Jewish Attorney; Palestinian Client

I am an asylum attorney. I am also Jewish. In my role as a lawyer, I represent many Muslims and many people from the Middle East, including Palestinians. Today, I want to discuss what it means to be a Jewish attorney representing Palestinian asylum seekers during this time of conflict.

I’d like to start with a message I recently received from one of my Palestinian clients, about his family in Gaza.  (more…)

Book Review: The Refugee System by Rawan Arar and David Scott FitzGerald

Perhaps you’ve heard the parable of the blind men and the elephant. A king summons blind men from his kingdom and asks each one to examine an elephant. One man feels the elephant’s head and says that he’s touching a pot. Another man feels the elephant’s side and describes a wall. A third man touches the elephant’s leg and talks about a tree trunk. One lesson of this story: Unless we have enough information, it’s difficult to determine the truth.

That’s also the lesson of a new book, The Refugee System, by Professors Rawan Arar and David Scott FitzGerald. The book argues that many academics and policymakers view the refugee system too narrowly. Instead of seeing the bigger picture, they focus only on the elements of the refugee system that relate to their area of interest. This type of “siloed” approach has real-world implications for those seeking protection and for the nations that host them. (more…)

Remembering Queen Elizabeth’s First Public Speech – About Refugees

The longest-serving British monarch, Queen Elizabeth II, passed away last week. The Queen leaves a complicated legacy that has touched many aspects of life in Britain and the world beyond. She became queen in 1952, when women with power were few and far between. For the next seven decades, she steered the monarchy into the modern era. While she served as a spiritual and moral leader for her nation and the British Commonwealth, she rarely opined about political issues. Perhaps her effort to stay “above” politics helped her serve as a unifying force in Great Britain, where she remained widely respected, admired, and loved until her death last week at age 96.

In this post, I want to remember one small, but significant, incident from the Queen’s long life–the very first public speech she gave as a 14-year old princess on BBC’s Children’s Hour. (more…)

Helping Ukrainians

USCIS recently announced a unique program to assist Ukrainians affected by the current war. Called Uniting for Ukraine, the program “provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily in a two-year period of parole.” The program is unique in that the Ukrainian beneficiaries must be chosen by U.S.-based sponsors. The government will vet the sponsors “to ensure that they are able to financially support the individual whom they agree to support” and then start the process of bringing the chosen Ukrainian to the United States.

Here, we’ll look at why the U.S. government created this program and how it works. (more…)

Asylum for Russian Defectors

Last week, Vladimir Putin and his supporters launched a vicious and unjustified war against Ukraine. The war is an act of mass murder and terror against the people of Ukraine. Given Mr. Putin’s history of oppression at home and violent interventions abroad, there is little reason to be optimistic about how (or when) this war will end. And of course, there is a real danger that the situation will escalate into something much larger.

It is unclear how much support the war has from ordinary Russians. Perhaps many within Russia have been misled by “President” Putin’s propaganda machine, which has repeatedly and falsely accused the Ukrainian government of persecuting Russian speakers in Ukraine, and which has painted the war in terms of Russia standing up to the West. While Mr. Putin’s popularity seems to have increased before fighting started, there are signs that many Russian’s are not buying what he is selling. Indeed, protests have continued throughout the country despite a government crackdown.

And what of Russians living abroad? They are less likely to be swayed by Mr. Putin’s false propaganda, as they have access to more reliable sources of news. My sense is that most Russians in the diaspora oppose the current war.

In this post, I am interested in a specific sub-set of Russians living outside their country: Diplomats and other government employees. If such people defect to protest the unjust war against Ukraine, would they be eligible for political asylum or some other relief in the United States? (more…)

Asylum for Capitol Rioters

I suppose it was inevitable that some of the Trump supporters charged in the attack on our Capitol would seek asylum overseas. These people are already pre-disposed to victimhood, and so it makes sense that some would see their prosecution–for harming law enforcement officers, threatening government workers, disrupting an election, damaging federal property, and trespassing–as a form of persecution.

Also, there are plenty of governments around the world that want to harm our country by sowing division and encouraging further violence. And so it’s hardly surprising that certain nations would be only too happy to offer asylum to the Capitol rioters, as a way to stick it to the United States.

