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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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Michelle Malkin Is Right!

by Jason Dzubow on July 15, 2014

in Asylum Seekers, Immigration

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She got us. A recent article by anti-immigrant activist and daughter of immigrant parents, Michelle Malkin lays bare President Obama’s nefarious scheme to enrich immigration lawyers while filing our country with criminals, Muslims, and “Typhoid Marias.” Ms. Malkin states:

Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.

Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.

[L]eft-wing immigration lawyers and ethnic activists operate a lucrative industry whose sole objective is to help illegal aliens and convicted criminal visa holders evade deportation for as long as possible. Groups such as the American Immigration Lawyers Association, the Immigrant Legal Resource Center, and the American Friends Service Committee make their livelihoods off administrative bottlenecks.

How does she know about this? It’s almost as if she were a fly on the wall at my country club where she overheard me talking with my friends at AILA, ILRC, and AFSC about all the money we’ve been making since thousands of wealthy Central American children started arriving at the Southern border. Perhaps my friends and I were all speaking a bit too freely after having consumed a few bottles of Vosne-Romanee Permier Cru (1983). We will have to be more guarded in the future.

Frankly, though, as the father of two future Andover academicians with a yacht that won’t pay for itself, I’d like to know who let out our little money-making secret? Ms. Malkin gives us a clue. She writes, “Insiders have told me again and again over the years: ‘It ain’t over ‘til the alien wins.’” Who are these colloquialism-spouting “insiders” that tattled on us? One source seems to be a former law clerk from the Fifth Circuit (hence, ain’t) who, Ms. Malkin tells us, believes that Ms. Malkin is “absolutely correct” in her analysis: “immigration lawyers use the current system of endless appeals to make illegals essentially undeportable.” This clerk was also amazed that “illegal aliens, unlike American citizens, get TWO appeals as of right – one to the BIA and then another to the Circuit Court of Appeals.” I am not sure whether Ms. Malkin or the unnamed clerk emphasized TWO to show how amazed she/he was, but the emphasis was in the original article. I am also not sure how Ms. Malkin (or the clerk) got from “TWO appeals” to “endless appeals” in the same paragraph. Probably I was too busy counting my endless money to follow the logic (I made $2.00 today). Finally, I wonder who these poor Americans are who receive only ONE paltry appeal. My guess is that they are not before an administrative court (immigrants appear before administrative courts—the Immigration Court and the Board of Immigration Appeals or BIA), which usually allow for an administrative or inter-agency appeal and an appeal to a federal court (TWO appeals! Even for U.S. citizens! Ain’t that sumpin’?). 

Ah, but it only gets worse from there. Ms. Malkin even knows how we lawyers operate. She writes that the “legal tricks” for avoiding deportation include scams that would make Professor Harold Hill blush. Scams such as asylum (trouble!), cancellation of removal (Trouble!), and adjustment of status (TROUBLE! TROUBLE! TROUBLE!). Yes, we surely got trouble. I myself am a purveyor of that legal sleight of hand known as “asylum,” where we gather a type of snake oil known as evidence (which of late for my cases has included such gems as death certificates for close family members, medical reports about serious injuries, and letters from U.S. military commanders) and submit it to the Immigration Judge in the hope that our client won’t be deported to his death.

Ms. Malkin even knows about the “fraud-friendly U visa,” which provides a path to citizenship for “virtually anyone who applies.” All you need is to be the victim of a serious crime, the cooperation of law enforcement—who must submit signed documents on your behalf—and about three years of waiting. Then you too will gain residency based on a U visa. Easy peasey.

And then, of course, there are the “young illegal border surgers” who have been arriving along our Southern border like so many crazed teenage Beliebers. They too have a “plethora of litigation bites at the apple that will keep them in our country in perpetuity.” Lucky for them that they have such a plethora of options given that, historically, something like 97% of asylum claims from Central America and Mexico are denied. And lucky for us too—I can almost hear the coins clinking into my cup as these young Rockefellers pay my fellow attorneys and me for each delicious bite at that apple. Ka-ching!

Of course, none of this would be possibly without the complicity of the BIA, a bunch of “meddling activists” who Ms. Malkin tells us, “have the power to overturn deportation orders nationwide.” Never mind that less than 10% of Immigration Court cases are appealed and only about 11% of those are successful, or that—depending on the circuit court—between 5% and 30% of BIA decisions are overturned in federal court. It’s clear that the Mexican-loving hippies on the Board will stop at nothing to keep illegals in our country. And by the way, these endless appeals (ONE!) to the Board are earning big money for us lawyers. Why, my last BIA appeal alone paid for my oldest child’s college (in 15 years, assuming I can find a money market account that earns 88% per year; I’ll let you know).

In the end, I have no regrets. I suppose I could have taken the more honorable, but less lucrative path and worked as a political pundit, serving my country by courageously standing up to powerless immigrants and refugee children. Instead, I have chosen to make the big money by representing those immigrants and refugees. Believe you me, I am laughing all the way to the bank…

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The Jewish community around the world has recently been in mourning for the loss of three young Jewish men, kidnapped and murdered in the West Bank. Their bodies were found on June 30, more than two weeks after they were taken.

