Refugee Admissions Down as a Result of New Security Checks

The Catholic News Service (“CNS”) reports that refugee admissions for FY 2011 have slowed dramatically due to new security measures put into place by the Department of Homeland Security.  The slow down effects not just the refugees–often times waiting in camps where they face disease and other dangers–but also the capacity of the resettlement agencies, which receive funding based on the number of people resettled.

Each refugee will receive a free copy of Andy Warhol's famous poster.

For Fiscal Year 2011, President Obama has authorized the admission of up to 80,000 refugees.  However, according to CNS, as of mid-May (7 1/2 months into the fiscal year), only 38% of the 80,000 have been admitted.  This puts us on track to admit only about 49,000 refugees for the current fiscal year.  CNS reports:

Delays in the refugee resettlement process are being caused by a backlog of security clearances and additional security “holds,” according to Larry Bartlett, acting director of the Office of Refugee Admissions for the State Department. The additional security measures are part of a larger series of security enhancements by the Homeland Security Department.

These delays have several effects.  For one, refugees are forced to endure longer waits in camps, and families remain separated for longer periods.  Further, some refugees who have already been screened and cleared are now stuck waiting for the new security checks.  During this waiting period, certain of the clearances may expire, and the refugees will need to be cleared again–resulting in even more delays.  

In addition, the receiving agencies in the U.S. receive $700.00 for each refugee resettled.  The agencies are paid only when they actually receive the refugee.  This means that agencies’ revenues are down, and this could affect their capacity (for example, if an agency is forced to lay off workers, it may not be prepared if additional refugees arrive).   

A State Department spokesman stated that refugee admissions would increase during the remainder of the fiscal year, and that DOS expected to resettle between 63,000 and 74,000 refugees in FY 2011.

Of course, it is difficult to argue against additional security background checks, especially when it is unclear what those checks entail or why they have been put into place.  Further, for agencies in the business of resettlement, it seems only fair that they must adjust to the policy changes of the U.S. government.  That said, it is difficult for me not to be a bit skeptical about the new background checks.  Hopefully, though, once the new system is up and running, refugee admissions will return to normal levels, so we can fulfill our commitment to assisting people in dire need and keep our country safe. 

Battle Hymn of the Tiger Lawyer

In her memoir, Battle Hymn of the Tiger Mother, law professor Amy Chua compares the strict “Chinese” parenting style with the more permissive parenting style popular in the West.  The book (or at least the out-of-context ideas in the book) shook the parenting word: Are Western parents focused so much on building their children’s self esteem that they’re raising self-indulgent, spoiled kids?  Are traditional Chinese parents raising children who will be smarter and more successful than their peers in the West?

Tiger Lawyers win more cases.

I am not sure which parenting style works better, but in the context of immigration law, it makes sense that the “Chinese” style will result in better outcomes for our clients. 

It might seem like a no brainer to treat our clients strictly–if we need a document in time to meet a deadline, the client better get us that document on time.  The problem is, immigration lawyers, and more particularly asylum lawyers, are generally big softies.  We may talk tough, but our sympathies are with the little guy.  For the most part, we are nice people trying to help out those in need.  We’re not really the type to crack the whip.    

I can think of plenty of occasions where clients brought me documents on deadline day, after I finished preparing their cases.  I may have grumbled (a lot), but I dutifully pulled apart the documents, re-did the index of exhibits, and submitted a complete package with the new evidence.  Other times, I receive documents after the deadline.  I submit them late and make some excuse to the judge, often times taking the blame myself.  A Tiger Lawyer would not do these things.  He would tell the client that it was too late, and let the chips fall where they may–if the client loses her case, she has only herself to blame.

Of course, clients don’t care much about deadlines or documents; they just want to win their cases.  If lawyers didn’t submit the documents late or take the blame for our clients’ failures, we would lose more cases.  Perhaps it would be better if our clients suffered the consequences of their shortcomings.  But I suspect a lawyer who follows that approach won’t be in business for very long.   

