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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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The sister of my asylum-seeker client recently got an unpleasant surprise from the U.S. Embassy in her country. The sister is a prominent journalist who had come to the Embassy several times (at the Embassy’s request) to brief U.S. diplomats on the situation in her country. She and her family members held B-1/B-2 visitor visas to the United States. A few weeks ago, the consular section called and demanded that the sister appear for a visa “re-interview.” When she asked for a one-day delay due to a previously-scheduled medical appointment for her child, she was refused.

The sister dutifully arrived at the U.S. Embassy, where she was kept waiting for two hours. Finally, the consular officer met with her and informed her that her visitor visa was being revoked because her sister (my client) was seeking asylum in the United States. The sister, of course, objected, noting that she had the visa for some time but had not used it. Also, she explained that she had been meeting with Embassy officials to discuss the situation in her country, at some risk to herself. All this was of no avail, and the sister’s visa was revoked. To add insult to injury (and without any evidence), the consular officer accused the sister of wanting to move to the United States so her husband could get a better job and make more money.

The US Embassy proves that it's not just the NSA that can damage our diplomatic relations.

A U.S. consular officer proves that it’s not just the NSA that can damage our diplomatic relations.

On her way out, the sister ran into a local Embassy employee who she had befriended during her two hour wait. When the employee learned what happened, he told the sister that the Embassy had been revoking visas for people whose family members were seeking asylum in the United States.

Before her sister went to the re-interview, my client called me to tell me what was happening. I suggested that her sister speak to her contacts at the Embassy. Her contacts are (presumably) in the diplomatic or public affairs sections of the Embassy, not the consular section, and they told her that there was nothing they could do.

So it seems that a person who had been a useful contact for our country, and who is an up-and-coming journalist, was insulted, embarrassed, and had her visa revoked, all because her sister has a pending asylum case in the United States. For most relatives of asylum seekers, that would be the end of the story. But in this case, since the sister is somewhat high-profile, the matter worked its way up the chain to higher ranking diplomats, who were apparently quite upset at the doings of their brethren in the consular section. There is now an effort underway to re-issue the visa, but the outcome is far from clear, as officers in the diplomatic and public affairs sections do not have authority over the consular section (and heaven forbid that one section would work in concert with another).

As best as we can tell, when my client filed her asylum application, the consular section was not alerted. But when she applied for her work permit (after the application had been pending for 150 days due to the asylum backlog), the application for an employment document triggered notice to the consulate, which was (somehow) aware of her sister. The visa was then revoked.

This is not the first time that one of my clients’ family members had trouble as a result of an asylum application. I wrote previously about two clients–spouses of asylum seekers–who had their visa applications denied because of their spouses’ asylum applications. In those cases, I was more concerned with the breaches of confidentiality (the consular section informed the spouses that their visas were being revoked because of their spouses’ asylum claims; the problem is that in some cases, people seek asylum because of persecution by a family member, so informing the relatives of the asylum applications was a breach of confidentiality).

For me, the take-away from all this for asylum applicants and their family members is that family members may be denied non-immigrant visas or have their visas revoked once the consulate learns about the asylum application. But maybe the more interesting question is, how should the consulates deal with family members of asylum seekers?

The easy answer (and the one I prefer) is that consulates should not be informed about the asylum applications in the first place, and if they are informed, they should take no action against family members (and they certainly should not violate confidentiality). Asylum is a humanitarian form of relief and people (or their family members) should not be penalized for pursuing legitimate claims.

The counter-argument, I suppose, is that consulates are required to determine whether applicants for non-immigrant visas are actually intending immigrants, and the behavior of relatives may be relevant to that determination. One problem with this argument, at least in the cases I’ve mentioned, is that there was always pretty good evidence that the family members were not intending immigrants. The visas were denied or revoked anyway, seemingly solely because a relative had filed for asylum. Another problem with this argument is that all my clients’ asylum cases were legitimate (two were granted and one is pending). I can more easily understand the consulates revoking or denying a family member’s visas where their relative has filed a fraudulent claim. But that is not the situation in any of the cases I’ve discussed.

As things now stand, asylum seekers in the U.S. face a sort-of Sophie’s choice: Save myself and the family members in the U.S. with me, but sacrifice my relatives who are trying to get visas. I don’t see how this comports with the spirit of our international obligations, or with any notion of morality. It seems naive to imagine that this policy of excluding family members of asylum seekers will be discontinued anytime soon, but maybe if the consular sections continue to act contrary to the diplomatic sections, as happened to my client’s sister, there will be some pressure to behave a bit better. For the sake of diplomacy and human rights, I hope so.

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The Center for Immigration Studies (“CIS”) is a restrictionist immigration group with which I rarely agree (though they did recently call me a babe, which I certainly appreciate). In a new report, Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled, CIS Fellow Dan Cadman argues that it has become easier to obtain asylum in the U.S., and as a result, more aliens–including dangerous aliens and aliens with false asylum claims–are coming to the United States and using the asylum system to gain entry into our country.

If I were a president, CIS thinks I would be Babe-raham Lincoln.

If I were a president, CIS thinks I would be Babe-raham Lincoln.

The CIS report makes a number of findings and recommendations, and if you are interested in this subject, it’s worth a read (and if you are not interested in this subject, why the hell are you reading my blog?). Today, I want to talk about the report’s main recommendations. We’ll go through them one by one:

(1) Congress must take steps to legislatively curb the propensity of courts to grant protections to aliens who are members of, have participated in, or have materially supported heinous criminal organizations or insurgencies… if those organizations systematically victimize others. This can be done by amending current language that limits the persecutor bar only to those who persecute under the five designated grounds, or by adding supplementary language to establish victimization of others with the purpose of furthering unlawful objectives as a bar to asylum or refuge.