They are all our boys.

They are all our boys.

Israel blamed Hamas for the kidnapping and, since the three teens disappeared, has been engaged in a crackdown against the terrorist organization. For its part, Hamas did not claim credit for the crime, but praised the kidnapping. The event has sparked Hamas rocket fire from Gaza into Israel, retaliatory airstrikes, and the revenge killing of an Arab teen by Jewish extremists.

The discovery of the young men’s bodies also led to mass mourning within the Jewish community in Israel, around the world, and here in Washington, DC. Last week, 1,200 mourners attended a memorial service in suburban DC for the slain teens. Most of the attendees were Jews, but representatives of several local Christian communities were also present. All expressed solidarity with the family members and deep sadness at the loss of “our boys.”

Of course in times of tragedy, it is the nature of communities–even fractured ones like the American Jewish community–to come together to mourn and comfort one another. But this recent tragedy in my own community, and our response to it, has gotten me thinking about whether the way we mourn–and what events we choose to mourn–contributes to the problem of violence between communities. 

One area of concern for me is the us/them mentality of the Jewish community’s response (and obviously this is not unique to the Jewish community). The idea that there is an us and a them. Our expression of grief over the loss of “our boys” seems to me symptomatic of the problem. We grieve for “our boys,” but not for “their boys.” Maybe this is a trite point, but I can’t help but think about some of the people I have represented; people who have faced senseless losses as horrible as those suffered by the Israeli teens’ families.

For example, I am representing a Syrian couple whose newborn baby was asphyxiated by dust and poison gas during a battle. I also represented (successfully) an Iraqi mother who watched her son gunned down in front of her and in front of his own wife and young child. We recently attended an asylum interview for an Afghan man who saw dozens of his relatives and friends killed and maimed by a missile strike on a family wedding. There are no public memorials for these victims. No one even knows about their stories. Indeed, maybe because stories like these are so common in places like Syria, Iraq, and Afghanistan, no one pays much attention. But I have met all these people and heard their stories, so when I see the outpouring of grief for the three Israeli boys, it is difficult not to feel that the solitary suffering of my clients (and millions like them) is unfair and that failing to fully validate the humanity of such victims is unjust. Perhaps if we thought of people like my clients as “us” rather than “them,” we would be more willing to take action to help them (and that goes for all the unaccompanied minors arriving at our Southern border–what if we thought of these children as “our boys and girls”? How would our approach to them differ?).

Maybe I am hoping for too much here. How can we acknowledge so many losses? Why shouldn’t we honor and support “our own” before we deal with everyone else? I don’t know, but it seems to me if we could do better about recognizing the humanity and the value of “the other,” we would take a big step towards preventing future harm for everyone.

A second concern I have about my community’s response to the deaths is more about what we didn’t do. We mourned “our boys,” but not the Palestinian boy who was killed in a barbaric revenge attack by Jewish extremists. Israel quickly arrested the culprits and Prime Minister Netanyahu and many others have condemned the killing. These are obviously important steps, but it is a bit different than mourning the loss of the young Palestinian. Mourning the young man’s death is important not only because “our side” is responsible for his death and thus it reflects on us, as Jews, but also because we need to recognize the boy’s value as a human being.

Again, maybe it is asking too much–especially in the heat of conflict–for Israelis and Palestinians to mourn each others’ losses, but I believe that this is what we must do if we hope ever to end the violence. Indeed, family members of one of the Israeli boys and of the Palestinian boy have been in contact with each other, and some Palestinians and Israelis have been crossing the lines to offer condolences to each other. If people so close to these tragedies can see the humanity in each other, perhaps one day the rest of us will too.

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For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive “premium processing.” For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?

Waiting in line is a poor man's game.

Waiting in line is a poor man’s game.

There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.

First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and–at least based on my observation of the local office here in Virginia–we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created “short lists” where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.

So how would premium processing help?

Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients’ interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.

Of course, we don’t know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.

I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.

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Gay = Asylum?

by Jason Dzubow on June 19, 2014

in Asylum, Asylum Seekers

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A recent article in the Wall Street Journal (“WSJ”) posits that the number of gay and lesbian people receiving asylum in the United States based on their sexual orientation has surged in recent years and that most such people come from countries in Central America where homosexuality is not criminalized (as opposed to places like Ugandan, where loving the wrong person is a hanging offense). The article, by Joel Millman, concludes that LGBT asylum cases from Mexico and Central America are more likely to be granted than most other types of asylum cases from those countries.

More gay people than ever are fleeing persecution.

More gay people than ever are fleeing persecution.

Heaven forbid that I should agree with the WSJ (Slate certainly didn’t in a piece that pretty clearly misreads the Journal article), but the anecdotal and statistical evidence supports the notion that more people are seeking asylum based on sexual orientation and that those claims are often more likely to succeed than claims by other people from the same countries. But of course, as a certified curmudgeon, I cannot completely agree with the Journal piece, and indeed, I have a few points to take issue with. Then I’d like to pose a question: Is it really easier–as the WSJ claims–for LGBT applicants to obtain asylum in the United States?