We now have our first (known) example of a Capitol rioter seeking asylum abroad. Evan Neumann is wanted in the U.S. on charges of violent entry and disorderly conduct on the Capitol grounds, and for assaulting, resisting and obstructing law enforcement during civil disorder. He has fled to Belarus and applied for asylum. It would be easy to mock Mr. Neumann and the “Republic” of Belarus, but here, I want to discuss whether Mr. Neumann might qualify for asylum under international law. (more…)

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

“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. 

On the Morality of Deporting Criminals

National Public Radio recently reported on the Trump Administration’s efforts to deport Vietnamese refugees with criminal convictions. Currently, Vietnam only accepts deportees who entered the United States after 1995, but the Trump Administration wants to convince Vietnam to accept all of its nationals with removal orders, regardless of when they came to the U.S. If Vietnam agrees, the change could affect more than 7,000 refugees and immigrants, some of whom have been living in the United States for over 40 years. Not surprisingly, negotiations over this issue have stoked severe anxiety in segments of the Vietnamese-American community.

The NPR piece focuses on an Amerasian man named Vu, who was ordered deported due to his 2001 convictions for larceny and assault. The convictions have since been vacated, but the deportation order apparently remains. Amerasians are children of American soldiers and Vietnamese women. They face severe persecution and discrimination in Vietnam, and Vu still fears return to his native land. If Vietnam ultimately agrees to the Trump Administration’s proposal, Vu could be returned to his birth country. “I think about it often and I don’t want to be deported,” Vu says, “I wouldn’t be able to see my children. I would lose everything. I would miss most being around my kids.”

“Seeking forgiveness for old sins? Don’t hold your breath.”

Legally, people like Mr. Vu, who have a removal order, can be deported (assuming their country will accept them, and assuming they cannot come up with a new defense against deportation). But what about morally? When–if ever–is it morally acceptable to deport criminals?

For me at least, this is a difficult question to answer. As a starting point, I must note that it is not easy to apply morality to any aspect of the immigration system. There certainly is a moral component written into the Immigration and Nationality Act (“INA”). For example, to receive asylum and many other immigration benefits, an applicant must show (among other things) that he deserves relief as a matter of discretion. Good people deserve a favorable exercise of discretion; bad people do not. The problem is that, how we define “good” and “bad” bears only a passing relationship to morality, as we might normally imagine it, and so referencing the “moral component” of the INA only gets us so far.

Another problem exists with regard to how the INA delineates gradation of criminal conduct. You would think that the worse your conduct, the more likely you are to be deported, but that ain’t necessarily so. Crimes that might seem more worthy of deportation are sometimes less likely to result in immigration consequences. Put another way, under U.S. immigration law, you might be better off killing your mother than possessing cocaine.

The point is, it is very difficult to understand how morality applies to aliens with criminal convictions, at least when speaking in the abstract. It is easier–at least in my opinion–to approach the problem by looking at a specific case, and working from there. So let’s look at the example of Mr. Vu from the NPR piece.

First off, Mr. Vu’s case is quite sympathetic. His crimes occurred a long time ago, the convictions were vacated, he has U.S.-citizen children, and if deported, he faces persecution. Also, Mr. Vu might argue that his prior crimes were a consequence of his difficult upbringing (and few people have had a more difficult time than Amerasians during the post-war era in Vietnam). In addition, Mr. Vu has been in the United States for a long time, and so perhaps America is more “responsible” than Vietnam for setting him on a criminal path. Finally, as an Amerasian, Mr. Vu would not even exist if the U.S. hadn’t been present in Vietnam, and so this might also constitute a reason that we–and not Vietnam–are responsible for him.

On the other hand, Mr. Vu committed some serious crimes (larceny and assault), which harmed other people. He would likely have been deported in 2001 (per an Immigration Judge’s order), but was able to remain here only because Vietnam was not accepting its nationals for repatriation at that time. Further, as a sovereign nation, we have a right to determine who gets to stay in our country, and Mr. Vu violated that covenant. Worse, Mr. Vu likely came to the U.S. through a program to assist Amerasians. If so, we brought him to our country, only to have him turn around and slap us in the face by committing crimes. Finally, if we give Mr. Vu a pass, won’t that send a signal to other aliens that they can come to our country, commit crimes, and avoid the immigration consequences?

