run away!  

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Some asylum seekers file their applications and never receive an interview. Others are interviewed for asylum and never receive a decision. I’ve discussed the first problem–called the backlog–several times, but today I want to discuss the second problem. What happens to people who are interviewed for asylum, but then wait forever for a decision?

Better late than never.

Better late than never.

I’ve had a number of clients with this problem. They fall into a few broad categories.

One group are people from countries that are considered a security threat to the United States–countries like Afghanistan, Syria, Iraq, and Somalia. People from such countries are subject to more extensive—and thus more time consuming—security background checks. The security check process is very opaque, so we really don’t know much about what the government is checking or why it takes so long, and the length of the delay seems to have nothing to do with the person’s personal history (for example, I’ve had clients who worked in the U.S. Embassy in their country or with the U.S. military, and still the background check was delayed). To me, the security background check delays don’t make sense. If the person is a threat to the United States, allowing him to live freely here for months or years while the government investigates his background seems like a bad idea. Another aspect of the background check that does not make sense is that asylum seekers in court never seem to be delayed by security checks. Also, aliens seeking their residency in other ways (marriage to a U.S. citizen or through employment) don’t seem to have problems with background checks either. While the need for background checks is clear, the inordinate delays for asylum seekers is hard to understand.

Another group of people who face delays after the interview are people who may have provided “material support” to terrorists or persecutors. I have a client like this–he was kidnapped by terrorists and released only after he negotiated a ransom (which was paid by his relative). Had he not paid the ransom, his case would not have been delayed post-interview. Of course, had he not paid the ransom, he would have been killed by the kidnappers, so the point would probably be moot. I imagine that his case is subject to review by Headquarters, which again, seems reasonable. But why it should take 10 months (so far) and what they hope to discover through an additional review, I don’t know.

A third group of people whose cases are delayed are members of disfavored political parties or organizations. Such people might also be subject to the “material support” bar, but even if they have not provided support to persecutors, their cases might be delayed.

A final group are high-profile cases, such as diplomats and public figures. When such a person receives asylum (or is denied asylum), there are potential political ramifications. Again, while I imagine it makes sense to review such cases at a higher level, I am not exactly sure what such a review will accomplish. The law of asylum is (supposedly) objective–we should not deny asylum to an individual just because her home government will be offended–so it is unclear what there is to review.

These delays are particularly frustrating given that decisions in asylum cases should generally be made within six months of filing.  According to INA § 208(d)(5)(A)(iii), “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” Unfortunately, the “exceptional circumstances” clause is the exception that swallows the rule. These days, everything from backlog to background check to Asylum Office error seems to pass for exceptional circumstances. I know this is not really anyone’s fault–the Asylum Offices are overwhelmingly busy, but it is still quite frustrating.

Indeed, I have had clients waiting for more than two years (two years!) after their interview, and the asylum offices can give us not even a hint about when we will receive a decision. The worst part about these delays is how they affect asylum seekers who are separated from their families. I’ve already had a few clients with strong claims abandon their cases due to the intolerable wait times. The saddest case was an Afghan man who recently left the country, two years after receiving a “recommended approval.” The client had a wife and small children who were waiting in Afghanistan. After he received the recommended approval–in 2012–we were hopeful that he would soon receive his final approval, and then petition for his family. After enduring a two-year wait, during which time first his child and then his wife suffered serious illnesses, the client finally gave up and returned to his family. This is a man who worked closely with the U.S. military in Afghanistan and who has a very legitimate fear of the Taliban. In his case, we would have been better off if the Asylum Office had just denied his claim–at least then he would have known that he was on his own. Instead, he relied on our country for help, we told him we would help, and then we let him down.

Delays after the interviews seem to affect a minority of applicants, and they have not garnered as much attention as the backlog. However, they can be just as frustrating and never-ending as backlogged cases. At the minimum, it would be helpful if the Asylum Offices could provide some type of time frame for these people, particularly when they are separated from family members. As DHS struggles to deal with the backlog, I hope they don’t forget about those who have been interviewed, but who are also stuck waiting.

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Odds are, you’ve never heard of Sture Petrén. But if you are a refugee who has escaped persecution on account of female genital mutilation, domestic violence or sexual orientation, you may owe him your life.

If you've received asylum based on PSG, you should send your thank yous to Sture Petrén.

If you’ve received asylum based on PSG, you should send your thank yous to Sture Petrén.