Who can argue with blocking persecutors and criminals from entering the United States? (Anyway, we have enough of our own already–I’m talking to you Dick Cheney). And CIS is correct that the persecutor bar only blocks people who persecuted others based on one of the five protected grounds (race, religion, nationality, particular social group or political opinion). This is almost as bizarre as granting asylum only to people who face persecution based on one of the five protected grounds.

Overall, I don’t really have a problem with this recommendation, except for the fact that it is totally unnecessary. The persecutor bar is not the only bar to asylum. Anyone who committed (or who the U.S. has reason to believe committed) a serious non-political crime is barred. Ditto for anyone where there are reasonable grounds to believe that the person is a danger to the security of the United States. These are mandatory bars for asylum and withholding of removal. So while there is nothing wrong with CIS’s proposal, it’s hard to imagine how it would actually change anything–all the people it seeks to block are already barred under other provisions of the statute.

(2) Congress must roll back the recently-issued “Notice of Determination” promulgated by the administration with relation to terrorism and material support waivers.

I’ve already discussed this issue pretty extensively here. In short, the only people who benefit from this change are those who provided support to terrorists where that support was coerced or unknowing. In other words, people who are innocent, and who, in many cases, are actually victims of those terrorists.

(3) DHS (and, failing its action, Congress) must immediately institute a mandatory program of routine audits of a percentage of both credible fear findings, and formal asylum grants — perhaps an across-the-board 10 percent of all cases — as a method of detecting fraud and ensuring appropriate findings of credibility, and approval of asylum cases.

This is an intriguing idea about how to stop fraud, but I don’t think it would be particularly effective. I’ve always felt that the most cost-effective way to fight fraud is to go after the attorneys and notarios who commit fraud. Randomly auditing cases probably won’t deter fraudulent applicants–they already face scrutiny from decision-makers, so what’s one more level of review going to do?

Perhaps one way to refine CIS’s idea would be to select certain applicants for a more extensive interview or court process (rather than a separate audit). This might involve consular investigations or contacting overseas witnesses, more extensive questioning of the applicant, verifying the applicant’s employment and education, etc. Applicants could be selected randomly or–better yet–selected based on an initial evaluation of the likelihood of fraud. While I still think it makes more sense to attack the source of the problem (the attorneys and notarios who facilitate fraud), subjecting suspicious (or random) cases to increased scrutiny might deter some people from making false claims.

(4) The prosecution of asylum (or refugee) fraud and misrepresentations [should be made] a priority.

Again, I think it would be more cost-effective to prosecute the lawyers and notarios who create fraudulent cases, but I have no problem with prosecuting asylum applicants who commit fraud. The problem is, such cases are difficult to prosecute given the high burden of proof (beyond a reasonable doubt) and the difficulty of obtaining evidence against the alien who faked his case. Such evidence is especially difficult (and expensive) to obtain when it comes from overseas.

(5) Congress should amend the INA to provide that refugees and asylees will only be entitled to apply for conditional residence after a year in status, and not eligible to apply for adjustment to full lawful permanent resident status until after three years…. Although the three years of conditional residence does not eliminate fraud, it acts as a levee against an overwhelming volume of fraud while at the same time permitting government officials additional opportunities to further examine the bona fides of cases before immediately granting resident alien status.

I guess I really don’t see the point of this suggestion. As things now stand, an alien who gets asylum can apply for a green card after one year. At that time, USCIS often re-considers the alien’s asylum case. For example, many Ethiopians who received asylum based on membership in a certain political opposition party have had their green cards held up (sometimes for years) due to the party affiliation (and the party’s possible relationship to an armed guerrilla group). Sometimes their asylum cases are reopened. Once an asylee gets her residency, she can apply for citizenship after four more years. At that time, USCIS often examines the bona fides of the asylum application again. Indeed, even after an alien obtains citizenship, a fraudulent application can haunt him. I recently met an Afghan man whose citizenship was revoked due to fraud. He is currently in removal proceedings. The point is, USCIS has plenty of opportunities to re-examine an asylum claim. I don’t see how one more opportunity will make much difference.

(6) Each application for adjustment of status filed by an asylee or refugee should, prior to adjudication, include careful consideration of whether there are changed conditions that merit denial of adjustment and termination of asylee or refugee status.

This seems pretty similar to # 5, above. Perhaps it also refers to changed country conditions that now make it safe for the alien to return home. I suppose USCIS could use any of the opportunities discussed above (application for green card or citizenship) to re-evaluate country conditions. But country conditions rarely change too much, and so I doubt this would result in many asylees being sent home.

(7) Congress should amend the INA to provide that return to the ostensible country of persecution, however briefly, by a refugee or asylee at any time prior to adjustment to full lawful permanent residence shall be deemed prima facie evidence that the individual is not entitled to such status, and require him to be placed into removal proceedings.

This idea was much discussed after the Boston Marathon bombing. The alleged bombers were derivative asylees, and they visited the home country prior to the bombing. In fact, as the law now stands, asylees who return home can lose their status. Indeed, even after an asylee becomes a lawful permanent resident, she can lose her status if she returns home (I wrote about this here). Return to the home country does not automatically cause an alien to lose status, as there are sometimes legitimate reasons for going back, but anyone who returns as an asylee or an LPR risks being placed into removal proceedings. Because this law already exists, CIS’s suggestion here seems redundant.

So there you have it. For completeness sake, I note that I did not discuss the report’s recommendation to reject an asylum reform bill that is pending in the Senate. It seems that bill ain’t going anywhere, and so there is not much point in talking about it, especially since I’ve already rambled on long enough. Adieu.

