Pity the Persecutors

Passover is the holiday where we remember the Jews’ exodus from slavery in Egypt. As we all know, it didn’t end well for the Egyptians, what with the 10 plagues (including death of the first born – oy vey!), and then the business about drowning in the Red Sea.

The Passover Seder is the meal where we re-tell the story of the Exodus. At the Seder, we dip our finger (or a spoon for the germ-o-phobes among us) into  our wine 10 times, and remove one drop each time. This reminds us that the joy of our liberation is diminished by the suffering of the Egyptians.  

Don't you Jews eat any other part of the Matzah?
Don’t you Jews eat any other part of the Matzah?

I often think about how the source countries for my clients are affected by my clients’ departure. Many of my clients are well educated and talented people. They are exactly the type of people the source countries need in order to improve. The only problem is that such people are often targeted by fascist regimes (like the Syrian government) or extremists movements (like the Taliban).

Some would argue that people like my clients should stay in their countries and work (or fight) for change. That is easy to say for people who do not live in such places, and who do not face threats to themselves and their family members. Many of my clients did, in fact, work for change in their countries before they left. For example, I am about to file the case of an Afghan man who worked for various NGOs helping children and women. After receiving many threats, he was brutally attacked with a knife (necessitating numerous surgeries), and finally fled for his life. His case is in some ways typical of my clients. They continue their good work in the face of death threats, but at some point, they feel compelled to leave. International humanitarian law exists to help such people, and my feeling is that each person needs to make his own decision about whether to stay or go (the Washington Post recently ran a depressing photo essay about this choice in the context of Syria).

One thing that seems obvious is that when such people leave, their home countries are diminished. While I can’t say I pity the persecutors, I do feel bad that good people–people who could make a difference in their home countries–are forced to leave. This harms the people who are left behind and helps create a vicious cycle: Conditions are bad, so good people leave, and then conditions get worse, so more good people leave.

My one hope, which I see with my clients, is that they often remain engaged trying to help their homelands. Many of my clients are journalists and human rights activists. They can continue to support change in their home countries (by working for the media, for human rights organizations or for the U.S. government), while living safely in the United States. 

So as we celebrate Passover, I am thankful for freedom and safety. But I will also try to remain cognizant of those who are left behind.

Immigration Reform for Asylum Seekers, Part One

Now that Comprehensive Immigration Reform is finally on the table, I thought I would discuss my own “wish list” for reforming the asylum and humanitarian relief system. Human Rights First is in the forefront of the effort to include asylum reform in any CIR package, and they–along with scores of other organizations and law professors–have submitted recommendations to Congress and the President. Below is my own take on asylum reform, including some thoughts on Withholding of Removal and relief under the United Nations Convention Against Torture:

– One Year Filing Deadline: The current law requires aliens to file for asylum within one year of their arrival in the United States. There are two exceptions to this rule: (1) changed circumstances (i.e., it was safe to return home when the alien arrived here, but something changed, and it is no longer safe to return home); and (2) extraordinary circumstances (i.e., something prevented the alien from filing for asylum–maybe she was a child and did not have the capacity to file, or maybe she was suffering from post traumatic stress disorder). Aliens who cannot demonstrate an exception to the rule will be denied asylum if they file more than one year after they arrive in the U.S.

Also on my wish list: My Little Pony (with brush).
Also on my wish list: My Little Pony (with brush).

Supposedly the original purpose of the one-year rule was to prevent fraud. However, the real-life effect of the rule is to block legitimate refugees from obtaining asylum. One group in particular that has been negatively affected are LGBT asylum seekers. In many cases such people are not “out” when they arrive in the U.S., and it takes them time–often more than one year–to understand their sexual orientation and then decide to seek asylum. Other people harmed by the one-year rule include those who are emotionally unable to prepare their cases due to the severe traumas they suffered, people who do not know about the one-year requirement, and people who wait to seek asylum in the hope that country conditions back home will improve.

Having litigated dozens of cases where the one-year rule was a factor, I don’t see how it ever prevented fraud. It is an arbitrary rule, which does nothing except block legitimate asylum seekers from obtaining relief. My number one hope for asylum reform is that the one-year rule will be eliminated.

– Asylum Clock: I have written previously about the Asylum Clock. When an alien files for asylum, DHS starts a “clock.” When the clock reaches 150 days, the applicant can file for a work permit. If the applicant does anything to delay her case, the clock stops. Theoretically, when the delay ends, the clock should re-start. But thanks to ambiguous rules governing the Asylum Clock, that does not always happen.