As I see it, there are legitimate reasons to deport Mr. Vu, and legitimate reasons to allow him to stay. Of course, making a moral determination in his case–or any case–hinges on how we balance the competing interests. The all-or-nothing nature of our immigration system compounds the challenge of reaching a fair conclusion: Either Mr. Vu gets deported, or he gets to stay. There is no middle ground.

Though I know where I stand on the case, I am not so sure that there is a correct answer here. Maybe it depends on one’s individual moral code. For what it’s worth, if we could somehow rate criminal-immigration cases, I think Mr. Vu would land on the more sympathetic side of the continuum. So if you believe Mr. Vu should be deported, there are probably few criminal-aliens who you believe deserve to remain in the U.S.

So is it morally right to deport Mr. Vu? Or any person with a criminal conviction?

For me, the answer to these questions is tied to the immigration system in general. I have seen far too many examples where non-citizens and their families are severely harmed for seemingly arbitrary reasons. If we had a more fair, more just, and more rational immigration system, I would have less of a problem with deporting criminals. But given the system that we are stuck with, it is difficult for me to morally justify most deportations. That is doubly true in a case like Mr. Vu’s, where his prior bad behavior has apparently been long overshadowed by his current equities. To deport Mr. Vu and break up his family seems cruel and pointless. But sadly, that is often exactly what we get from our current immigration system.

I hope that the Trump Administration will abandon its plan to remove Vietnamese refugees, especially Amerasians. But if it persists, and if Vietnam agrees, I hope that Mr. Vu–and others like him–will fight to remain here. He has been here for decades, his family is here, and this is his home. Despite his criminal acts, I believe he belongs here. To send him away would be immoral.

Some Great Immigration and Refugee Books for Kids

In my house, we have young children who love books. We have to read to them all the time (at breakfast, at dinner, before bed – oy, it makes me crazy). Below are some books we’ve read that relate to my profession: Asylum and immigration. I’ve also included a few books that have crossed my desk for older kids or teens.

Of course, these subjects can be pretty heavy. How do you talk to young children about fleeing home, moving to a new place, separation from family? Thankfully, all this is outside my own children’s experience. But I do think it is important for them to learn about it. In part, because I work with refugees, but mostly, because it is a reality for many people, and children need to understand their world.

I must admit that the below list is pretty random. People gave us these books, or we found them at the library. If you’re looking for a more comprehensive list, check out BRYCS (Bridging Refugee Youth & Children’s Services), the What Do We Do All Day? blog, and the Institute for Humane Education. But, for what it’s worth, here is my reading list for small, medium, and large children interested in a very grown-up issue:

Reading about the refugee experience can be scary.

Hannah Is My Name by Belle Yang (2004) – This is the story of a young girl who moves with her parents from Taiwan to San Francisco in the 1960s. She gives up her Chinese name, Na-Li, and takes an American name: Hannah. The girl and her family struggle in America while waiting and waiting for their green cards. A lawyer (or notario?) named Mr. Choo has helped the family with their paperwork, but there seems to be no progress and the family is stuck waiting for a decision (sound familiar?). At one point, the father has to escape from INS agents. This is a brightly colored book that really gave my children some idea about what I do in the office (waiting and more waiting). This book is probably appropriate for pre-school and elementary school-age children.

The Arrival by Shaun Tan (2007) – This is a graphic novel without words. It is probably more appropriate for middle and high school-age kids, but since I love it, I read it (assuming you can “read” a book with no words) to my elementary school-age children. The illustrations in the book are magnificent, and convey a sense of moving to a new, unfamiliar land. The book tells the story of a family living in a repressive and dangerous city. The father moves to a strange new country, where he must adapt, find work, and send for his family. This is probably my favorite illustrated book about the refugee experience. It is a moving and positive story about how people can help each other.

How I learned Geography by Uri Shulevitz (2008) – When he was four years old, author Uri Shulevitz and his family fled Poland and found refuge in Central Asia. It was World War II, and conditions in their new home were bleak. They barely had enough to eat, and so when Uri’s father spends the family’s dinner money on a large world map, Uri is understandably angry (and hungry). This book tells the story of how the young author uses the map and his imagination to escape his difficult existence and “explore” the world. In the end, Uri comes to appreciate his father’s wisdom. This is a beautifully illustrated and poetic book, which covers a challenging topic in a way that elementary-age children can understand and appreciate.