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Raoul Wallenberg Lives! Maybe.

by Jason Dzubow on April 1, 2014

in Asylum Seekers, Human Rights

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Raoul Wallenberg was a Swedish diplomat assigned to his country’s mission in Nazi-occupied Hungary. He arrived at his station in 1944, when tens of thousands of Jews were being deported to death camps.

Sometimes, to do the right thing, you have to break the rules.  And follow the Raouls.

Sometimes, to do the right thing, you have to break the rules. And follow the Raouls.

Using his cover as a diplomat, Mr. Wallenberg saved thousands of Jews from deportation. He gave them Swedish identity documents (of questionable legality), which protected them from deportation. He also rented various properties that became part of the Swedish mission, and which were thus protected by diplomatic immunity. The buildings ultimately housed (and protected) almost 10,000 people. Mr. Wallenberg used all the means at his disposal–legal and illegal–to save lives. All told, he is credited with saving over 100,000 men, women, and children.

I was reminded of Raoul Wallenberg when I heard the story of how my newest client came to the United States. 

The client is a young man from Syria. A pro-government militia arrested him and his friends. They were accused of involvement in anti-regime activities and taken to prison. My client was lucky enough to recognize one of the guards, who intervened and had him released. My client’s friends were not so lucky. They were ultimately released, but not before suffering severe torture.

My client made his way to another country and applied for a U.S. visitor visa. As my client related the story, it was clear that the consular officer thought the client might seek asylum in the United States, and he questioned the client about whether he faced any threats in Syria. Although he obviously had suspicions, the officer issued the visa, and now the client is seeking asylum.

Consular officers are supposed to deny visitor visas to applicants that they think have an immigration intent (an intent to seek asylum is considered an immigration intent). My suspicion here is that the consular officer correctly surmised that the client had immigration intent, but he issued the visa anyway. Was this, perhaps, a Wallenberg-esque move? Did the officer issue the visa precisely because he knew the endangered client could (and would likely) seek asylum in the U.S. and thus escape the danger in Syria?

Obviously, I have no idea what was in the consular officer’s mind, but it is interesting to consider his situation. When a Syrian or an Iraqi or an Afghan applies for a visitor visa, there is a decent chance that the visa applicant will travel to the U.S. and seek asylum. The consular officer’s job is to prevent that from happening; to anticipate who is an immigration risk and to deny a visa to that person. But what if denying the visa might result in the person’s death?

It is easy to say that the consular officer should just do his job and deny the visa, but at the end of the day, the officer has to live with himself and his decision. For me at least, it would be difficult to meet a person who is likely fleeing for his life, and to then deny him a path to safety. Also, if it were me, I would feel that I could accomplish something positive and life-affirming by issuing the visa and helping the person come to the United States.

But of course, the visa system is designed to do more than just block intending immigrants from gaining entry into the U.S. It is also designed to block terrorists and criminals. This is not an issue that Raoul Wallenberg had to deal with. In Mr. Wallenberg’s case, he was not giving out valid travel documents. He was just giving out passes that the German and Hungarian authorities generally respected. This prevented the Nazis from murdering the people who held the passes, but no one was traveling to Sweden (or anywhere else) on Mr. Wallenberg’s passes. There was no danger that Nazi agents would use the passes to infiltrate other countries or cause other harm.

In the case of a (hypothetically) modern-day Raoul Wallenberg who gives out visas to people fleeing persecution, the danger of helping a terrorist or criminal would have to be balanced with the desire to save lives. I don’t envy the consular officers who–whether they like it or not–have to make life or death decisions where their desire to help must be tempered by their duty to protect the United States and follow the law.

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Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS’s justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.

DHS has created a new, less humorous version of the old NPR gameshow.

First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I’ve heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an “expedite list,” it would be helpful to know the applicant’s place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person’s place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.

Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can’t DHS prioritize expedite requests where the applicant has a spouse or child overseas?

A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress–even a little–with the old cases, it would give hope to the people who are waiting.

Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.

In a perfect world, asylum cases would be processed in the order received. However, I understand DHS’s concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.

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If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has–seemingly–disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?

The storage room for backlogged asylum cases.

The storage room for backlogged asylum cases.

As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a “credible fear interview” to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.

Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS’s decision to give priority to the border cases.

To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That’s the good news.

But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the “backlog.” There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn’t DHS doing the cases in the order received?

First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.

If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.

Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.

I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.

The second issue I want to discuss is the logic behind DHS’s decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.

The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.

Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.

Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members–especially when those family members are in dangerous or precarious situations–the delays can be deadly.

So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.

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I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking. 

Before we begin our journey, let’s look at the laws and policies that we will be sending back in time. 

Barred from asylum: A Jewish boy provides "material support" to the Nazis.

Barred from asylum: A Jewish boy provides “material support” to the Nazis.

After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.

Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?

The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.

Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

{ 6 comments }

Hurry Up and Lose My Case

by Jason Dzubow on February 19, 2014

in Asylum Seekers, Legal Relief

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If you asked my clients their number one complaint about me, it’s that they think I take too long to prepare and file their affirmative asylum cases. Conversely, if you asked me my number one complaint about my clients, it’s that they are always pushing me to file their cases as quickly as possible. Since this blog is written by me, and not by my clients, I can tell you unequivocally that I am right and they are wrong. Here’s why–

Going fast does not always get you the result you want.

Going fast does not always get you the result you want.

First and foremost, it takes time to properly prepare and file an asylum case. Even in a very strong case–and especially in a case with a lot of evidence–it is important to make sure that all the letters and documents are consistent. That translations are correct. That dates, which often use a different calendar, are properly converted to the Western calendar. That the dates in the asylum form match the dates in the affidavit, and that passports, visas, and other documents make sense with the client’s chronology as she remembers it. You would be surprised how often there are problems with dates, chronologies, and translations. In fact, it is the rare case that does not involve my staff or me finding major mistakes in the documents. While this is usually the result of carelessness on the part of the client or a witness, such errors can be fatal to an asylum case, where inconsistencies are often seen as evidence of fraud. There is simply no way around it, it takes time to review all this and put together a consistent and well-crafted application.

