A Passover Parable (Especially for Refugee Advocates)

This week marks the beginning of Passover (called Pesach in Hebrew), the holiday celebrating the Jewish people’s liberation from slavery in Egypt.

In some ways, the story of Passover is the quintessential refugee story: A persecuted people flees oppression, undergoes a long, transformative journey, and arrives in a new land. Of course there are some unique twists: G-d directly intervenes to save the Israelites and ultimately transform them into the Jewish people, and–for a change–the persecutors get their comeuppance (there’s quite a bit of smiting in the story).

The Baal Shem Tov’s stories are the Besht ever.
The Baal Shem Tov’s stories are the Besht ever.

Like most Jewish holidays, over the years, many traditions and stories have been incorporated into our celebration. One of my favorite stories involves the tradition of welcoming the prophet Elijah—who heralds the coming of the Messiah—into our homes by opening our door near the conclusion of the Passover meal (called a Seder). Here is my favorite Elijah story. It originates with the Baal Shem Tov, also known as the Besht, a Jewish spiritual leader from the eighteenth century, and comes to me via the late writer Leonard Fein (who apparently heard it from his mother, an eighth-generation descendant of the Besht himself):

It happened that a Hasid (a disciple of the Besht) came one day to the master and said: “I don’t understand. Every year, we have a wonderful Seder, we do everything we have been instructed to do, and every year, we open the door for Elijah — and he never arrives. How can this be? I feel we are spurned.”

The Besht considered his disciple’s complaint, and then told him to load a wagon with food, wine, matzos, and also clothes and gifts for the children, and travel to a certain hut in a nearby village and spend the first two days of Pesach with the destitute family that lived there; it was there that he would certainly see Elijah.

The Hasid followed the Besht’s instructions punctiliously, and the next morning he arrived at the dilapidated hut in the nearby village. He was greeted warmly, his gifts were accepted with tears of gratitude, and that night, the entire family — mother, father, five children, along with their surprise guest, celebrated Pesach together.

Yet when the door was opened for Elijah — no Elijah.

Bitterly disappointed, the Hasid returned to the Besht and told him what had happened — and, more important, what had not happened. The Besht explained that Elijah must have been delayed, but that at Pesach time next year, the Hasid would surely encounter him. So he must at the time of the holiday return to the hut, once again with a wagon filled with food and gifts — but this time, before knocking on the door, he must first eavesdrop on the goings-on within the hut.

The next year at Pesach, the Hasid did as told, putting his ear to the door before knocking. He heard the mother’s lament: “We have no food for the holiday. Nothing. How can we celebrate?” And he heard the father’s reply: “Not to worry! Don’t you remember that last year, Elijah came with all that we needed, and gifts for the children as well? Have faith; he will surely come on time once more.”

So ends the story, save for its moral: Rabbi Hillel taught, “Where there is no man, be thou a man.” The Besht, through this story, taught, “Where there is no Elijah, be thou Elijah.” Through acts of loving kindness, each of us has the power to bring us all closer to redemption.

For those who have devoted themselves to helping refugees (or helping anyone else, for that matter), I think this story has particular resonance. While we continue to hope that the world situation will improve, and that fewer people will be forced from their homes by war and persecution, we must also continue our efforts to help those in need. As we read in Pirkei Avot (Ethics of the Fathers), “You are not obligated to complete the work, but neither are you free to desist from it.” In other words, Keep on Truckin’ and have a Happy Pesach!

Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.