Immigration Reform and Asylum Fraud

As lawmakers consider changes to the asylum system, one area of concern is asylum fraud.

If it takes one to know one, Congress should be great at eliminating fraud.
If it takes one to know one, Congress should be great at eliminating fraud.

The Senate Bill, in its current form, would eliminate the one-year asylum filing deadline. This deadline was created in an effort to stop asylum fraud. In reality (and as I discuss here), the one-year deadline does little to stop fraud, but often harms legitimate refugees. What, then, could the Senate do to help reduce asylum fraud? Below are a few suggestions:

  • Investigate and Prosecute Attorneys and Notarios Suspected of Facilitating Fraud – Based on my experience and my conversations with Asylum Officers and DHS attorneys, I believe that a small number of attorneys and notaries are responsible for a large percentage of fraud. Asylum Officers, DHS Attorneys, and Immigration Judges will often harbor suspicions about which attorneys and notaries are producing fraudulent asylum cases. The Government could (1) create a national database of suspected fraudsters; (2) question the clients of suspected fraudsters closely, in order to determine what role the attorney or notario played in preparing the case. Such information could be entered into the database to help build a case against the suspect; (3) if there is sufficient evidence against a particular fraudster, the person could be investigated; (4) attorneys and notarios should be prosecuted for fraud, and—where prosecution is not possible—a bar complaint should be filed against suspected attorneys; and (5) where possible, notarios should be prosecuted for practicing law without a license.
  • Create a Mandatory Immigration Bar – The Executive Office for Immigration Review (“EOIR”) is in the process of creating an electronic registry for attorneys who practice before the Immigration Courts. This registry could be expanded into a mandatory immigration bar. Immigration Judges and Asylum Officers who suspect an attorney’s involvement in fraud could submit a complaint to the bar for investigation. Also, aliens who have been victimized by an attorney could make a complaint to the bar association. 
  • Create a Mandatory Notario Registry – The asylum form, Form I-589, requires that the applicant give the name and contact information for whoever helped the applicant prepare the form. The I-589 form could request additional information about the preparer: (1) whether she charges a fee; (2) what her relationship is to the applicant (hired professional, friend, family member); (3) whether she is an attorney; (4) if she is not an attorney, whether she has informed the applicant that she is not an attorney; and (5) a copy of her photo ID. DOJ and DHS could require all hired preparers to register, and could track the cases they submit in a notario data base. Notarios who engage in bad behavior could then be punished and/or prevented from providing services to asylum applicants.

It seems to me that the above approaches would do more to reduce fraud than the one-year asylum filing deadline. In my experience, the deadline does nothing to stop fraudulent cases.  Instead, it tends to block legitimate asylum seekers who are ignorant of the law, or who don’t file because they hope the situation back home will improve. Other people miss the deadline because they have been traumatized in their country and they do not want to re-live their difficult experiences by having to prepare an asylum case.  One group that has been particularly hard hit by the one-year deadline is LGBT asylum seekers. Often, such people are not “out” when they come to the United States, and they need time before they are able to discuss their sexual orientation publicly. Another group disproportionately affected by the deadline is women, who often fail to file due to shame or lack of knowledge about the asylum system.

Requiring notarios and attorneys to register, and keeping track of them, is more work than simply imposing an arbitrary deadline, but it would have the virtue of actually doing something to solve the problem.

Senators Try to Help Women Immigrants, But Ignore Women Asylum Seekers

A proposed amendment to the Senate Immigration Bill would reserve 30,000 green cards for people in jobs traditionally held by women, such as nannies, home health-care workers, and early childhood educators. The amendment is sponsored by 12 of the 20 women in the U.S. Senate.

According to the Washington Post, the “lawmakers say pending immigration legislation is unfairly weighted toward male workers because it rewards applicants who are better educated and have more technical skills.”

You're in
You’re in

While I agree that the immigration system has been skewed in favor of male immigrants, I am not sure that this is the best way to help female immigrants. Either we need high skilled workers in our economy or we don’t; either we need more nannies in our economy or we don’t. Why not set the number of visas for each category based on the needs of our economy, and then reserve a certain percentage (say 50%) of visas for women. Is this discriminatory? Yes, but Congress has the power to discriminate when it comes to immigration law, and if the idea is to help women and aid our economy, then this would be one way to achieve that goal.

If members of the Senate are inclined to help women immigrants, I have another idea: Do something to rectify the male-centric asylum law.

Modern U.S. asylum law is based on a definition of “refugee” that was codified in the 1950’s. The types of people seeking asylum in those days were mostly men–political activists fleeing persecution, for example–and this is what the law reflects. Gender violence was not part of the equation, and the statute (INA § 101(a)(42)) did not (and does not) protect victims of domestic violence, female genital mutilation, forced marriage or sexual assault. 