Although I really can’t stand the Asylum Clock, I suppose I recognize that it is a necessary evil. Prior to the clock, it was common for aliens to file frivolous asylum applications in order to obtain a work permit. In those days, cases took years to adjudicate, so anyone claiming asylum could work lawfully in the U.S. for years before their case was denied. The Asylum Clock, combined with the fact that asylum cases–at least at the Asylum Offices–are usually decided in a matter of months, have greatly reduced frivolous applications. Although it has helped to reduce fraud, the Asylum Clock is incredibly annoying.

The bottom line for me is that the presumption of the Asylum Clock should be in favor of keeping the clock moving. If an Asylum Officer or an Immigration Judge finds that the alien is purposefully delaying his case or that the case is frivolous, they should stop the clock. But the clock should not be stopped for legitimate delays (For example, sometimes an attorney must refuse an appointment date due to a conflict. When this happens, the clock stops. But why should the alien be penalized because the attorney is unavailable on a particular date?). My “wish” here is that the Asylum Clock rules will be re-written to make it easier and faster for asylum seekers to get their work permits.

– Withholding of Removal and Convention Against Torture (“CAT”): There are two distinct categories of people who receive Withholding or CAT instead of asylum. One group are people who are ineligible for asylum because they are criminals or human rights abusers. The other group are people who missed the one-year filing deadline for asylum (and receive Withholding) and people who face torture in their countries, but not on account of one of the protected grounds for asylum (they receive CAT). Aliens who receive Withholding or CAT receive a work permit, which must be renewed every year, but they can never become residents. Unlike asylees, they cannot petition to bring immediate family members to the U.S. and if they leave the U.S., they cannot return. Finally, because few people have these statuses, people with CAT or Withholding often have trouble obtaining a driver’s license and convincing employers that they are lawfully present in the United States.

Frankly, I am not in favor of giving more benefits to criminals or human rights abusers who receive Withholding or CAT. Some immigration rights advocates would disagree with this (and there are legitimate reasons to disagree), but I feel that there should be consequences for our bad actions, and people who do not qualify for asylum due to their own bad conduct should suffer those consequences.

On the other hand, it is unfair to penalize people who receive Withholding or CAT because they missed a filing deadline, or because they face torture for some reason other than race, religion, nationality, particular social group or political opinion. My “wish” here is that such people receive some or all of the benefits normally given to asylum seekers. These people have done nothing wrong, and often they have suffered serious abuse in their homelands.

Well, that’s enough for now. I have a few more wishes, but I will cover those in a future post. 

CIVIC Works to Visit and Protect Detained Immigrants

CIVIC–Community Initiatives for Visiting Immigrants in Confinement–is an organization that works to “end the isolation and abuse of men and women in U.S. immigration detention by building and strengthening volunteer-run community visitation programs.” The idea is that if ordinary people visit detained immigrants, the immigrants will feel more connected and more hopeful, and the detention facilities (many of which are run by private, for-profit corporations) will not be able to get away with abusing detainees. 

The protection aspect of CIVIC’s mission reminds me of Amnesty International, which calls attention to individuals at risk of abuse through letter writing campaigns. The hope is that if the abuser knows he is being watched, he is less likely to harm the victim. 

"Remember... Hope is a good thing, maybe the best of things, and no good thing ever dies."
“Remember… Hope is a good thing, maybe the best of things, and no good thing ever dies.”

Based on my experience with detained clients, it seems to me that CIVIC’s goals of offering hope and protection to detained immigrants are (unfortunately) very necessary. Many people in immigration detention have no criminal record and are not dangerous to the community. Some are minors. Others are asylum seekers who suffered persecution and torture in their home countries. These people remain detained for months and sometimes years. The emotional (and physical) toll of such detention can be quite devastating.

CIVIC is currently working to expand its visitation program, in accordance with ICE’s Visitation Directive, which was designed to help facilitate visits to detention facilities. In furtherance of this goal, CIVIC has released the following statement:

Every day, immigrants disappear and are detained by the U.S. government. For example, Ana is a human trafficking victim who was detained for over a year, locked in solitary confinement, and forced by a guard to sleep on the cement floor of her cell until CIVIC ended this isolation and abuse. Over 32,000 immigrants like Ana remain isolated in remote detention facilities today because no law protects a right to visitation, phone calls cost up to $5.00 per minute, and 46% of detained migrants are transferred at least twice during their detention–often out of state and away from their families.