First, the issues. To reach his conclusion that more LGBT people are seeking asylum, Mr. Millman relies on two main sources—statistics from the U.S. government and information from Immigration Equality, probably the premier LGBT asylum organization in the country.

As to the statistics, the government does not keep data on the number of people who receive asylum based on sexual orientation. As a rough proxy, the WSJ looked at the percentage of cases granted based on “particular social group” or PSG, the protected category most often used in LGBT asylum cases. The Journal found that as a percentage of total cases, the number of PSG cases has increased over the last several years (from about 12% at the end of the G.W. Bush Administration to 15.7% today).

I am not convinced that this metric tells us a whole lot about the number of gay asylum cases, however. Many people seek asylum based on PSG–gays and lesbians, victims of domestic violence, people fleeing gang persecution, victims of female genital mutilation, to name the most obvious–and so an increase in the percentage of asylum seekers relying on PSG does not necessarily mean that the number of LGBT asylum seekers has gone up. Also, concurrent with our country’s more liberalized approach to LGBT asylum claims, we have expanded protection for other categories of people who fall under PSG. So while the modest increase in asylum seekers relying on PSG supports the notion that LGBT claims are up, I don’t think this data is incredibly significant.

In my opinion, the anecdotal evidence for an increase in the number of LGBT cases is more convincing. According to the WSJ: “Last year, just one New York-based advocacy group, Immigration Equality, helped put 279 LGBT foreigners into the asylum process, a 250% increase from 2009.” That pretty well comports with what I’ve been seeing in DC and what I’ve heard from other lawyers, and so I believe the number of LGBT claimants is up, but by how much, we don’t really know (I have harped on this before, but this lack of reliable data again illustrates the need for better information about asylum seekers).

Another quibble with the article is the WSJ’s comparison of LGBT asylum seekers from Mexico and Central America, where homosexuality is not illegal and—in fact—where laws theoretically protect gay people, with other countries whose governments condemn homosexuality or make it illegal. The article notes that of the top 10 countries with the most PSG grants (where PSG is a proxy for LGBT), only three have laws against homosexuality. This all strikes me as basically meaningless. We receive many more asylum seekers from our own neighborhood, so there is no surprise that most PSG claims come from nearby countries. And while it is interesting that three distant countries (Kenya, Ethiopia, and Guinea) with anti-gay laws produce large numbers of PSG asylees, we have no way of knowing how many of these cases are LGBT; particularly since all three countries have high instances of female genital mutilation, which also falls into the PSG category.

The bottom line for me is that, while the increased number of PSG cases is consistent with an increase in LGBT claims, the statistics don’t really tell us much. But based on the anecdotal evidence and my own experience, it seems clear that more people than before are seeking asylum based on sexual orientation. Whether this constitutes a “surge” in LGBT claims, as the WSJ concludes, is debatable given the lack of data.

Finally, do LGBT claimants have an easier time winning asylum than others?

As the WSJ points out, an LGBT case from Central America is certainly more likely to succeed than the average case from the region. According to the Journal, Immigration Equality’s “success rate for closed cases [is] 98%, roughly quadruple the batting average of the typical asylum-seeker.” (Though I would be curious to know how they define “success” when they came up with this figure). Of course, many cases from Central America are based on gang persecution, which does not easily fit within a protected category for purposes of asylum. Since LGBT asylum seekers fall within a protected category–PSG–it is not surprising that they have a higher success rate than average. I would imagine that other cases where there is an obvious protected ground–like political cases, for example–are also much more likely to succeed than the average case.

Also, as the Journal points out, for LGBT asylum seekers, the likelihood of success is particularly high because country conditions are particularly bad. In our office, we see a decent number of LGBT asylum applicants, and they often have been subject to severe physical and psychological violence. So based on my own experience, the information in the WSJ piece rings true.

In the end, we don’t have the data to make a firm conclusion about how much “easier” it is for LGBT claimants to obtain asylum, but it seems likely that the success rate for such cases is higher than for many other types of cases. Given the threats and violence against gay people around the world, it seems to me that a high asylum grant rate is completely justified.

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The Border Problem, Solved

by Jason Dzubow on June 11, 2014

in Asylum Seekers, Immigration

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We’ve been hearing a lot lately about the dramatic increase of asylum seekers and unaccompanied minors at our Southern border. There is debate about what is causing the increase–violence and poverty in the home countries vs. lax enforcement and the relative ease of obtaining lawful status in the U.S.–and no one really knows for sure. Because we receive more migrants from the more violent Central American countries and less from the more peaceful countries, I think that dangerous country conditions are a significant “push” factor. This hypothesis is supported by a new UN report that found a 435% increase in the number of Guatemalans, Hondurans, and Salvadorans requesting asylum in other, more peaceful, Central American countries. The report also surveyed several hundred child arrivals and found that, for the majority, violence in the home country was a factor in their migration. On the other hand, because the uptick in arrivals in the U.S. is generally not correlated with an uptick in violence at home, I suspect that “pull” factors also play a significant role. The fact is, if you live in a violent, poor country, and you want to find a place where you can resettle, live safely, and build a life, the U.S. is probably your best bet (yes, Canada is nice too, but it’s a bit far).

