The “Dream 9,” and the Use and Mis-use of Asylum

by Jason Dzubow on August 13, 2013

in Asylum Seekers, Immigration

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If you’re at all following the current debate about immigration reform, you are probably familiar with the Dream 9. The LA Times provides a neat (and mostly accurate) summary of their case:

Last month, the five women and four men, who were brought to the U.S. illegally as children, staged an unconventional and risky protest at the U.S.-Mexico border to spotlight the thousands of people deported under the Obama administration. [Three of the activists left the U.S. recently. They returned with six others who had either left voluntarily or been deported.]
 
When the Dream 9 — named for the Dream Act, which would provide such immigrants a path to legalization — attempted to reenter the U.S. at the Nogales, Ariz., port of entry on July 22, they were arrested. They had been in federal custody since.

On Tuesday [August 6], immigration asylum officers found that all nine had credible fear of persecution or torture in their birth country [Mexico] and could therefore not be immediately removed.

The Dream 9 (minus one): "Mr. Obama - Tear down this wall, a bit."

The Dream 9 (minus one): “Mr. Obama – Tear down this wall, a bit.”

All nine were released, but must appear before an Immigration Judge, who will determine whether they are eligible for asylum. Such cases routinely take two years or more, and the nine men and women will be allowed to remain in the United States while their cases are pending. 

Among immigration advocates and attorneys, there is a heated–and not entirely civil–debate about the effectiveness of the Dreamers’ protest. But in this post, I am more interested in how the Dream 9 used the asylum law to avoid deportation and obtain release from detention. Here’s more from the LA Times:

Some of the Dream 9 are petitioning for asylum, saying that they have family members who have been killed and face death threats themselves.

However, many in the Dream 9 claim they should be granted asylum because they belong to a particular group of people — that they are singled out and persecuted in Mexico because they have lived most of their lives in the U.S. They could become targets for criminal organizations that see them as easy prey for extortion and violence, they claim.

Of course, I know almost nothing about the activists’ asylum claims (and no, that won’t stop me from commenting about them), but given the above information, it sounds like their claims are barely cognizable. Not that that necessarily should stop them from seeking asylum, especially where there is no other option. I’ve litigated many cases that seemed weak, and others that were nearly hopeless, and we managed to win a good number of them. While all that is great for my clients who received asylum and hopefully for the Dream 9, it’s not so great for “the system.”

Essentially what is happening with the Dream 9–and with many others arriving at our Southern border–is this: They reach the border, surrender or get caught, and then express a fear of return to their home country. DHS detains them and schedules them for a credible fear interview. At the interview, an Asylum Officer asks the alien about her case. If she expresses a fear of return based on race, religion, nationality, political opinion or particular social group, she “passes” the interview, and is then placed into removal proceedings where an Immigration Judge will (eventually) make a decision in her case. Many aliens will be released from detention while their cases are pending.

While the theory behind the credible fear interview is sound (screening out meritless asylum claims), the low threshold allows knowledgeable applicants to game the system, pass the interview, and–most likely–be released from detention. Probably the only reason that the system is not completely overwhelmed is because most aliens arriving at the border are not knowledgeable about how to frame their asylum claim in order to pass the credible fear interview. And, of course, almost none of the arriving aliens are represented by attorneys (the Dream 9 are represented by a lawyer, but I do not know whether they received legal advice prior to their credible fear interviews).

This all begs the question: Does the credible fear interview system still work? The problem is complicated by the fact that the number of people arriving at the border has increased dramatically over the last few months and the fact that the new arrivals seem more sophisticated about making claims for asylum. These issues, I will cover in the next posting. But for now, I will say that the Dream 9 have shed light on a real problem with the credible fear interview process: Inadmissible aliens can gain entry into the United States by making barely legitimate claims for asylum. While many of these aliens will “pass” the credible fear interview, most will be denied asylum (only about 2% of Mexican asylum claims are granted). The problem is that the increasing number of claims is causing long delays and is threatening to overwhelm the asylum system.

This problem is not new, and it has been known to Asylum Officers and advocates for some time. However, I suspect that the publicity of the Dream 9–combined with the upsurge of people arriving at the border and expressing a fear of persecution–will bring the system under greater scrutiny. So while I support the effort of the Dream 9 to bring attention to the plight of undocumented immigrants, I fear that a side effect of their activity will be further damage to the credible fear system, and further difficulties for legitimate asylum seekers.