Sture Petrén—full name: Bror Arvid Sture Petrén—was born in Stockholm, Sweden on October 3, 1908. He studied law and philosophy at Lund University, and then served in various law courts in his home country from 1933 to 1943, when he was appointed as an appellate judge. In 1949, he was recruited by the Ministry of Foreign Affairs, where he served as the Director of the Legal Department for the next 15 years. More significantly from the point of view of history, Judge Petrén was appointed to the Swedish delegation to the United Nations General Assembly, where he served from 1948-61. He went on to other prestigious posts domestically and internationally. He was a member–and eventually President–of the European Commission of Human Rights, he was a member of the International Court of Justice, and he served as a judge on the European Court of Human Rights. In 1972, Judge Petrén was knighted by the Swedish king. He died in Geneva on December 13, 1976.

For all his accomplishments, it seems that Judge Petrén’s most notable achievement is probably one that he himself did not think much about at the time: In November 1951, he added the phrase “particular social group” to Articles 1 and 33 of the United Nations Refugee Convention. 

In the fall of 1951, the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons held a series of meetings to hash out the Convention on the Status of Refugees. The original Convention listed four protected categories: race, religion, nationality, and political opinion. The Swedish delegation, led by the good Judge, introduced an amendment to Article 1 adding the phrase “particular social group” or PSG. Judge Petrén offered little in the way of explanation for the addition. In the transcript from November 26, he says only that the other protected categories suggest the inclusion of a “reference to persons who might be persecuted owing to their membership of a particular social group.” “Such cases existed,” said the Judge, “and it would be as well to mention them explicitly.” Without further discussion, the amendment was adopted that same day. Fourteen members voted in favor of the amendment, none opposed, and eight abstained (though history apparently does not record how each country voted).

A week later, Judge Petrén introduced the same amendment to Article 33 (non-refoulment), so it would be in conformity with Article 1 (modern-day U.S. immigration law derives the asylum/refugee definition from Article 1 of the Convention; the Withholding of Removal definition comes from Article 33). 

So does the origin of the phrase PSG shed any light on the term’s meaning today? What—if anything—can we learn from the historic record?

First, it seems that Judge Petrén’s addition to the Convention was based on the draft of a planned law in Sweden called the National Alien Act, which went into effect in 1954. The National Alien Act was, in turn, based on the existing Swedish practice of protecting aliens who were members of a PSG, though Swedish law from the 1950s apparently does not define PSG. To the extent that the modern-day Swedish Alien Act is instructive, it seems clear that sexual orientation and gender were not consider particular social groups. The modern law offers protection to people in a PSG, homosexuals, and people who face persecution on account of gender. As one commentator observed, it would be superfluous to separately list PSG, sexual orientation, and gender, if sexual orientation and gender were considered PSGs. 

I could not find a copy of the old Swedish law (upon which the Convention definition of PSG was purportedly based), but it would be very surprising—even for a forward-thinking country like Sweden—if the 1950s law separately protected people based on gender and (especially) sexual orientation. My guess is that the Swedish law listed PSG as a protected category, but left the term undefined. Of course, this does not mean that PSG was meant to encompass sexual minorities and women under Swedish law or under the Convention definition. The Dead White Men who created the Convention may have been progressive for their time (though there are arguments that they were not), but it seems more than unlikely that the idea of specifically protecting gays and women was even on their radar. At least I could find no evidence in the historic record to support such a notion.

A second question is what Judge Petrén understood the term PSG to mean. I am not sure whether his understanding is relevant to anything other than historical curiosity, but it seems almost certain that he had no intention of dramatically (or even modestly) expanding the protected categories. Rather, PSG was meant as a safety net to catch people who did not easily fit into the other categories–people like aristocrats and linguistic minorities, to name a few. Indeed, Judge Petrén’s comments indicate a realist, as well as an idealist. After noting that Sweden was a country of asylum in the past, he states, “but the fact must be taken into account that its capacity for absorbing large numbers [of refugees] was limited and that, particularly in the present serious state of world affairs [post-WWII], considerations of national security must play a certain part.” This does not necessarily sound like someone who wanted to greatly expand the classes of people covered by the refugee definition.

To a large degree, of course, all this is academic. The goings-on in 1951 are a long way from our reality today. Perhaps an Originalist—like a Justice Scalia—might parse Judge Petrén’s words and look back to post-War Swedish law to suss out some meaning that informs our definition of PSG today. However, given that the Convention and mid-20th Century Swedish law are pretty removed from current U.S. asylum law, the Originalist inquiry seems like a stretch.

Moreover, laws and norms change over time. The vagaries of the past are fodder for debate today. To me, such debates are healthy and—hopefully—lead us in the direction of Justice. Although Judge Petrén probably had no intention of altering the refugee definition so dramatically, he certainly planted the seed that led to protection for many thousands of people. Intended or not, that is his extraordinary legacy.  

Special thanks to Ali and Behnam for their help with this article. 