CIVIC is changing this reality by building and strengthening community visitation programs that are dedicated to ending the isolation and abuse of men and women in immigration detention.  Visitation programs connect persons in civil immigration detention with community members. These volunteer visitors provide immigrants in detention with a link to the outside world, while also preventing human rights abuses by creating a community presence in otherwise invisible detention facilities.

CIVIC recently released A Guide to Touring U.S. Immigration Detention Facilities & Building Alliances, designed for communities across the country hoping to start a visitation program using ICE’s new Visitation Directive.  The benefit of this resource is that the general guidelines are tailored to the unique request of using the Visitation Directive as a tool to establish contact and set up a permanent visitation program. In addition, this manual provides an overview of some of the successes and roadblocks visitation programs have encountered in the first year of the Visitation Directive’s existence.

CIVIC is setting in motion a national movement to combat the isolating experience of immigration detention.  To get involved or for more information, please visit their website at www.endisolation.org.

In some parts of the country–like the DC metro area–we have a well established visitation program (thank you CAIR Coalition). But in many areas, detained immigrants are much more isolated. For people looking for an interesting and rewarding volunteer experience, CIVIC’s program offers an excellent way to get involved and to help people who are in great need.

Russia Angered by UK Asylum Grant

Recently, I wrote about people from friendly countries receiving asylum in the United States. There are few such cases, and they generally seem to be aberrations.  For these reasons, the source countries are not particularly concerned that we are granting asylum to their nationals.  That is not always the case, however. 

Russia called.  They want their Baryshnikov back.
Russia called. They want their Baryshnikov back.

Earlier this month, the United Kingdom granted asylum to Andrey Borodin, a 45-year-old Russian banking tycoon, who owns Britain’s most expensive private house (it’s quite nice, as you can see here). Russian authorities accuse Mr. Borodin of bank fraud.  But Mr. Borodin claims that the charges were trumped up after he accused a key ally of President Vladimir Putin of corruption. The case became public after Mr. Borodin and his lawyer spoke to the press about receiving refuge in the UK (Britain, like the U.S., keeps such claims confidential).

Moscow was not pleased by the Brit’s offer of asylum:

The Russian premier’s press secretary Natalya Timakova said that the accusations against Mr. Borodin—who fled to London in April 2011—are of “pure criminal character” involving the Bank of Moscow, which he formerly owned. “There [is] now a practice of seeking political asylum, especially in England, whereby it doesn’t matter what the seeker has done,” she said. “What matters is how loudly he shouts about political persecution—and this will become a guarantee that the asylum will be granted.” Ms. Timakova accused Britain of ignoring that Interpol “is after him.” Moscow also insists that it would continue to demand Mr. Borodin’s extradition from Britain.

Mr. Borodin counters (probably correctly) that, “Any political asylum seeker must submit the application together with… proof showing the political character of the persecution in his native country.” “My lawyers submitted all necessary proof,” added Mr. Borodin. 

This case reminds me of one I worked on as a wee law clerk at the Arlington Immigration Court. Alexander Konanykhin was a Russian businessman in the roaring 90’s who made hundreds of millions of dollars. The Russian government eventually seized most of his assets and forced him to flee for his life. He made his way to the United States, but the Russians wanted him back and INS tried to deport him. After an epic trial in 1999, he received asylum. The asylum grant was overturned, but later (in 2007) re-instated, and Mr. Konanykhin is now a successful businessman in the United States. Although Mr. Konanykhin always seemed a bit shady to me, it was quite clear that the Russian government was up to no good. Mr. Konanykhin called the government a “Mafiocracy.” 

Between the UK and Russia, I will choose the UK, and–Gerard Depardieu notwithstanding–my bet is that there was ample evidence that Mr. Borodin faced persecution on account of his political activities. He would certainly not be the first Putin opponent to end up in jail (Mikhail Khodorkovsky) or dead (Anna Politkovskaya).

Russia can complain about Britain (or the U.S.) granting asylum to its nationals. But so long as those countries follow international human rights law, and so long as the Russian government continues to persecute its opponents, Russians will be able to obtain asylum in the West. To (badly) paraphrase The Bard: The fault, dear Putin, lies not in the asylum process, but in yourself.