{ 9 comments… read them below or add one }

Susan Pai October 8, 2013 at 3:40 pm

jason, please take a look at my blog on this topic. Thanks. Susan

Reply

Jason Dzubow October 8, 2013 at 4:05 pm

Here is a link to the blog:
http://Www.susanpaitwitter.wordpress.com
It is worth checking out.

Reply

Jay October 4, 2013 at 5:20 pm

Jason, thanks for pointing out the ‘mess at the border,’ as you put it. What some undocumented aliens have recently been able to accomplish is merely buy time by exploiting existing loopholes. There is no guarantee that they — or those inspired by them — will be able to achieve asylum in the country but in the meantime it appears that a lot more aliens might perceive this as a fast track to legalization. This will simply clog the system and deny a fair process to genuine candidates.

I agree with you that the claims made by the asylum seekers are laughable. Rocio Hernandez Perez is whining that she had to speak Spanish in Mexico. Others have complained that they feel threatened in Mexico because they had accents and one guy even said that he did not fit in Mexico because he walked/talked differently than the Mexicans.

My fear is that as more awareness is created about this, it might turn the public opinion against CIR.

Reply

Jason Dzubow October 6, 2013 at 9:43 pm

I did not say that the claims were laughable; I only expressed skepticism about how strong they are. I am not sure how you know what the basis for the asylum claims are, but if you are correct, those claims do not seem likely to succeed.

Reply

Matthew L. Kolken October 4, 2013 at 2:12 pm

I also suggest that you read former Board of Immigration Appeals member Lory Rosenberg’s article on the subject, as she is considered to be one of the most astute minds in all of immigration law.

She says:

“I strongly caution against anyone indulging in skepticism or cynicism in response to this week’s reports that the DREAM 9 satisfied the credible fear test. For that matter, restraint and neutrality is far preferable to the inappropriate and possibly biased comments reportedly made by at least one Immigration Judge, and this admonishment applies to anyone else tempted to opine on the merits of a case without knowing the details and before the case has been presented.”

See: http://blogs.ilw.com/blog.php?29229-Lory-Rosenberg-on-Appeal-Matters&tag=dream+9

Reply

Jason Dzubow October 4, 2013 at 4:20 pm

Based on your comments, I am not exactly sure you read what I wrote in the article. My article does not blame the Dreamers for causing the mess at the border, but certainly something has changed given the large jump in the number of credible fear interviews (and based on the statistics available, the upsurge at the border is not related to cartel violence – see my next posting where I break down the statistics). As I said in the article, if I was their lawyer and if they had no other option, and if they had legitimate claims, I would file asylum for them too. That said, I certainly think that I or anyone else – including a certain DL -has every right to question what is happening at the border, especially since many asylum seekers are being seriously harmed by the mess down there.

Reply

Matthew L. Kolken October 4, 2013 at 2:07 pm

The delays are a product of a nationwide reassignment of Asylum Officers to the Southern Border due to an exponential increase in asylum requests stemming from fears of persecution resulting from drug cartel violence.

As you point out the delays predate the DREAM 9 action and your title inappropriately suggests impropriety in their requests for protection.

I strongly suggest an edit.

Reply

Patti Lyman, Esq. August 14, 2013 at 3:27 pm

Jason, we are already seeing the negative impact of this caper on legitimate asylum seekers. My clients are waiting months for initial interviews that used to happen within a month, months for asylum decisions that used to take 2 weeks. Even worse, if a reschedule is needed, the affirmative applicant is penalized by in some cases a 6-10 month wait for a rescheduled interview, during which time their work permit eligibility is delayed.
The reason given by one asylum office after another is that their officers have been redeployed to handle a flood of credible fear interviews. It’s a disgrace, and it doesn’t make me sympathetic to the “Dream 9″ or the rest of the open borders crowd bent on destroying the asylum system, which in my view is the least broken part of the entire immigration system.

Reply

Jason Dzubow August 14, 2013 at 9:30 pm

I appreciate your comment, and I am curious about where you are. In DC (Arlington, VA asylum office), our delays are much greater than you describe. I am actually planning to write about this next week, as I have some stats on credible fear interviews at the border. As far as I can see, the problem started before the Dream 9, but they have certainly brought attention to what is happening at the border.

Reply

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