For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.

For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.

Regardless of the reasons behind it, the surge of people arriving at our Southern border has created real problems for the asylum system and for all applicants, many of whom are facing long, seemingly indefinite, delays. The influx is also problematic because large numbers of young people are making the dangerous journey North to the United States. This journey puts them at risk of physical and sexual harm, it separates families, and it provides income to the criminal organizations that smuggle people to the U.S. (often the same organizations involved in the drug trade). Indeed, the criminal/smuggling organizations apparently contribute to the influx (and their own bottom line) by encouraging people to make the journey.

So what can be done about the situation? And–more specifically–what can be done that discourages primarily economic migrants, but that also protects legitimate refugees and preserves our asylum system for those who need it? Also, can anything be done to make the journey safer and to cut criminal/smuggling organizations out of the process? 

The UN report provides some recommendations: International actors should pay more attention to the protection needs of child migrants, we should increase our capacity to deal with child arrivals and work together with other nations to address the needs of these children, and we should work to reduce or eliminate the factors leading to forced migration. While the report’s findings are very valuable (this seems to be the first time any large scale study bothered to ask the migrants themselves why they are coming here), I don’t find the recommendations particularly satisfying. It is always easy to say we need more attention and more resources to reduce a problem, but who will pay for this? And how do we build a public consensus to bring more immigrants here and pay for them? Also, to say that we should address root causes seems obvious, but how?

Perhaps a better solution would be to create Refugee Processing Centers in Mexico and Central America. Not only would this cut the smugglers out of the picture, deprive criminal/smuggling organizations of income, and greatly reduce the financial incentive for these organizations to encourage more migration, it would also curtail the need for young people to make the perilous journey North.

For this to work, we would have to end all refugee processing at the border. Anyone who arrives at the border (or who enters unlawfully and then seeks asylum) would be sent to a refugee processing center in, say, Mexico. In order to encourage people to go directly to the processing centers (instead of the border), people who go to the border first would be given a lower processing priority than people who arrive directly at the centers. A side benefit would be that legitimate refugees would no longer be arriving at the border; this would allow the Border Patrol to focus on illegal entrants.

There are obviously logistical issues to work out, for example: Where do we house people–including children–who are waiting? How do we share the burden with other countries in the region? Would other countries be willing to resettle some refugees (according to the UN report, they already are). Despite the obstacles, it seems to me that this would work better than the non-system that we currently have.

The estimated budget for resettling unaccompanied minors in 2015 is over $2 billion, and this does not even count the cost of dealing with adults who arrive without permission. If trends continue (which hopefully they won’t), our current system will fall apart. We need creative solutions; solutions which–hopefully–will reflect our humanitarian obligations and ideals, protect children, put smugglers out of business, and keep our border secure. De-coupling refugee processing and border enforcement may be one way to accomplish these goals.

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The number of unaccompanied children arriving at the Southern border has increased 92% from the same period last year, reports the New York Times

Administration officials said 47,017 children traveling without parents had been caught crossing the southwest border since [October 1, 2013]. Most are coming from three Central American countries: El Salvador, Guatemala and Honduras…. [There has also been] a spike in the numbers of girls and of children under 13 years old — including some barely old enough to walk.

DHS's new border drone, designed specifically to intercept unaccompanied minors.

DHS’s new border drone, designed specifically to intercept unaccompanied minors.

President Obama called the situation a “humanitarian crisis,” which it clearly is, and on Monday ordered FEMA to coordinate a response among several government agencies. The response will include providing food and shelter for the children, searching for relatives in the U.S., and adjudicating cases in Immigration Court. In addition, immigration enforcement agents are working to disrupt criminal smuggling networks and to dissuade potential migrants by broadcasting public service messages warning of the dangers of the journey. All this comes with a hefty price tag, of course, and the President has requested an additional $1.4 billion to deal with the crisis.

The response from advocates on both sides of the issue has been predictably predictable.

“This is a humanitarian crisis born out of the growing violence in Central America,” said Bishop Eusebio Elizondo of Seattle, chairman of the migration committee of the United States Conference of Catholic Bishops. “These children are refugees who deserve the protection of our nation. They should not be viewed as lawbreakers.” Similarly, an Obama Administration official stated that the surge was driven primarily by conditions in Central America, including deepening poverty, an increase in sustained violence, and by many youths’ desires to reunite with parents in the U.S.

On the other side, the indefatigable Republican chair of the House Judiciary Committee Robert W. Goodlatte opined, “Word has gotten out around the world about President Obama’s lax immigration enforcement policies, and it has encouraged more individuals to come to the United States illegally, many of whom are children from Central America.”

As to the argument that the surge is a result of increased violence in Central America, the (admittedly limited) data does not exactly bear that out. According to the latest information from the UN, between 2008 and 2012, homicide rates increased dramatically in Honduras, but actually fell in El Salvador and Guatemala. More recent data for El Salvador suggests that murder rates continued to decline in 2013, but by the end of the year–when a truce between two large gangs fell apart–began to increase. On the other hand, a recent report that attempted to parse out the effect of violence and corruption on migration found some correlation between increased violence and increased migration (other major factors affecting migration include the age of the migrant and her connection to friends and family who have already immigrated). At least for people coming from Guatemala and El Salvador, there does not seem to be an obvious correlation between increased violence and increased migration.

