Dream Activists vs. Asylum Seekers

By now, you’re probably familiar with the Dream 30, a group of 30 young Dreamers: 29 Mexicans and one Peruvian who grew up in the U.S. and who would likely benefit from the Dream Act. The group voluntarily left the United States, returned to Mexico, and then presented themselves at the U.S. border and requested asylum. The point is to call attention to the plight of all young people in their position, stop deportations of such people, and push immigration reform.

The 30 activists were detained and interviewed about whether they had a credible fear of return to Mexico. According to their attorney David Bennion, 9 of 25 interviewed Dreamers were found not to have a credible fear of return. This is significantly above the average denial rate, which was about 8.3% for FY2013. Mr. Bennion points out that the Dreamers should have done better–not worse–than average, given that they are generally well educated and speak English. Based on this, attorney and Dream 30 supporter Mathew Kolken smells a rat. He writes, “Looks like the [Obama] administration is making an example out of the DREAM 30 in order to make a political point.”

I don't remember the Freedom Riders running over other poor people to reach their goal.
I don’t remember the Freedom Riders running over other poor people to reach their goal.

Of the original group, eight were released and the remainder have been detained since September 30, 2013 (even some who have demonstrated a credible fear). The detained Dreamers are currently on a hunger strike to call attention to their cause.

The most recent news is that one of the Dreamers was deported to Mexico.

As an asylum attorney, I must admit that I have mixed feelings about the strategy of these activists. But before I get to that, I want to raise an objection to Mr. Kolken’s conclusion that the high denial rate for the Dream 30’s credible fear interviews is evidence that the Obama Administration is somehow punishing these activists.

It is true that the Dreamer’s denial rate (36%) is much higher than the over-all denial rate (8.3%) for credible fear interviews. However, there are several (legitimate) factors working against the Dreamers. For one, they are mostly from Mexico, which has a very low asylum grant rate. Since something like 98% of Mexican asylum claims are denied, it stands to reason that credible fear cases from Mexico will be less likely to succeed than average. Since Mr. Kolken is comparing the 36% denial rate of the (Mexican) Dreamers to the 8.3% denial rate for all countries, many of which have very high asylum grant rates, it really is not a fair comparison. In addition, the Dreamers were in the United States, and then they voluntarily departed (though one could argue that they were forced to leave due to their lack of papers). Asylum claimants who voluntarily return to their home countries are much less likely to succeed when compared to asylum applicants who did not return to the country of feared persecution. I am not sure how much of a factor this is, as some aspects of the asylum claims may have arisen since the Dreamers returned to Mexico, but my guess is that the voluntary return weakens the Dreamers’ asylum and credible fear claims. For these reasons, I am not convinced that the 36% denial rate is all that unusual (though the fact that several Dreamers have passed their credible fear interviews and yet remain detained is somewhat unusual). So for me, at least, the jury is still out as to whether the Obama Administration (or ICE/Enforcement and Removal Operations, which often defies the Obama Administration) is retaliating against the Dreamers.

Now to the mixed feelings.

On the one hand, I can appreciate creative acts of civil disobedience as much as the next middle-age, father-of-two, with-a-mortgage-to-pay guy. It’s also quite clear that the Dream Activists are earnest and passionate, and that they are gaining attention for the cause (hopefully more positive than negative).

On the other hand, as an attorney who represents asylum seekers, I am concerned about their tactical decision to use the asylum system as the vehicle for their civil disobedience. While it appears that at least some of the Dreamers returned to Mexico and then found that the situation was unsafe, the fact remains that they left the U.S. without seeking asylum and returned to Mexico. They then presented themselves at the border and requested asylum. If the Dreamers actually had a fear of returning to Mexico, they should have requested asylum before they left. Indeed, a major factor in any asylum case where the applicant returns to her country is the return trip itself. Without a good explanation or evidence of changed circumstances since the date of return, a return trip to the home country will doom most asylum applications.

Also, to some extent, the asylum system is already under siege, and I fear that using that system to make a political point will do further damage. I don’t want to overstate the case here. There are those who blame the Dreamers for the current mess at the border (asylum offices across the country have ground to a halt as resources have been shifted to deal with a dramatic increase in credible fear interviews at the border), but that problem started long before the Dream 30 (or their predecessors, the Dream 9). Nevertheless, the actions of the Dream 9 and the Dream 30 are certainly the most high profile credible fear cases at the border, and their leadership may encourage others to try to exploit the credible fear system.  