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I recently participated in a panel discussion at the Congressional Black Caucus Foundation in Washington, DC. The panel was hosted by Congresswoman Yvette Clarke and featured speakers from academia, non-profits, government, and the private bar. The introductory speaker was the Ambassador of Jamaica, who (to my surprise) knew more about asylum law than most immigration attorneys. The focus of the panel was on asylum seekers of African decent (so, generally, people from Africa, the Caribbean, and Latin America).

Déjà queue - The backlog is back. Or maybe it really never went away.

Déjà queue – The backlog is back. Or maybe it really never went away.

One purpose of the panel was to bring attention to asylum seekers and refugees from Africa and the African diaspora. According to Jana Mason of UNHCR, despite the recent turmoil in the Middle East, the plurality of the world’s refugees and internally displaced people come from Africa. This is significant because in the United States, there is not a strong constituency to support these people (as there is for Cubans, for example). The result is that African and diaspora asylum seekers often receive less attention and less support than asylum seekers from other places. The CBC hopes to improve our government’s policies towards African asylum seekers, and our panel was part of that effort.

Panel speakers also touched on issues that affect asylum seekers in the U.S. more generally. The most important comments in that regard came from John Lafferty, the Chief of the Asylum Division at USCIS, who spoke–among other things–about the backlog (for some background on the backlog, check out my previous post).

The statistics Mr. Lafferty cited were sobering: 55,000 affirmative asylum cases filed in FY 2014, over 50,000 credible fear interviews, and a nationwide backlog of 60,000 cases. USCIS estimates that it might take three to four years to resolve the backlog, and presumably that’s only if unforeseen events don’t cause additional delay.

One piece of good news is that USCIS has been working hard to deal with the situation. In the last year or so, they’ve grown from 273 asylum officers to 425 officers, and they plan to hire additional officers going forward. I must say that my experience with the new officers has been a bit mixed. Most are excellent–professional, courteous, knowledgeable, and fair. A few, though, seem to be unfamiliar with the law or with basic interview techniques. Hopefully, as they gain more experience, these kinks will be worked out (and hopefully not too many legitimate refugees will be denied asylum in the mean time).

Despite USCIS’s efforts, the backlog has continued to grow. At this point, even if no new cases enter the system, it would take over one year to review all 60,000 cases. And of course, new cases continue to enter the system all the time. Given the large number of people stuck in the backlog, I’d like to offer a few suggestions on how to make life easier for those who are waiting:

First, and I think most importantly, USCIS should give priority to applicants with family members who are overseas. This can be done in at least two ways: (1) Review existing I-589 forms, and where there is a spouse or child who is currently not in the U.S., give that case priority; and (2) when a backlogged case is (finally) approved, give priority to any I-730 petition for family members following to join.

Second, and this would probably require a legislative fix so maybe it is pie in the sky, for any case that USCIS knows will enter the backlog, allow the applicant to file immediately for her work permit (under existing law, the asylum applicant must wait 150 days before filing for a work permit).

Third, instead of issuing the work permit (called an employment authorization document or EAD) for one year, issue it for two years (or more). A two-year EAD would make life easier for asylum seekers. Renewing the permit every year is expensive and processing delays sometimes result in people losing their jobs and driver’s licenses (which are tied to the EADs).

Fourth, devote more resources to backlogged cases, even if this means slowing down the process for newly-filed cases (backlogged cases have been skipped; USCIS processes new cases before backlogged cases). Even if only a few backlogged cases were being adjudicated, this would at least give hope to the thousands who are waiting without any sign of progress. Also, it would be helpful for people to have some sense of when their cases will be adjudicated. USCIS should endeavor to release as much information as available about their efforts to resolve the backlog. Given that each Asylum Office has its own website, perhaps the information could be posted there and updated regularly.

I recognize that USCIS’s situation is difficult and unprecedented, and that they have been overwhelmed by the large numbers of new applications and credible fear interviews. But from my view of things, the situation for those who are waiting is pretty rough. These modest suggestions would help to mitigate the difficulty for the most seriously affected, and would give some hope and relief to the others.

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“Miranda Rights” for Asylum Seekers

by Jason Dzubow on September 23, 2014

in Asylum, Asylum Seekers, Legal

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It’s a common scenario in my office: A person who entered the U.S. unlawfully at the Mexican border, and who was detained and released by U.S. immigration authorities, wants to seek asylum, but has missed the one-year deadline to apply.

Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.

Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.

