Hypocritical Editorial on Israeli Asylum System

A recent editorial in Al Jazeera by Charlotte Silver criticizes the Israeli asylum system.  The first paragraph pretty much sums up the author’s feelings on the matter:

The notion of a “Jewish and democratic state,” never a feasible reality, continues to unravel as its inherent racism is revealed in a new way.  Any political discussion of refugees that are of the wrong ethnicity inevitably refers to African migration to Israel as an “existential threat.”  Labeling these refugees as “threats” allows the state to criminalize and imprison them.  Meanwhile, the country continues to solicit immigrants from East Asia to fulfill the need for cheap labor, and Jewish immigrants to battle the internal demographic war.

To win asylum in Israel, you must show by a preponderance of evidence that your home government is meshugina.

There certainly are legitimate bases to criticize the Israeli asylum system (more on that below), but given the asylum systems–or lack thereof–in the Arab World, such criticism is hypocritical coming from Al Jazeera.  For one thing, unlike the large majority of countries on Earth, many Arab countries have not accepted the Refugee Convention and offer no protection to people fleeing persecution.  Further, wealthy countries such as Saudi Arabia, the UAE, and Kuwait are well known for their abusive treatment–akin to slavery–of foreign guest workers.  Given the absolute disaster that foreign asylum seekers face in Arab countries, Al Jazeera would do better to concentrate on the failures at home rather than complain about what the Israelis are doing.  It’s kind of like an F student criticizing an A student because he missed a question on the test (ok, maybe it’s more like an F student criticizing a C student, but you get the point).

That said, the Israeli asylum system is far from perfect.  A thoughtful–and very critical–academic article from 2010 by Professor Tally Kritzman examines the Israeli system, which was created in 2002 (although Israel has been a party to the Refugee Convention since 1954).  Essentially, the article argues that the Israeli asylum system is “an extension of Israel’s immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the ‘other,’ with the Palestinians and other enemy nationals facing maximum exclusion.”  While asylum seekers are considered “others” in many countries, Prof. Kritzman argues that in Israel such people are “more ‘other’ than elsewhere.”

Despite the problems, Israel is making an effort to improve its asylum system.  At the request of the Israeli Ministry of the Interior, in 2010 Israel partnered with the Hebrew Immigration Aid Society, UNHCR, and USCIS to help train asylum officers.  Hopefully this new effort will lead to an improved asylum system that will treat asylum seekers more correctly under international law and distinguish such people from immigrants to Israel.

Female Asylum Seekers Need Not Apply

In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.”  Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.

One way to avoid the problem of gender discrimination when seeking asylum.

The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.”  Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”

The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.”  As a result, asylum seekers often do not know that certain facts are relevant to their claim.  Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.

The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”

It seems to me that the basic problem is that international law is not designed with the problems of women in mind.  As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape.  These types of harm are not covered by the Refugee Convention.  Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.

The Nonsensical Biometrics Check

I arrived in Court the other day for an asylum case where I represented an Ethiopian poet who had been detained and persecuted for her political writings.  When the DHS attorney arrived, she told me that she had good news and not-so-good news.  The good news was that she reviewed the case and felt that my client should receive asylum (that was VERY good news).  The not-so-good news was that the biometric background check was not complete, so she thought we would have to reschedule the matter for another hearing, and the client would receive asylum at that time.  That news was inconvenient, and maybe a bit annoying, but not so bad.  However, it raises the question: What’s the deal with those pesky biometric background checks?

DHS biometric technicians hard at work.

Before we get to that question, here is a more basic query: What the heck is a biometric?  The State Department defines the term as follows:

A biometric or biometric identifier is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify the identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans.

In the case of asylum seekers, the biometrics are fingerprints and a photo.

Biometrics checks in asylum cases are valid for 15 months.  Meaning that if a case takes longer than that (which most cases do), the asylum seeker has to go for a new biometrics appointment where DHS again takes the person’s fingerprints and photo.  What’s nonsensical about this is that fingerprints do not change after 15 months.  In fact, the whole point of identifying people by their fingerprints is that the prints never change.  Otherwise, they would not be a very good way to identify people.  So why do the asylum seekers have to be re-printed?

As best as I can tell, sending asylum seekers for another fingerprint appointment is a way to “tickle” the system and generate a new background report.  So here’s a suggestion: Rather than wasting hours of the asylum seekers’ time arranging an appointment and traveling to the (always inconvenient) biometric office, and wasting the government’s time and money to repeatedly fingerprint and photograph hapless asylum seekers, let’s create a system where some government official pushes a button on a computer and generates a background check based on the existing biometric data.  This seems like a simple way to save time and money.  Also, since it can be done immediately prior to the Individual Hearing, it will be completely up to date.

