Asylum Seekers and the Right to Illegal Entry

Do people fleeing persecution have a “right” to illegally enter the United States? A new report from Harvard Law School about changes in Canadian asylum policy got me thinking about this question.

The report, Bordering on Failure: Canada-US Border Policy and the Politics of Refugee Exclusion, concludes that recent changes to Canadian refugee and border policy have made it more difficult for legitimate asylum seekers to find refuge in Canada.

Training program for rookie Liaison Officers.
Training program for rookie Liaison Officers.

The recent changes include the Multiple Borders Strategy (“MBS”), whose goal is to “push the border out” and to “intercept improperly documented persons as far away from Canada’s territorial borders as possible.” Canada “enacts measures that deter and deflect the arrival of asylum seekers at… countries of origin, visa screening points, airline check in points, points of initial embarkation, transit areas, points of final embarkation, and points of final arrival.” How do they do this? Canada has 63 liaison officers in 49 “strategic locations around the world.” The officers “train and work with airlines, local immigration authorities, and local law enforcement agencies to identify improperly documents persons, including some asylum seekers, and block them from boarding Canada-bound boats or planes.” The officers have intercepted 73,000 people between 2001 and 2012. Another part of the MBS is to sanction airlines and shipping companies that allow improperly documented people to arrive in Canada. The Canadians have also imposed stricter visa requirements on people from refugee source countries when refugee arrivals from those countries increase. In short, Canada is doing more to block people from illegally entering the country. So what’s wrong with that?

The Harvard report raises a few points. For one, some of those people blocked from arriving in Canada are refugees (though we don’t know how many). The liaison officers and the carriers do not consider whether a person qualifies for asylum; they block anyone with improper documentation. Another problem is that by tightening security, some asylum seekers will resort to other means of gaining entry into Canada–human smuggling, for example. This puts the asylum seekers at risk of harm. The report concludes that by “closing its borders to asylum seekers, Canada is setting a poor example for other nations, and contributing to the deterioration of refugee protection around the world.”

Aside from criticizing the (probable) negative impact of the MBS on asylum seekers, Harvard offers little in the way of solutions. Should Canada loosen its entry requirements? Should liaison officers allow people with fraudulent documents to go to Canada if those people express a fear of persecution? Should Canada get rid of the liaison officers so it is easier to enter Canada improperly? Should it eliminate carrier fines, so that airlines will be encouraged to allow anyone to fly into the country, even if they do not have permission to enter?

The basic problem, it seems to me, is that refugees who are rich enough to qualify for a visa or to hire a competent smuggler, will likely get in. Ditto for those clever enough to obtain fraudulent travel documents. Poor people, less educated people, people who are not resourceful enough, will not get in. Tightening or loosening the border (or even “pushing out” the border) will, as the Harvard report points out, exclude people in “arbitrary and unprincipled ways,” but this impact is tiny compared to the basic–and very arbitrary–distinction between the rich, the educated, and the lucky, who will probably get in, and the poor, the uneducated, and the unlucky, who will probably be excluded. Thus, even if Canada had not implemented any of the new restrictive changes, the asylum seekers who manage to reach Canada are able to get there because of factors (such as wealth) that are completely unrelated to the merits of their asylum claims. Given that the ability of potential asylum seekers to enter Canada is completely arbitrary anyway, why should it matter if Canada imposes another layer of arbitrariness on those seeking admission? In other words, why should it matter if an arbitrary portion of an arbitrary group is blocked from seeking asylum?

Or, to return to our initial question in a more specific way: Do those asylum seekers lucky enough to have the ability to reach a safe country have a “right” to travel to that country to seek asylum? If you accept the basic premise of sovereignty of nations (and there are very good reasons not to), it is difficult to answer that question in the affirmative. But to answer that question in the negative would invalidate much of international law and practice related to protecting refugees.

Perhaps the key to resolving this dilemma is to recognize that most countries–including Canada and the United States–have given up some of their sovereignty when they voluntarily entered into treaties protecting refugees. Nevertheless, the Harvard report highlights an odd reality: People who are smart enough, rich enough or sneaky enough to evade border security and gain entry into a safe country have a right to seek asylum in that country. But those who are unable to reach a safe country–even if the reason for their failure is that the safe country managed to prevent their entry–do not have a right to seek asylum in that country.