To be successful, we have to be tough on our clients so that they gather the evidence and do what is needed to win their cases.  But in the end, we have to put our clients’ interests first, and when they fail to do their part, we have to make up for it.  So maybe the best approach is to be a nice guy in a Tiger Lawyer’s clothing.

Ecuador Cracks Down on Alien Smuggling to the U.S.

Not long ago, the Washington Post reported on one of my clients from Eritrea, who was smuggled through a dozen countries before entering the U.S. and gaining asylum.  The article states that my client’s “epic trip underscores the challenge of protecting U.S. borders in the face of agile networks of smugglers, corrupt officials who arrange travel documents and desperate immigrants willing to pay thousands of dollars for the journey.”  These networks worry U.S. officials:

“While the majority of aliens smuggled into the U.S. probably do not pose a risk to national security, the problem is terrorists could exploit these smuggling travel networks,” said James C. Spero, deputy assistant director of the Immigration and Customs Enforcement agency, which enforces immigration laws. “It is a major concern for us.”

Recently, there seems to have been some progress in combating the smuggling networks.  The Ecuadoran newspaper El Universo reports that on March 10, a joint Ecuadoran and Columbian raid captured Yaee Dawit Tadese, a/k/a Jack Flora, an Eritrean smuggler, and 66 other individuals from Asia, Africa, and the Middle East.  Mr. Tadese managed a network that trafficked migrants from Africa to the United States, using two routes running through either Ecuador or Venezuela.  According to the website InSightCrime.org, Mr. Tadese was deported to the U.S. on March 12, where he faces terrorism, and drug and human trafficking charges (the article also reports on a rumor that Mr. Tadese is Osama bin Laden’s cousin, but that seems a bit far fetched).

Yaee Dawit Tadese: Osama bin Laden's long lost cousin?

It remains to be seen how much these arrests will impact the flow of illegal migrants to the U.S., but I imagine it will have an effect–at least for a while.

In related news, a change in the visa requirements in Ecuador might also reduce the number of migrants passing through that country en route to the United States.  In 2008, Ecuador eliminated visa requirements for most countries.  Since that time, according to InSightCrime.org, the country has “seen the growth of Colombian, Russian, and Chinese organized crime groups operating within its borders.”  Ecuador’s “lax visa policies may have also increased the smuggling of Asian and African migrants from the Andean nation to the U.S.”

Late last year, “Ecuador created visa requirements for nine countries: Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia.”  This change may also reduce the number of migrants passing through Ecuador on their way to the U.S. 

Given that it takes several months for people to travel from Ecuador through Central America and Mexico to the U.S., I suspect we will begin to see the effects of Mr. Tadese’s arrest and the new visa requirements in the near future.  Will these developments reduce the number of people arriving illegally at the U.S.-Mexican border, or will they simply cause the migrants to seek out alternative routes?  We will know soon enough.

Negative Judicial Metaphors Harm Immigrants

A recent article in the Fordham Law Review posits that negative metaphors used by judges to describe immigrants contribute to negative public perceptions of immigrants and lead to adverse judicial decisions. 

Before now, I never metaphor that I didn't like.

In Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, Keith Cunningham-Parmeter discusses different metaphors used in judicial decisions related to immigration.  The most common metaphors can be classified into three categories: (1) Immigrants are aliens; (2) Immigrants are a flood; and (3) Immigrants are invaders.  Each of these metaphors carries negative associations–for example, floods cause us to drown; invaders try to kill us.  Employing these metaphors, writes Mr. Cunningham-Parmeter, affects how we think about immigrants, which in turn affects judicial decisions.

One set of figures cited in the article struck me as particularly noteworthy—In examining 4,200 federal cases related to immigration, Mr. Cunningham-Parmeter found that the phrase most commonly used to describe immigrants was “illegal alien:”

“[I]llegal alien” was “by far the most common term, appearing in 69% of opinions (2905 cases).  No other term appeared in more than 10% of opinions, except “undocumented alien,” which accounted for 16% of the results in 670 cases.  

