Immigrants and Truth Are Both Casualties of the Recent ICE Raids

by Jason Dzubow

By now, you’ve probably heard about the massive, coordinated ICE raids in Mississippi. About 680 people were arrested at seven agricultural processing plants. According to ICE’s acting director, Matthew Albence, some of those arrested will be prosecuted for crimes, others will be swiftly deported, and some will be released pending immigration court hearings. Mr. Albence states, “The arrests today were the result of a year-long criminal investigation, and the arrests and warrants executed today were just another step in that investigation.” How many of those arrested were actually criminals, and how many were “collaterals” (people who were not targets of the raids, but were encountered and arrested due to their unlawful immigration status), we do not know.

The raids are supposedly also targeting the companies that hired these “illegals.” The U.S. attorney for the Southern District of Mississippi, who was involved in the ICE operation, warned: “To those who use illegal aliens for a competitive advantage or to make a quick buck, we have something to say to you: If we find you have violated federal criminal law, we are coming for you.”

On the plus side, now is a great time to apply for a job in the poultry processing business.

As we know from prior large-scale raids, the implications of arresting so many people are deep and long-lasting. Probably the most famous example is the 2008 raid at a Kosher food processing plant in Postville, Iowa. Almost 400 people–mostly indigenous Mayans from Guatemala–were detained. Many were charged with crimes such as using a false Social Security card. They were given a choice: Plead guilty and accept deportation, or go to trial. Going to trial was risky, and would result in many months of detention, even for those who were ultimately acquitted (since unlawful immigrants can be held in detention pending a criminal case). The result: Most people chose to plead guilty and accept deportation. A number of people in management were also charged with crimes. Only one–the owner of the plant Sholom Rubashkin–served any significant jail time, and that was for financial fraud (he had also faced charges for immigration-related crimes, but those were dropped). After eight years in jail, Mr. Rubashkin’s sentence was commuted by President Trump, purportedly after the intervention of Trump sycophant Alan Dershowitz.

The effect of the raid on the town of Postville and the wider community was profound: Children stopped going to school, families were separated, several hundred people were tried, convicted, and deported with little due process of law, the food processing plant–the town’s largest employer–closed for weeks and eventually declared bankruptcy, and a study of the long-term health effects of the raid showed that “Babies born to Latina mothers after the raid were 24 percent more likely to be underweight than infants born the year before,” presumably due to the stress and fear the raid engendered. Ten years later, the town had mostly rebounded, but memories of the raid–and the trauma–live on.

I imagine that noncitizens in Mississippi and across the nation will experience similar impacts as a result of the recent ICE raids. The psychological harm is compounded by the Trump Administration’s vicious anti-immigrant rhetoric, as well as the mass shootings in Pittsburgh and El Paso, which were seemingly perpetrated by men opposed to the foreign “invasion” of our country.

What will happen to the men, women, and children affected by the recent raids is still not known. Some of those detained likely have defenses to deportation, such as asylum or Cancellation of Removal (assuming their due process rights are not violated and they have an opportunity to present their defenses). Several of the people arrested during the Postville raid cooperated with the authorities in the criminal investigation and obtained U visas. Perhaps some of those affected by the raids in Mississippi will be eligible for such visas as well. 

Family members of those detained–especially children–will also face severe challenges. After the Iowa raid, many children went into hiding or were traumatized by the sudden absence of their parents and the fear of their own pending arrest. Churches and non-profits stepped up in Iowa, and I imagine we will see similar efforts here. Whether ICE has made arrangements for detainees’ children, and whether they will release non-criminal parents in their custody, is still unclear (ICE has indicated that such people would be released after an initial screening).

Part of the problem in this regard is trust. It is impossible to trust what ICE says. For example, one of the detainees in the recent raids has a 12-year-old daughter named Angie. The child was brought to the scene by a family friend in order to say goodbye to her mother. The following exchange with an ICE agent ensued–

“Here’s the deal, all right,” an agent says to an English-speaking woman accompanying Angie. “She [Angie’s mother] just went. Her mom got on the bus. We took her mom’s documents, all right. She’s going to be processed, because she doesn’t have papers to be here legally.”

But “because she’s the only caretaker of the child,” the agent continues, “she’ll be released this afternoon. So with [Angie] being a U.S. citizen and being 12 years old … she’s going to be issued a notice to appear, she’ll have to see an immigration judge, she’ll be released this afternoon.”

“Today?” a woman asks.

“Yes, yes,” the officer responds. “But I’m going to tell you something, she’s not going to be deported because she has a United States citizen child.”

As of Wednesday night, the mother had not been released. 

This is the type of behavior we see all the time from ICE agents. They give assurances to defuse the situation or end a conversation, but those assurances are false. They also pass the buck–in this case, it is not the ICE agent’s problem, the mother will have to see an Immigration Judge. I get it–law enforcement officers want to de-escalate tense encounters. But the frequent lying makes it impossible to trust anything that ICE agents may say. 

Finally, I do understand that ICE agents have a job to do, and that people who are here unlawfully can be deported. That is the law. But this raid–with its helicopters and military-style trappings–seems designed for propaganda purposes. In the context of the times, I fear that the effect on our country’s noncitizen and minority community members will be traumatizing and frightening. I also can’t help but feel that that is exactly what ICE wants. 

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A New Foundation for Asylum Reform

by Jason Dzubow

In case you hadn’t noticed, the asylum system has essentially collapsed. A lucky few still have their cases decided, but they seem to be a minority. It is painfully clear that the backlog continues to grow. It currently stands at about 327,000 affirmative asylum cases and more than 908,000 cases in Immigration Court (how many of these court cases involve asylum, I do not know). The heart of the problem is mathematical: Too many applicants; too few resources. Unfortunately, we are not moving towards a solution at either the legislative or regulatory levels.

In terms of new regulations and policies, the Trump Administration’s only apparent plan is to deter would-be asylum seekers by making the process more painful and by trying to block people from reaching our shores. In my opinion, making the asylum process more painful won’t work. That’s because whatever harm the Administration can impose (family separation, indefinite detention, “wait in Mexico,” hieleras, tear gas, stricter legal standards) pales in comparison to the harm many asylum seekers face if they return home (death). Asylum seekers, being rational actors, are simply choosing the lesser evil, and coming to the United States. Blocking people from coming here might be more effective, but again, I have my doubts. People are fleeing for their lives and determined to reach safety, and so gaining better cooperation from Mexico, building bigger walls, and tightening up visa requirements will only get us so far.

In today’s divisive environment, progress is measured in centimeters and Grahams.