Two While Rabbits by Jairo Buitrago and Rafael Yockteng (2015) – This beautifully illustrated book tells the story of a little girl and her father who are traveling from Central America to the United States. Sometimes, they stop so that the father can work to earn more money for their trip. Why they are traveling and whether they reach their destination, we do not know. But the sights and experiences of the migration are shown from the perspective of the young girl, who spends her time counting the people, animals, and objects she encounters on the journey. As adults, we see a dangerous ride atop a freight train, menacing soldiers or a treacherous boat ride across a wide river. The girl in the story is barely aware of the danger. She focuses more on the beauty she encounters on her trip. There is a lot going on in this book visually, and my children enjoyed talking about the pictures and wondering about the girl’s journey. This story is appropriate for pre-school and elementary-age children.

Illegal by Eoin Colfer, Andrew Donkin, and Giovanni Rigano (2018) – This graphic novel is for teens or adults. I read it, but my children are still too young for a story like this. Illegal tells the story of two brothers who leave Niger, cross the Sahara, and try to reach Europe. The story is fiction, but the incidents portrayed are taken from real-life events. The book gives readers an idea about the difficult and very dangerous journey that many people take from Sub-Saharan Africa to Europe. The themes are necessarily mature, and though the worst issues (such as rape and murder) are not directly shown, there are plenty of scary incidents, including the deaths of many migrants. This is a sad, yet hopeful tale, which humanizes people who are too often treated as less than human.

An Olympic Dream: The Story of Samia Yusuf Omar by Reinhardt Kleist (2015) – This graphic novel is similar to Illegal, with a greater emphasis on the sad than the hopeful. It tells the true story of Samia Yusuf Omar, who represented Somalia in the 2008 Olympics. After the Games, she returned to her country where opportunities to train–especially for women–were limited (to put it mildly). To escape the threats and fulfill her dream of returning to the Olympics, she fled Somalia for Europe. Sadly, Samia died en route (and by the way, I am not really spoiling the story here–Samia’s death is described in the book’s introduction). While the story is depressing, the author conveys the sense of the journey and does a good job humanizing his subject. This book is appropriate for teens and adults.

Of course, this is just a sampling of the many books that discuss migration and asylum. What these books have in common is that they tell a very human story–the struggle for safety and freedom in a difficult and dangerous world. In this respect, these books form a powerful counterbalance to the dehumanizing narrative of asylum seekers as nefarious “others.” While these stories can be challenging, they are also uplifting, and they help children (and adults) better understand our world.

Of Caravans and Consequences

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.

Fridtjof Nansen, WWI, and the Beginning of the Modern Refugee Regime

This week–on November 11–marked the 100th anniversary of the Armistice that ended World War I. In terms of refugee law, the Great War is usually eclipsed by WWII, which gave rise to the Refugee Convention (in 1951). The Convention forms the basis for our international and domestic humanitarian law up until today.

But the First World War was also foundational to our current refugee regime, and so it’s too bad that WWI developments in refugee law get short shrift. Upwards of 10 million people were displaced by the War and the subsequent rise of the Soviet Union. Many would never return home and would permanently resettle in other countries. This mass movement of civilians led to political, cultural, and social changes, and predictably, to a backlash against refugees (as a security, economic, and health threat) that sounds all-too familiar today.

Fridtjof Nansen serves meals to orphans in Armenia (apparently, he was also a good cook).

Probably the most prominent figure in post-WWI refugee resettlement was a Norwegian wunderkind named Fridtjof Nansen. Mr. Nansen was born in 1861. He was a record-breaking skater and skier. He studied zoology in university, and went on to become a world famous artic explorer. In 1888, he led the first expedition to cross Greenland, and in 1895, he came within 4 degrees of the North Pole, the furthest north anyone had traveled to date. After his career in the Artic, he turned to science, where he made important contributions to the fields of neurology and oceanography. Mr. Nansen served as a diplomat and advocated for separation of Norway and Sweden (which had been united since 1814). Norway became independent in 1905.

Norway was neutral during the First World War, and during those years, Mr. Nansen was involved in organizing his nation’s defense. In 1917, he was dispatched to Washington, where he negotiated a deal to help alleviate a severe food shortage in his country.