Just the other day, a young man from El Salvador came to me for a consultation. In his country, gang members threatened to kill him. They targeted him partly because of his religion (Evangelical), but mostly because he had a job and (they presumed) money. They also targeted his wife and young child. The man’s family went into hiding and the man came to the United States. He entered without inspection in June 2013 and was apprehended by the Border Patrol. After he passed a credible fear interview (a CFI is essentially an initial evaluation of whether the alien can state a claim for asylum), he was released and ordered to appear before an Immigration Judge. The man attended his first hearing, where the IJ gave him additional time to find a lawyer. That’s when I came into the picture—in September 2014; more than one year after the man entered the United States.

So how to evaluate this man’s case? On the merits, it’s not a great case. He certainly faces grave harm if he returns. But it may be difficult to show that the harm is “on account of” a protected ground: Perhaps he has a claim based on his fear that the gang will persecute him due to his religion, or his particular social group (family; maybe “people with jobs”), but it’s certainly not a slam dunk. Probably the more difficult issue, however, involves the man’s failure to file for asylum during his first year in the United States (in order to qualify for asylum, an alien must file the asylum form–the I-589–within one year of arrival or meet an exception to the one-year deadline). With regard to this filing deadline, the man’s case is pretty typical.

Like most asylum lawyers, I despise the one-year filing deadline (found at INA § 208(a)(2)(B) and 8 C.F.R. § 208.4). It was originally enacted to help prevent fraud. The logic being that if you had a legitimate case, you’d file it within a year. The reality is quite different. People like the Salvador man know that they face harm in their country, but they have no idea about the law, and little incentive (or money) to hire a lawyer until their court date is imminent—often well beyond their first year here. The result is that legitimate refugees are denied asylum for reasons completely unrelated to their claims and, instead of reviewing the merits of a case, the IJ or asylum officer is stuck evaluating the applicant’s excuse for failing to file within one year. For these reasons, it’s hard to find anyone involved in the system who likes the one-year rule. So what can be done?

The obvious solution is to eliminate the one-year bar. But that would require Congressional action, and it’s rare these days to see the words “Congress” and “action” in the same sentence. So I won’t hold my breath on this idea.

A more realistic solution may be to create a Miranda­-style rule for asylum. In other words, the Border Patrol or the Immigration Judge or whoever the alien comes into contact with, would be required to inform the alien that if he wishes to seek asylum, he needs to file the form I-589 within one year of arrival. We could also require that the alien be informed about the one-year rule in a language that he understands, and (since we are wishing) we can even require that they give him a copy of the form and information about where to file it.

I think the 1966 Supreme Court case Miranda v. Arizona provides a good model for how to protect aliens. That case created the famous “Miranda warning” that police read at the time of arrest (You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney…). In reaching its decision, the Court wanted to protect our Fifth Amendment right against self incrimination (no one “shall be compelled in any criminal case to be a witness against himself”). The Court reasoned that in the intimidating environment of police custody, suspects might feel compelled to talk, and so the Court created the Miranda warning to help ensure that people will understand their right against self incrimination. One portion of the case particularly strikes me:

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.

The image of the beleaguered suspect, disoriented and in unfamiliar surroundings, unable to exercise his Fifth Amendment rights, seems to me analogous to the alien, recently arrived in the U.S., who is taken into custody, placed into a system that he does not understand, in a language that he (probably) does not understand, and who then loses substantive rights as a result of his predicament. True, in the case of Miranda, the suspect was momentarily disoriented and vulnerable, whereas with asylum seekers, the person has a whole year to file his case. But just as the Miranda Court examined specific instances where suspects’ rights were violated and reached its conclusion that protection was necessary based on an analysis of how suspects actually behaved in custody, an examination of how many aliens are behaving will reveal that they are not aware of the one-year filing requirement.

For many legitimate refugees–like my potential client from El Salvador–learning about the one-year filing requirement is much more difficult than it might seem. They are in a new country where they do not understand the language or culture, they probably have spent much of their lives living in fear of their government, they often have no support network and few resources, and many times the “advice” they receive from notarios, unscrupulous lawyers, and “friends” is incorrect. In short, unless they are well-educated or well-connected, many asylum seekers have little chance to learn about the one-year filing requirement. The result, of course, is that they miss the deadline and lose their opportunity to claim asylum. 

Aliens have a due process right to file for asylum. However, just like suspects in police custody, unless they are made aware of their rights, many legitimate refugees will continue to miss the one-year deadline and lose their right to seek asylum. It seems easy enough to solve this problem: Create a Miranda-style rule requiring government officials to inform aliens about the one-year deadline.  

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Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy– 

On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.

Jonathan Bialosky, who claims that taking Todd and my class constitutes "other serious harm."

Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”

There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990. 

Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.

My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.

Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.

The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.

It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).

“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.

My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.

Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court.  He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.

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In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them. 

This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.

Guatemalan Women celebrate their new particular social group.