The “problem” from the Trump Administration’s viewpoint is that the law of asylum still offers refuge to those fleeing persecution. Thus, the Administration’s efforts to change the regulations (which modify how the law is applied) can do only so much. To change the law requires Congressional action. During the first two years of Mr. Trump’s presidency–when Republicans controlled both Houses of Congress–there was no effort to reform the asylum law. Now, with the Democrats in control of the House, legislation is only possible if the two parties reach a compromise. And compromise in Washington has lately proved elusive (just a bit).

Elusive, yes, but perhaps not impossible. Recently, Republican Senator Lindsey Graham proposed changes to the asylum system to increase the length of time families can be held in detention and to add 500 new Immigration Judges, among other (mostly punitive) ideas. Despite the hard line, Mr. Graham expressed a willingness to “put other immigration ideas on the table to marry up with this.” Mr. Graham’s bill may be all stick and no carrot, but at least it signals a desire to address asylum reform. On the House side, the Democratic majority (with a few Republicans) passed a bill to protect Dreamers. Perhaps these opening bids could lead us in a productive direction.

The fact is, while asylum policy is a difficult issue, it should be amenable to a legislative fix. If politics were removed from the mix (a very big “if”), we could find policy solutions that would greatly improve the current situation. What would such a “solution” look like? Spoiler alert: I don’t have an answer. But I do have some ideas, at least about where we can get started–a foundation upon which legislation can be built. Here, I want to discuss the fundamental elements of this foundation:

– We must be honest about the problem: The Trump Administration has not been truthful about why asylum seekers are coming to our country, who they are, or what they do once they get here. It’s very difficult to move towards a reasonable policy solution when we are living in dystopian fantasy land. Asylum seekers are not invading our country. They are not coming to collect welfare or commit crimes. The data is pretty clear that they are basically regular people, who are coming here because they fear harm back home. They tend to commit fewer crimes than the average American, and they make an overall modest contribution to our economy. Reforming the asylum system will require a realistic and honest appraisal of asylum seekers, and so we have to stop the politically-motivated effort to demonize them.

– We need to decide who should receive asylum: The asylum law provides for five protected categories: Race, religion, nationality, political opinion, and particular social group (“PSG”). These categories exist because our nation decided to protect people who face these types of harm. Conversely, other types of harm–such as generalized violence in war or criminal violence–were not considered worthy of protection. Why did we make this distinction? Because these types of harm in some way reflect our national values (political freedom, religious freedom, and racial equality, to name a few). But these categories were largely created by white men to protect against harm inflicted on other white men, and national values evolve over time. In the case of the protected asylum categories, this evolution occurred through litigation, not through any sort of consensus legislation (with one exception, which relates to forced abortion and forced sterilization).

For example, litigation has expanded the definition of PSG to encompass a diverse range of applicants (LGBT individuals, victims of FGM, victims of domestic violence, members of a family, and many more) who were not on the radar when the law was created. This indeterminacy has led to shifting interpretations of the law (depending partly on the Administration in power), inconsistent decision-making at the individual level, and confusion and misinformation among asylum seekers about who is protected. This chaos has contributed to the influx of Central American migrants arriving at our Southern border, who are mostly seeking protection based on PSG.

In order to resolve this crisis, we need to make a decision by legislation, not by litigation, about who we want to protect. For example, we can choose to protect victims of domestic violence, or not. That is our right as a sovereign nation. However, in making that decision, we need to be honest about what we are doing–these people are often facing life-threatening harm. We can send them back, if we so choose, but we cannot pretend that they are returning to someplace safe. In other words, we can choose to let anyone in, or keep anyone out, but we have a moral obligation to make that decision based on facts–not based on anti-immigrant propaganda. If we can define more precisely who is eligible for protection, we can create more certainty for migrants, and hopefully deter those who do not qualify. Further, if this is done with the support of most Americans (i.e., through legislation), the decision about who to protect will have more legitimacy and be more sustainable.

– We need to decide how much due process is due: Even for people arriving at the border, we have a Cadillac-immigration system. This includes Border Patrol Agents, detention facilities, Asylum Officers, Immigration Judges, ICE attorneys, administrative support staff, and many others. All this is expensive, especially when you have thousands of asylum applicants presenting at the border each week. Our system is not designed to handle such a high volume of cases, and unless we are prepared to significantly increase resources to review asylum applications, something has to change.

One option is to screen applicants and release those who pass a credible fear interview (“CFI”), and then require them to return for a court hearing (what our President has eloquently called “catch and release”). This has the advantage of ensuring a high level of due process for everyone seeking protection at our borders, but has the disadvantage of essentially opening the border to anyone who can pass a CFI (a relatively low bar). It also seems to be politically unpopular. Another option is to detain some or all asylum seekers until we can give them a full hearing. This has the advantage of providing a higher level of due process (to the extent that a person can exercise her due process rights while detained), but comes with a heavy cost, both economically and in human terms. A third option is to provide a lower level of due process, maybe a rigorous CFI, followed by removal for those who are denied. Such a system would provide some measure of justice, but would result in the return of many people who might qualify for protection if they had time to gather evidence and present their cases. Another option might be to provide no due process at all: Anyone who requests asylum at the border can be placed into a refugee camp or sent to a safe third country, and will remain there until the crisis in the home country is resolved (which the way things are going, is probably forever). This would solve the problem of protecting people from imminent harm, but would result in long-term issues, since it would potentially create a permanent community of displaced people.

Perhaps the point here is that, while there may be no perfect solution, we need to think in realistic terms about the level of due process we want to offer asylum seekers who arrive at our border.

The idea that Congress and the President could actually come up with a rational solution to improve the asylum system seems almost fantastical in this age of divisiveness and gridlock. But something has to be done. The first step is to speak honestly about what is going on, and then to work towards a solution that is made democratically, and which considers our country’s national and economic security, moral ideals, humanitarian commitments, and the rule of law.

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Another Salvo in President Trump’s War on Asylum

by Jason Dzubow

In case you haven’t noticed, President Trump is not a fan of asylum seekers. His Administration has taken a number of actions to block asylum seekers from coming to the United States and to reduce legal protections for those who are already here. Now, the President has issued a policy memo instructing the Attorney General and the (acting) Secretary of Homeland Security to propose new regulations and re-arrange resources to further discourage migrants from seeking asylum in the U.S. Let’s take a look at this most recent move, and how it might impact the asylum process.

As a preliminary matter, the news is not all bad. In Section 2 of the memo, the President re-affirms his commitment to the humanitarian immigration system: “It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.” While it may not be big news that the Administration will provide “relief or protection… for aliens who qualify,” since failing to do so would violate the law, we have to take our good news where we can find it.

“Pay for asylum? No problem. I’ll have my manservant write you a check whilst I finish my charcuterie platter and valet my Bentley.”