On the other side of the debate, Rep. Goodlatte argues that lax immigration enforcement is serving as a “pull,” which incentivizes young people to come to the U.S. Given that President Obama has deported more people than any other president, Rep. Goodlatte’s claim is, well, ridiculous.

So if it is not increased violence or lax enforcement, what is causing the surge in unaccompanied minors?

The short answer is, I don’t know and neither does anyone else. However, if I had to guess, I’d say that the main reason is that undocumented young people who reach the U.S. have a good chance of obtaining lawful status (through the Special Immigrant Juvenile program, asylum, T visas, etc.). As word of this has gotten out, more people come here. In other words, there is a strong “pull” factor at play for many migrants. Now don’t get me wrong, there are also very powerful push factors, with gang and cartel violence at the top of the list. Also, the fact that the journey here–especially for unaccompanied minors–is very dangerous, reduces the “pull” factor to some degree. The bottom line is, we don’t really know and we need more data about why young people are coming here.

One way to obtain this data–and I suppose this is a radical solution–is to ask the people who have come here. I imagine they know why they made the journey, and if asked, most of them will tell us. Another method is to make public and accessible statistical data about the number of people coming here, where they are coming from, what types of relief they are seeking, and the outcomes of their cases. Such data can be correlated with information about crime and violence in the sending countries, and this might give us some insight into the reasons behind the migration. With such information, we will be better able to make more appropriate policy choices and hopefully reduce the number of children coming here.

Obtaining better data should (I think) be pretty easy, and either Congress or the President could make it happen. The Executive Branch publishes some immigration data, but it is difficult to access and very incomplete. I really do not understand why DHS and DOJ don’t do a better job of organizing and presenting statistical information about immigrants. And if they won’t act, Congress could. But for all his huffing and puffing, Rep. Goodlatte has thus far shown little desire to improve the situation, and seems interested only in political hyperbole. Perhaps if he could muster some maturity and actually take some concrete steps, we might move closer to understanding what is going on. And, as they say, knowing is half the battle.

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A convicted sex offender who fled the United States to escape her 30-year prison sentence has been granted protected person status in Canada.

Canadian boys celebrated the decision in Ms Harvey's case.

Canadian boys celebrated the decision in Ms Harvey’s case.

In August 2008, Denise Harvey was convicted in a Florida court for having sex with a 16 year-old boy–a friend of her son’s. After refusing a plea deal for 11 years, Ms. Harvey went to trial. She was convicted and sentenced to 30 years in prison. While her appeal was pending, she remained free on $150,000.00 bond. In 2010, when it became clear that the appeal had failed and that she would have to report to prison, Ms. Harvey fled to Canada.

She crossed the border and moved to Saskatchewan with her husband. They settled in a small community outside Saskatoon.

The Law caught up with Ms. Harvey in April 2011, when Canadian authorities arrested her. Later that month, she appeared before an Immigration and Refugee Board (“IRB”) adjudicator and was released on a $5,000.00 bond. Ms. Harvey requested “protected person status” and claimed that the 30-year sentence was cruel and unusual. She noted that her crime–having consensual sex with a 16-year old–was not illegal in Canada.

The IRB agreed that the sentence was cruel and unusual and granted Ms. Harvey protected person status. To obtain protected person status, an applicant must show that returning to the home country would subject the person to torture, cruel and unusual punishment or death. No nexus to a protected ground is required. People who received protected person status are eligible to apply for permanent residency and eventually obtain Canadian citizenship.

The Minister of Citizenship and Immigration, Chris Alexander, appealed the IRB ruling on two occasions, but Ms. Harvey’s protected person status was finally upheld last month. The Minister commented:

I find it mind-boggling that individuals from the United States, which has been designated a safe country, precisely because it respects human rights and does not normally produce refugees, think it is acceptable to file asylum claims in Canada. Lucky for them, they have no understanding of what true persecution is, and what it means to be a genuine refugee.

I am not sure that Ms. Harvey would agree with him. And luckily for her, the Canadian courts did not agree with him either. I suppose this highlights the old trope that no country is safe for everyone all the time (and indeed, even in the United States, Ms. Harvey is not without her supporters. In her home community of Vero Beach, Florida, 2,000 people–more than 10% of the total population–signed a petition requesting that Florida’s governor pardon her).

As for me, I must agree that a 30-year sentence for consensual sex with a 16-year-old boy is a bit over the top. Of course, reasonable people can differ about this, but the Canadians (and who is more reasonable than the Canadians?) have not even criminalized this behavior. Also, there is no indication that the victim suffered particular trauma as a result of the “unlawful sexual activity.” If there was evidence that he had been traumatized by Ms. Harvey’s conduct, then the punishment might be more easily justified.

While I agree with the result, the IRB decision does leave some unanswered questions: Would the decision have been the same if the perpetrator was a man and the victim was a 16-year-old girl? What if the sentence had been less severe? Does Canada plan to offer protected status to every U.S. citizen convicted for a crime that is not punishable in Canada? Does it plan to evaluate each U.S. sentence to determine whether it is “cruel and unusual”? The death penalty has been eliminated in Canada, so if a U.S. citizen facing the death penalty reaches Canada, will he be offered protected status?