Guatemalan Women celebrate their new particular social group.

In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.

Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).

To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.

It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.

“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.”  I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”

But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”

Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.

I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.

A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.

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If you follow the news from the Executive Office for Immigration Review or EOIR–the office that oversees the Immigration Courts–you are aware of the recent lawsuit filed by Judge Afsaneh Ashley Tabaddor. Judge Tabaddor is an IJ in Los Angeles. She was appointed in 2005 and has been serving ever since. Judge Tabaddor also happens to be Iranian-American.

Judge Tabaddor has been mistreated by the executive branch. We hope she doesn't leave, and we are root-ing for her.

Judge Tabaddor has been mistreated by the executive Branch. We hope she doesn’t Leave. We are Root-ing for her.

According to Judge Tabaddor’s complaint against EOIR, trouble began for her in the summer of 2012 when the White House–considered by some a radical Muslim organization–invited her to attend a “Round Table with Iranian-American Community Leaders.” After some hemming and hawing over the nature of the event, EOIR granted the Judge leave to attend. But afterward, EOIR banned Judge Tabaddor from adjudicating cases involving nationals from Iran. So in other words, an Iranian American Judge who is active in her community is not permitted to hear cases where the alien is from Iran.

On it’s face, EOIR’s decision seems completely ridiculous and indefensible. It would be like forcing members of the National Association of Women Judges to recuse themselves in cases involving women, or stopping members of a Jewish judges association from hearing cases involving Jews, etc., etc. But can EOIR’s decision somehow be justified? Does it make sense to ban an Iranian-American who is involved in her community from hearing cases form Iran? Permit me to try to make that argument (as an asylum lawyer, tilting at windmills is my specialty).

Perhaps EOIR is concerned about the Judge because Iran is considered our enemy (or–on a good day–our rival). Allowing Judge Tabaddor to hear Iranian cases would be like allowing an American originally from the Eastern Block to serve in the White House during the Cold War (Zbigniew Brzezinski) or like allowing a German-American to lead the fight against Germany in WWI (John J. “Black Jack” Pershing) or against the Nazis in WWII (Major General Carl Spaatz). Hmm, maybe that argument doesn’t work so well after all. Let me put it another way. If you are at war with Japan, you’d better imprison all Japanese-Americans. Wait. Maybe that is not such a good argument either. Let’s try this a little differently. 

It could be that EOIR is worried about the appearance of bias. Appearance is very important for judges. If an IJ is perceived as biased, it reduces our confidence in her decisions. It would be as if five Republican-appointed judges voted to end an election recount, giving the victory to the Republican presidential candidate. Oy. Let me give you a better example. Maybe it would be like allowing a Russian figure skating judge who is married to the director of the Russian Figure Skating Association to serve as a judge at the Sochi Olympics. And then the Russian skater miraculously wins. Harrumph. I guess that one doesn’t work too well either. Maybe we should look at the problem another way.

What if we assume that Judge Tabaddor is, in fact, biased in favor (or against) Iranian respondents. If that is the case, why should the recusal order be limited to cases from Iran? Iran and Iraq fought a war recently, so probably the IJ is biased against Iraq and should not hear cases from that country either. Iran also fought a war with Greece back in the day, and if I were Iranian, I’d still be bitter about the Battle of Thermopylae. So the Judge should also be banned from hearing cases involving Greeks, or at least Spartans. Iran has endured invasions by Mongols and Arabs, so Judge Tabaddor obviously should not hear Mongolian or Arab cases, and since Mongolians were mixed in pretty good with the Chinese, we’d better also ban her from Chinese cases–just to be safe. And of course, Iran doesn’t much like Christians, Baha’is or Jews, so the Judge should probably be kept away from cases involving those faiths. In addition, Iran has disputes with Russia, Azerbaijan, Turkmenistan, and Saudi Arabia. The Judge would have to be banned from hearing cases involving those nationals as well. And don’t even get me started about cases involving Israelis. So basically, if Judge Tabaddor is biased, as EOIR seems to assume, the only cases she should decide involve people from Guyana or New Zealand. And maybe São Tomé, but I’m not even sure that’s a country.

In the end, I really don’t know whether Judge Tabaddor’s lawsuit will succeed. IJs exist to implement the authority of the Attorney General. If the AG chooses to prevent certain IJs from reviewing cases from certain countries, that may be within his discretion. While the law may not be clear (at least to me), I have no doubt about which side is right. If an IJ behaves in an inappropriately biased manner, she should be removed from her job. But where–as here–there seems to be no question as to the Judge’s integrity, her docket should not be restricted in this insulting and discriminatory way.

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There are, in effect, two definitions of “refugee.” There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person’s definition.