In addition, the thrust of the new proposals seem directed towards migrants arriving at the Mexican border. Indeed, the express purpose of the memo is to address the on-going “crisis” in “our immigration and asylum system… as a consequence of the mass migration of aliens across our southern border.” It appears that some of the coming changes will affect all asylum seekers–as opposed to only those entering from Mexico–but we won’t know for sure until the AG and the DHS Secretary draw up the new regulations.

Finally, it is important to note that none of the changes in the memo have gone into effect–yet. The President has ordered his team to propose regulations within 90 days, and after that, it will likely take additional time to implement those changes (and some may be challenged in court). So for the time being, none of the new rules listed in the memo are operational.

Turning now to the specifics, the memo calls for several significant changes:

First, as I read the memo, it requires all asylum applicants who pass a credible fear interview (an initial evaluation of asylum eligibility) to present their cases before an Immigration Judge. Previously, certain applicants–most notably, minors–could present their cases in the less-confrontational environment of the Asylum Office. Now, it seems, they must present their cases in court.

Second, the memo requires that, “absent exceptional circumstances, all asylum applications adjudicated in immigration court proceedings receive final administrative adjudication, not including administrative appeal, within 180 days of filing.” [please assume there is a long pause here, while I laugh and laugh, and eventually compose myself well enough to continue writing]. This ain’t gonna happen. No way. No how. It’s another iteration of what Judge Paul Wickham Schmidt famously calls “aimless docket reshuffling” or ADS. ADS is the process whereby a new Administration comes in and imposes its particular priorities on the Immigration Court system. The very predictable result of ADS is that cases get re-arranged, judges lose control of their dockets, and most everything gets delayed much longer than if management had just left well-enough alone. The Trump Administration is by no means the first to practice ADS, but they do seem to indulge in it more frequently than prior administrations.

Third, the memo calls for “regulations setting a fee for an asylum application not to exceed the costs of adjudicating the application… and for an initial application for employment authorization for the period an asylum claim is pending.” In other words, the government wants to charge asylum seekers to seek asylum (the affirmative asylum system is currently funded by other immigrants when they pay USCIS fees). How much this fee will be, we don’t yet know, but if the fee is meant to cover the cost of adjudicating the asylum application, it won’t be cheap. Will the fee include the cost of security background checks? Immigration Court proceedings? These processes are expensive, and few asylum seekers can afford to “do business” this way.

The memo does not indicate what happens to people who cannot pay, but we can’t just deport them. Indeed, the Immigration and Nationality Act (section 241(b)(3)) and the Convention Against Torture prohibit the U.S. from returning people to countries where they face certain types of harm (this is separate from, but similar to, the asylum law). Such people apply for relief using the same form (I-589) as asylum applicants. Will the government adjudicate these other types of humanitarian applications where the person is unable to pay for asylum? We don’t know this either.

Perhaps those who cannot afford to pay will be eligible for a fee waiver. That would help, but fee waivers require significant work to complete, and so, at a minimum, many lawyers would raise their fees (since we are paid for our time). This would make it more difficult for asylum seekers to obtain legal counsel.

As I read the memo, it also seems to be calling for a fee for the initial Employment Authorization Document (“EAD”). Currently, the first EAD for an asylum applicant is free. Renewals cost money (currently $410). EADs are valid for two years, and fee waivers are available, so this particular requirement, while harmful to asylum seekers, is probably not that damaging.

Fourth, the memo calls for regulations to “bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted, and to ensure immediate revocation of employment authorization for aliens who are denied asylum or become subject to a final order of removal.”

Currently, an alien is eligible for an EAD 180 days after she files for asylum (she can submit the application 150 days after she files for asylum). If the new memo is implemented, asylum seekers who “entered or attempted to enter the United States unlawfully”can no longer receive an EAD unless and until their cases are granted. As the memo is written, this provision would probably not apply to an alien who arrived in the U.S. with a visa, but that is not entirely clear. The phrase “entered or attempted to enter the United States unlawfully” is subject to interpretation, and if interpreted broadly, it could block some asylum seekers from obtaining an EAD, even if they entered the U.S. with a visa (for example, if the visa was procured by fraud).

Ironically, if the government succeeds in adjudicating asylum cases within 180 days (and I am skeptical about that), the EAD provision will become less important, since cases will either be granted or denied before the alien is eligible to obtain his EAD. If the case is granted, the alien will be eligible to work immediately, and if it is denied, he presumably (based on this memo) would be ineligible to work while the matter is being appealed. The problem will be for applicants who face long delays, and are unable to work lawfully. How will such people survive the wait?

Finally, the memo calls on the Secretary of Homeland Security to “reprioritize the assignment of immigration officers and any other employees of the Department as the Secretary deems necessary and appropriate to improve the integrity of adjudications of credible and reasonable fear claims, to strengthen the enforcement of the immigration laws, and to ensure compliance with the law by those aliens who have final orders of removal.” It’s unclear (at least to me) what this means, but it seems like another version of ADS. Perhaps the plan is to shift resources away from adjudicating immigration benefits and towards enforcement. While this would certainly cause even more delay for individuals, families, and businesses who rely on USCIS, any boost to the asylum or enforcement sections of DHS seems unlikely. There is just not a lot of cross-over between the different functions of DHS, and so there are only so many resources that can be shifted around. In other words, I doubt the DHS Secretary can arm Naturalization officers and enlist them to chase after aliens with final orders.

President Trump’s memo leaves many unanswered questions, and so we will have to wait for the new regulations to learn the specifics. While some of these changes may be blocked by courts, others will likely go into effect. The result will be a further erosion of our proud tradition as a beacon of hope to those fleeing harm.

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Human Rights Lawyers Under Attack in Iran and the U.S.

by Jason Dzubow

“The first thing we do, let’s kill all the lawyers.” So says Shakespeare’s Dick the Butcher in Henry VI Part 2. Dick is advising a pretender to the throne about how to seize power. The idea is, if we get the lawyers out of the way, the lawless can prevail. Four hundred years later, it’s still good advice: If you want to violate the law, you have to somehow neutralize those who are sworn to uphold it. In recent weeks, we have seen two different governments–Iran and the United States–take steps to intimidate and marginalize attorneys who are perceived as obstructing their goals.

The more vicious case is taking place in Iran, where “prominent Iranian human rights lawyer and women’s rights defender Nasrin Sotoudeh [was sentenced] to 33 years in prison and 148 lashes.” This is on top of an earlier in absentia sentence of five years imprisonment. Her “crimes” include “inciting corruption and prostitution, openly committing a sinful act by… appearing in public without a hijab, and disrupting public order.” Ms. Sotoudeh has long been a peaceful advocate for women’s rights and against the death penalty, and Amnesty International writes that her punishment is the “harshest sentence” that the organization “has documented against a human rights defender in Iran in recent years, suggesting that the authorities – emboldened by pervasive impunity for human rights violations – are stepping up their repression.”