In my Ethiopian case, the DHS attorney was able to run back to her office and get the results of the background check, so my client’s case was granted that day.   But for efficiencies sake, it would be better to reform the current biometric procedures.

Asylum for the Pakistani Doctor Who Helped Get Osama Bin Laden?

By now, the story of Shakil Afridi is well known.  The Pakistani doctor ran a vaccination program in Pakistan that served as cover for his real mission–to help the CIA track down Osama Bin Laden.  According to Leon Panetta, the former head of the CIA (and current Secretary of Defense), Dr. Afridi’s contribution was crucial to finding Bin Laden and terminating him with extreme prejudice.

The CIA Vaccine Program: We have ways of making you talk!

As a reward for helping rid the world of its number one terrorist, the government of Pakistan arrested Dr. Afridi and charged him with high treason, a crime punishable by death. Pakistan has also arrested Dr. Afridi’s wife for good measure.

I suppose from Pakistan’s point of view, Dr. Afridi should have informed the Pakistani government, not the U.S. government, about Mr. Bin Laden.  But I also suppose that–had he done so–Mr. Bin Laden would still be alive and well today.

So far, Pakistan has refused U.S. demands to release the good doctor, and now Congress is getting into the act.  A bill sponsored by Dana Rohrabacher, the Chair of the House Foreign Affairs Subcommittee on Oversight, calls for granting citizenship to Dr. Afridi.  Congressman Rohrabacher states:

My bill would grant [Dr. Afridi] US citizenship and send a direct and powerful message to those in the Pakistani government and military who protected the mastermind of 9/11 for all those years and who are now seeking retribution on those who helped to execute bin Laden….  This bill shows the world that America does not abandon its friends.

There are a few too many assumptions in the Congressman’s condemnation of Pakistan for my taste, but I agree with the general sentiment.  It is outrageous that our supposed ally would treat Dr. Afridi (and his wife) in this manner.  While Pakistan’s pride might have been hurt by our Abbottabad Operation, the fact is, Osama Bin Laden was living right under their noses and they did nothing about it.  Rather than lash out at the man who helped find Osama Bin Laden, they would do better to look inward and examine the shocking intelligence failure that allowed Mr. Bin Laden to live for years practically next door to Pakistan’s top military academy.

Whether the efforts of the State Department and Congress bear fruit, we shall see.  But certainly we should not abandoned the man who helped us eliminate Mr. Bin Laden.

As a side note, there are many other foreign nationals who have helped us in our fight against terrorism, often at great personal risk.  So far, we have not done right by most of them (I’ve written about this here).  We should not abandoned these people either.

South Korean Spy Blows the Whistle, Gets Asylum

As you might imagine, South Korea is not a big source country for asylum seekers.  So it’s newsworthy when someone receives asylum from that country–particularly when that someone is a former operative with Korea’s top spy agency, the National Intelligence Service (“NIS”).

Writing for the Korea Times, Donald Kirk reports on the asylum case of Kim Ki-sam, a South Korean intelligence agent who blew the whistle on the NIS and former South Korean President Kim Dae-jung.  Mr. Kirk also served as an expert witness at Kim Ki-sam’s asylum hearing in Philadelphia and wrote a book with Mr. Kim’s help, Korea Betrayed: Kim Dae-jung and Sunshine.

The story goes that Kim Ki-sam made public information about the “tremendous investment of time, money and resources that went into arranging the June 2000 summit between Kim Dae-jung [the former president of South Korea] and Kim Jong-il [the late and not-so-missed dictator of North Korea].”  Apparently, “hundreds of millions of dollars… flowed into North Korean coffers to grease the path to the summit while the NIS and other agencies lobbied hard for years for the Nobel Prize for Kim Dae-jung.”

People are always thinking of crazy ways to get out of Korea.

Kim Dae-jung won the Noble Peace Prize for his “Sunshine Policy” towards the North, but the award was tainted by allegations that vast sums of money flowed to the North while at the same time the South ignored human rights abuses in North Korea.

The asylum case apparently wasn’t easy.  Mr. Kim first applied for asylum in 2002.  An IJ granted asylum in 2008, but DHS appealed.  The case was remanded to the IJ and Mr. Kim presented his claim again.  Finally, last month, the IJ granted asylum and DHS agreed not to appeal.  Mr. Kim was ably represented by Janet Hinshaw-Thomas of Prime Immigration Ministry in Philadelphia.

Of course, all this makes me think of another supposed whistle blower from a democratic country–Bradley Manning, who is currently awaiting trial (and facing a possible death sentence) for revealing classified information to Wikileaks.  Perhaps it is ironic that we grant asylum to one whistle blower while we potentially put another to death, but I think the cases are distinguishable.  One difference is that Bradley Manning publicized documents that mention Afghan civilians by name.  This put the civilians in serious jeopardy of Taliban attack.  As far as I can see, Kim Ki-sam’s actions have not put people’s lives at risk.  Ironic or not, the South Korean whistle blower has now received political asylum from the U.S. government.