The legal definition of refugee includes:

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 lay person’s definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.

Refugees or "refugees"?

Refugees or “refugees”?

The mass movement of people–especially young people–escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of “refugee.”

Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a “pull” factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.  

To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels’ offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.

We could simply categorize as a “refugee” anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.

There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.

There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.

But what if we could reduce the drawbacks and keep the benefits?

The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.

Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.

Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.

Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don’t think we’re there yet–although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.

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If you talk to people working in the human rights field, many will tell you that they view their work as an expression of their political and moral beliefs. More often than not, those beliefs are grounded in religious faith.

Dare to dream...

Dare to dream…

That is true for me. I am Jewish and I am an asylum lawyer. I view my work as an expression of my Jewish values. These values are derived not just from our sacred texts–which encourage discussion, debate, and self reflection–but also from our experience as a people who lived in exile and faced centuries of persecution. For me, Jewish values include respecting the life and dignity of all people, trying to understand “the other,” trying to understand myself, and sympathizing with the powerless. All this is a good fit with asylum law where I represent foreign people who face harm or death from governments or terrorist groups. But how do these values align with support for Israel?

There was a time when I felt that my values were largely consistent with supporting Israel. After all, it is a small country, created by refugees and surrounded by enemies. But more recently, it has become harder for me to be “pro-Israel,” as that term is generally understood. It’s not that I don’t support Israel and believe it should exist as a Jewish state. I do. But I have found that in recent years, it has become increasingly difficult to reconcile the values that guide my life and career with being “pro-Israel.” There are several reasons for this.

For one, it is difficult to accept the dishonesty of the pro-Israel side. Of course, this is not a problem confined to supporters of Israel. If anything, I see more dishonesty from opponents of Israel. But since I am Jewish and concerned about the behavior of my side, it is difficult to square my Jewish values with the pro-Israel propaganda that I daily see in the news. An example of this is how Israel’s supporters consistently put forth a narrative that exonerates Israel for any blame in the current conflict. It is true that Hamas initiated the recent fighting, but that is hardly the beginning of the story. Israel seems always to have an excuse for failing to make concessions or reign in settlers. As a result, moderate Palestinians are undermined (since they cannot show progress to their constituents) and extremists are empowered. A more honest evaluation would include self criticism–what have Israel and its supporters done wrong? How have their actions contributed to the cycle of violence? How have Israeli policies encouraged Jewish extremism? This type of analysis, I have never heard from the pro-Israel camp.

Also, I have great difficulty accepting the alliance of pro-Israel Jews with Neo-Conservatives and Christian Zionists. I find the Neo-Conservative’s view on the use of force to be immoral and anti-Jewish, not to mention cynical, short-sighted, and ineffective. Exhibit No. 1 in that regard is our war in Iraq. As for the Christian Zionists–people like John Hagee of Christians United for Israel–their purported love of Israel seems a thinly veiled proxy for hating Muslims. If there ever came a time when Israel was actually able to make peace with the Arabs, the Christian Zionists would be opposed: Peace with Muslims is not compatible with their world view. The values of Neo-Conservatives and Christian Zionists are profoundly contrary to my own. And while I understand that the enemy of my enemy is sometimes my friend, for me, certain alliances are beyond the pale. 

I also have trouble with the knee-jerk defensiveness of the pro-Israel camp, which is eager to label any expression of anti-Zionism as Antisemitism. Sometimes anti-Zionism is Antisemitism, and sometimes it is not. But there is a flip side to that coin: For many years, Jews have made the State of Israel an integral part of our religion. Synagogues have Israeli flags and signs supporting Israel, we celebrate Israeli Independence Day, we send our young people to Israel to study, we raise money for Israel. In other words, we have made Judaism and Zionism synonymous. In that case, it is hard to fault our enemies for confusing the two concepts. Frankly, I think our attachment to Israel is a good thing. What I oppose is the assumption that all criticism of Israel is made in bad faith, which allows us to avoid the difficult task of self examination.

Linked to the issue of defensiveness is the on-going effort by Israel supporters to stifle speech that they view as anti-Israel. They threaten funding sources, ban (or attempt to ban) disfavored speakers from Jewish events, label leftist Jewish groups “traitors,” and they rejected the dovish J Street’s attempt to join the Presidents Conference, an umbrella organization of Jewish-American agencies. If the pro-Israel camp sought to counter the ideas they find offensive, that would be one thing. But instead, they seek to eliminate those ideas. I am a believer in free speech and in the (very Jewish) idea of debating issues. To me, these efforts to squelch speech and avoid engagement on difficult issues is offensive.