It seems likely that the overwhelming use of negative metaphors for immigrants would impact how judges think about people who are in the U.S. illegally.  This, of course, could result in more adverse decisions.  

To counter these negative metaphors, Mr. Cunningham-Parmeter proposes some positive metaphors; words that connote entrepreneurial economic migrants (i.e., people with the get-up-and-go necessary to cross borders and start new, productive lives):

[M]igrants are neither criminals nor invaders, but instead people who cross international borders in order to survive.  As such, the economic sanctuary metaphor brings focus to the human consequence of globalization.

I certainly appreciate the effort to de-stigmatize immigrants (and in writing this blog post, I find myself avoiding the term “alien,” a term of art defined in the INA, but also a metaphor with negative connotations).  In the end, though, I am skeptical that we can replace existing metaphors with something more benign.  There is a tribal aspect to these metaphors that is deeply ingrained.  We do tend to view outsiders as “invaders” and as a threat.  Maybe that is just the way of human nature.  Or, hopefully, I am wrong, and Mr. Cunningham-Parmeter’s article will help plant a seed that will lead to a more positive—and constructive—view of people who immigrate to the United States.

The BIA on Firm Resettlement

Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.

If Angelina Jolie shows up, it probably means you are not firmly resettled.

It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S.  In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.

The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country.  When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.  An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement.  Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.

It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country.  In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years.  He married a Senegalese citizen.  The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal.  A-G-G- then had an opportunity to rebut that evidence.  The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar.  However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.

Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.



Doctors, Detention, and Dual Loyalty

A recent report by Physicians for Human Rights (“PHR”) articulates the difficult dilemma faced by physicians who serve detained immigrants.  Such physicians have a “dual loyalty” problem:

Health professionals working in detention facilities run directly under DHS oversight, report to the federal agency charged with managing health care for detainees, the ICE Health Service Corps (HSC).  Like ICE, HSC is a division of DHS, and therefore, has objectives that tend to focus on deportation and security, rather than on providing comprehensive health care to immigrants in detention.  Review of the HSC mission statement clearly demonstrates that its mandate is prone to conflict with health professionals’ obligation to provide their patients with the best possible care.  The HSC website proudly proclaims: “We protect America by providing health care and public health services in support of immigration law enforcement.”

Perhaps Janus, not Asclepius, is an appropriate patron deity for DHS Doctors.

A doctor’s first loyalty should be to her patient.  However, there are many examples of third parties infringing on the doctor-patient relationship: insurance companies and hospital administrators being two of the most common.  In the case of detained immigrants, a doctor’s loyalty to her patient may be compromised by her loyalty to her employer–in this case, the Department of Homeland Security.  The PHR report points out that this should not happen:

While the term “dual loyalty” may imply equivalence between a medical professional’s loyalty to the patient and loyalty to third party interests [such as DHS], no such equivalence exists.  Ethically, with very rare and well-circumscribed exceptions, a health professional is obligated to act in the interest of the patient above all other concerns.

Great in theory, but not always easy to implement in reality.  The report offers several recommendations, including the following:

  • Require that health care professionals working in detention centers report to health organizations, such as the Department of Health and Human Services, so that they may maintain clinical independence.  They should not report to the Department of Homeland Security or to for-profit private contractors.
  • Create an independent oversight organization to monitor provision of health care in all facilities that house immigration detainees.
  • Create an ombudsman office to which detainees may easily report grievances regarding access to medical care.
  • Make the Performance Based National Detentions Standards (PBNDS) legally enforceable in all facilities that house immigration detainees.  Failure to adhere should result in contract cancellation.

DHS detains about 400,000 people each year.  The recommendations in the PHR report would help to improve medical care for these people and would also help to mitigate the “dual loyalty” problem faced by physicians in the system.  Further, PHR’s recommendations do not seem particularly costly.  Indeed, the primary recommendation–that physicians working with detained immigrants report to HHS instead of DHS–should cost next to nothing.  The recommendations are worthy of consideration by DHS.