Second, any asylum attorney who is any good will probably be busy, especially if his prices are reasonable. Indeed, the only way to keep prices reasonable is to do these cases in bulk. Therefore, if you expect to pay a reasonable price for your case, you can probably expect to wait a bit to have it filed. In our office, it typically takes one to two months to prepare and file an affirmative asylum case. Although the cases do not need to be completely finished when we file (because we can submit supplemental material a week prior to the interview), they need to be mostly done. Why? Because the timing of interviews is unpredictable. The interview may not occur for two months (or more) after we file the application, but it might occur in four weeks. So if the case is not near completion at the time we file, we may not have time to properly finish it and review everything before the interview.

Finally, attorneys–you may be shocked to learn–are human. And humans make mistakes. When we rush, we tend to make more mistakes, and mistakes sometimes cause clients to lose their cases. When we have time to prepare a case, think about the facts and the law, strategize about how to resolve problems (and most cases have problems of one sort or another), research country conditions, and carefully review all the evidence, we minimize the chances for mistakes and maximize the odds of winning.

There are, of course, very legitimate reasons for wanting to file a case quickly–separation from family, stress, uncertainty, fear of being out of status, inability to work. Probably the most legitimate reason to file quickly is to meet the one-year asylum filing deadline (asylum applicants are required to file for asylum within one year of arrival in the United States; people who file after one year risk being ineligible for asylum). But as long as there is not a one-year issue, it is far better to take a few extra weeks to file a case correctly than to rush. In my humble (and correct) opinion, if you prioritize speed over winning, you are misplacing your priorities. If you lose your case, it will likely be referred to an Immigration Judge, which can easily take several years to resolve.

So take a breath. Relax. And take the time to do your case right. Going a bit slower at the beginning may save you a lot of time in the end.

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The U.S. Department of Justice recently gave notice that it would be seeking the death penalty in the case of Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. Mr. Tsarnaev and his brother allegedly killed three people in the bombing and one more person during their flight. Over 260 people were maimed or injured.

Dzhokhar Tsarnaev

Dzhokhar Tsarnaev

The DOJ determined that the death penalty is appropriate in the case because of the “heinous, cruel and depraved manner” that the murders were committed, that there was “substantial planning and premeditation,” multiple victims, and a “vulnerable victim” (a reference to Martin Richard, an eight year old boy killed in the attack). The notice also mentions several “non-statutory aggravating factors,” including the fact that Mr. Tsaenaev–

received asylum from the United States; obtained citizenship and enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States by killing and maiming people in the United States.

Other “non-statutory aggravating factors” are that Mr. Tsarnaev targeted the “iconic” Boston Marathon and that he showed a lack of remorse for his crimes.

I must admit that I have mixed feelings about the death penalty. I don’t believe it serves as a deterrent, and I do think there are serious racial and class disparities in its application. In addition, there is a real danger that innocent people or people with mental disabilities will be put to death. On the other hand, if the death of the murderer brings comfort or closure or a sense of safety to the victim’s friends and family, I believe those feelings are legitimate and should be given considerable weight.

In some ways, the Tsarnaev case is less complicated than the average death penalty case. There are no issues (at least I don’t see any) regarding race, class or mental health, and there seems to be no doubt that Mr. Tsarvaev is guilty. But what about the fact that Mr. Tsarnaev is a refugee?

In its death penalty notice, the DOJ mentions Mr. Tsarnaev’s asylum status as an aggravating factor–We helped him by granting him asylum, and then he betrayed us by bombing the marathon. Mr. Tsarnaev’s attorneys will, no doubt, view his asylum status quite differently, and could try to use that status as a mitigating factor. The relevant U.S. Code section (18 U.S.C. § 3592) lists several possible mitigating factors, including the following:

Impaired capacity.— The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

Duress.— The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

Disturbance.— The defendant committed the offense under severe mental or emotional disturbance.

Other factors.— Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

The first three factors seem like a bit of a stretch, but you can imagine some type of argument tying Mr. Tsarnaev’s mental state to the trauma of being a refugee. Indeed, I would guess that there are at least two types of trauma that refugees suffer: The trauma of the events that led them to flee their country, and the trauma of the refugee/resettlement process itself. There are certainly examples of refugees who engage in self-destructive behavior (I’ve written about that issue here), but without something more–such as a diagnosed mental illness–I doubt refugee status alone would qualify Mr. Tsarnaev for mitigation under one of the first three factors listed above.

The fourth factor–the catch all–provides the most likely opportunity for Mr. Tsarnaev to demonstrate how his status as a refugee might mitigate his punishment. He could argue that he was young, isolated in a new country, heavily reliant on his older brother (who participated in the bombing and was later killed), and influenced by terrible events in his homeland. While I can believe that Mr. Tsarnaev’s refugee status helped shape, and perhaps distort, his worldview, I have a much harder time accepting these problems as a mitigating factor here.

Had his crime been substance abuse, or even some type of impulsive, violent act, I could see how refugee status might be viewed as a mitigating factor and how there might be opportunities for positive intervention in his life. But in this case, Mr. Tsarnaev and his brother planned, prepared, and carried out a terrorist attack. This is not the type of crime that results from a traumatic past. It is the type of crime that comes from having a distorted world view and a total disregard for human life.