The last legislative change to the definition of refugee occurred in 1996 when Congress made forced abortion and forced family planning a basis for refugee status. My impression is that this amendment had more to do with domestic politics (showing fealty to pro-life voters and sticking it to the Chinese Communists) than to helping women, but nevertheless, many women (and men) have benefited from the change.

You're out
You’re out

Other pro-women changes to the law in recent decades have been driven by lawyer advocates. As a result of these changes, it is now possible for victims of FGM and forced marriage to receive asylum. Victims of domestic violence can also sometimes receive asylum. But if Congress is planning to amend the immigration law, and if the Senate wants to help women, why not do something to codify and protect these advances? 

In addition, I would hope that the pro-women Senators would support the elimination of the one-year asylum filing deadline (aliens who fail to file for asylum within one year of arrival in the United States are ineligible for asylum). A study from Temple University and Georgetown (my two alma maters!) has shown that female asylum seekers are 50% more likely to file for asylum three years or more after arrival. In an excellent piece on this point, Elisa Massimino of Human Rights First explains that one reason for the delay is the shame many women feel when they have to publicly describe their persecution. This jibes with my experience–many of my female clients filed late because of shame, depression, ignorance about the asylum system (and whether the persecution they face would qualify them for protection), and what might be called “conditioned subservience.”

I agree with the Senators who believe that something needs to be done to help female immigrants. Helping women who face persecution–and who are currently falling through the cracks of our asylum system–would be an excellent place to begin.

When Clients Lie

I once represented a Russian woman who paid a notario (or whatever you call the Russian equivalent of a notario) $10,000.00 to concoct a phony story about how the woman was a lesbian who faced persecution in her home country. The application was denied, in part because the notario failed to inform the asylum seeker about the contents of her application, and the woman was referred to Immigration Court.

Admit your mistakes and you may get asylum... or even a seat in Congress.
Admit your mistakes and you may get asylum… or even a seat in Congress.

By the time I got the case, the woman had married a United States citizen (a man) and was facing deportation. We had to decide how best to approach the case, given the client’s previous lies. What we did is the same approach I have used many times since, because it tends to work. We admitted that she lied, explained how the lie happened (basically, a naive young woman following the advice of a high-paid crook), accepted responsibility for what she did wrong, and apologized.

In the end, the client received her green card based on the marriage. My favorite part of the case was when I informed the Immigration Judge that I would have an expert at trial to testify concerning country conditions in Russia: The husband was African American, and if his wife was deported, he planned to follow her to Russia, where he would likely face problems with skinheads and other racists. The Judge, who was also black, told me, “I don’t need an expert to tell me that there is racism in Russia.” We skipped the expert and won the case.

This basic formula–admit the lie, take responsibility, and apologize–is one that has worked for my clients on numerous occasions.

Just last month, for example, we completed the case of an asylee who had been convicted of stealing money from his employer. The crime was an aggravated felony under the Immigration and Nationality Act (because he was sentenced to more than one year in prison). The refuge waiver, under section 209(c) of the INA, is one of the rare waivers that allows an aggravated felon to adjust status from asylum or refugee to lawful permanent resident. It’s not an easy waiver to get, and really isn’t that common (which–I hope–means that asylees rarely commit aggravated felonies).

In that case we used the same formula.  The client took responsibility for his crime, apologized, and promised that he would not engage in such behavior again. We also submitted evidence of rehabilitation. The waiver was granted, the client was released from detention (after a good eight months in jail), and he received his green card.

This same strategy can be used for clients who lied to obtain a visa or who entered the country illegally. The fact finders want to hear that the alien accepts responsibility for what she did. And in asylum cases, there really is little to gain from covering up such lies, as people who falsely obtain a visa (or enter the U.S. illegally) in order to escape persecution are not ineligible for asylum.

The point of all this is not that the client can say the magic words and win permission to remain in the United States. Rather, the alien who accepts responsibility for what he did (and tries to turn his life around) is much more likely to receive relief than the alien who tries to cover it up or blame someone else.

Former CIA Official Reveals Secrets, Plans to Seek Asylum Abroad

The man who revealed the U.S. government’s program of secret surveillance, including of millions of U.S. citizens, has fled to Hong Kong and indicated that he will be seeking asylum from “any countries that believe in free speech and oppose the victimization of global privacy.”

Edward Snowden is a 29-year former CIA employee who was working for the consulting firm Booz Allen Hamilton, where he contracted with the National Security Agency. The Washington Post describes the details of Mr. Snowden’s reveal:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets….

Mr. Snowden fled to China, where stealing U.S. secrets is a national pastime.
Mr. Snowden fled to China, where stealing U.S. secrets is a national pastime.