So I guess the answer to the initial question is a qualified yes (or perhaps a qualified no, if you are a glass-is-half-empty sort of person): Asylum seekers have a right to illegally enter the United States, but only if they manage to get in. Or, to paraphrase Robert Anton Wilson, “rights” are what you can get away with.

Ten Years an Asylum Lawyer

It’s hard to believe that I am marking my 10-year anniversary as an owner of my own law firm. It seems like so much longer.

During those years, I have represented over 750 clients, most of whom were asylum seekers. I’ve also had five offices, six partners, two employees, a few contract attorneys, and a whole heap of interns. In short, it’s been an incredible, challenging, exhausting, exhilarating, frustrating, funny, and bizarre 10 years. In commemoration of this grand occasion, I thought I would list some of the more memorable moments of my career as a small-firm lawyer. So without further ado, here we are:

– Starting Out: Before starting my firm, I had to pay back my student loans. Once that was accomplished, I moved to Nicaragua, tried to learn Spanish, and then returned and rented an office below a restaurant in DuPont Circle, DC (at $375/month). I decided to use my old computer, as I didn’t have a lot of cash for a new one. Unfortunately, I had been away for a while and my anti-virus program expired. So as soon as I connected to the internet, my computer got a virus that wiped the entire system. It took over a month to get the computer up and running. An auspicious start it was.

Me, at the beginning of my solo lawyer career.
Me, at the beginning of my solo lawyer career.

– Rats and Flies: Since the office was under a restaurant, you can imagine there were some issues. I shared the office with a friend and fellow asylum lawyer. Once, while he was talking to a client, a rat kept running around the office. I did my best to distract the client and herd the rat out the door. The client was too polite to say anything, but I don’t think she ever came back. We also had numerous infestations of Amityville-Horror-style flies, and one time, part of the ceiling collapsed spilling some strange brown liquid onto our printer.

– My First “Real” Asylum Case: I had done bits and pieces of a few asylum cases before, but I got my first real case in 2004. It was an Ethiopian guy who entered the U.S. illegally at the Mexican border. Two attorneys had already passed on the case because they didn’t like it, so he was stuck with me. Somehow, he ended up receiving asylum, and that win led to one referral and then another. In the last 10 years, I’ve probably represented close to 200 Ethiopians seeking asylum.

– Afghan Cases: By 2006 or 2007, I had done a few Afghan cases, but it was a very small (albeit very interesting) part of my business. Then a potential client came in who had been a well-known TV star in Afghanistan. He couldn’t afford to pay my fee, and so he didn’t hire me. I thought about it for a few days and decided that I wanted to do his case–it was too interesting to pass up. So I called him and said he could pay whatever he could afford. We won the case, and that led to many more Afghan clients. They now represent the majority of my asylum clients.

Me, after ten years.
Me, after ten years.

– Removed from Court in a Stretcher: If you practice immigration law, you know that Immigration Courts are slow. They make geologic time seem speedy. One of my clients from Morocco was particularly eager to receive her green card so she could visit her family back home. But when she heard her court date–something like two years later–she collapsed and could not be revived (even by a DHS attorney who was a former EMT). The end result, she was removed from court on a stretcher. Happily, she was fine, and the next week, we received a notice that her case had been rescheduled for the following month. I have not advised other clients to collapse when they hear their court dates, but I have been tempted…

– My First Lozada Case: Immigration cases that have been denied due to ineffective assistance of counsel can be reopened under Matter of Lozada. Such cases generally requires a bar complaint against the ineffective attorney. Most lawyers (me included) hate this requirement. But in cases of bad misconduct, there is something satisfying about filing a complaint. The first time I filed such a complaint was against an attorney who was incompetent and dishonest. We proved using the lawyer’s own documentation that she had lied to her (now my) client and to the Immigration Court. The Virginia Bar found that she had violated the rules of professional conduct, but declined to punish her because there were “exceptional circumstances.” What were these circumstances? Turns out, she had already been suspended for three years for messing up two other people’s cases (and lives), so the Bar Association felt there was no need to punish her in my case. As I said to the Immigration Judge in our (successful) motion to reopen, the offending lawyer was saved by her own incompetence.

