Egyptian Coast Guard Fires on, Kills Syrian Refugees

One of the benefits–if that is the right word–of working on asylum cases is that you get to learn about a side of the world that is hidden. Countries that persecute people usually don’t like to publicize what they do. Most times, the knowledge really isn’t all that news worthy. It’s interesting and sad, but we’re all busy, and there’s only so much time in the day to worry about these things. But a client recently sent me this story, and I wanted to pass it on. It reflects one small piece of the Syrian refugee crisis.

Syrian refugees on the boat. The woman killed by the Egyptian Coast Guard is visible at the bottom right.
Syrian refugees on the boat. The woman killed by the Egyptian Coast Guard is visible at the bottom right.

My client is a Syrian asylum seekers (currently stuck in limbo along with most asylum seekers in the U.S.). He has contacts with the Syrian Free Army and has been involved in the humanitarian effort to help his people (the UN estimate that the war has created 1.5 million refugees and 4 million IDPs).

Apparently, some Syrian refugees in Egypt were trying to escape Egypt and reach Sweden. The first leg of their journey involved a boat trip to Italy. While they were still in Egyptian waters, the Egyptian Coast Guard chased them, fired on their boat with live ammunition, and then captured the refugees. Two people were killed by the gunfire. As of today, the refugees–men, women, and children–remain detained in Egypt in difficult conditions. My client was able to talk with one of the detained refugees by cell phone. Below are some excerpts from the conversation (translated from Arabic and edited by me for clarity).

The trip began last Tuesday, September 17, at 8:00 AM. We started from the shores of Alexandria, Egypt towards Italy. We hoped to reach Sweden to apply for political asylum. When the boat left, we were in extremely hard conditions and the boat itself was in very bad shape and very old. The boat was carrying almost 200 persons, including 30 children as young as four months old. There were also about 50 women; some of them are pregnant. The rest were men aged 20 to over 50.

After sailing for almost an hour, we were surprised that the Egyptian Coast Guard was tracking us. They began shooting live ammunition towards us, even though they could hear the screams of women and children and all the people on-board, and we waved our hands at them hoping they would stop shooting. They did not respond to our desperate cries and they kept shooting at us until our boat stopped. Then some Coast Guard members jumped onto our boat and threatened everyone with their guns. They did not even try to help the wounded among us.

The daughter of Fadwa Taha mourns her dead mother.
The daughter of Fadwa Taha mourns her dead mother.

When the situation calmed down for a moment, we discovered that there were two dead people, killed by the shooting. They are Omar Dalloul, a man in his late thirties, and Fadwa Taha, a woman in her fifties. There were also two people wounded–a 15-year-old boy and a young man who is 20 years old.

After that, the boat was towed to Aboukir Harbor in Alexandria (which is a military harbor), the coast guard did not allow any humanitarian agencies or media to document the incident. They pressured us to leave the boat. We tried our best not to leave the boat before having any organization present like the Red Cross or other humanitarian organization. We stood on the boat for four hours and tried to contact anyone to help us, but it was no use. Finally, the Egyptians promised that we would go to the police station for an hour to sign some paperwork and then be released.  But when we arrived at the police station, they took our passports and we have not been allowed to leave.

Immediately after we left the boat, we were detained in the port for 15 hours in the open. The children and women slept on the floor without any blankets. Finally, at around 2:00 AM on Wednesday, our group was divided up and we were transferred to two police station in Alexandria: Almountazah 2 Police Department and Aboukir Police Point.

Syrian men and boys detained at the Egyptian police station.
Syrian men and boys detained at the Egyptian police station.

The situation is very bad in prison. The part of the prison where we are does not have water or bathrooms because it is still under construction. Every day, construction workers and painters come and work here and the kids are suffering from the smell of paint. Also, there is a swamp nearby and so we are suffering from mosquitoes and flies.

We have babies who need nursing and the police won’t let them out of the prison. We have a boy who is here alone without his parents. When his family came to take him, the police didn’t agree. They said that he is charged and he needs to stay in prison. He is nine years old.

No media have covered our story, but we think some charity knows we are here because we are receiving food. We are not sure who is providing it, but it is not from the prison.

As far as I know, the refugees are still detained in Alexandria. Of course, I cannot verify this story, but it comes from a source I trust.