I have known many refugees, and many people who have suffered severe trauma–much more severe than anything I have heard about in the Tsarnaev case. While most such people work hard to overcome their past difficulties, some turn to drugs or alcohol; others commit crimes. But none are like the Tsarnaevs. Their’s was a carefully planned and orchestrated act. To allow Dzhokhar Tsarnaev to use his refugee status as a mitigating factor would be an insult to the many refugees who have overcome their terrible past. While there may be other factors that allow Mr. Tsaenaev to avoid the death penalty, his status as a refugee should not be one of them.

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If imitation is the highest form of flattery in art, immigration is the highest form of flattery in politics. The decision to move to a particular country demonstrates the belief that that country is worth living in. So as the Winter Olympics in Sochi, Russia approaches, it will be interesting to compare the number of athletes who seek asylum in Russia to the number who sought asylum during the 2012 Games in Great Britain.

Sochi-o-path

Sochi-o-path

To make this comparison, we first have to determine how many athletes sought asylum in 2012. I have not seen a concrete count of the number of athletes who “defected” during the 2012 Games. This is because asylum is confidential, and so the British government has not published any figures on Olympic asylum seekers. However, one source estimates that at least 20 athletes and coaches defected during the Games. Cameroon had the most defections: Seven of its 37 athletes did not return home.

When athletes (or anyone) seeks asylum, we can assume that there is a “push” and a “pull.” The “push” is the bad conditions in the home country that lead the person to flee, and the “pull” is the good conditions in the country where the person seeks refuge. The “pull” of the UK is obvious: It is  a developed, liberal democracy that generally respects human rights and offers opportunities (educational, professional) for its residents. People fleeing persecution (or economic deprivation) would generally be lucky to start a new life there.

The “pull” of Russia is less obvious. For one thing, Russia is not known as a welcoming destination for non-Russians. Racism and xenophobia are problems, and many minorities have been targeted and killed. Homophobia is also rampant, and institutionalized (though the mayor of Sochi claims that there are no gays in his city). In terms of its economy, Russia is not as an attractive destination as Western Europe or the U.S., but it is better than many places. Finally, the Russian language is not spoken by nearly as many people as English, and so this might create some disincentive for potential asylum seekers. For all these reasons, I doubt we will see many athletes defecting to start new lives in Russia.

To be fair, many of the source countries for asylum seekers do not send athletes to the Winter Olympics. But even if they did, I doubt many of them would desire to resettle in Russia. Conditions there are simply not conducive to starting a new life, particularly for people who come from Africa or Central Asia.

There have, of course, been a few high profile asylum seekers in Russia. Edward Snowden is one, but I don’t think he deliberately chose Russia as his destination country. Instead, it seems he got stuck there on the way to somewhere else. So the Russians really can’t claim him as someone who had a burning desire to resettle in their country.

Another immigrant to Russia is Gerard Depardieu, a “tax refugee” from France who (sort-of) left his homeland due to high taxes and (kind-of) settled in Russia. I suppose in Mr. Depardieu’s case, there was a “pull” from Russia, but that seems more to do with his friendship with President Putin (who summarily granted him citizenship last year) than with his desire to seek a better life there. Indeed, though Mr. Depardieu has citizenship and an address in Russia, it is unclear how much time he actually spends there.

The bottom line is, I don’t think Russia is seen by many as a desirable place to resettle, and I expect that we won’t see many athletes defecting during the upcoming Games. Perhaps the Russians will be pleased by this (Russia for the Russians!). But maybe upon reflection, they will find that it demonstrates a darker truth about the culture and society that they have created.

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The Ancient Origins of Asylum: Part II

by Jason Dzubow on January 29, 2014

in Asylum Seekers

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In the last post, I wrote about the mythical origins of asylum and about the cities of refugee of the ancient Israelites.

The Classical Greeks had a different concept of asylum than the Israelites. The Greeks recognized holy places—temples, alters, statues—as protected. To rob from a sacred place was to rob from the gods. This protection included the property of the sacred place and also people—including fugitives—who were found in that place. Runaway slaves, debtors, warriors vanquished in battle, and criminals would not be harmed in the sanctuaries and could find refuge there. The most well-known place of asylum was the Temple of Theseus in Athens (this temple is still standing; today, it is usually called the Temple of Hephaestus). Runaway slaves who fled their abusive masters could find refuge in the temple, and then compel their masters to sell them to someone else.

You do NOT want to make this guy angry.

You do NOT want to make this guy angry.

Places of asylum were generally respected in the ancient Greek world, but sometimes the respect accorded to the sacred space was interpreted narrowly. For example, the historian Thucydides writes about the case of the Spartan general Pausanias, who had defeated the Persians at the Battle of Platea in 479 BC. In the years following the battle, Pausanias came under increasing suspicion as a traitor to the Persian side. Finally, at the moment when he was about to be arrested, Pausanias ran away to the Temple of Athena in Sparta, where he sought sanctuary. The leaders of Sparta who had sought Pausanias’s arrest barricaded him inside the temple and starved him out. Rather than violate the sanctity of the temple, they removed Pausanias from the place in the moments before his death. Thucydides writes that as soon as he was removed from the temple, Pausanias died. It’s hard to see how the temple offered him much protection, but the concept of the inviolability of the holy place was—technically—maintained.

Echoing a much more modern complaint, the concept of asylum in ancient Greece was often abused by people seeking protection. Nevertheless, throughout the Greek period, asylum was generally respected, if only because violators feared divine wrath.

The concept of asylum was also important to the Romans, albeit for a different reason. Legend has it that Rome was founded by twin brothers, Romulus and Remus.  After a dispute about where to establish the city, Romulus killed his brother and named the city after himself. Roman historians date the founding of their city to the seventh century BC.