The Canadians may have to deal with these issues in future cases, but Ms. Harvey’s case is relatively easy. The sentence is so excessive and the crime so seemingly minor that Ms. Harvey appears deserving of protection. Only time will tell if other convicted criminals will follow Ms. Harvey’s lead. If so, it will be interesting to see how the Canadian authorities respond, and if the U.S. government takes offense.

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A new book by Pulitzer-Prize winner Kai Bird claims that the Iranian intelligence officer behind the 1983 bombing of the U.S. embassy in Beirut–and many other terrorist attacks–received asylum in the United States. Among those killed in the 1983 attack were the CIA’s top Middle East analyst, a “good spy” named Robert Ames, who purportedly cultivated friendly relations with Arab leaders. Mr. Bird speculates that had Robert Ames lived, the U.S. would have had a different, better relationship with the Arab World.

Use of correct terminology is always appreciated.

Use of correct terminology is always appreciated.

According to The Good Spy: The Life and Death of Robert Ames, the CIA and President Bush brought Ali Reza Asgari, the terrorist responsible for the 1983 attack, to the United States in 2007. He came here in exchange for information about Iran, Hezbollah, and other U.S. rivals in the Middle East. This intelligence supposedly led to the assassination of Hezbollah’s number two man and the bombing of a secret Syrian nuclear facility, among other things. 

Like many people who review books, I have not actually read The Good Spy (though it certainly sounds delightful). In my defense, I don’t really plan to review the book. I just want to talk about one word used by Mr. Bird: Asylum. Mr. Bird writes (and here I quote the book):

The decision to give Asgari political asylum under the CIA’s Public Law 110 program was probably opposed by veteran CIA officers who have some knowledge of Asgari’s alleged responsibility for Roberts Ames’s murder…. But they and the agency were reportedly overruled by the George W. Bush administration’s National Security Council.

The emphasis is mine. If Mr. Asgari did, in fact, come to the U.S. under the Public Law 110 program, he did not receive political asylum. Aliens in the United States who fear persecution in their home countries can apply for asylum under INA § 208 (also known as 8 U.S.C. § 1158). Public Law 110, on the other hand, appears at 50 U.S.C. § 403h:

Whenever the Director [of the CIA], the Attorney General, and the Commissioner of Immigration and Naturalization shall determine that the entry of a particular alien into the United States for permanent residence is in the interest of national security or essential to the furtherance of the national intelligence mission, such alien and his immediate family shall be given entry into the United States for permanent residence without regard to their inadmissibility under the immigration or any other laws and regulations, or to the failure to comply with such laws and regulations pertaining to admissibility.

In other words, if certain high-ranking leaders in the U.S. determine that a terrorist should be allowed to live in the U.S., the terrorist will be allowed to live in the U.S. But this is usually a quid pro quo and has nothing to do with asylum or the asylum system. Indeed, given his terrorist activities, Mr. Asgari would not be eligible for asylum, as he would be subject to numerous bars under INA § 208(b)(2).

Maybe this is a small point, but I think it is important. Mr. Bird’s book is attracting widespread attention–everyone from Newsweek to Glen Beck’s blog, the Blaze is carrying the story–and it is unfortunate that these outlets are repeating Mr. Bird’s error. The asylum system is already under assault by those who claim it is an entryway for terrorists and criminals, and so Mr. Bird’s incorrect use of the term has unfairly impugned a system that protects thousands of legitimate refugees and that has been specifically designed to block people like Mr. Asgari.

While colloquially, we might label anyone who fears harm and who is admitted into the United States as having received “asylum,” this is simply incorrect, and it damages the asylum system to taint it with association to the likes of Mr. Asgari. I am not saying that Mr. Asgari should not have been brought to the United States. Perhaps the intelligence he provided was worth allowing a mass murderer to resettle in our country. But he came to the United States because our elected officials determined that bringing him here was the best course of action for our country, not because he qualified or was eligible for asylum.

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That Pesky Nexus

by Jason Dzubow on May 13, 2014

in Asylum, Asylum Seekers

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To receive asylum in the United States, an applicant must show not only that he faces persecution in his home country, but that the feared persecution is “on account of” a protected ground (race, religion, nationality, particular social group or political opinion).

GW law students react to Todd and my appointment to the adjunct faculty.

GW law students react to Todd and my appointment to the adjunct faculty.

This means that if MS-13 gang members want to kill you because you refuse to join the gang, you probably won’t qualify for asylum. On the other hand, if the Ethiopian government wants to detain you for a year because you attended an anti-government protest, you probably will qualify. To me, the regime created by the nexus requirement seems incongruous and unjust.