Egypt has signed the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. We can only hope that despite the turmoil in their own country, the Egyptians will live up to their obligations and treat these and other refugees with respect.

In Search of the ICE Agent Who “Outed” Obama’s Aunt

Just prior to the 2008 presidential election, the AP broke a story about Candidate Obama’s Aunt Zeituni, a rejected asylum seeker who was living in the U.S. illegally. The source for the story was an unnamed “federal law enforcement official.” At the time, it appeared that the leak was designed to harm Obama’s chances for success in the election. As you may have noticed, it didn’t.

After news of the leak broke, ICE initiated an investigate, and speculation about the source abounded.

"Outing" asylum seekers ain't classy, San Diego.
“Outing” asylum seekers ain’t classy, San Diego.

Fast forward to September 2013 when a heavily-redacted version of the report from the ICE Office of Professional Responsibility was finally made public. The report, which was actually completed in August 2010, states that ICE/OPR identified the leaker, who admitted what he did. However, it does not name names, nor does it indicate whether the leaker was punished. However, from a careful review of the report, some on-line research, and a bit of deduction, we can make a pretty good guess about who leaked Aunt Zeituni’s name and immigration status to the press.

We begin with the initial AP article, which was written by Eileen Sullivan and Elliot Spagat. The article does not name the source of information, but it states that the Aunt’s asylum application was denied in 2004 and she was ordered deported.

The ICE/OPR report indicates that the leaker was interviewed by “OPR/San Diego” in May and June 2010. The leaker admitted that he spoke with a male reporter (the names of the journalists are redacted, but it is most likely Elliot Spagat). The leaker stated that the disclosure was an “error in judgment.” He also claimed that he had no “political motivations.” Instead, he revealed the aunt’s illegal status because it was “very interesting information” and he thought “the American public has a right to know that.”

According to the report, the leaker had spoken with the reporter before and had a history of getting together with him socially. The leaker was first introduced to the reporter in 2007 by someone at the DHS Office of Public Affairs (which is the “primary point of contact for news media, organizations and the general public seeking information” about DHS). The leaker did two or three interviews with the reporter in the course of their relationship.

From this, we can glean some useful information about the source of the leak.

First, since the interview was conducted by OPR/San Diego, we can guess that the leaker is in San Diego. This conclusion is supported by the fact that the reporter (Mr. Spagat) is based in San Diego, and apparently the reporter and the leaker had met up socially a few times.

Second, the fact that the journalist had interviewed the leaker for two or three prior stories, and that the leaker was purposefully introduced to the journalist by the Office of Public Affairs points to a higher-ranking ICE officer. A lower-ranking employee would probably not be introduced to a journalist by the Office of Public Affairs or interviewed several times.

Since the leaker admitted to having been interviewed “two or three” times between 2007 (when he met the journalist) and October 31, 2008 (the date of the leak), we can look for names of ICE agents who appear in Mr. Spagat’s articles during this period.

Some on-line research revealed a few names, though one stood out because he appeared in several articles by Mr. Spagat in 2007 and 2008, but did not appear in any article after the election. While this person was the most likely suspect, I certainly did not have enough evidence to be sure. 

I thought the best approach would be simply to ask the person. I found his email, and sent the following message:

I have been investigating the disclosure of President Obama’s aunt’s case prior to the 2008 election. My research has led me to believe that you informed AP reporter Elliot Spagat about the aunt’s case. I am writing to ask whether you would be willing to discuss this situation.  Please let me know.

A few days later, I received this response from an attorney in Washington, DC who specializes in national security law:

My friend [redacted] contacted me about your e-mail inquiring about the disclosure of President Obama’s aunt’s case prior to the 2008 election. As I am sure you can imagine as a current ICE agent [redacted] would never be permitted to discuss a specific case without authorization from his agency. Respectfully, therefore, he can not respond to your e-mail.

Since this email came from a lawyer (and a pretty fancy lawyer at that) instead of DHS Public Affairs, and since it was not a denial, I suppose it provides some additional support for my theory about the leaker’s identity, but it was still not enough. I responded as follows:

Thank you for writing… I understand his position. Given the evidence I currently have, it seems very likely to me that he is the person who leaked the information. That said, it is currently not my intention to name him in the blog post (even as a suspect), as I do not wish to implicate anyone unless I am 100% certain about my information. If anything changes in that regard, I will contact you before I publish anything.