BIA Makes It Easier to Deport 14 Year Olds

In a recent decision, the Board of Immigration Appeals held that service of a Notice to Appear (“NTA”) on an alien is effective, so long as the alien is at least 14 years old. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA April 29, 2011).  

Another child served with a Notice to Appear.

It may seem idiotic to expect a child still in the throws of puberty to respond to an NTA, but to be fair, the BIA was just following orders:

Section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2006), provides that the Notice to Appear is properly served if it is “given in person to the alien (or if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” See also 8 C.F.R. § 103.5a(c)(1) (2010) (providing for personal service of notice).  However, the regulations state that if the alien is a minor under 14 years of age, “service shall be made upon the person with whom the . . . minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see also 8 C.F.R. § 236.2(a) (2010).

So I suppose it really isn’t the BIA’s fault that the regulations allow for service of an NTA on a middle school student.  There are a few things that bother me about this decision.

For one, the regulation is ridiculous.  How can a 14 year old be expected to understand and respond to an NTA?  This is another example highlighting the need for court-appointed advocates in cases involving minors or people who are incapable of representing themselves.   

Second, why did the Board bother to publish this decision?  It does nothing except re-state the regulation.  Given that the BIA publishes decisions so rarely (only about 1 case in 1,000 is published), it is disappointing that they would “waste” a published decision on a case that does nothing to clarify the law or set a precedent.

Finally, why didn’t the Board take this opportunity to criticize the regulation and/or call for court appointed advocates in cases involving minor children?  The BIA likes to tell us that it has no authority to rule on the validity of the regulations that govern it.  Maybe so, but it does have the expertise and the moral authority to criticize those regulations where they are unfair.  There is a long tradition in the American legal system of courts criticizing laws, even when they cannot invalidate those laws.  Sometimes, a well-written criticism helps change an unjust law.  Also, there is a tradition of courts asserting their authority even when the other branches of government question that authority (think Justice Marshall in Marbury v. Madison). 

In Matter of Cubor-Cruz, the BIA missed an opportunity to criticize an unjust regulation.  It also missed a chance to assert its (moral) authority in order to bring about a positive change in the law. 

Cuban “Asylum Seeker” to Play for Major League Baseball

Leonys Martin: A uniform this ugly might form the basis for an asylum claim.

It looks like the Texas Rangers’ newest teammate will be Cuban defector Leonys Martin, a 23-year old centerfielder who formerly played for the Cuban National Team.  Mr. Martin defected while his team was in Taiwan playing in the FISU World University Championships.  How he made his way to the U.S. is not clear. 

According to the Rangers’ website, Mr. Martin is currently training in Arizona.  He will receive a $15 million signing bonus and will likely begin his pro career on a Double-A team, though he is expected to move to the majors by year’s end.  According to the Dallas Morning News, Mr. Martin’s immigration status caused a bit of delay when it came time for the Rangers to sign him:

Because of the complications of dealing with a player seeking political asylum, the signing has been held up while the sides await proper approval from the U.S. Department of State.

My guess is that Mr. Martin is not an asylum seeker, but rather (like many Cubans) he is a beneficiary of the Cuban Adjustment Act, a law that basically allows Cubans in the United States to obtain their lawful permanent residency after one year in our country.  Since Mr. Martin has been here for less than one year, the problem with signing him may be because he has not yet adjusted status under the Act. 

I’ve never been a huge fan of the Cuban Adjustment Act.  It seems unfair to me to allow Cubans this humanitarian benefit when we deny the benefit to people who come from more dangerous places (like Haiti, for example).  Although many Cubans face persecution in their homeland, I see no reason why they should not file for asylum like everyone else. 

On the other hand, our country has been greatly enriched by Cubans like Mr. Martin coming to our shores.  It’s just too bad that he’s not playing for the Phillies.