After World War I, Mr. Nansen successfully helped advocate for Norway’s involvement in the League of Nations, and he served as a delegate to that body. He became involved in the repatriation of prisoners of war, and between 1920 and 1922, led the effort to resettle over 400,000 POWs in 30 different countries. In 1921, Mr. Nansen became the League’s High Commissioner for Refugees and helped resettle two million Russians displaced by the revolution. At the same time, he was working to relieve a massive famine in Russia, but had trouble securing international aid (due largely to suspicion of the new Marxist government). He also assisted Armenian refugees after the genocide there, and devised a controversial population exchange between Turkey and Greece, which resolved a Greek refugee crisis, but also resulted in the expulsion (with compensation) of Turks from Greece.

Mr. Nansen created the “Nansen” passports in 1922, a document that allowed stateless people to travel legally across borders. By WWII, 52 nations recognized the passport as a legal travel document. Nansen passports were originally created to help refugees from the Russian civil war, but over 20 years, they were used by more than 450,000 individuals from various countries (including a number of well-known figures, such as Marc Chagall, Aristotle Onassis, G.I. Gurdjiieff, Rabbi Menachem Mendel Schneerson, and Igor Stravinsky). The passports served as a foundation for a clearly-defined legal status for refugees, and some scholars consider the creation of the Nansen passports as the beginning of international refugee law.

In 1922, Mr. Nansen was awarded the Nobel Peace Prize. The Nobel Committee cited “his work for the repatriation of the prisoners of war, his work for the Russian refugees, his work to bring succour to the millions of Russians afflicted by famine, and finally his present work for the refugees in Asia Minor and Thrace.”

Mr. Nansen continued his involvement in the League of Nations through the 1920s, and he flirted with Norwegian politics, though he seems to have no major ambitions in that direction. In 1926, Mr. Nansen came up with a legal definition for refugees from Russia and Armenia, and his definition was adopted by several dozen nations. This marked the first time that the term “refugee” was defined in international law, and it helped set the stage for later legal developments in the area of refugee protection.

Fridtjof Nansen died on May 3, 1930. After his death, a fellow delegate from the League of Nations eulogized, “Every good cause had his support. He was a fearless peacemaker, a friend of justice, an advocate always for the weak and suffering.”

Even after his death, Mr. Nansen’s work continued. The League of Nations established the Nansen International Office for Refugees, which helped resettle tens of thousands of refugees during the inter-War years. The Nansen Office was also instrumental in establishing the Refugee Convention of 1933 (now, largely forgotten), the first international, multilateral treaty offering legal protection to refugees and granting them certain civic and economic rights. The 1933 Convention also established the principle of “non-refoulement,” the idea that nations cannot return individuals to countries where they face persecution. To this day, non-refoulement is a key concept of international (and U.S.) refugee law. For all this work, the Nansen Office was awarded the Nobel Peace Prize in 1938.

Fridtjof Nansen’s legacy lives on in many ways. There are geographic features named after him in the Artic, Antarctic, and various places around the globe. In space, there is a crater on the moon named in his honor, as well as an asteroid. The oldest ski club in the United States is named for Mr. Nansen, and there is a species of fish that bears his name (Nansenia). A museum in Armenia documents his scientific and humanitarian achievements. And each year, the United Nations bestows the Nansen Refugee Award on an individual or organization that has assisted refugees, displaced or stateless people. For me, though, Mr. Nansen’s most enduring achievement is his pioneering work to help establish international refugee law, a legal regime which protects us all.

Whither the Syrian Christian Refugees?

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.

Doctors Without Borders Exhibit Gives Visitors a Personal View of the Global Refugee Crisis

This piece is by Samantha Hsieh, a fellow at our law firm. Samantha recently graduated from The George Washington University Law School with honors. She is interested in practicing asylum law and removal defense. Samantha’s immigration experience includes interning at a law firm and at the Department of Justice, Office of Immigration Litigation. Prior to law school, she worked as a paralegal at an immigration firm.

I recently attended the Doctors Without Borders, or Médecins Sans Frontières (“MSF”), Forced From Home exhibit on the National Mall in Washington, DC. The exhibit, which is touring five East Coast cities this year, allows participants to learn about the experiences of refugees from around the world and raises awareness for their cause.

Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula
Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula

Upon entry, visitors are given an identity as a refugee, internally displaced person, or asylum seeker from Honduras, South Sudan, Burundi, Syria, or Afghanistan. According to MSF, there are currently 65 million people in the world fleeing from conflict or persecution. Our tour guide, Jane, explained the work of MSF, which employs around 35,000 people and provides free medical care in over 60 countries. Jane is a nurse who has worked in dozens of refugee camps.

One of our first tasks was to select five items from 20 to bring on our journey. I chose a cell phone, medication, passport, water, and stove. Refugees fleeing on foot are limited to items that they can easily carry. Oftentimes, decisions about which items to bring must be made in a hurry. I noticed that the only other participants who had also chosen cell phones were two children whose eyes were glued to their iPads the entire time. We were forced to give up our items one by one in order to pay for different parts of the journey.

Jane led our group onto a small inflatable raft in order to simulate crossing the Mediterranean Sea. We sat in the raft with the men on the perimeter and the women and children in the center on the floor.

These rafts were supposed to hold seven people, but as many as 60 refugees and their belongings would squeeze into one raft. Smugglers load refugees onto the rafts and then leave them to their journey, often without enough fuel. Refugees are sometimes given cheap counterfeit life vests, filled with ineffective packaging material. Rafts that stay on course take about eight days to reach Europe. The cost of admission for a seat in one of these rafts? US$2,000.00 to US$3,000.00 per person. Since January 2016, roughly 3,600 refugees and migrants have died or gone missing attempting to cross the Mediterranean into Europe.

Refugee camp bathrooms lack privacy.
Refugee camp bathrooms lack privacy.

Next, we visited a re-creation of a refugee camp. Each person in the camp receives a daily ration of water, grains, beans, oil, and salt. The young women and girls are responsible for filling and delivering water containers holding up to six gallons. Humans need a minimum of four gallons of water a day for drinking and basic hygiene and cooking. For comparison, the average American uses 90 gallons of water each day. Jane also demonstrated how to use a typical bathroom in a refugee camp, which is essentially a box around a hole with a curtain in the front. Notably missing was toilet paper.

Standing in front of an MSF medical tent, Jane told us about several medical issues that refugees face. While relatively easy to treat, cholera–which arises from contaminated food or water–can kill within hours if left untreated. Malaria is also common. MSF staff test patients for malaria by applying a blood sample to a test card. Because of language barriers, the packaging for the malaria medication uses symbols instead of words to convey dosage instructions.

A typical MSF medical tent
A typical MSF medical tent

Malnutrition in young children can be difficult to recognize, particularly for local aid workers who lack formal medical training. MSF staff use mid upper-arm circumference (“MUAC”) bracelets to measure the arms of young children as a simple means of detecting malnutrition and determining a treatment plan. Children whose arm circumference is under 116 millimeters (roughly 4.5 inches) suffer from severe acute malnutrition and are immediately hospitalized. Malnourished children are fed Plumpy’nut, a high-calorie peanut paste mixed with vitamins, minerals, and other ingredients for weight gain. One small packet of Plumpy’nut contains 500 calories.

Finally, we viewed several tents similar to those where refugee families live. Conditions in refugee camps range from reprehensible (more common) to fairly good (rare). Regardless of their living conditions, refugees are forced to wrestle with concerns over the safety of family and friends left behind and uncertainty over their own futures.

Plumpy’nut has been called “surprisingly tasty.”
Plumpy’nut has been called “surprisingly tasty.”

The town of Dadaab, Kenya contains some of the oldest and largest refugee camps in the world. The first camps in Dadaab were constructed in 1992. The Dadaab camps are now home to over 300,000 refugees. Some refugees born in Dadaab have grown up and now have children of their own. Jane told us of one resident she spoke to who had expected to stay for only a few weeks. He has not left the camp in over 15 years.

At the end of the exhibit, Jane told us the greatest lessons she learned from serving as a nurse in refugee camps around the world. “Every day,” she said, “I was reminded of the resilience of humanity and that despite the terrible things that had happened to them there, people always miss their home.”

Follow the route of the Forced From Home exhibit, register to attend, and sign up for updates about future locations here.