– The Pain of Exile: I represented an Ethiopian asylee who was in removal proceeding after committing a crime. We filed for a 209(c) waiver, which would allow him to remain in the U.S. One witness, his uncle, was a famous singer who had lived in exile since the mid-1970s. Many of his songs were about Ethiopia. We were trying to show that it was unsafe for the nephew (my client) to return to Ethiopia. I asked the uncle, what he thought of his country. “I love my country.” “Would you like to go back,” I asked. “If it was safe, I would go back tomorrow.” Somehow it struck me as profoundly sad that this man had not been back to Ethiopia in 30+ years, but he still loved and missed his country, and kept writing songs about his homeland. The nephew’s case was approved, in part on the strength of this testimony. And as far as I know, the uncle has not yet returned to Ethiopia.

– The Client Who Paid Me $1 Million: OK, this one didn’t happen yet, but here’s hoping.

– The Clients: There are too many to mention. A few I can remember are journalists from Pakistan, Afghanistan, and Iraq. Human rights activists from Russia, DR Cong, Zimbabwe, and Iran. Police officers from Peru and Nepal. A Rwandan woman who saw her family murdered during the genocide. Interpreters for the U.S. military from Iraq and Afghanistan. A Russian politician who was stripped of his citizenship. LGBT people from Serbia, Egypt, Kenya, and especially Sudan (you know who you are). Women’s rights advocates from Afghanistan. Diplomats from Ethiopia, Iran, and Ukraine. People persecuted due to their religion from China, Egypt, Iraq, Bangladesh, and Eritrea. Victims of gang and cartel violence in Central America. And on and on.

Finally, I should also take a moment to thank the people who have helped make this all possible: My staff, who does all the work while I sit around making witty remarks and eating bon bons, and my family, who tolerates long hours, mediocre pay, and occasional rants about the Man. Thank you.

Judiciary Committee Hearing on Asylum Abuse: Some Questions for Rep. Goodlatte and for Asylum Advocates

Lately, I’ve been worrying that asylum might become a victim of its own success. Thanks to lawyers pushing the law, the number and categories of people eligible for asylum has increased pretty dramatically: Victims of FGM and domestic violence, LGBT individuals, certain victims of crimes. This is a good thing, as many lives have been saved. But it has started to attract the attention of immigrant restrictionists, who think the asylum system is too generous. Could the tide be shifting? Might we be on the verge of a backlash?

The Romans aren't all that popular this time of year.
The Romans aren’t all that popular this time of year.

There’s precedent for such fear dating back to antiquity. When the Roman Empire conquered Greece, the various city-states had a well-developed system of temple asylum. In short, if you were a slave fleeing abuse, you could go for protection to a Greek temple. Over time, the types of people who could claim protection in Greek temples expanded, so that basically anyone, including rebels and common criminals, could find refuge in a temple. The law-and-order Romans would have none of it. In 14 AD, Emperor Tiberius ordered the temples to produce evidence of their right to offer asylum. Most temples could not do so, and so Tiberius’s little bureaucratic maneuver essentially ended asylum in the Greek city-states. So much for the history lesson.

Late last month, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Immigration and Border Security Subcommittee Chairman Trey Gowdy (R-S.C.), and Congressman Jason Chaffetz (R-Utah) announced that they would be holding hearings on asylum and credible fear “abuse” by people arriving in the U.S. via Mexico. The press announcement does not sound promising:

It’s outrageous that members of Mexican drug cartels and others involved in illicit activity are so easily able to exploit our asylum laws and live in the U.S. virtually undetected. Our asylum laws are in place to help individuals who are facing truly serious persecution in their countries. However, dangerous criminals are gaming the system by claiming they have a ‘credible fear’ of persecution when often they’ve been the perpetrators of violence themselves. Their claims almost always get rubberstamped by the Obama Administration and once these individuals are in the U.S., the illegal activity doesn’t stop. 

Unfortunately, it appears the Obama Administration is compromising our national security and the safety of our communities for its political agenda. The House Judiciary Committee plans to hold a hearing soon to closely examine this egregious abuse to see what can be done to put an end to it.