The Problem With Immigration Lawyers and How to Fix It, Part 4: Attorneys

If you have been reading this series of posts, you know that so far I’ve blamed several people/organizations for the poor quality of immigration attorneys: Immigration Judges, Bar Associations, and Notarios.  I suppose some of the blame for bad attorneys might possibly… perhaps… maybe rest with the attorneys themselves (ourselves).  So what’s wrong with immigration attorneys?

We lawyers aspire to be as competent as we are good looking.

For one thing, most immigration attorneys are solo or work for small firms (I fit into this category).  Therefore, the only real barrier to entry is to pass the bar.  This is not a particularly high standard.  Other areas of law where attorneys tend to be solo or small-firm practitioners also seem to have their fair share of problems: For example, there was a spate of incidents where criminal defense attorneys fell asleep during capital murder cases.  Not that attorneys who work for large firms, large organizations or the government are necessarily better than small firm lawyers, but at least they are vetted by the employer before being hired.  In a prior post I mentioned the idea of a mandatory immigration bar association.  I believe that such an association would improve the practice of law by educating and regulating lawyers who practice before Immigration Courts and agencies.  In other words, it would fulfill some of the functions of a large employer in terms of quality control.

Another issue for immigration lawyers (which I believe is changing) is that immigration law was not considered a very prestigious practice area.  This means that top-notch attorneys and law students have generally not been attracted to this field (obviously there are many exceptions).  One reflection of this problem is the absence of academic journals related to immigration law.  When I was a law student in the 1990’s, I was on the Georgetown Immigration Law Journal.  Even today, that journal bills itself as the “only student-edited law journal devoted exclusively to the study of immigration law.”  Given the growing popularity of immigration law–and the important ways it affects people’s lives–I am hopeful that the practice of immigration law will become more respected and that we will see more law school journals devoted to the subject.

A related issue is that until relatively recently, law schools offered very limited (or no) classes about immigration law.  Over the last five or 10 years, this situation has begun to change pretty dramatically.  Now, students interested in immigration law can take a number of relevant classes at most law schools.  Also, law school clinics where students represent asylum seekers and others in Immigration Court have become quite popular.  These increased educational opportunities will, I think, help improve the quality of attorneys practicing immigration law.

Finally, since many immigrant clients are unfamiliar with the American legal system, they are often poor advocates for themselves and require extra help from their attorneys.  They are also particularly vulnerable to unscrupulous lawyers.  This means that perhaps the field of immigration law attracts people who would take advantage of others.  An analogous (though largely anecdotal) situation involves a 1998 study of disbarred attorneys in Michigan.  The study (of only 16 attorneys) found that the practice area with the most disbarred attorneys was probate law.  “The combination of estate funds and often older clients apparently proved irresistible to several former attorneys,” the report speculates.  In other words, easy money and vulnerable clients attract unscrupulous lawyers.  In the immigration context, a mandatory bar association would help mitigate this problem.

I would like to conclude this series on an optimistic note.  I think immigration lawyers are getting better.  The field is becoming more prestigious and is attracting the best and brightest law school graduates.  Also, immigrants are becoming more sophisticated and better able to protect themselves.  Hopefully, all this will lead to better representation for people in Immigration Court.

Episcopalian Bishop from Sudan Receives U.S. Asylum

A Sudanese Bishop who spoke out against atrocities committed by the government of Sudan has received asylum in the United States.  The Legal Times reports that Bishop Andudu Adam Elnail of South Kordofan, a province of Sudan that borders the new country of South Sudan came to the United States for medical treatment in May 2011.  Conflict broke out in his home region shortly thereafter, and he filed for political asylum.

Martyrs of Sudan by Awer Bul, one of the Lost Boys of Sudan.

Bishop Elnail stated, “friends, brothers and sisters, children, my flock, have been killed mercilessly [by the government of Sudan] and are lying now in mass graves in Kadugli.”  According to one of his lawyers, the Bishop’s home was destroyed and looted, his office was destroyed and looted, and his church was destroyed and looted.  Based on his (very) well-founded fear of persecution in Sudan, the Bishop received asylum in the United States.

Now that he is safely in the U.S., Bishop Elnail plans to continue his advocacy for the people of Sudan.  In a written statement, he says, “Asylum is the way for me to advocate for the people of South Kordofan.”  “I can do more for my people here than if I was in Sudan.”  It’s hard to argue with this sentiment, since it seems pretty clear that if he returned to Sudan, the government–which has repeatedly demonstrated its utter disregard for human life–would make sure that he kept quiet.  Permanently.

The case was litigated by Covington & Burling attorneys Arjun Singh Sethi and Gerald Masoudi.  Mazel tov to them for their success in this important case.