Refugee Terror Plot or Over-Enthusiastic Airport Screeners?

Arizona Central reports that two Eritrean refugees and another man have been held without bond after they were arrested by the Transportation Security Administration (“TSA”) at Phoenix Sky Harbor International Airport.  According to a TSA spokesman, Luwiza Daman tried to bring a suspicious device onto an airplane: “a box containing a paste-like substance with a cell phone taped to it.”  TSA officers spotted the package and arrested the refugees.  The “paste-like substance” turned out to be halva, a common Middle Eastern dessert, which supposedly “resemble[s] explosive material on an X-ray machine, particularly when combined with a cellphone, which is frequently used as a remote detonating device.”

This is a deadly explosive.

After receiving so much criticism over its screening techniques, TSA is quite proud of having discovered this “fake bomb.”

I suppose it’s possible that this was–as TSA claims–a “dry run” for a terrorist bombing, but based on the publicly available information, the government’s evidence appears weak at best.

First of all, it seems bizarre to claim that halva resembles explosive material.  It’s a common food in many parts of the world–friends visiting from overseas have brought me halva as a gift.  I wonder if TSA would have made these arrests if the substance had been something more familiar, like peanut butter.

To be fair, the fact that a cell phone was taped to the container of halva made the TSA agents suspicious.  This reminds me of a case from last year where two men from Yemen were arrested carrying packages with cell phones taped to them.  No charges were filed in their cases, and officials determined that the men had no connection to terrorists.  In fact, it is common for people traveling back and forth from their home countries to carry packages for others.  Often mail service in these countries is unreliable (or non-existent), so people ask their countrymen to deliver packages to their families.  In this case, one of the refugees was supposedly carrying the phone and the halva to Iowa to deliver to the brother of another suspect.  Since they often carry packages for multiple individuals, it is not uncommon for them put each person’s items together in a bag or tape them together.

This is a delicious snack.

When TSA agents questioned the suspects separately, their statements were inconsistent.  However, according to Arizona Central, the agents used an Amharic interpreter.  The principle language of Eritrea is Tigrinya and the suspects’ first language is Kunama.  It’s unclear why the agents did not find an interpreter for a language the suspects spoke (interpreters for most languages are available by telephone).  Therefore, any inconsistencies, indeed, any statements made by the suspects are of little value.

In denying bond, the judge noted that the case presents the court with two possibilities:

“One, a significant injustice to individuals lawfully present in the United States as refugees because they allegedly misunderstood English,” he said. “Or a knowing and intentional attempt by someone … to attempt a dry run.”

Given the stakes involved, it’s hard to blame the TSA for arresting the refugees, but considering the scanty evidence, this looks more like a case of the TSA getting ahead of itself than a case of terrorists on a practice run.  

Fear and Loathing in the Asylum System, Part Deux

In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system.  My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State.  Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”

Mr. Krikorian is the Executive Director of the Center for Immigration Studies.  He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.”  “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.”  By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S.  Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”

Mexico doesn't seem like such a safe third country to me.

The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable.  However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations): 

The first issue is how to determine whether a given third country is “safe.”  For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?”  Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service).  What about a person who passes through several different countries and then comes to the United States?  How do we decide if a given country is safe for that person?  To give another example, it is perfectly safe for me to go to Kenya for a vacation.  However, it is probably not safe for an Ethiopian refugee to live in Kenya.  So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe.  To present that proof would require a certain amount of resources–and probably a decent lawyer.  Only those who could afford to make their case would qualify for asylum.  This seems like an arbitrarily way to determine who qualifies for protection in our country.

A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through.  Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.

Another issue is that, as a world leader, other countries follow what we do.  If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit.  This would generally weaken the international system for protecting persecuted people.

Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing.  I think this is dead wrong.  Our country greatly benefits from asylum seekers.  This has been historically true, and continues to be true today.  My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists.  I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country.  While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country. 

So, in the end, I oppose Mr. Krikorian’s “safe third country” idea.  As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief.  At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.

Asylum for Women Who Can’t Get Abortions?

In Nicaragua, abortions are illegal under all circumstances.  That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk.  Women and girls who have abortions are subject to long terms of imprisonment.  Health professionals who perform abortions also face stiff criminal penalties.  Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.

Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law–certain treatments are now less available to pregnant women because the treatment might put the fetus at risk.  Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law.  On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).

Apparently, Nicaragua is not in the running this year.

While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here.  Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.

Nicaraguan Women

To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground.  The protected ground that might apply here is “particular social group.”  I can think of two possible “particular social groups:” (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.

While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of “persecution,” as that term is defined by case law.  I’ve actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution.  Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).

The second category–pregnant women who face health problems because they are unable to obtain abortions–is more interesting.  Again, this is probably a cognizable particular social group.  The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution.  The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).  Health care is certainly an “essential of life,” and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.

So it seems to me that women in the second category–and perhaps also in the first–would qualify for asylum under the Immigration and Nationality Act.

Nicaraguan Health Care Workers

The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother.  As I discussed above, I doubt that prison time in Nicaragua would be considered “persecution,” so the health care workers would have difficulty establishing this element of an asylum claim.  Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.

One possible protected ground is political opinion, i.e., that women should be allowed to have abortions.  However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.

The other possible protected ground is particular social group–health care workers who have performed abortions.  The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution.  In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:

Whatever its precise scope, the term “particular social groups” surely was not intended for the protection of members of the criminal class… merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other….  We suppose there might be an exception for some class of minor or technical offenders… who were singled out for savage punishment in their native land.  

Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a “particular social group.”