Refugee Team to Compete in Olympic Games

This August, 10 athletes will compete in the Olympic games not as representatives of their countries of citizenship, but as refugees. For the first time in the history of the Olympics, there will be a “Refugee Team,” composed of individuals from four countries: Democratic Republic of the Congo, Ethiopia, South Sudan, and Syria. The athletes will participate in a variety of sports, including swimming, track and field, and judo.

Refugee athletes are expected to do well in such sports as "Completing Endless Forms" (pictured) and "Waiting Forever In Line."
Refugee athletes are expected to do well in such sports as “Completing Endless Forms” (pictured) and “Waiting Forever In Line.”

Here are the stories of a few of these inspiring Olympians:

James Nyang Chiengjiek (age: 28; country of origin: South Sudan; sport: 400 meters) – James is from Bentiu, South Sudan. His father was a soldier who died in 1999 during the war. When he was a young boy he took care of cattle. He escaped from South Sudan when the war broke out, as he risked conscription into the army to participate in the war as a child soldier. James arrived in Kenya in 2002 and stayed in a UNHCR-supported refugee camp. He attended school and started running there. He was selected to train at the Tegla Loroupe Peace Foundation in 2013, and has been there ever since (four others on the Refugee Team also train at the TLPF).

Yusra Mardini (age: 18; country of origin: Syria; sport: 100 meter freestyle) – Prior to the war in Syria, Yusra was a competitive swimmer who represented her country in international competitions. As the war intensified, Yusra and her sister left Damascus in early August 2015 and reached Berlin in September 2015. To get there, they had to cross the Aegean in a small boat. When the engine died, Yusra and a few others—the only swimmers on board—jumped into the water and pushed the boat for 3½ hours to shore. Since she reached Germany, Yusra has been training at the club Wasserfreunde Spandau 04 e.V. which is a partner of the Elite Schools of Sport in Berlin.

Yolande Bukasa Mabika (age: 28; country of origin: Democratic Republic of the Congo; sport: Judo) – Yolande is originally from Bukavu, the area worst affected by the DRC civil war from 1998 to 2003. During the war, she was separated from her parents and taken to a children’s home. There, she took up Judo, which the government encouraged as a way to give structure to the lives or orphans. As a professional Judoka, she represented the Democratic Republic of the Congo in international competitions. After years of difficult training conditions, she decided to seek asylum in Brazil during the World Judo Championships in Rio in 2013. She currently trains at the Instituto Reação in Rio de Janeiro.

Popole Misenga (age 24; country of origin: Democratic Republic of the Congo; sport: Judo) – Like his Judoka teammate, Yolande Bukasa Mabika, Popole is originally from Bukavu in the DRC. His mother was murdered when he was only six years old. Afterward, he wandered in a rain forest for a week before he was rescued. As a professional Judoka, he represented the Democratic Republic of the Congo in international competitions. Along with Yolande, Popole sought asylum in Brazil during the World Judo Championships in 2013. He currently trains at the Instituto Reação in Rio de Janeiro.

Yonas Kinde (age 36; country of origin: Ethiopia; sport: Marathon) – Yonas left Ethiopia due to political problems. He has been under international protection in Luxembourg since October 2013. He has competed in many marathons and reached the qualifying standards for Rio during the Frankfurt Marathon in October 2015. He currently trains at the national school of physical education and sports in Luxembourg.

Rose Nathike Lokonyen (age 23; country of origin: South Sudan; sport: 800 meters) – After her community was burned by armed men, ten-year-old Rose and her family left South Sudan and arrived in Kakuma refugee camp in 2002. Her parents returned to South Sudan in 2008 but her siblings remained in Kakuma refugee camp. During her time at school, she participated in many barefoot running competitions and in 2015 she participated in a 10 km run in Kakuma organized by the Tegla Loroupe Foundation. She has been training with the foundation ever since.

The Refugee Team is a part of a broader effort on the part of the International Olympic Committee (“IOC”) to assist and bring attention to refugees. As IOC President Thomas Bach has said, the Refugee Team “will be a symbol of hope for all the refugees in our world, and will make the world better aware of the magnitude of this crisis. It is also a signal to the international community that refugees are our fellow human beings and are an enrichment to society.” It’s an important role for these young athletes, and we certainly wish them the best at the Olympic Games and beyond.