According to the Mullah Report, Nasrin Sotoudeh is guilty of obstructing injustice.

This is an important point–the actions of the Iranian government do not occur in a vacuum. They are part of a malignant pattern of torture, harassment, intimidation, and murder of peaceful political opponents. The obvious purpose of this terror campaign is to keep hold of political power and intimidate dissenters into silence. And of course, Ms. Sotoudeh is not alone. As the U.S. State Department notes, “hundreds of others” are also “currently imprisoned simply for expressing their views and desires for a better life.”

Commenting on Ms. Sotoudeh’s case last summer, the U.S. State Department said, “Ms. Sotoudeh has spent the past several years harassed by the Iranian regime and has been routinely placed behind bars for daring to defend the rights of those in Iran.” “We applaud Ms. Sotoudeh’s bravery and her fight for the long-suffering victims of the regime.” A State Department spokesperson called Ms. Sotoudeh’s more recent sentence “beyond barbaric.”

I agree. But unfortunately, it’s more difficult for us to condemn Iran and claim the moral high ground when our own country is also intimidating and mistreating human rights attorneys. The extent of our malfeasance is not equal to what we see in Iran, but it’s not what we expect from the United States either.

Earlier this month, NBC News reported that “Customs and Border Protection [or CBP] has compiled a list of 59 mostly American reporters, attorneys and activists who are to be stopped for questioning by border agents when crossing the U.S.-Mexican border at San Diego-area checkpoints, and agents have questioned or arrested at least 21 of them.” CBP claims that the people on the list “were present during violence that broke out at the border with Tijuana in November and they were being questioned so that the agency could learn more about what started it.” The ACLU calls the government’s actions an “outrageous violation of the First Amendment,” and argues that the “government cannot use the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

According to the NBC News report, several lawyers have been targeted. They have been held for hours in secondary inspection, questioned, had their cell phones searched, and–in at least one case–been accused of “alien smuggling,” which is a serious crime. Referring to the NBC News report, one attorney said that it “appears to prove what we have assumed for some time, which is that we are on a law enforcement list designed to retaliate against human rights defenders who work with asylum-seekers and who are critical of CBP practices that violate the rights of asylum seekers.”

Another lawyer described his brief detention at the border. CBP officials told him that “their job is to investigate terrorism and criminal activity on the border” and they asked him questions about the work he does, the organization he works for, and how the organization gets funded. They also asked him for his cell phone, which he handed over and unlocked. “I have nothing to hide,” the lawyer said. “I’m not a criminal. I’m not a terrorist. I’m just doing my job as an American citizen.”

The effect of these tactics is not simply to frighten and inconvenience the lawyers who are stopped at the border (and to potentially violate attorney-client privilege). Targeting lawyers (and others) in this manner also has a chilling effect on anyone who might be inclined to assist migrants and try to protect their legal rights. One lawyer, speaking on condition of anonymity, said, “I was going to go [to Mexico] this week, but I had to worry about whether I could get back in [to the United States].”

Being detained for a few hours and questioned is not the same as being sentenced to lashes and imprisoned for decades. However, the treatment of attorneys in the U.S. and Iran has something in common: It is designed to prevent people from exercising their rights as human beings by reducing their access to legal representation. Whether those people are migrants seeking asylum or women seeking equality, they are entitled to attorneys to assist them in securing their legal rights.

I agree with the U.S. State Department’s assessment of Ms. Sotoudeh’s case. She should not be punished for “daring to defend the rights of those in Iran.” But neither should U.S. attorneys be punished for daring to defend the rights of those lawfully seeking asylum in the United States. Our country should be setting an example for the world. We should not be lowering ourselves to the level of one of the worst human rights abusers on earth. 

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Of Caravans and Consequences

by Jason Dzubow

As thousands of asylum seekers approach the Southern border in “caravans,” the Trump Administration is reacting harshly. Border Patrol Agents fired tear gas at men, women, and children. The crossing at San Ysidro has been closed, resulting in significant economic losses in San Diego (businesses on the U.S. side earn between $10 and $15 million per day from Mexican consumers). And U.S. immigration authorities are essentially denying migrants’ right to apply for asylum by insisting that they can process only 60 to 100 cases per day.

DHS Secretary Kirstjen Nielsen writes that the “caravan… entered Mexico violently and attacked border police in two other countries.” She states that the caravan is well organized and includes more than 8,500 individuals, with more on the way. Most of the migrants are men, she writes, and the “limited number of women and children in the caravan are being used by the organizers as ‘human shields’ when they confront law enforcement.” Secretary Nielsen claims that, “we have confirmed that there are over 600 convicted criminals traveling with the caravan flow.” How this has been “confirmed,” she dos not say. Secretary Nielsen also states that most migrants are coming here for jobs or to reunite with family members, and notes that, “Historically, less than 10% of those who claim asylum from Guatemala, Honduras, and El Salvador are found eligible by a federal judge.”

I hear that the U.S. Border Patrol is recruiting new agents in the Andaman Islands.

Others who have witnessed the migration paint a somewhat different picture. For example, a photojournalist who traveled with the caravan in Mexico estimates that 25 to 30 percent of the migrants are families with children. Other members of the group are elderly. “Though many were fatigued and battered by the experience,” he writes, “they often expressed a good deal of hope for what awaited them at the border.” Another journalist who interviewed migrants found that the people he spoke to were fleeing violence in their home country.

So there is disagreement over who the migrants are, and why they are coming here. But what are the legal, policy, and political implications of the caravan?

First, anyone who arrives at a U.S. border is entitled to apply for asylum. The law on this point is pretty clear–

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section….

The Trump Administration wants asylum seekers to wait outside the U.S. while their cases are decided. Whether this is lawful is not so clear. The law seems silent on this point, though the Attorney General has the authority to “establish a procedure for the consideration of asylum applications.” Arguably this would include where the applicants must wait while their cases are adjudicated. My guess is that this “wait in Mexico” policy–like most of the Administration’s other policies–will be subject to a court challenge.

There are also practical and policy implications for how we deal with the caravan. The Trump Administration claims that it only has the capacity to process 60 to 100 cases per day. This, I don’t believe. Statistics from the Asylum Division show that in FY 2018, Asylum Officers conducted an average of 253 credible and reasonable fear interviews per day (assuming the Officers are working 365 days per year), and in the busiest month (June 2018), they conducted an average of 318 interviews per day (again, working every day). Admittedly, these figures are for all parts of the country, but they illustrate the government’s capacity to deal with a crisis if it chooses to.