So far, I do not know of any United States asylum cases arising from Nicaragua’s  abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon.  If you are interested to learn more about this topic, check out Rights Undone, a blog about the “struggle to repeal the ban on life-saving abortions in Nicaragua.”

New BIA Decision Will Harm Asylum Seekers

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

Fear and Loathing in the Asylum System

Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud.  “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.

First, though, I must mention that the problem of asylum fraud seems to me overblown.  In my practice, I might do 35 or 40 asylum cases each year.  Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide.  In the U.S., between the  Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year.  Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%).  Even if many of the cases are false, the numbers just aren’t that significant.  That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases.  Anyway, enough of my ramblin’.  Here is one proposed solution, and my response:

Our Foreign Service Officers apparently have nothing better to do, so they might as well adjudicate asylum cases.

In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.”  Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”

Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators.  The reason for this, I suspect, is because there are no such people pressuring adjudicators.  Sure, there are groups (such as TRAC) that track and publish asylum statistics.  When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence.  Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss.  Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that.  Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud.  The plurality of asylum seekers are from China.  Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases?  If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case?  I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases.  In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.

Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea.  But I’ll save that for a future post.

Doonesbury Takes on Asylum

Trff Bmzklfrpz and Duke in happier days.

Gary Trudeau’s comic strip Doonesbury is running a series about a deposed dictator named Trff Bmzklfrpz who is seeking asylum in the United States.  The dictator is living with (and mooching off) Uncle Duke, and Duke wants him out of the house.  He tries to convince–and coerce–Trff to attend his asylum hearing and “get his green card,” so he can find a job and get out of the house.  If you are interested, here is a link to the first strip in the series.

Should the U.S. Send Asylum Seekers to Mexico?

The government of Australia recently entered into an agreement with Malaysia whereby the next 800 asylum seekers who arrive illegally by boat in Australia will be sent to Malaysia where their asylum cases will be processed.  The deal still needs to have some kinks ironed out, but it seems that if an asylum case is approved, the asylee would join the (long) queue of registered refugees waiting for resettlement to Australia or elsewhere.  While the asylum seekers’ cases are pending, they will have permission to work or study in Malaysia, and they will have access to healthcare (at least theoretically: the Malaysian government does not have a great reputation for its treatment of refugees).  In exchange for taking the asylum seekers, Australia will accept 4,000 refugees–i.e., people who have already been determined to qualify for refugee status–from Malaysia, and Australia will pay for the plan.  The hope is that by sending asylum seekers to Malaysia and putting them at the back of the resettlement line, the new plan will eliminate the incentive for people to come illegally to Australia.

Malaysian Tourism Minister laments the new plan: "Not even refugees want to come here!"

The United Nations Commissioner for Human Rights has questioned the legality of this arrangement.  But Australia is pressing ahead with the plan, and has already identified the first boatload of asylum seekers who will be sent to Malaysia.  The Australian Prime Minister sees this plan as a way to reduce the lucrative alien smuggling business and protect refugees:

“I made it very clear that what I wanted to do was to break the back of the people smuggling model, to take away from them the very product that they sell, to stop people risking their lives at sea and to stop people profiting from human misery,” Australian Prime Minister Julia Gillard said at a news conference. “I wanted to see us do something to end the profitability of people smuggling.”

My question is, could the U.S. adopt such a model to discourage asylum seekers who enter the U.S. at our Southern border?  Such people often make a long and dangerous journey from their country to ours.  They pass through many countries before entering the United States illegally and applying for asylum.  Thus, it seems these asylum seekers are subject to a “push” (a reason to leave their home countries) and a “pull” (a reason to come to the U.S. rather than another country).  What if we eliminated the “pull” by sending such people to a third country to process their cases?  Some thoughts:

For a start, we would need a country willing to accept our asylum seekers.  The most obvious choice is Mexico.  Mexico is trying to comply with international refugee law, and most asylum seekers entering the U.S. illegally have to pass through Mexico to get here.  The asylum seekers from China and Africa who pay thousands of dollars to smugglers, are paying to come to the U.S., not to Mexico.  And–no offense to Mexico–I don’t think asylum seekers would pay these exorbitant sums if their journeys ended in Mexico.  So if we sent our asylum seekers to Mexico, it would reduce the “pull” factor and might discourage large numbers of people from trying to come here illegally (and risking their lives in the process).

On the other hand, there are good reasons why we should not adopt Australia’s model.  A letter from Human Rights Watch to the Prime Minister of Australia makes some convincing arguments against “outsourcing” asylum seekers.  First, there are real questions about whether the receiving country will treat asylum seekers in accordance with Australia’s (or our) human rights obligations.  Second, forcibly transferring asylum seekers may violate treaty commitments.  The HRW letter continues:

We are also concerned that this deal is premised on the dangerous notion that obligations of states party to the Refugee Convention can be transferred to states with no such convention obligations.  Finally, we also fear that this deal tries to subvert the principles underlying refugee resettlement by transforming resettlement from a tool of international protection into a mechanism of migration-control.

To these reasons, I would add that transferring asylum seekers sets a bad precedent for how other countries will treat asylum seekers.  The United States sets the standard for many areas of international law and policy.  If we shirk our commitment to asylum seekers, other countries will follow suit.  Finally, we often forget how much asylum seekers contribute to our country.  Check out this list of famous refugees for some well-known examples of refugees who have contributed greatly to their host countries.

We will see how the Australian experiment proceeds.  It will be relatively easy to determine whether the plan reduces the number of illegal migrants, but it will be difficult to measure how the plan impacts human rights.  We need to look at both sides of the equation before we consider such an approach for our country.