And that is as far as I got. So I guess I will not be winning any prizes for investigative journalism. While I feel that the public has a right to know who violated Aunt Zeituni’s confidentiality, I believe it would be wrong to accuse someone by name without stronger proof.

The OPR report indicates that “no prosecutorial actions” were taken in the case. I suppose that means that the leaker was not punished. He could have been: It is a violation of the law to violate an asylum seeker’s confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002).

To me, it is ironic that the leaker’s confidentiality received more protection than that of the asylum seeker. However, the fact that ICE investigated the leak and took it seriously will, we can hope, deter others from revealing such confidences in the future.

The American Citizens’ Guide to Seeking Asylum Abroad

This piece was originally published by [wherever] magazine, an out of place journal of travel literature, travel culture, and travel politics. I will periodically be blogging for the new magazine, which seems like a very cool publication (probably too cool for the likes of me, but for now, I’m still in).

I wrote this piece because I am contacted pretty regularly by U.S. citizens who are seeking asylum abroad, or who are thinking about it. Some of these asylum seekers are not so legitimate in my estimation–criminals who hope to avoid the consequences of their crimes. Others represent sad situations that involve people who have been frustrated by their inability to receive help from the government. Victims of domestic abuse are one example in this category. Also, there are those who are engaged in political activity (or what they consider political activity) that could result in criminal penalties here. Edward Snowden falls into this category. So do certain cannabis activists and others in favor of drug legalization (people who consider drug use a political act).

Some people need to flee the U.S.; others just need to leave already.
Some people need to flee the U.S.; others just need to leave already.

OK, without further ado, the original piece is here (where you can also check out some interesting articles and photos), and a slightly shortened version is below:

Let’s say you’ve decided to flee the United State of America. You’re not some high-profile asylum seeker like Edward Snowden, who can count on help from a rival government (Russia). Instead, you’re just an ordinary asylum seeker, who will have to demonstrate that you qualify for protection under international law. How would you go about it? 

To qualify for asylum, you need to demonstrate that you are a “refugee” under international law. According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.” The first thing you need to do in order to qualify for asylum is to leave the United States.

While a Julian Assange might get away with living in a friendly embassy (Ecuador in his case), you’re probably no Julian Assange.  Most people who ask for refuge inside an embassy will be summarily evicted. So don’t think you can simply waltz into the nearest consulate of your choice, tell them you need assistance, and that they will provide you with a bed and three squares. It just doesn’t work that way. So you’ll first need to get out of the U.S.

Assuming you make it safely to your new country, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. “Persecution” has been defined as “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” So for example, if you’re a cannabis activist who faces jail time for smoking pot, you likely would not qualify for asylum because this punishment is not severe enough to constitute “persecution.”

Even if you have been persecuted, that might not be enough to win your asylum case—the persecution has to be on account of race, religion, nationality, membership in a particular social group, or political opinion. If you fear harm because you revealed government secrets, a la Edward Snowden, that might not be considered one of the protected grounds, and so you would be out of luck (though perhaps you could argue that your “whistleblowing” was a form of political activity and thus gain protection). Also, if you fear persecution from criminal gangs, or you face domestic violence, or you will be harmed because of your sexual orientation, you may or may not qualify for asylum—it depends on the law of the country where you are requesting protection. For this reason, you would be well served by doing some research about the country where you plan to seek protection before you make the trip. 

So how do you actually make the claim for asylum once you reach your destination country? In many countries (including most countries you’d actually want to go to), there is a form to complete where you provide information about yourself and your claim. You also need to submit evidence—identity documents like your passport, and school and work records, evidence of harm such as medical records and police reports, letters from people attesting to your problems. Then you will be interviewed about your application. Small mistakes on the form or during the interview—a wrong date for example—might cause the adjudicator to conclude that you are not credible, and that your claim is false. Also, seeking asylum from a powerful and influential country like the U.S., a country that generally respects human rights, will be an uphill battle. And remember, there is a good chance you will be doing all of this in a language you don’t understand, possibly while the host government is detaining you as an illegal migrant. The case will take months if you are lucky and years if you are not. Some governments provide limited benefits such as housing and a small stipend for people with pending asylum cases; other governments require asylum seekers to fend for themselves.