Finally, I can’t help but view this tension–Dreamers vs. Asylum Seekers–as a case of the poor eating the poor: Desperate people trying to regularize their status are using a tactic that harms other desperate people fleeing persecution. While I hope (against the odds) that we will have a DREAM Act and Comprehensive Immigration Reform, I am not convinced that using the asylum system to make a political point in support of those goals is the best strategy. I fear that the collateral damage to legitimate asylum seekers will be too great.

Ethiopian Refugees Help Catch Their Persecutors

In the Ethiopian-American community, at long last, the hunters have become the hunted. 

Members of the community have created a new website to share information and help bring to justice Ethiopian human rights abusers living in the United States. The founders of the website, called YaTewlid (meaning “The Generation”), are themselves torture survivors. They have been inspired by a few recent prosecutions of Ethiopian human rights abusers in the United States.

The most recent case involved a high-ranking prison guard during the time of the Red Terror in Ethiopia (1977-78). Earlier this month, Kefelgn Alemu Worku was convicted of immigration fraud after he entered the U.S. using a false name and lied about his background. According to the Denver Post, those who witnessed against him testified that Mr. Kefelgn tortured and murdered hundreds of prisoners, including one witnesses’ best friend. Mr. Kefelgn faces up to 22 years in prison (for the fraud) and then deportation to Ethiopia where, presumably, he would not receive a friendly reception.

Kefelgn Alemu Worku proves that time wounds all heels.
Kefelgn Alemu Worku proves that time wounds all heels.

As an aside, Mr. Kefelgn’s case demonstrates why the various immigration forms ask questions like, Are you a persecutor? or Have you ever committed a crime? On their face, the questions seems silly–what self-respecting persecutor would admit that he was a persecutor? The U.S. government does not necessarily expect persecutors and criminals to admit their misdeeds (though that would be nice). Rather, if the government discovers evidence that the alien is a persecutor, it is a lot easier to prosecute him for immigration fraud than for the actual crimes he committed in his country. And that is exactly what happened to Mr. Kefelgn. He was prosecuted not for his war crimes, but instead for his immigration fraud (this reminds me of how the government prosecuted Al Capone for tax evasion rather than murder). 

As of this writing, the YaTewlid website is only in Amharic, but its founders hope to have an English version in the future. I had an Amharic-speaking friend check it out. She reports that the website needs some work, but it will potentially be a useful tool for uncovering human rights abusers living in the U.S.

It seems to me that DHS/ICE would do well to talk to groups such as YaTewlid, since the people best able to ferret out criminals (and fraudsters) are members of the various immigrant communities. 

Indeed, ICE does have a special unit, called the Human Rights Violators and War Crimes Unit (HRVWCU – though I think they need a more sexy acronym), which is part of the National Security Investigations Division. According to its website, HRVWCU–

conducts investigations focused on human rights violations in an effort to prevent the United States from becoming a safe haven to those individuals who engage in the commission of war crimes, genocide, torture, and other forms of serious human rights abuses from conflicts around the globe.

The unit has had its fair share of successes. Again, from the website:

Since fiscal year 2004, ICE has arrested more than 250 individuals for human rights-related violations under various criminal and/or immigration statutes. During that same period, ICE has denied more than 117 individuals from obtaining entry visas to the United States and created more than 20,000 subject records, which prevented identified human-rights violators from attempting to enter the United States. In addition, ICE successfully obtained deportation orders to physically remove more than 590 known or suspected human rights violators from the United States. Currently, ICE is pursuing more than 1,900 leads and removal cases that involve suspected human rights violators from nearly 96 different countries.

The efforts of HRVWCU are crucial to preventing human rights abusers from taking advantage of our immigration and asylum systems, and to protecting the integrity of those systems. The cooperation of community groups such as YaTewlid is also crucial to this effort.

It is in the interest of everyone–government, immigrant groups, and “the system”– to find, punish, and deport human rights abusers. Only in this way can we provide some justice for the victims and keep the door open to legitimate refugees who need our protection.

Behind the Security Background Checks

Before they can receive asylum, every applicant must undergo a security background check. But what exactly does the government check? And how can they learn about an applicant’s background when she spent most of her life outside the United States?

To me, these security background checks have always been a bit of a mystery. I’ve heard that the checks involve multiple agencies (FBI, State Department, etc.) and multiple data bases, but I did not know much more than that. Now, a recent article has shed some light on at least one type of background check: The FBI’s Terrorist Explosive Device Analytical Center (TEDAC) operates the nation’s “bomb library,” which keeps data on explosive devices used in terrorist attacks. TEDAC is directed by Greg Carl and operates out of Quantico, Virginia.

Each bomb maker leaves a unique signature.
Each bomb maker leaves a unique signature.

