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.”
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.