Finally, I do not appreciate the effort of Israel supporters to deflect attention from Gaza by comparing it to the much more deadly situations in Syria or Iraq. While I think it is legitimate to ask non-Jews and non-Palestinians why they are more concerned about Gaza than Syria, I do not think that question is appropriate for Jews (or–obviously–Palestinians). As Jews, we should be concerned about the behavior of other Jews. We should question Israel’s policies that we disagree with. The fact that others are behaving worse than us does not seem a valid justification for our own actions.

I remember an incident from when I lived in Israel–way back in 1990. I was visiting the Jewish settlers in Hebron, a large Arab town in the West Bank. We went to the Tomb of the Patriarchs, which is considered the burial place of Abraham, Isaac, and Jacob. It is a holy place for Jews and Muslims. We were in the Jewish section when the settlers started singing “Jerusalem! Jerusalem!” and dancing. They danced into the Muslim part and interrupted a dozen old Muslim men who were praying. At the moment, I felt I had to choose sides–with the settlers or with the Muslims. I am sorry to say that I chose to dance and sing with my fellow Jews. The old Muslim men stopped their prayers and watched us quietly, humiliated.

I still believe that there is a choice to make, but it is not a choice between Jews and Muslims or Israelis and Palestinians. It is a choice between right and wrong. I am pro-Israel in that I believe Israel should exist as a Jewish democratic state and that it has the right to defend itself from terrorists’ missiles and tunnels. But if “pro-Israel” means persecuting, humiliating, and de-humanizing Palestinians, refusing to make concessions for peace, demonizing opponents, stifling speech, and making alliances with morally bankrupt groups, you can count me out.

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A recent article by Mark Krikorian of the Center for Immigration Studies posits that even if the unaccompanied minors arriving at our Southern border are refugees, they should be sent back.

Mr. Krikorian's view of Mexico.

Mr. Krikorian’s view of Mexico.

I find that CIS in general and Mr. Krikorian in particular are usually fairly reasonable in their arguments (though there are exceptions; and more exceptions). However, Mr. Krikorian’s recent article is long on insults and short on insights.

First, the insults (they’re more fun to deal with, no?). He refers to the “anti-borders Left,” which I suppose means that to him, anyone who advocates for immigrants opposes all borders. This is kind of like saying that anyone who advocates for a speed limit opposes driving. He also refuses to acknowledge that children arriving at the border are unaccompanied (he refers to them as “unaccompanied” – damning them with quotation marks). What he means by “unaccompanied” is that the children are brought here by smugglers who (and this is a real quote from CIS – check the link if you don’t believe me) “watch over the children until they are taken into custody by U.S. authorities as part of a process that turns the children over to relatives in the United States.” I guess technically, the children are accompanied, though having a smuggler “watch over” my kids is about as desirable as having them spend a night at Neverland Ranch. Finally, here’s a good one:

Asylum is for people willing to go anywhere to get out of where they are; just as a drowning man doesn’t pick and choose among life preservers he sees in the water, a genuine asylum-seeker doesn’t pick and choose among countries.

Au contraire, mon Krikorian: Drowning men who hope to survive are actually quite picky about their life preservers. Think about Leonardo DiCaprio in that movie with the boat. Had he been a bit more choosy, maybe he and Kate Winslet would have floated off together into the happily ever after. In the same way, asylum seekers must be very choosy about where they plan to spend the rest of their lives. Just ask all those poor Eritrean refugees in Sudan, who are subject to exploitation, attacks, and expulsions. Probably they are wishing that they had found a better life preserver.

A Central American refugee's view of Mexico.

A Central American refugee’s view of Mexico.

OK, enough of that. Now to Mr. Krikorian’s “insights” (sorry for the quotes, I was feeling snarky).

Mr. Krikorian’s main point is that even if the children from Central America are refugees, a point that he does not concede, they can be turned away under international law. Why? Because the 1951 Refugee Convention provides:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

According to Mr. Krikorian, the underlined language means that an alien who flees persecution and passes through one country should not be allowed to apply for asylum in another country because the alien is not “coming directly” from the territory of feared harm. In other words, Central Americans who pass through Mexico cannot seek asylum in the U.S. because they are obliged to seek asylum in Mexico.

There is one teeny tiny problem with Mr. Krikorian’s idea. As he himself notes, United States law “unfortunately” only allows asylum seekers to be turned away if they come from a “safe third country.” U.S. law recognizes only one “safe third country,” Canada. He thus suggest that the statutory fix to the border surge is to “bar outright any asylum claim from someone who passed through a third country where he should have made that claim first.”