I’ve seen this play out in many of my cases, where we often have to shoehorn our client’s claim into a protected category. For example, Eritreans who flee the National Service (really, a form of never-ending slavery) would not ordinarily receive asylum since the (very serious) harm they face for trying to escape is not generally “on account of” a protected ground. One strategy to help such people obtain asylum is to show that the Eritrean government views them as enemies. In other words, that it imputes to National Service evaders an anti-government political opinion. Sometimes this works; sometimes it doesn’t. But the question is, why do we have an asylum system that forces us to contort legitimate claims so that they fulfill the nexus requirement?

This is essentially one of the questions that my esteemed co-professor Todd Pilcher and I asked our students on their final exam. As an aside, this was the first year that either of us taught a law school course (Asylum and Refugee Law at George Washington University Law School). Even having practiced primarily asylum law for the last 10 years, it was amazing how much I learned by teaching this class. I also learned that it is better not to know what goes on behind the scenes with grading. Suffice it to say that as a mere adjunct professor, we had quite a bit of power to grade as we wished; more power, actually, than we were comfortable with (but on the bright side for our students, despite a killer exam–sorry about that–they did very well).  

But back to the nexus requirement. In theory, it exists because it reflects our values. We care about political expression and the exercise of religion, and so we protect people who face persecution on those grounds. In reality, it exists because some Dead White Men created relatively arbitrary categories that seemed appropriate in the post-WWII world. So–as we asked our students–would we be better off without it?

The students were split in their responses, and obviously reasonable people can differ (though of course we flunked everyone who disagreed with us).

For me, the nexus requirement is an arbitrary way to limit the number of people eligible for asylum. That the nexus requirement has worked so well in this regard is more an accident of geography than anything else. It just so happens that the main reasons people from Mexico and Central America flee their countries are not reasons that easily fulfill the nexus requirement (fear of gangs and cartels). Imagine if we lived next to China, where many refugees face political persecution (or persecution for forced family planning, which is considered political persecution under U.S. asylum law). Or what if we lived next door to Iran or Afghanistan, where people flee due to religious persecution. The nexus requirement would do little to stem the flow of refugees from those places.

So if we eliminated the nexus requirement, how could we keep from being overwhelmed by asylum seekers?

The first question, I suppose, is, Would we be overwhelmed by asylum seekers if we gave asylum to everyone who faces persecution irrespective of nexus? Certainly the number of people eligible would go up. And we have seen that asylum seekers respond to policy changes (witness the surge of credible fear interviews at the U.S.-Mexico border). So it certainly seems possible that the number of asylum seekers would increase, but by how much, no one can say. If I had to guess, I would say that the increase would not be as dramatic as we might imagine. Why? Because asylum seekers who want to come here will come here and try for asylum regardless of the odds. Just because you have a one in ten million chance of winning the lottery does not mean you won’t play. So while I suspect that if the nexus requirement were eliminated, more people would be incentivised to come here, I am not sure how many would actually change their behavior and make the trip.

There are, of course, other ways to limit the number of asylum seekers. One way is to change the level of proof. Instead of a 10% chance of future persecution, how about a 50% chance or a 75% chance. While this would reduce the number of people qualifying for asylum, it would also result in legitimate refugees being returned to countries where they face persecution. Also, given the arguments above, I doubt it would do much to actually reduce the number of people coming here for asylum.

Another option would be to resettle anyone qualifying for asylum to a third country. In other words, if a person wins asylum in the U.S., she will be resettled in Argentina. While this would likely reduce the number of people seeking asylum here, I doubt whether many other countries would agree to such a scheme. Also, I imagine there would have to be some sort of reciprocity, so if people were granted asylum in Greece, for example, they might be resettled here. While this plan eliminates some of the incentive for seeking asylum in the U.S., I just don’t see how it could work in the real world.

In the end, the nexus requirement is not going away anytime soon. I do think it is helpful and important to recognize, however, that the requirement really is quite arbitrary. It would do far less to limit the number of asylum seekers if we lived in a different part of the world or if conditions in our neighborhood changed. But for the foreseeable future, we lawyers will continue looking for ways to fit our clients’ cases into one of the protected categories.

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Where Cato Gets It Wrong on Asylum

by Jason Dzubow on April 30, 2014

in Asylum, Immigration

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The Cato Institute’s Alex Nowrasteh recently published a piece in the Huffington Post called Saving the Asylum System. The title accurately reflects the author’s point, and of course I agree that our asylum system should be preserved (and–really–cherished). But where Mr. Nowrasteh gets it wrong, I think, is his analysis of the problem.

Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.

Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.

The “fundamental problem” according to Mr. Nowrasteh is that intending economic migrants who arrive illegally at the border and get caught are requesting asylum as a way of gaining entry into the U.S. to work. He views this as an “unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.” He posits that “creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system [would remove] the incentive for some of them to make dubious asylum claims.”

Cato is a Libertarian think tank, and Mr. Nowrasteh’s proposal is a Libertarian solution (free flow of labor and all that).

Before I respond, I must admit to a certain prejudice against Libertarianism in general. To use a fancy law school word, I find the whole philosophy jejune. It seems perfectly fine for high school juniors with Ayn Rand fantasies, but I feel it fails utterly in the real world. In other words, to me, “Libertarian think tank” is an oxymoron. On the other hand, I have some good friends who are staunch Libertarians, and sometimes they even give me free cigars (though I suppose this must be in exchange for some utility they get from my company–or maybe they just hope I die from lung cancer). So perhaps I am being a bit too harsh. Anyway, the point is, it’s only fair to put my prejudice on the table before I respond.