Romulus wanted to increase the population of his new city, and so he designated one area as a sacred “Asylum.” This is where newcomers entered the city. According to the Roman historian Livy (59 BC – 17 AD), the Asylum was crucial to Rome’s advancement and eventual greatness because it symbolized the Empire’s ability to enfranchise people of diverse ethnic and religious backgrounds.

During the second and first centuries BC, Rome asserted control over Macedonia and eventually (in 27 BC) all of Greece. Rome was heavily influenced by Greek culture (the Roman poet Horace said, “Greece, though captive, has taken its wild conqueror captive”), including in the area of asylum. However, the idea of asylum as a “right” soon became inconvenient for the Romans. How could they allow rebels and criminals to avoid the power of the Empire by hiding in temples?

To mitigate this problem and assert their authority, the Romans severely restricted asylum in the Greek temples. Temples in the non-Greek areas of the Roman Empire fared little better. Throughout the Empire, Roman Law superseded religious sentiment. The places of asylum tended to be statues of the Caesars, not temples, and the sanctuary was only temporary. Those fleeing Roman “Justice” (such as it was) could not escape for long by claiming asylum.

As the power of Rome declined, the power of the new Christian Church began to grow. Like its predecessors, the Church had its own version of asylum, but that’s a story for another day…

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Immigration Judge Apocalypse 2014

by Jason Dzubow on January 22, 2014

in Immigration Court

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Nearly half of the nation’s Immigration Judges are eligible to retire this year.

Last week, I attended the retirement luncheon for one of them: Judge Wayne Iskra. For the past 10 years, I practiced before Judge Iskra at the Arlington, Virginia Immigration Court. I also clerked for him back in 1998-99. He is a wonderful person who was a great inspiration to me and many others. He was also a great judge–he was devoted to ensuring that justice was done, and he had little patience for attorneys (private attorneys or DHS attorneys) who failed to fulfill their duties.

Immigration Judges today...

Immigration Judges today…

The MC at the lunch, Judge Thomas Snow, noted that before his retirement, the Chief Judge repeatedly described Judge Iskra as “irreplaceable.” Finally, Judge Snow realized that when the Chief said that Judge Iskra was irreplaceable, it meant that he would not be replaced.

So the Arlington Immigration Court, which is already very busy and where cases are currently being scheduled into late 2016, will now go from five judges to four. The same thing happened in Baltimore last summer, when another excellent and long-serving IJ, Judge John Gossart, retired.

Although I have not heard news of any mass retirement, the Associated Press reports that almost 50% of the nation’s Immigration Judges are eligible for retirement this year. While I suppose this is good news for people selling condos in Ft. Lauderdale, it is bad news for the Immigration Court system.

...and in 2015.

…and in 2015.

And yes, as the immigration restrictionists love to remind us, certain immigrants prefer delay, so they can buy more time in the United States. But at least in my experience, this is a minority. Granted, my cases may not be typical. Most of my clients have good cases, and so the sooner they get to the merits hearing, the better. Also, many of my asylum clients have family members who they hope to bring to the U.S. if their cases are granted. The longer the delay, the longer they are separated from (and worried about) their family members. So for me, the increased delays are definitely a bad thing.

Also, I am quite certain that the remaining IJs won’t be happy about their depleted ranks. Immigration Judges are already overworked and overburdened. The title of a 2010 Mother Jones article sums it up well–Judges on the Verge of a Nervous Breakdown. From the article:

Caught in the middle [of the Obama Administration's efforts to increase deportations] are the judges, for whom mind-numbing bureaucracy collides with thorny moral issues. Most of the time, they work without even basic staff like bailiffs and stenographers. Increased immigration enforcement means that their workload is the highest it has ever been—three to four times larger than caseloads in other federal courts.

And of course, mistakes can have dire consequences. As one IJ noted, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it.”

The obvious solution is to hire more (lots more) judges and court staff. But given EOIR’s budget (or lack thereof), this seems unlikely. So here are a few other thoughts:

- Create an easy, secure on-line system to allow EOIR-registered attorneys to do their Master Calendar Hearings by email. Attorneys could enter their appearances, admit or deny allegations, plead to charges, and set dates for Merits Hearings. For complicated cases (and pro se cases), IJs would still require Master Calendar Hearings, but an on-line system would be a great time saver for everyone.

- Hire more DHS attorneys and staff, and encourage them to communicate with attorneys for immigrants. Many issues can be resolved before trial, which saves time. However, because DHS is also short staffed, they do not have the resources to review cases prior to trial and speak with opposing counsel. If they did, it would shorten hearings and make life easier for the IJs.

- Stop deporting so many people. It seems that President Obama is intent on setting deportation records year after year. As a result, hundreds of thousands of people are being placed into removal proceedings. If ICE were more selective about who it tried to deport, DHS attorneys and IJs could focus more on those cases. We don’t ticket everyone who drives over the speed limit. We don’t prosecute everyone who is caught with a joint. We don’t arrest everyone who illegally downloads music. Why? Because we don’t have the resources to do those things, and to do so would require intolerable levels of intrusion into our lives. In the same way, it seems to me, we could relax a bit concerning deportations. Resources–including judges’ time–is limited. We should use that limited resource more efficiently.

- Don’t allow any more IJs to retire. OK, maybe it is not technically legal to force IJs to keep working, but an immigration lawyer can dare to dream. Besides, I want Judges Iskra and Gossart back.

{ 2 comments }

Laughing at Death

by Jason Dzubow on January 17, 2014

in Asylum Seekers, International

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Last week, two new clients hired me. Each told me a story that ranks among the worst I’ve heard since I’ve been practicing asylum law.

Having a positive attitude is half the battle.

Having a positive attitude is half the battle.