At the present rate, the government will need 3 to 5 months to screen the current group of people waiting at the San Ysidro crossing (assuming that no more asylum seekers arrive there). Whether Mexico has the will, ability or legal obligation to accommodate large numbers of people waiting for asylum in the U.S., I do not know. Rumors of an agreement between the Trump Administration and the incoming Mexican President are still unconfirmed, but even if Mexico agrees to host the migrants, it is unclear whether they can deal with so many people.

The legal effect of the long wait is clear: Some asylum seekers will be denied their right to seek asylum in the U.S. The practical effects are also pretty obvious. The Mexican side of the border is unsafe and economically weak. The migrants will have a hard time remaining there while they wait for decisions. Imposing cruel conditions on people fleeing persecution seems an inhumane way to deter people from exercising their legal right to seek asylum, but that has been the modus operandi of the current Administration.

I imagine there will also be political and economic consequences for our country if large numbers of Central Americans get stuck on the Mexican side of the border. Besides straining relations with Mexico, we set a bad example. If the U.S. rejects these relatively few refugees, will other countries follow our lead and deny protection to people fleeing persecution? Will they use violence to keep refugees out? The implications for international humanitarian law are potentially dire.

While I am no fan of the Trump Administration’s border policies (or most of its other policies), it is not enough to criticize without offering an alternative. That is easier said than done. Compared to migrations in the past, the current numbers are relatively modest. Indeed, the overall number of illegal entrants for 2017 is significantly down from peak periods in 2014 (for Central Americans – down 41%) and 2007 (for Mexicans – down 80%). Nevertheless, our country’s tolerance for immigration seems lower, and something needs to be done.

One idea (possibly DOA from a political standpoint) is to make the argument that screening and admitting asylum seekers is good for us. First, helping people who are fleeing harm is the right thing to do. Also, asylum seekers are less likely to commit crimes than the average American, they tend to use fewer public benefits, and they are a net economic gain for our country. Certainly, we should be working to convince the general public that a more liberal immigration policy would be beneficial.

But in examining policies solutions, we need to keep in mind that most Central American asylum seekers will not qualify for protection. This is not because their countries are safe. Rather, it is because the type of harm most Central Americans face does not easily fit within the legal framework of asylum (also, many such applicants lack legal representation and cannot properly present their cases). Unless this changes, it makes sense to process the cases as quickly and fairly as possible, and to return those who do not qualify for protection.

Also, we need to decide where and how people will wait for their decisions. How many asylum seekers abscond rather than appear for hearings? Are some types of migrants (families, for example) less likely to abscond than others? Do we need detention or “wait in Mexico” at all? If so, do alternatives to detention (such as ankle bracelets) work? How can large numbers of refugees be kept safely for a period of months? These are not easy questions to answer, but the answers are knowable and I have little doubt that we can manage the border humanely and honorably, if we so choose.

In the wake of Democratic successes in the 2018 election, politicians may conclude that they have more to gain by working towards immigration reform than by using immigrants as boogeymen to rally voters. But compromise is not easy. It requires that we all do something that is not very American: Accepting less than everything we wanted. I doubt that any reform would give us the immigration system that I envision, but I still feel hopeful that we could end up with something better for our country–and better for immigrants and asylum seekers–than we have now.

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In Defense of Refugees

by Jason Dzubow

In an on-line rant shortly before he entered a synagogue and murdered 11 people, Robert Bowers railed against asylum seekers and the Hebrew Immigrant Aid Society, a refugee-assistance organization: “HIAS likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.”

Who are these “invaders” and why do we allow them into our country?

The first thing to know is that not every foreign person who faces harm abroad qualifies for protection in the United States. The definition of “refugee” is circumscribed by law. The feared harm must be “on account of” a protected ground: race, religion, nationality, particular social group or political opinion. These categories reflect our American values, and when we grant asylum, we demonstrate our commitment to those values.

I am an attorney who specializes in political asylum. Every day, I represent non-citizens who are seeking refugee status in our country. My clients include activists for democracy, peace, and women’s rights, journalists who have stood up for free speech, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, and interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help further the values that are foundational to our nation and to all who believe in freedom and liberty.

Critics of our humanitarian immigration policies claim that asylum is merely a kindness we extend to needy recipients. That we get nothing in return. This view of asylum is false.

Since its beginning—during the Cold War in the 1950’s—asylum was about advancing America’s strategic interests. In those early days, we used the asylum system to demonstrate moral superiority over our Soviet adversaries. We celebrated famous dissidents, athletes, and artists who defected to the West. Now, the Soviet Union is gone, but asylum remains an essential tool of U.S. foreign policy. We gain tangible benefits from asylum. And I am not talking only about the influx of talented, brilliant people who add to our nation’s strength.

When we give asylum to interpreters who served with our soldiers in Iraq or Afghanistan, we demonstrate our loyalty to those who work with us. When we grant asylum to women’s rights advocates, we show our support for the cause of gender equality. When we support journalists, we show that we stand for free speech. And when we grant asylum to religious minorities, we reinforce our founding principle of Religious Freedom.

Imagine for a moment what it would mean to deny asylum to Iraqi interpreters, woman’s rights advocates, journalists or members of religious minorities. Imagine what that would say about us, about our country. Imagine what message it would send to those around the world who are working for the values that we, in our best moments, embody.

When we offer refuge to those who have stood with us, and who have risked their lives to advance the values that we cherish (and which we too often take for granted), we send a powerful message: When you work with us, when you work for the values we believe in, America is with you. And when activists around the world have confidence that America is on their side, it helps them continue their struggle for justice.

And it helps us too. If we want their cooperation and loyalty going forward, our allies need to know that we are there for them. That we will protect them if they need our help. Our asylum and refugee systems demonstrate–in a tangible way—our loyalty to those who stand with us, and this helps us advance our own national interests and our moral values.

Asylum seekers and refugees are not invaders. They are people who we choose to allow into our country. We make this decision based on our own foundational values: democracy, human rights, women’s rights, press freedom, religious liberty. Our humanitarian immigration system does not threaten our country. On the contrary, it represents our nation’s highest ideals made manifest.

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An Open Letter to the “Complicit” Asylum Officer

by Jason Dzubow

By now, you’re probably familiar with the famous, anonymous op-ed in the New York Times, written by a high-level member of the White House staff who is “resisting” President Trump. But in asylum-world, there’s another anonymous article getting attention. It’s an interview in Topic Magazine with an un-named asylum officer.

The interview is sad and poignant. It’s obvious that the officer cares about his (or her) job and the individuals who are seeking protection in the United States. With the advent of the Trump Administration and it’s increasingly hostile approach to asylum seekers, the officer is facing a crisis of conscious: “I struggle every single day with how to determine whether I’m causing more harm than good,” the officer states.