That said, I think that Mr. Nowrasteh is simply wrong that most–or even a significant portion–of asylum seekers are economic migrants. To be sure, asylum seekers come to the U.S. (as opposed to Namibia, for example) because they can settle here, get  a job, and build a new life. But this does not make them economic migrants in the normal sense of the phrase. Economic migrants are not fleeing their country because their life or freedom is threatened; they are leaving for a better job.

Stated another way, with all immigrants (including asylum seekers) there is a push and a pull. For refugees, the most important “push” factor is a threat to life or freedom in the home country. For economic migrants, the push is a bad economic situation. The pull for both groups is freedom, opportunity, peace, the ability to gain acceptance, and all the other tangibles and intangibles of “America.”

So why do I think that most asylum seekers are not economic migrants who file fraudulent asylum claims in order to circumvent immigration restrictions?

The main reason, I must admit, is anecdotal. I have represented hundreds of asylum seekers, and while I have suspicions about the motivations of some clients, most clearly face threats in their home countries. Also, many of my clients held good jobs in their home countries and they are unlikely to achieve the same level of success in the United States (due to language barriers, lack of transferable skills, etc.).

Another reason I believe that asylum seekers are not mere economic migrants is because countries that produce large numbers of asylum seekers have widespread human rights problems. The source country for the most asylum seekers in the U.S. is–by far–China. Of late, China has produced between 20 and 25% of affirmative asylum cases and a whopping 45% of defensive asylum grants in FY2013. China has a repressive government and–probably more importantly for purposes of this discussion–Congress passed a law to provide asylum to victims of forced family planning, and these people come almost exclusively from China. While the U.S. economy provides more opportunities than China’s, the repressive nature of the government combined with a special law to help Chinese asylum seekers suggests that asylum applicants from China are more than just economic migrants–they are refugees.

A possible counter argument here is that the increase in credible fear applicants, who have lately been overwhelming the asylum system, comes from people arriving from Mexico, Guatemala, Honduras, and El Salvador, which all have very low asylum grant rates. There are two reasons why I think this argument fails, however. First, many people seeking asylum from these countries face severe threats and persecution from gangs and cartels, or from crime and domestic violence. Such people are genuinely afraid (for good reason), but they rarely qualify for asylum since they cannot show that the feared harm is “on account of” a protected ground. Second, all these countries are very violent places. The less violent countries in the region–Belize, Costa Rica, Nicaragua, and Panama–have weak economies compared to the U.S. (especially mi país Nicaragua, which is the poorest country in the Western Hemisphere aside from Haiti). If Mr. Nowrasteh’s theory is correct, we would expect these countries to be sending us comparable numbers of (fraudulent) asylum seekers, but they are not. To me, all this supports the notion that people leaving the region and seeking asylum in the U.S. are driven more by a fear of harm than by the desire for a better job.

So in the end, while I am happy that the Cato Institute is thinking creatively about ways to preserve our asylum system, I am not convinced by their analysis. While a guest worker program (especially for Mexico and Central America) might marginally reduce the number of asylum seekers, the overlap between refugees and economic migrants is pretty minimal. If we want to reduce the number of asylum seekers at our Southern border, we should spend more time supporting good governance in the region and less time meddling in our neighbors’ affairs.

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If you are an attorney or an immigrant with a case before the Immigration Court, you’ve probably noticed that the computer system has been down for almost two weeks. The phone system for checking case status is not working, and there are all sorts of problems at the courts and the BIA. Apparently, the cause of these difficulties is that some servers in Fairfax, Virginia are broken and cannot easily be repaired. No one seems to know why this happened, and EOIR (the Executive Office for Immigration Review) is not telling us much. The EOIR website says only that they are experiencing a “hardware failure.”

EOIR computer techs are working day and night to solve the problem.

EOIR computer techs are working day and night to solve the problem.

As a public service, I have decided to step in and fill this information gap with unfounded speculation. I figure that if I take the time to write something down, people might as well believe it. So to all those waiting for the system to start up again, take comfort. I present to you the top 10 reasons that the EOIR computers are not working:

10. Juan Osuna forgot to pay the electric bill.

9. The Y2K bug finally kicked in. 

8. The computer shut itself down after it played 35 million games of tic-tac-toe and learned that it is impossible to “win” a removal case. 

7. It is getting more and more difficult to find new vacuum tubes and punch cards.

6. Once the computer calculated that the average time to the next hearing exceeds the life expectancy of the average respondent, it decided there was no point and turned itself off.

5. Everyone who signed up for Obamacare has accidentally been deported.

4. Someone asked the computer to figure out how the Asylum Clock works, and it blew up.

3. Joe Arpaio arrested the computer for helping “illegals” remain in the U.S.

2. If you build a 500 gigabyte computer, someone will file a 501 gigabyte case.

1. Everyone who knows how to fix a computer has already been deported.

There you have it. Some of these explanations may even prove to bear a relationship to reality. If so, remember that you heard it here first.

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