Over the last couple months, I’ve written pretty extensively about the influx of asylum seekers at the border, and there certainly seem to be issues that require attention. That’s why it’s disappointing to see such an overtly political description of the upcoming hearings. Hopefully, the hearings themselves will be more constructive (yes, for some reason, I am feeling unusually optimistic – maybe its The Season). 

Not that anyone has asked, but I thought I would raise some issues that the Committee might explore:

– We need accurate statistics about who is seeking asylum and why: It is very difficult to know who seeks asylum, who receives it, who receives other relief, and who is denied. One problem is that the two agencies that track asylum cases–DOJ and DHS–use different metrics for calculating their numbers. Another problem is that there are no stats available on people who receive Withholding of Removal and Torture Convention relief (two benefits that are similar, though inferior, to asylum). Congress should mandate better record keeping on asylum cases: Where do asylum seekers come from? What is the basis for their grants or denials? How many are detained? How many leave of their own volition after receiving a denial? How many are deported? How many cases are re-opened for fraud or due to criminal convictions? Such information will allow us to improve our policy-making and will hopefully lead to a better and more secure system.

– We need to make some decisions about how to treat asylum applicants at the borders: There has been a significant increase in asylum applicants arriving at our Southern border. Currently, most are detained and–if they pass a credible fear interview–they are released with a date to return to Immigration Court. I have not seen specific examples of individuals who have entered the U.S. in this manner and then committed bad acts. But given the number of arrivals, the possibility for this to happen seems pretty high. So do we detain these asylum seekers until their cases are heard? Such an approach makes it much more difficult for them to prepare their asylum cases. It is also very expensive. Should each person be fitted with an ankle bracelet or some other tracking device? If we had more accurate data about asylum seekers, perhaps we could better answer these questions.

– We must decide how to treat people fleeing persecution where that persecution is not based on a protected ground: Many people arriving at the Southern border face real harm from gangs, cartels, and criminals. Many others face serious harm due to sexual violence. Often, such people do not fall neatly into one of the five protected categories. Most will not qualify for lesser forms of relief, such as the Convention Against Torture. So what to do with them? Of course, we could simply deport them as we are not obligated by our international agreements to protect them. But sending innocent people to their deaths seems not in keeping with our national values (or any other notion of morality). Could something be done for such people without creating an incentive for everyone South of the border to come to the United States?

– We need to plan ahead to deal with a potentially large refugee flow from Mexico: For years, we’ve been hearing discussion about the possibility of large refugee flows from Mexico due to the violence there. If this happens, our current asylum system will likely not handle the volume. Perhaps we need a contingency plan for how to deal with such refugees. Faced with refugee crises, other countries have created temporary camps for people, where they can stay until it is safe to return (though often that takes decades or longer, and then there is no where to return to). Maybe such a model would be appropriate if the situation in Mexico deteriorates further. Or maybe some type of TPS would be more appropriate. In any case, it seems to me that we can start thinking about this now, so that we are more prepared in case of a humanitarian disaster. 

There is obviously more to say about these topics, but–since it is the season of miracles–I continue to hope that the Judiciary Committee will address these and other important issues related to our asylum system.

The New Middle Passage: Journeys of Modern Day Slaves

The blog entry was originally posted on Wherever Magazine‘s website. It’s not uncommon for me to meet clients who have been victims of human trafficking. Most of them were trafficked from East Africa to the Arabian peninsula, and then to the U.S. as domestic servants. Occasionally, I also meet clients who were victims of sex trafficking. For this post, I combined several of my own cases and one publicly available case in order to illustrate the problem of modern day slavery:

Amelia was a promising twenty-something working as a teacher in her native Indonesia. After she lost her job due to religious and ethnic discrimination, she wanted to move some place safe. She began looking for ways to come to the United States.

The past isn't really past.
The past isn’t really past.

Through an ad, Amelia found a position in the restaurant industry in New York. An agency arranged her travel to the U.S., but when she reached JFK, things were not as expected.

Her “contact” met Amelia at the airport and immediately took her passport and other documents. Instead of bringing her to the promised job, he took her to a brothel. When she protested, her contact threatened Amelia with a gun.