Asylum Officers review the latest Trump Administration policy memo.

One example the officer gives is the implementation of the infamous “zero tolerance” policy at the border, where parents and children were separated, often by trickery, and with no real plan for reunification:

I was interviewing moms in detention who were separated from their children. [U.S. government officials] took their children away from them. All that they wanted from me was to know where their kids were. They would ask me, “Where are my children?” But I was told not to tell them where their kids were. I was told not to tell them. When I say I’m complicit, this is what I mean.

Obviously, looking a desperate mother in the eyes and declining to give her information about her children is a soul-crushing experience. And, according to the anonymous officer, the Administration’s policies are having a deleterious effect on asylum officers:

People in the office are demoralized. I think the job was hard to begin with. There were already very high expectations, very rigorous screenings. Now, there is a fear among upper-level officers that the [asylum] program could get cut altogether, so everyone is trying very hard to not make any mistakes so that the program doesn’t get cut. My worry is that this will lead to people who should get asylum not getting asylum…. [At] this point, I can’t yet fathom what [bad thing] will happen next. I don’t want to, but I’m sure it will come. I never thought they would take kids away from their parents. What else could they do? They did that, so they could do anything.

What should a decent, moral person do in a situation like this? For me (as an outsider), the answer is not so clear. I have friends who have left government because they could not contribute to the goals of the Trump Administration. Other friends have chosen to stay, to do whatever good they can. Which approach is better probably depends on the individual and her circumstances, and I am quite sure it is not an easy decision either way.

If it were me, one factor in deciding whether to stay or go would be the impact of my choice on the asylum system. I have written this before, but it bears repeating here: In many ways our asylum system is sacred. Our country grants protection to strangers who arrive on our shores seeking refuge from danger. We offer asylum in part because it serves our national interests. But we also offer asylum because we are generous and good. By helping others, we help define ourselves. My decision to leave would depend in part on whether I thought my departure would make “the system” better or worse.

Asylum Officers, Immigration Judges, and government attorneys implement the asylum law. Without them, there would be no humanitarian immigration system. In my experience, most of these people are hard working. The majority are clearly committed to the rule of law, and to Justice (though we don’t always agree on what “Justice” looks like). They take their responsibilities seriously and recognize the life-changing nature of their work. They are the ones who have to make the difficult choices (choices that lawyers like me do not have to make): Whether to grant a close case or deny a sympathetic one that simply does not qualify for relief; whether to give an applicant the benefit of the doubt; whether to grant or deny as a matter of discretion. These are the tough choices that ultimately allow “the system” to continue functioning.

So it seems to me, the question for the anonymous asylum officer and many hundreds like him, is whether there is still room in the system–and in his particular job–to do Justice. In the case of our officer, it appears that such room still exists.

Even as the Trump Administration is working overtime to narrow the path for asylum seekers, it is still possible to do good. As the anonymous officer notes, “there is still space to be fair, and to provide opportunities for people.” And it’s not just fairness; it’s also kindness. Speaking about female asylum seekers detained at the Southern border, the officer says:

I think that oftentimes for the women who are detained at those facilities, [my interaction with them] will be the first moment that someone will be kind to them. The very first time in the whole process. They are not treated well at the border, by other agents in other agencies….

The value of such kindness is difficult to overstate. It can be the difference between hope and despair. Even for people who are ultimately denied, the fact that they were treated with respect and fairness makes a real difference. I have seen that myself many times.

As an attorney who represents asylum seekers, I hope that the anonymous officer will stay. When good people depart government service, the rule of law is degraded. The decency and compassion that have been–to borrow a word–the loadstars of our asylum system, are further eroded. And of course, the erosion of our humanitarian immigration system also marks a degradation of our country’s humanity.

These days, many good people in government are conflicted. The anonymous officer states, “I think about it [quitting] all the time.” I don’t blame the officer for this. It is painful to compromise one’s morals. But now, more than ever, I think we need people like this officer to stay. To do their jobs. And to pursue Justice.

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Disingenuous State Department Report Seeks to Block Refugee Women

by Jason Dzubow

The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.

A lie is a lie, no matter how many times they try to tell you otherwise.

Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.

There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.

That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.

Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.

The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.

Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:

Country   2016 Report   2017 Report % Reduction
El Salvador       1364       423       69%
Guatemala       1212       283       77%
Honduras       1235       365       70%

 

As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence”  (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.

The 2017 Report for Honduras states:

The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.

Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:

Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….

So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).

How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.

I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.

Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.

Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at joanna.m.gaughan@gmail.com.

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A Poetic Response to the State of Our Union

by Jason Dzubow

Last night was the State of the Union address, a speech presidents give before Congress each year to assess where our country has been and where we are going. President Trump’s speech highlighted one of his favorite themes–the dangers to our economy and our security posed by non-citizens.

I recently came across a poem by Brian Bilston, which eloquently rebuts the President’s anti-immigrant and anti-refugee talking points, and so I wanted to share it here. If you would like to learn more about Mr. Bilston, check out his website. Without further ado, enjoy–

Refugees

They have no need of our help
So do not tell me
These haggard faces could belong to you or me
Should life have dealt a different hand
We need to see them for who they really are
Chancers and scroungers
Layabouts and loungers
With bombs up their sleeves
Cut-throats and thieves
They are not
Welcome here
We should make them
Go back to where they came from
They cannot
Share our food
Share our homes
Share our countries
Instead let us
Build a wall to keep them out
It is not okay to say
These are people just like us
A place should only belong to those who are born there
Do not be so stupid to think that
The world can be looked at another way
(now read from bottom to top)

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Fred Korematsu and the Forgotten Legacy of Lies

by Jason Dzubow

Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.

Fred Korematsu and the Presidential Medal of Freedom.

After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).

The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”

Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.

With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.

But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.

The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.

As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”

In 2011, the Acting Solicitor General stated:

By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.

Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.

Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.

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Whither the Syrian Christian Refugees?

by Jason Dzubow

As the Syrian city of Aleppo falls under government control, the question of Syrian refugees has become even more urgent. Forces loyal to the government are summarily murdering civilians, and even the wounded cannot be evacuated due to government (and Russian) military action. Despite heartbreaking “goodbye messages” from civilians trapped in the conflict zone, I have little expectation that the world will do much to help. We have ignored genocides again and again, so why should we expect anything different here?

Which is easier to explain: The absence of Christian refugees, or the absence of Christian charity?