Assuming you pass the interview and are granted asylum, what then? You might receive some assistance from the host country—housing, language instruction, job placement—or you might not. In some countries, you can petition to bring your immediate relatives (minor children and spouse) to join you. This will likely take many months, on top of the many months you already waited for the decision in your case.  If you ever return to the U.S., you will quite possibly lose your asylum status and be deported from your new home. So there is a good chance you can’t ever come back, and you probably won’t see many of your relatives and friends again.

As you can see, asylum is often a difficult, frightening, and traumatic process.  Good Luck (though you will need more than that!).

Book Review: Bench Pressed by Immigration Judge Susan L. Yarbrough

It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.

Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?
Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?

The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.

This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).

One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).

If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.

Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.

You can see more reviews of Bench Pressed and buy the book here.

U.S. Embassies Violate Asylum Seeker Confidentiality

Two recent incidents involving my asylum seeker clients have revealed what might be a disturbing trend at the overseas U.S. consulates: A near complete disregard for asylum seeker confidentiality.

Both incidents involved family members of asylum seekers who had applied for visas to enter the United States. One incident occurred in Europe; the other in the Middle East. In each case, family members of asylum applicants applied for non-immigrant visas to the United States. The asylum cases were pending at the time the family members went for their interviews. In each case, the consular officer denied the visa and told the family member that the reason for the denial was because their relative had filed for asylum in the U.S., and that they (the family members) were thus intending immigrants, ineligible for non-immigrant visas.

Some people just can't keep a secret.
Some people just can’t keep a secret.

Asylum cases are supposed to be confidential. Confidentiality is important because some foreign governments will punish people who have “defamed” them by seeking asylum abroad. Indeed, when the U.S. government has violated an asylum seeker’s confidentiality, it may create a new basis for an asylum claim. The most well-known example is President Obama’s aunt, who received asylum after her case was leaked to the press.

I have successfully made such claims on behalf of clients whose confidentiality was violated by U.S. Embassies during overseas investigations. The most egregious case involved the U.S. Embassy in Cameroon (this was some years ago).  The Embassy submitted a letter, stating that they had inquired only whether a certain police officer worked at a certain police station (the officer had signed a warrant against my client). The Embassy letter emphasized that confidentiality had been maintained. In the response letter from the police in Cameroon, it was clear that the U.S. Embassy had revealed much more information about my client–the letter referenced the case number against the client and the date of his arrest. If the Embassy had revealed only what they claimed to have revealed about my client, there is no way that the Cameroonian police would have had this additional information. By revealing identifying information to the police, the U.S. Embassy put my client at additional risk.

The more recent cases from Europe and the Middle East are perhaps less egregious because the information was revealed to family members and not to the home government. Nevertheless, it is a problem. Many people–including many of my clients–have claimed asylum based on persecution by family members. This is true in cases involving domestic violence, forced marriage, and (sometimes) persecution based on sexual orientation, for example. Thus, revealing an asylum application, even to family members, potentially endangers the applicant.

In addition, of course, it is a violation of the law, which requires confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Indeed, government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002) (unpublished opinion) (affirming decision of Merit Systems Protection Board concluding that breach of section 208.6 was a firing offense irrespective of whether that breach was harmless).  

So what will become of my clients and their family members? And what about the consular officers who violated my clients’ confidentiality?

I don’t see how the rejection of the family members could affect my clients’ asylum cases. Of course, they will remain separated from their families, which is a severe hardship, but it should not impact their chances to receive asylum (in fact, one of the clients did recently receive asylum). As for the family members, instead of coming here immediately, they will now wait for a “follow to join” petition and they will have to come here as asylees. This may not be what they want, but there is no other option.

As for the consular officers, it is unlikely that my clients will make complaints against them. We do not even know their names (though I suppose we could find out) and it would be the family members’ words against the consular officers, so I doubt anything would come of it.

I do hope that the State Department will be more careful about revealing confidential information in the future. There really was no reason to tell the family members about my clients’ asylum applications. The consular officers could simply have denied the visas without an explanation (as they often do anyway).

Confidentiality of asylum claims is important to the asylum seekers and to the integrity of the asylum system. I hope that consular officers will take their responsibility in this regard more seriously.