TEDAC analyzes the “remnants of improvised explosive devices… in hopes of recovering latent prints from the insurgent bomb makers who crafted them.” The Center has created a “comprehensive database of known terrorists for all law enforcement, the U.S. intelligence community and the military to share.” The Center has received evidence from the “underwear bomber,” the Boston Marathon bombing, and from attacks all across the world. The evidence collected by TEDAC comes from “bombings in as many as 25 countries from as far as the Horn of Africa and Southeast Asia, in addition to the United States:”

More than 100,000 boxes of evidence have been collected so far. They contain more than a million fragments fashioned from ordinary objects, which are barcoded and labeled before going through a wide array of forensic examinations, including toolmark identification, which allows matches of fragments to be made. Every scrap is searched for clues to a bomber’s identity.

The Center’s work seems to be effective. “According to Mary Kathryn Book, a physical scientist with the lab, ‘Approximately 60% of the time, we are able to recover prints from these items through fingerprint processing. And then later these prints are searched in our database and we attempt to identify the individuals who left them.'”

One project that is directly relevant to refugees and asylum seekers is the ongoing examination of IED material from Iraq to determine if “any Iraqi refugees relocated in the United States may be tied to IED attacks, as was the case with two Iraqi refugees based in Kentucky.” (I wrote about this issue here).

Unfortunately, our Congress has decided to cut funds from TEDAC (well, “decided” might not be accurate – they simply slashed and burned the budget indiscriminately). For all of us, there is the concern that we will be less safe due to these budget cuts. For asylum seekers fleeing persecution, it likely also means more delays for security background checks. This means longer insecurity and separation from family. In the unlikely event that Congress gets its act together, we can only hope that TEDAC will receive the funds it needs to keep operating effectively.

Forget the Dream Act – Just Grant Them Asylum

It seems that advocates for “Dreamers”–young foreigners who would benefit from the Dream Act–are trying a new tactic: Leaving the country and then returning to seek asylum. Not long ago, I wrote about the Dream 9, who presented themselves at the U.S./Mexico border and requested asylum. They were released and will have to appear before Immigration Judges, who will decide their cases. Now, we have the Dream 30, who have done pretty much the same thing. This new tactic holds promise and risk, both for themselves and for other asylum seekers.

"Dreamers" might be a particular social group, but I am not so sure about "dreamboats."
“Dreamers” might be a particular social group, but I am not so sure about “dreamboats.”

Asylum, of course, is a legal tool that has been used and expanded by creative lawyers. When the modern asylum system was created by the Refugee Act of 1980, many people who routinely receive protection today–victims of female genital mutilation, LGBT individuals, victims of domestic violence–would likely have been ineligible for asylum. To the extent that their actions are not simply a type of civil disobedience, the Dreamers seem to be seeking to expand the category of protected individuals to include people who grew up in the U.S., and who face threats in their home countries because they are viewed as “American.” This strategy raises two basic questions: (1) Will it work? and (2) How will it affect other asylum seekers?

First, will it work? I think it might, at least in some cases. I’ve represented several asylum seekers who made claims similar to the Dreamers: A lesbian who had not been to her home country of Sudan since she was young, Afghan women (and a few men) who studied in the U.S. and who are viewed by extremists as “Westernized,” an Iraqi woman whose family was associated with the U.S. These applicants were successful (or their cases are still pending), but my guess is that their claims are stronger than most of the Dreamers’ claims. Nonetheless, the principle is the same.

A broader–and more radical–solution for the Dreamers might be if the Obama Administration defined them as a particular social group for asylum purposes. There is precedent for such a move: In 2009, DHS issued a brief in Matter of LR where it stated, “DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group…. This does not mean, however, that every victim of domestic violence would be eligible for asylum.” Prior to the end of DOMA, I (clumsily) advocated a similar approach to help LGBT couples.

If DHS agrees that deported Dreamers are a particular social group (defined as “young, Americanized Mexicans,” for example), they would then need to demonstrate that they face persecution in their home country based on their social group. DHS could potentially make a blanket determination that members of this social group would face persecution in Mexico, El Salvador or wherever, and – Voila! – Dreamers get asylum, and you effectively pass the Dream Act without Congressional action (and they could apply for asylum without leaving the U.S.).

Of course, there would be consequences to such an approach, which brings us to the second question: How will it affect other asylum seekers?

For one thing, unless significant resources were re-allocated, giving asylum to the Dreamers would completely overwhelm the asylum system. That system has already been ground to a halt by a few extra thousands arrivals at our border, so it certainly could not handle millions of new cases. 