Accepting Syrian refugees into the United States has also been controversial. Donald Trump called them “a great Trojan Horse.” I suppose the same could be said of the Jews fleeing Hitler on the ship St. Louis, which reached our shores but was refused permission to land. I am sure many of those men, women, and children were secret Bolsheviks plotting a Communist takeover. Lucky for us, they were rejected and returned to Europe, where over 250 of them perished in the Holocaust.

One gripe raised by those opposing the admission of Syrian refugees is that the refugees are disproportionately Muslim. In a recent concurring opinion, Judge Manion of the U.S. Court of Appeals for the Seventh Circuit, notes the mysterious absence of Christians from the pool of Syrian refugees arriving in the United States. See Heartland Alliance National Immigrant Justice Center v. DHS, 16-1840 (7th 2016). J. Manion writes:

I write separately for a… critical reason, which is [to express] my concern about the apparent lack of Syrian Christians as a part of immigrants from that country…. It is well-documented that refugees to the United States are not representative of that war-torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one-half of one percent of Syrian refugees admitted to the United States this year are Christian…. [Of] the nearly 11,000 refugees admitted by mid-September, only 56 were Christian. To date, there has not been a good explanation for this perplexing discrepancy.

Judge Manion’s observation is supported by a recent report from the Pew Research Center, which found that in FY 2016:

[R]efugee status was given to 12,587 Syrians. Nearly all of them (99%) were Muslim and less than 1% were Christian. As a point of comparison, Pew Research Center estimated Syria’s religious composition to be 93% Muslim and 5% Christian in 2010.

The most accurate data I have found about Syrian refugees essentially lines up with the findings of Judge Manion and Pew: Of 12,541 Syrian refugees admitted into the U.S. in FY 2016, between 0.5 and 1% self-identified as Christian. It is a bit less clear how many Christians lived in Syria prior to the current war. Estimates range from 5.1% (Pew) to 10% (CIA). But no matter how you slice it, it’s clear that the Syrian refugees entering the U.S. are not representative of the country’s population–fewer Christians than expected are coming to our country as refugees. So what’s going on here?

First, here is the conclusion that I don’t accept–the one pushed by people opposed to Muslim immigration–that the Obama Administration is deliberately favoring Muslims over non-Muslims. I don’t support this conclusion because, while a disproportionate majority of Syrian refugees are Muslim, the majority of refugees overall (from all countries), are not Muslim. In FY 2016, we admitted 38,901 Muslim refugees and 37,521 Christian refugees (out of a total of 84,995 refugees). In other words, in FY 2016, about 46% of refugees admitted to the U.S. were Muslim; 44% were Christian. (This was the first year of the Obama Administration where more Muslims than Christians were admitted as refugees).

A more plausible explanation for the absence of Syrian Christians was proposed by Jonathan Witt, an Evangelical writer and activist, and an Obama critic. Basically, he believes that Muslims are more likely than Christians to end up in refugee camps, and since refugees are generally selected for resettlement from the camps, Christians are disproportionately left out. This part sounds logical, but (to me at least) Mr. Witt takes his argument a bit too far:

As bad off as the Muslim refugees are, they aren’t without politically well-connected advocates in the Middle East. Many Muslim powerbrokers are happy to see Europe and America seeded with Muslim immigrants, and would surely condemn any U.S. action that appeared to prefer Christian over Muslim refugees, even if the effort were completely justified. By and large, they support Muslim immigration to the West and have little interest in seeing Christian refugees filling up any spaces that might have been filled by Muslim refugees.

The deck, in other words, is heavily stacked against the Christian refugees. The White House has been utterly feckless before the Muslim power structure in the Middle East that is doing the stacking, and has tried to sell that fecklessness to the American people as a bold stand for a religion-blind treatment of potential refugees —religion tests are un-American! It’s a smokescreen.

Here, he’s lost me. This conspiracy-minded nonsense might be more convincing if there were some evidence for it (and remember, FY 2016 was the first year of the Obama Administration where we resettled more Muslim than Christian refugees). The prosaic arguments may be less interesting, but they have the vitue of being more likely.

I have a few of my own theories as well. For one thing–and maybe this ties in with the first part of Mr. Witt’s thesis–Syrian Christians were somewhat better off than Syrian Muslims. If they have more resources, maybe they were able to avoid the refugee camps by leaving in a more orderly way and by finding (and paying for) alternative housing. Also, Syrian Christians are generally not being targeted by the Assad regime. Indeed, in view of the threats they face from extremists, Syrian Christians are more likely to support the government–not because they have much affection for Bashar Assad, but because the alternative is even worse.

So there very well may be a reasonable explanation for the lack of Christians among Syrian refugees resettling in the U.S. But because the Administration has not explained the anomaly, we are (as usual) left with an information void. And that void is being filled by speculation from fringe writers like Mr. Witt, but also by federal court judges, like Judge Manion. The solution should be obvious: Those involved in the refugee resettlement effort should tell us what’s going on. This would help satisfy many critics and it will help protect the refugee program going forward.

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We Have a Refugee Crisis in America, Too

by Jason Dzubow

My friend and office mate Sheryl Winarick is an immigration attorney, advocate and entrepreneur based in Washington, DC and Austin, TX. Before starting her own immigration law practice in 2007, she spent eight years working for national non-profit organizations–Catholic Legal Immigration Network and the Justice For Our Neighbors program of the United Methodist Committee on Relief. She is currently in Residence at the TED office in New York and serves on HIAS’ Public Policy Committee. Here, she writes about her experience as an attorney-volunteer assisting refugee women and children at the Southern border:

Sheryl Winarick, do-gooder.
Sheryl Winarick, do-gooder.

Stories of the European refugee crisis continue to flood the headlines, but mass media seems to forget we have a refugee crisis in America, too. Since the beginning of fiscal year 2014, over 120,000 unaccompanied children and an additional 120,000 people in family units–mostly young mothers with children–have arrived at the U.S. border seeking protection from violence in Central America.

In March, I spent a week volunteering for the Refugee and Immigrant Center for Education and Legal Services (RAICES)–one of several partner organizations that comprise the CARA Pro Bono Project. I was assigned to represent women and children before the immigration court in San Antonio, Texas. Karnes County Residential Center, operated by the U.S. Department of Homeland Security, houses these refugees in harsh conditions while they wait for a judge to determine their fate. Their stories are tragic, as is the reality that most of these desperate human beings do not qualify for protection under U.S. law, despite the well-documented probability that they will face severe violence and harm if they are returned to their countries of origin.

General violence, extortion, corruption and impunity are endemic in countries like Honduras and El Salvador. However, in order to qualify for political asylum, an applicant must demonstrate that the persecution or harm she fears is targeted against her specifically “on account of” her race, religion, nationality, political opinion, or membership in a particular social group (PSG). Usually, PSG is the only hope, and eligibility hinges on a combination of the facts unique to each case, access to representation, and the appointed judge’s interpretation of PSG (which is not strictly defined).