The first was an Iraqi grandmother. Her son worked for an international NGO and the family had received threats because of the son’s work. One day, armed militiamen pulled the son from his car, and shot him to death in front of my client, her daughter-in-law (the son’s wife), and the son’s infant child. Later, the militia bombed my client’s house and killed her elderly mother. Years before, my client lost her husband, when he was killed in a bombing raid during the Iran-Iraq War. My client’s relative/translator explained, “This is Iraq.”

The second client was from Afghanistan, and his story was not directly related to his current asylum claim. He told me that 20 years ago, he was going to a party at his relatives’ house. For some reason, he was delayed, and before he arrived, the house was hit by a missile. He reached the scene moments later, and witnessed horrific carnage (I will spare you the details he told me). Suffice it to say, he saw many relatives and friends dead and dying. At the time, he was a teenager, and what he saw sent him into shock. He was physically unable to offer assistance, and he had to be carried back to his home. Relating the story many years later, he told me how the scene was still perfectly clear in his memory.

One thing that both clients have in common is that they laughed nervously and smiled while telling me their stories.

It seems to me that laughing and smiling in response to these stories is a very human reaction. Perhaps the normal emotions–anger, grief, shock–are simply inadequate to the task of recalling and relating such events. Or maybe my clients’ embarrassed smiles are almost an apology for having to talk about such terrible stories. There probably is no appropriate affect for telling personal stories of senseless violence and life-changing horror, and so maybe the default demeanor is a shy smile or a nervous laugh.

Of course, as an immigration lawyer, I am concerned that an “inappropriate” smile or laugh might create the impression that my clients are not credible. Although they have often reacted this way during our practice sessions, my clients seldom laugh or smile during actual trials or asylum interviews. And even if a client did show an “inappropriate” emotion, I suspect that most decision makers would see the reaction for what it was, and I doubt credibility would be negatively impacted.

I also sometimes wonder about how these stories affect the people that hear them. One study I found about secondary trauma in asylum lawyers found that lawyers were at some risk of secondary trauma, and the risk increased with the amount of time the lawyers worked on asylum cases. Another study, which originally appeared in the Georgetown Immigration Law Journal (where I once served as a Senior Notes and Comments Editor), found that Immigration Judges suffered from secondary trauma and “more burnout than has been reported by groups like prison wardens or physicians in busy hospitals.”

I’ve always been a bit skeptical that people in my line of work (or me specifically) suffer from secondary trauma. The difficulty for me comes not from hearing the clients’ stories (which can be upsetting), but rather from overwork. Too many clients expect too much, too quickly. Maybe hearing terrible stories and working with people who have experience real trauma has an effect on us, but it is very hard–for me at least–to see this effect.

But of course, like my clients who laugh when they tell me their stories, I have my own ways of coping with stress. In my first job out of college, I helped find work for recently resettled refugees. Everywhere I went, I asked about employment opportunities. Finally, I decided that I could not continue that way. There was a time for work, and a time for not working. If you can’t separate the two, you ultimately won’t be successful at either. Although it is more difficult now, with my own business, I still try to keep that separation. With that said, I’m off to the pub to do some more coping. Cheers.

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The Ancient Origins of Asylum: Part 1

by Jason Dzubow on January 7, 2014

in Asylum Seekers

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Since it is the beginning of the year, I thought I might go back–way back–to explore the ancient origins of asylum. As you may know, the word “asylum” comes from the Greek asylos, meaning that which is inviolable or that which cannot be robbed: “a” (without) + “syle” (the right of seizure). The word originally referred to a sacred place where fugitives could find protection from their pursuers.

Even today, some refugees still seek protection from statues.

Even today, some refugees still seek protection from statues.

The origins of asylum are probably more myth than history. One candidate for the creator of asylum is the ancient Egyptian King Assyrophernes, who supposedly erected a statue in honor of his dead son (King Assyrophernes does not appear on the Egyptian King Lists, and at least one scholar claims that the whole story was made up by an historian in the early 18th century). The son’s statue later became a place of worship for the king’s servants and eventually a place where people could seek asylum. Under this theory, the concept was transferred from the Egyptians to the Hebrews, who developed and codified the idea.

Another candidate for the originator of asylum is King Ninus of Assyria, the legendary founder of Nineveh who ruled a vast Middle Eastern empire during the 21st century BC. Whether King Ninus actually existed is also an open question–the oldest written record of the king is found in a fifth century BC account by the badly-named Greek historian and physician Ctesias of Cnidus, who supposedly learned about Ninus from ancient Persian records. In this story, Ninus built a statue to commemorate his father, Belus, which served as an asylum for people fleeing harm.

A third possibility is that asylum was created by the Persians. In the first century AD, the Roman Emperor Tiberius commissioned an inquiry into the origin of asylum in Greece. At the time, the Romans had conquered Greece and the Greek system of temple asylum–which allowed for the protection of fugitives who reached a temple–was a thorn in the side of Rome. In response to Tiberius’s inquiry, two Greek cities reported that their sanctuaries were founded by the Persian kings Cyrus and Darius (fourth and fifth centuries BC) during the Persian occupation. More likely, the right to asylum existed in other Greek communities at the time, and so the two cities in question petitioned the Persians for a right already found in other parts of Greece.

In each of these stories, the refugee obtains asylum by going to a particular place where he is protected. Whether any of these stories is true is an open question, but I suppose they demonstrate that human beings have been dealing with the issue of whether to protect strangers fleeing persecution for a long time.

The earliest written record of asylum in the ancient world comes from the Hebrews. These ancient rules for asylum were created at a time when family, friends or clansman of a murder victim would revenge the death by killing the murderer (or members of his clan). Revenge killings might take place even where the initial death was inadvertent.