While I think this is an idea worth discussing, I don’t see it as the simple solution that Mr. Krikorian does. For one thing, while Mr. Krikorian wants to convince us that Mexico is a “safe” country, there is a lot of evidence that it is not safe. So if such a law were implemented, I would expect the battle would shift from the applicant’s fear of return to her country to why she would not be safe in Mexico (much as the battle in many asylum cases is about the one-year filing deadline, not the fear of return). All this would make Central American cases more–not less–difficult (and time consuming) to adjudicate.

Also, there is the more philosophical question about how we, as a country, want to treat people coming to us for help. While we cannot solve all the worlds problems, we also cannot ignore those problems. Especially when they are in our backyard (remember the Monroe Doctrine). And especially when our policies contributed to those problems (remember the Monroe Doctrine).

Mr. Krikorian and I do, I think, agree on one thing: The influx of asylum seekers at our border needs to be addressed. We need to have a rational policy debate about how to treat such people. In my opinion, that debate should protect the integrity of our asylum system (it should not be used as a way to get around normal immigration procedures) and it should also respect the people coming to us for help and protect bona fide refugees. Even though I generally disagree with them, I believe that groups like CIS–groups that advocate for more restrictive immigration policies–have an important role to play in the debate. That role would be more constructive if they focused more on policy and less on polemics.  

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Another Death in Benghazi

by Jason Dzubow on July 22, 2014

in Human Rights, International

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On June 25, lawyer and human rights activist Salwa Bughaigis was murdered in her home in Benghazi, Libya. Her death is a tragedy for her family and her country, but it also hits home for me for a few reasons.

Salwa Bughaigis

Salwa Bughaigis

Ms. Bughaigis is being remembered for her service on the National Transition Counsel (she resigned because male leaders marginalized the few women on the Counsel), her work for democracy and women’s rights, and her early opposition to the Qaddafi regime. Less well known outside of Libya is her work on behalf of political prisoners (at a time when Qaddafi was hanging dissidents in the street) and her efforts–ultimately unsuccessful–to organize a Libyan national lawyers’ association. At the time of her death, she was trying to help reconcile Libya’s disparate factions and help the country transition to democracy.

Due to death threats in the months leading up to her death, Ms. Bughaigis had sent her children to live abroad and she and her husband had been spending most of their time outside of Libya. She returned with her husband to vote in the election and was murdered shortly after she voted. Her husband Essam al-Ghariani was apparently kidnapped at the same time, and he is still missing.

There are a few reasons that Ms. Bughaigis’s death resonates with me.

One reason is that it reminds me how good we’ve got it here. There is obviously a big difference between being a human rights’ lawyer in post-Qaddafi Libya and an asylum lawyer in the U.S., and though my clients and the people I interact with in government often drive me crazy, no one is trying to kill me. While there are certainly problems with the U.S. asylum system (especially these days), in many ways it is actually quite good, so I am generally working within the system, not trying to create a new system, as was Ms. Bughaigis. In short, I’ve had it a lot easier than Ms. Bughaigis, and her death reminds me that I should appreciate what we have in the United States–a relatively functional system that aspires to justice and that is designed to protect vulnerable people from harm. 

Ms. Bughaigis herself is similar to some of my clients. In fact, almost at the same time that Jihadist militants broke into Ms. Bughaigis’s home to kill her, I was sitting in an asylum office with my client, a woman attorney from Afghanistan who fears harm because of her work representing female victims of domestic abuse, forced marriage, and honor crimes. Other clients have included women who organized and operated girls’ schools and NGOs in Afghanistan, a female judge from Ethiopia, and women’s rights activists from the Democratic Republic of Congo, Eritrea, and Iran. Like Ms. Bughaigis, these women put themselves at risk to improve conditions for women and girls in their countries. I am thankful that our asylum system recognizes and protects such people.

Also, Ms. Bughaigis’s example demonstrates why asylum seekers should not always be penalized for returning to their home countries. Currently, if an asylee returns to her country, she can lose her asylum status in the U.S. After the Boston Marathon bombing, many politicians called for even greater restrictions on asylees returning to their home countries (because the accused bombers–who had asylum status in the United States–returned to their country before the bombing). The fact is, many people who are working for change in dangerous countries need asylum, but they also need to return sometimes to continue their political missions. Ms. Bughaigis’s case is axiomatic: She and her family left Libya due to death threats, but she returned to encourage others to participate in an election. The fact that she was brave enough and devoted enough to return does not negate the fact that she needed a safe haven outside of Libya.

Finally–and here I must admit to speculating–I can’t help but think that if Ms. Bughaigis had a chance to do it over again, she would do it the same way. She obviously believed so strongly in the future of Libya that she was willing to risk everything. She dreamed a beautiful dream, and she died in pursuit of that dream. This seems to me the definition of a life well lived. May she rest in peace.

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