The Director of National Intelligence James R. Clapper responded to the revelations last week:

Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.

Mr. Snowden came forward and identified himself over the weekend. “I have no intention of hiding who I am,” he said, “because I know I have done nothing wrong.” Mr. Snowden is clearly convinced of the righteousness of his cause:

I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.

I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.

By revealing himself, Mr. Snowden has put his freedom and his future (and perhaps his life) at risk.

Here, I don’t want to discuss the virtues of Mr. Snowden’s actions (though I will note that I have been critical of another whistleblower/asylum seeker, Julian Assange, whose revelations put many people at risk). Rather, I want to discuss the merits of any potential asylum claim by Mr. Snowden.

To qualify for asylum under international law, a person must demonstrate a well-founded fear of persecution on account of race, religion, nationality, particular social group or political opinion. At least under U.S. asylum law, whistleblowers have been found eligible for asylum in some circumstances:

Whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution…

So the first question is whether Mr. Snowden’s actions constitute whistleblowing. I suppose that would depend on whether he was blowing the whistle against illegal activities or simply against activities that he disagreed with. If it was the latter, it would seem to me that granting him asylum would set a dangerous precedent. Does anyone who disagrees with a democratically elected government have the right to break laws they disagree with, search for a country willing to accept them, and then flee to that country for asylum? Sad to say, the answer is probably “yes,” but I think this does not bode well for international law or relations.

Reasonable minds can differ on whether Mr. Snowden’s actions were justified or whether they constitute whistleblowing. But assuming we accept that such actions are whistleblowing, we need to be prepared to deal with the consequential damage to the rule of law. 

Second, even if Mr. Snowden’s actions constitute whistleblowing and can be characterized as an expression of his political opinion, he still needs to demonstrate that he faces persecution–as opposed to prosecution–on account of those actions. While I would like to think that any asylum seeker fleeing the U.S. would have a hard time demonstrating that he faces prosecution, I am not so sure. Between waterboarding, indefinite detention, and the over-use of solitary confinement (not to mention the death penalty, which probably would not apply to him), an asylum seeker like Mr. Snowden can probably make a decent argument that he would suffer persecution if he were returned to the United States.

Overall, I think Mr. Snowden will have a difficult–but not impossible–time qualifying for asylum under international law. However, like Julian Assange, there will probably be a number of countries willing to offer him asylum. If so, it likely will not be based on a careful analysis of international law, but instead on a calculation of that country’s own interests vis-a-vis the United States.

Yours Truly on NPR

As the new Immigration Bill heads from the committee to the full Senate, NPR turned for comment to a brilliant and seasoned asylum lawyer. Unfortunately, he wasn’t available, so they called me.

NPR listeners hear me explain the finer points of asylum law.
NPR listeners hear me explain the finer points of asylum law.

Yes, your humble blogger debuted earlier this week on the NPR show Talk of the Nation. This was my first ever appearance on radio (though sometime in the mid-1980s, I did appear on a local TV talk show as an example of a kid who did not kill himself as a result of Dungeons & Dragons).

While I am used to talking to judges, appearing on radio before a live audience is quite terrifying. I assumed that I would fall into the fetal position and cry for my mommy. But it was not to be. In fact, I thought the interview went pretty well (you can hear it or read the transcript here).

The title of the show was “Who Gets Asylum, Who Doesn’t and How that May Change.” I was the only guest to appear in-studio, with host Ari Shapiro. Other guests were Dan Stein of the restrictionist group FAIR (which wits on the Left have dubbed “un-FAIR” – we need better wits) and NPR Congressional Correspondent David Welna.

In the space of about 30 minutes, I managed to insult the governments of Pakistan, China, Eritrea, Cuba, Indonesia, Serbia, and possibly Mexico. I also (hopefully) made a decent argument for why the one-year asylum bar should be eliminated (the current version of the Bill would eliminate the bar). I tried to give many examples of asylum seekers who had been persecuted and who were worthy of protection (hence the need to insult numerous governments). And I hopefully made the case for preserving and strengthening the asylum system.

Although I enjoyed my experience at NPR, I can’t say I am particularly optimistic that the current Bill will make it into law. The most important aspects of the Bill are not related to asylum seekers, but the main provision related to asylum–elimination of the one year filing deadline–is important to many people, and thousands of legitimate refugees would benefit if the bar were removed.

We’ll see what happens in the coming weeks. At least one senator predicts that the Bill will pass the Senate with 70 votes prior to July 4th. I hope he is right, but even if he is, the Bill still has to get through the Republican-controlled House. To me, it seems like an up-hill battle. But it is definitely a battle worth fighting.