To regulate this problem, the Torah (the Hebrew Bible) designates six divinely-designated “cities of refuge” to protect “one who has killed another unwittingly.” The purpose of the cities is to prevent unjustified revenge killings in cases of involuntary manslaughter: “Thus the blood of the innocent shall not be shed, bringing blood-guilt upon you in the land that the Lord has allotted you.” Interestingly, the cities would “serve the Israelites and the resident aliens among them for refuge, so that anyone who kills a person unintentionally may flee there.”

The Torah also created a method for adjudicating the manslayer’s intent. The cities of refuge were run by Levites (priests), and an assembly of such men would decide the case. The system of proof might seem a bit primitive by today’s standards. For example, if the manslayer used an “iron object,” he is a murderer and should be put to death. Ditto for stone or wood tools that “could cause death” (this one seems a bit tautological).

Even if the death was ruled inadvertent and the manslayer received protection in the city of refuge, that was not the end of the matter. If he left the city, and the “blood-avenger comes upon him outside the limits of his city of refuge, and the blood-avenger kills the manslayer, there is not bloodguilt on his account.” The punishment would remain in effect until the high priest died (the death of the high priest, like the death of the sovereign in other societies, signified a new era where prior legal obligations ended). Only then could the manslayer return to his home.

Although the Israelite system was primitive and somewhat arbitrary, it was better than nothing. It also marked the first historically documented system of asylum.

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Do people fleeing persecution have a “right” to illegally enter the United States? A new report from Harvard Law School about changes in Canadian asylum policy got me thinking about this question.

The report, Bordering on Failure: Canada-US Border Policy and the Politics of Refugee Exclusion, concludes that recent changes to Canadian refugee and border policy have made it more difficult for legitimate asylum seekers to find refuge in Canada.

Training program for rookie Liaison Officers.

Training program for rookie Liaison Officers.

The recent changes include the Multiple Borders Strategy (“MBS”), whose goal is to “push the border out” and to “intercept improperly documented persons as far away from Canada’s territorial borders as possible.” Canada “enacts measures that deter and deflect the arrival of asylum seekers at… countries of origin, visa screening points, airline check in points, points of initial embarkation, transit areas, points of final embarkation, and points of final arrival.” How do they do this? Canada has 63 liaison officers in 49 “strategic locations around the world.” The officers “train and work with airlines, local immigration authorities, and local law enforcement agencies to identify improperly documents persons, including some asylum seekers, and block them from boarding Canada-bound boats or planes.” The officers have intercepted 73,000 people between 2001 and 2012. Another part of the MBS is to sanction airlines and shipping companies that allow improperly documented people to arrive in Canada. The Canadians have also imposed stricter visa requirements on people from refugee source countries when refugee arrivals from those countries increase. In short, Canada is doing more to block people from illegally entering the country. So what’s wrong with that?

The Harvard report raises a few points. For one, some of those people blocked from arriving in Canada are refugees (though we don’t know how many). The liaison officers and the carriers do not consider whether a person qualifies for asylum; they block anyone with improper documentation. Another problem is that by tightening security, some asylum seekers will resort to other means of gaining entry into Canada–human smuggling, for example. This puts the asylum seekers at risk of harm. The report concludes that by “closing its borders to asylum seekers, Canada is setting a poor example for other nations, and contributing to the deterioration of refugee protection around the world.”

Aside from criticizing the (probable) negative impact of the MBS on asylum seekers, Harvard offers little in the way of solutions. Should Canada loosen its entry requirements? Should liaison officers allow people with fraudulent documents to go to Canada if those people express a fear of persecution? Should Canada get rid of the liaison officers so it is easier to enter Canada improperly? Should it eliminate carrier fines, so that airlines will be encouraged to allow anyone to fly into the country, even if they do not have permission to enter?

The basic problem, it seems to me, is that refugees who are rich enough to qualify for a visa or to hire a competent smuggler, will likely get in. Ditto for those clever enough to obtain fraudulent travel documents. Poor people, less educated people, people who are not resourceful enough, will not get in. Tightening or loosening the border (or even “pushing out” the border) will, as the Harvard report points out, exclude people in “arbitrary and unprincipled ways,” but this impact is tiny compared to the basic–and very arbitrary–distinction between the rich, the educated, and the lucky, who will probably get in, and the poor, the uneducated, and the unlucky, who will probably be excluded. Thus, even if Canada had not implemented any of the new restrictive changes, the asylum seekers who manage to reach Canada are able to get there because of factors (such as wealth) that are completely unrelated to the merits of their asylum claims. Given that the ability of potential asylum seekers to enter Canada is completely arbitrary anyway, why should it matter if Canada imposes another layer of arbitrariness on those seeking admission? In other words, why should it matter if an arbitrary portion of an arbitrary group is blocked from seeking asylum?

Or, to return to our initial question in a more specific way: Do those asylum seekers lucky enough to have the ability to reach a safe country have a “right” to travel to that country to seek asylum? If you accept the basic premise of sovereignty of nations (and there are very good reasons not to), it is difficult to answer that question in the affirmative. But to answer that question in the negative would invalidate much of international law and practice related to protecting refugees.

Perhaps the key to resolving this dilemma is to recognize that most countries–including Canada and the United States–have given up some of their sovereignty when they voluntarily entered into treaties protecting refugees. Nevertheless, the Harvard report highlights an odd reality: People who are smart enough, rich enough or sneaky enough to evade border security and gain entry into a safe country have a right to seek asylum in that country. But those who are unable to reach a safe country–even if the reason for their failure is that the safe country managed to prevent their entry–do not have a right to seek asylum in that country.

So I guess the answer to the initial question is a qualified yes (or perhaps a qualified no, if you are a glass-is-half-empty sort of person): Asylum seekers have a right to illegally enter the United States, but only if they manage to get in. Or, to paraphrase Robert Anton Wilson, “rights” are what you can get away with.

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