In addition, it would be very expensive. There are no government fees for asylum applications. Presumably, if the Dream Act becomes law, Dreamers will pay a fee to regularize their status. In general, USCIS is operated based on filing fees (that is why it has not been closed by the government shutdown), so these fees would be needed to adjudicate the Dreamers’ cases.

Third–and this for me is the real problem–it will harm (or destroy) the integrity of the asylum system. Asylum, by definition, is an individualized form of relief. While one person from a particular country may have a strong asylum case, another may have no case at all. To view these cases collectively sets a very bad precedent. Worse, to grant asylum to an entire group (i.e., Dreamers), many of whom probably would not otherwise qualify, turns the asylum system into a political tool for avoiding the normal legislative process (i.e., passing the Dream Act). Such a move would do great damage to the asylum system, a system that is supposed to be free from political influence.

Asylum as a blanket solution to the Dreamers’ dilemma is certainly not the best way to solve the problem. It would obviously be much better for Congress (specifically the House of Representatives) to pass the Dream Act and Comprehensive Immigration Reform. But as a strategic approach, perhaps the “threat” of giving asylum to all Dreamers might provide an incentive for the House to take up immigration reform. After all, the language of nihilism, self destruction, and ends-justifies-the-means is the only language that the House of Representatives seems to understand.

Dear House Republicans: Hate the Government? Go Live in a Country Without One

At the heart of the Republicans’ intransigence on the budget and the debt ceiling, and their willingness to shut our government down in order to (sort-of) block Obamacare, lies an utter contempt for America’s government and its employees. A willingness to disrespect, blame, and penalize government “bureaucrats” for everything and anything. They love to quote President Reagan‘s old trope: “Government is the problem.” Well, I have a proposal for you–if you hate government so much, why not try living in a country without one?

As an asylum attorney, many of the people I represent come from countries without decent governments. They come to America because in their countries, there is no security, no jobs, no justice. Let me tell you about some of my clients.

One is a woman from Afghanistan who was pushed into an engagement by her family and her fiance’s family. The woman was highly educated and accomplished. In her job, she helped hundreds of people and she met with many high-level officials, including a U.S. Secretary of State. Her fiance threatened to kill her if she continued her work or education. Did her government help her? No, in Afghanistan, women have no rights when it comes to family matters. She had to come to our government for help, and she received asylum.

I represented a policeman from Nepal who had worked and fought against Maoist guerrillas. Although many outside observers (including the U.S. government) consider the Maoists a terrorist group, they managed to enter politics and eventually take power in Nepal. The result was that when the guerrillas attempted to kill my client, there was no one to protect him. He fled the country and received refuge here.

Another client was a man from El Salvador whose relatives were murdered by gang members. The Salvadoran government was unable to control the gang, and so the man fled to the U.S., where he received protection.

I’ve represented an old lady from Iraq. A Shi’ite militia kidnapped her son. There was no one to protect the family, so she paid a ransom to have the son released. After that, the militia continued to extort and threaten her until she came to the U.S. and received asylum.

The list goes on and on, and it’s not just an absence of government; it’s bad government: A Falun Gong practitioner who was beaten by Chinese officials; a Somali man, shot in the leg by militiamen; an Ethiopian political activist beaten and tortured by police; a political activist from Zimbabwe who was raped by police after she attended a political rally; a Rwandan Tutsi woman who saw her family members murdered in front of her; a Syrian doctor held in a torture prison; a Russian political activist stripped of his citizenship and threatened; a gay man from Egypt beaten by the police; a lesbian from Serbia who was gang raped. And on and on and on. And that’s not counting all the corruption and discrimination that are endemic in most governments around the world, but which would not form the basis for an asylum claim.

From my point of view, there is great value in an honest (or at least mostly honest) bureaucracy. To disrespect our government workers, to punish them and hold them hostage to a political agenda, and to crush their morale is not just a disgrace. It demonstrates a shocking naivete about how the world works, and about how governments and economies work. Such naivete might be excusable in a college freshman enchanted by Ayn Rand, but it is criminally negligent in an elected official.

Since they don’t have the votes to repeal the Affordable Care Act–a law that has been properly voted on and survived a Supreme Court challenge, not to mention the re-election of President Obama–House Republicans have just shut the government down. They couldn’t do that to the United States and its employees unless they had utter contempt for those employees. That attitude moves our country in the direction of places without a good government; places like Somalia, Afghanistan, and Iraq. 

So, House Republicans, I invite you to visit countries where government really is the problem. Or speak to my clients, who understand all too well what that means. Maybe if you were not so ignorant, you would be a bit more respectful of the people who keep our country great, our government employees.