For the next several months, Amelia was transported from one brothel to the next and forced to have sex with many different men. Her captors kept her under close watch at all times. 

Finally, one day, she escaped through an unlocked window. Even after she was free, Amelia knew no one in the United States and she did not know where to go for help. She lived on the street until she met someone who put her in touch with law enforcement.

Amelia was able to obtain a “T” visa—a special visa for victims of human trafficking, which allows an alien to (eventually) become a permanent resident of the United States. 

Except for the successful escape, Amelia’s story is quite typical. Social scientists estimate that there are currently about 27 million victims of human trafficking world-wide. But only a small fraction of those victims—about 40,000 people—are identified and helped each year. In the United States, as many as 200,000 children are currently at risk of sex trafficking. Most victims are trafficked within their own countries, but many people—like Amelia—are taken on long journeys from poor countries to more affluent countries, where they serve as sex slaves, domestic labor or agricultural workers.

According to U.S. government estimates, last year over 17,000 people were brought into the United States to serve as slaves.

As an attorney who represents asylum seekers, I sometimes meet victims of human trafficking. One common scenario involves women recruited to work as domestic servants in the Persian Gulf (most commonly in Saudi Arabia and the UAE). The women usually come from poor countries in Africa and are lured to the Gulf with promises of a decent wage and steady work.  

In one recent (and typical) case, my client Fatima had been detained and beaten in Ethiopia because of her political activities. She was also a victim of female genital mutilation. Fatima had to find a way out of her country. She went to an employment agency. The agency helped Fatima obtain a passport and found a job for her as a domestic servant in the United Arab Emirates. In July 2009, she left Ethiopia and started working for a family in the UAE. 

Work conditions and pay were not as promised. Originally, the agency told Fatima that she would be babysitting one child. When she arrived, she found that she would be babysitting three young children. In addition, she had to clean the house, cook, wash laundry, and tend to her employers’ guests. Fatima worked 20 hour days, and her employer banned her from speaking with other Ethiopian house servants. When she showed signs of being unhappy, the employer threatened to return her to Ethiopia. 

In August 2010, the employers announced that they would be going to Florida with the children for a six month vacation. Fatima would come with them. The U.S. government issued Fatima a visa for “personal and domestic employees” and she was on her way to America.

In the United States, Fatima continued as a domestic servant, but now her employer stopped paying her. She knew no one in Florida and had little opportunity to meet people outside her employers’ house. Finally, after five months as an unpaid, 140-hour a week domestic worker, she met some other Ethiopians in a park. They told her that she could seek political asylum in the United States. 

Fatima called her brother in Ethiopia, who put her in touch with some friends in Ohio. Those friends found someone in Florida to help. So early one morning, while her employers were sleeping, Fatima snuck out of the apartment, went to a rendezvous point and met her contact. She stayed with him for a few days until her brother’s friends arranged to bring her to Ohio and then Washington, DC.

In DC, Fatima filed for asylum. The case took several years, but finally, in September 2013, an Immigration Judge granted Fatima’s application for asylum. She has now begun her new life in the United States. 

Fatima and Amelia both escaped from their captivity. Most trafficking victims are not so lucky.

At least in Fatima’s case, the U.S. government could have done more to protect her. She received her visa without an interview at the U.S. Embassy. For domestic servants who come to the U.S., the embassies should interview each person (as they do for most other visa applicants) and ask about wages, hours, and working conditions. Where there is evidence of trafficking, visas for the workers and their employers should be denied, and the local authorities should be contacted. At least this would reduce the number of victims trafficked to the U.S. And once they are here, the employers of domestic workers should be required to verify (with evidence) that the domestic workers are receiving their salary, paying taxes, and working reasonable hours. Employers who do not comply with the law should have their visas revoked and should be prosecuted.

For trafficking victims in the U.S., there are resources available. The Department of Homeland Security’s Blue Campaign raises awareness about the issue, and there are numerous NGOs, such as the Polaris Project, involved in the anti-trafficking fight. It will take the combined efforts of governments, non-profits, and individuals to identify and free victims of human trafficking, and bring the perpetrators to justice.

In this article, the names of the women and identifying details have been changed.