As I sat in the courtroom while my clients spoke to a judge via video conference from the Karnes detention center, I imagined how they must feel and the thoughts that might race through their minds. Karnes is about 60 miles southeast of the court in San Antonio, so it made more sense for other RAICES volunteers to prepare them for court. That means they had never met me in person, and here I was representing them in what could be the most important hearing of their life.

How could they comprehend who I am, why I am there, and how I could know best what to say to the judge? Imagine, these desperate women, completely dependent on the help of strangers speaking a strange language in a strange land. They don’t understand our legal system, and how can they possibly trust institutions of justice here in the U.S. when parallel institutions in their own countries are so corrupt? To make matters worse, the first thing we do to them (and their 3, 4, 5-year-old kids) is lock them up in detention facilities. The only truth they know is that they had no choice but to leave home if they wanted to live and to give their children a fair shot at life.

There are no easy answers. My hope is for our elected officials and for individuals like you and me to confront our collective reality with courage and compassion. People all over the world are wrestling with these very real issues daily; some of us from the comfort of our homes and others from jail cells in unfamiliar places. We must seek solutions for those in need and fight for rights and dignity for all people.

For a minute, close your eyes and imagine if this was your story, simply to be born into a hostile environment. Say a prayer for those in need, definitely give thanks for the freedom and relative comforts you enjoy, and do whatever you can to make a positive impact in this world we share.

This article originally appeared on the HIAS website.

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A Passover Parable (Especially for Refugee Advocates)

by Jason Dzubow

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!

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How Halloween Helps Save the World (or at Least Some Refugee Children)

by Jason Dzubow

World War II left approximately 75 million people dead and up to 20 million displaced. Many of these displaced persons, or DPs, could not return to their countries. Hundreds of thousands were resettled to new homes in Western Europe and the United States. Two years after the war, there were still 850,000+ people living in DP camps. And as late as 1953–eight years after the War–more than 250,000 people continued to live as refugees. Of course, many DPs during the post-War period were children.

Through Trick-or-Treat UNICEF, the undead can help the living.
Through Trick-or-Treat UNICEF, the undead can help the living.

The civilian response to the DP crisis was led by the United Nations Relief and Rehabilitation Administration, which helped resettle hundreds of thousands of refugees. Private individuals were moved by the humanitarian tragedy as well.

In the Autumn of 1949, Mary Emma Allison was in downtown Philadelphia when she bumped into a children’s Halloween parade. She followed the parade into Wanamaker’s Department Store where she met a cow (yes, a cow). She then followed the kids and the cow to a booth for UNICEF, the United Nations International Children’s Emergency Fund. It turns out, the parade was promoting a campaign to send powdered milk to needy children overseas (hence, the cow).

After her chance encounter, Ms. Allison and her husband, Clyde Allison, a Presbyterian Minister, organized Trick-or-Treat for UNICEF. The idea was that if kids were already going around the neighborhood collecting candy, they might as well do some good while they’re at it.

The venture started modestly enough during Halloween in 1950, when the Allison’s three children collected money from their community. That first year, they raised $17.00 in nickels and dimes, which they donated to UNICEF (although the acronym has remained the same, UNICEF is now the United Nations Children’s Fund). The money went to help children displaced by World War II. In those days, a dime was all it took to buy 50 glasses of milk for needy children in Europe.

The effort grew from there. In 1960, President Kennedy noted “UNICEF has captured the imagination of our people, especially our nation’s children… ” Seven years later, President Johnson signed a proclamation that designated Halloween as National UNICEF Day. By the time Ms. Allison died, a few days before Halloween in 2010, Trick-or-Treat for UNICEF had raised more than $160 million. The program has continued since then, and by last Halloween, it had raised over $175 million. The money buys food, clean water, milk, medicine, and much else for children in more than 150 countries. These days, a $5-donation to UNICEF buys five days of food for a malnourished child; $100, measles protection for 100 kids; $400, a pump to give an entire village water.

Many of the children helped by UNICEF are refugees, and they have special needs. In Syria, for example, UNICEF is trying to prevent millions of children displaced by the war from becoming a lost generation. The agency has been on the ground since the conflict began, working with other organizations to provide education, physical protection, psychological support, and clothing to Syrian refugee children in Iraq, Jordan, Turkey, Lebanon, Egypt and other countries. UNICEF also helps immunize children against disease and provides millions of people with access to safe drinking water.

Trick-or-Treat for UNICEF is a great way for kids to help kids. After 65 years, the reasons for the program remain constant: To make Halloween meaningful as well as fun, to protect the lives of the world’s youngest and most vulnerable, and to inspire kids to discover their own ability to help other children like themselves. If you’d like to learn more, please visit the UNICEF website, here.

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Terrorism, Trump, and the Moral Cowardice of Our Time

by Jason Dzubow
History is filled with people who think that their ignorance should trump your life.
History is filled with people who think that their ignorance should trump your life.

It’s September, and for most of us, it’s a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

Since then, we’ve witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.

Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.

But one word that I have often heard used to describe terrorists is “cowardly.” I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but–at least to me–not cowardly.

There is another, perhaps more profound, application of the label “coward” when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person’s humanity. It takes courage–sometimes great courage–to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed “us;” therefore we are justified to harm “them.” But this fails to account for the fact that there is no “them”–there are only people, living their lives day to day.

Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country’s systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I’d wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn’t. To meet and come to know your “enemy” destroys the very notion of us-versus-them. While it’s easy to project your hate and anger and fear onto “the other,” it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).

For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.

Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.

Mr. Trump–and the bevvy of Republican contenders racing to keep up with him–want to detain, deport, and deter many potential immigrants, including “illegals,” refugees, asylum seekers, and H1B workers. Of course it’s a whole lot easier to deport people you’ve labeled illegals, “rapists” and “killers.” It’s harder when you have to contend with actual human beings and their stories.

Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project–where we screen unrepresented cases and refer them to pro bono attorneys–and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).

Now maybe you believe that all “illegals” like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It’s a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported–our country has limited resources, we have to help “our own” before we help others, etc. But to create a straw man–an “illegal”–without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, “Deport them all,” you better know who it is that you are deporting and exactly what that means.

The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend’s friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: “You did the most important thing a person can do–you made me look good for recommending you.” I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of “illegals” is one thing. To know the individual is quite another.

Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, “You convinced me.” In the face of hearing their stories, even The Donald wanted to help.

To some degree, all of us are guilty of dehumanizing “the other.” It’s impossible not to. But when we advocate for positions that harm others without understanding–or even trying to understand–the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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