The Ancient Origins of Asylum: Part II

by Jason Dzubow

In the last post, I wrote about the mythical origins of asylum and about the cities of refugee of the ancient Israelites.

The Classical Greeks had a different concept of asylum than the Israelites. The Greeks recognized holy places—temples, alters, statues—as protected. To rob from a sacred place was to rob from the gods. This protection included the property of the sacred place and also people—including fugitives—who were found in that place. Runaway slaves, debtors, warriors vanquished in battle, and criminals would not be harmed in the sanctuaries and could find refuge there. The most well-known place of asylum was the Temple of Theseus in Athens (this temple is still standing; today, it is usually called the Temple of Hephaestus). Runaway slaves who fled their abusive masters could find refuge in the temple, and then compel their masters to sell them to someone else.

You do NOT want to make this guy angry.
You do NOT want to make this guy angry.

Places of asylum were generally respected in the ancient Greek world, but sometimes the respect accorded to the sacred space was interpreted narrowly. For example, the historian Thucydides writes about the case of the Spartan general Pausanias, who had defeated the Persians at the Battle of Platea in 479 BC. In the years following the battle, Pausanias came under increasing suspicion as a traitor to the Persian side. Finally, at the moment when he was about to be arrested, Pausanias ran away to the Temple of Athena in Sparta, where he sought sanctuary. The leaders of Sparta who had sought Pausanias’s arrest barricaded him inside the temple and starved him out. Rather than violate the sanctity of the temple, they removed Pausanias from the place in the moments before his death. Thucydides writes that as soon as he was removed from the temple, Pausanias died. It’s hard to see how the temple offered him much protection, but the concept of the inviolability of the holy place was—technically—maintained.

Echoing a much more modern complaint, the concept of asylum in ancient Greece was often abused by people seeking protection. Nevertheless, throughout the Greek period, asylum was generally respected, if only because violators feared divine wrath.

The concept of asylum was also important to the Romans, albeit for a different reason. Legend has it that Rome was founded by twin brothers, Romulus and Remus.  After a dispute about where to establish the city, Romulus killed his brother and named the city after himself. Roman historians date the founding of their city to the seventh century BC.

Romulus wanted to increase the population of his new city, and so he designated one area as a sacred “Asylum.” This is where newcomers entered the city. According to the Roman historian Livy (59 BC – 17 AD), the Asylum was crucial to Rome’s advancement and eventual greatness because it symbolized the Empire’s ability to enfranchise people of diverse ethnic and religious backgrounds.

During the second and first centuries BC, Rome asserted control over Macedonia and eventually (in 27 BC) all of Greece. Rome was heavily influenced by Greek culture (the Roman poet Horace said, “Greece, though captive, has taken its wild conqueror captive”), including in the area of asylum. However, the idea of asylum as a “right” soon became inconvenient for the Romans. How could they allow rebels and criminals to avoid the power of the Empire by hiding in temples?

To mitigate this problem and assert their authority, the Romans severely restricted asylum in the Greek temples. Temples in the non-Greek areas of the Roman Empire fared little better. Throughout the Empire, Roman Law superseded religious sentiment. The places of asylum tended to be statues of the Caesars, not temples, and the sanctuary was only temporary. Those fleeing Roman “Justice” (such as it was) could not escape for long by claiming asylum.

As the power of Rome declined, the power of the new Christian Church began to grow. Like its predecessors, the Church had its own version of asylum, but that’s a story for another day…

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Immigration Judge Apocalypse 2014

by Jason Dzubow

Nearly half of the nation’s Immigration Judges are eligible to retire this year.

Last week, I attended the retirement luncheon for one of them: Judge Wayne Iskra. For the past 10 years, I practiced before Judge Iskra at the Arlington, Virginia Immigration Court. I also clerked for him back in 1998-99. He is a wonderful person who was a great inspiration to me and many others. He was also a great judge–he was devoted to ensuring that justice was done, and he had little patience for attorneys (private attorneys or DHS attorneys) who failed to fulfill their duties.

Immigration Judges today...
Immigration Judges today…

The MC at the lunch, Judge Thomas Snow, noted that before his retirement, the Chief Judge repeatedly described Judge Iskra as “irreplaceable.” Finally, Judge Snow realized that when the Chief said that Judge Iskra was irreplaceable, it meant that he would not be replaced.

So the Arlington Immigration Court, which is already very busy and where cases are currently being scheduled into late 2016, will now go from five judges to four. The same thing happened in Baltimore last summer, when another excellent and long-serving IJ, Judge John Gossart, retired.

Although I have not heard news of any mass retirement, the Associated Press reports that almost 50% of the nation’s Immigration Judges are eligible for retirement this year. While I suppose this is good news for people selling condos in Ft. Lauderdale, it is bad news for the Immigration Court system.

...and in 2015.
…and in 2015.

And yes, as the immigration restrictionists love to remind us, certain immigrants prefer delay, so they can buy more time in the United States. But at least in my experience, this is a minority. Granted, my cases may not be typical. Most of my clients have good cases, and so the sooner they get to the merits hearing, the better. Also, many of my asylum clients have family members who they hope to bring to the U.S. if their cases are granted. The longer the delay, the longer they are separated from (and worried about) their family members. So for me, the increased delays are definitely a bad thing.

Also, I am quite certain that the remaining IJs won’t be happy about their depleted ranks. Immigration Judges are already overworked and overburdened. The title of a 2010 Mother Jones article sums it up well–Judges on the Verge of a Nervous Breakdown. From the article:

Caught in the middle [of the Obama Administration’s efforts to increase deportations] are the judges, for whom mind-numbing bureaucracy collides with thorny moral issues. Most of the time, they work without even basic staff like bailiffs and stenographers. Increased immigration enforcement means that their workload is the highest it has ever been—three to four times larger than caseloads in other federal courts.

And of course, mistakes can have dire consequences. As one IJ noted, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it.”

The obvious solution is to hire more (lots more) judges and court staff. But given EOIR’s budget (or lack thereof), this seems unlikely. So here are a few other thoughts:

– Create an easy, secure on-line system to allow EOIR-registered attorneys to do their Master Calendar Hearings by email. Attorneys could enter their appearances, admit or deny allegations, plead to charges, and set dates for Merits Hearings. For complicated cases (and pro se cases), IJs would still require Master Calendar Hearings, but an on-line system would be a great time saver for everyone.

– Hire more DHS attorneys and staff, and encourage them to communicate with attorneys for immigrants. Many issues can be resolved before trial, which saves time. However, because DHS is also short staffed, they do not have the resources to review cases prior to trial and speak with opposing counsel. If they did, it would shorten hearings and make life easier for the IJs.

– Stop deporting so many people. It seems that President Obama is intent on setting deportation records year after year. As a result, hundreds of thousands of people are being placed into removal proceedings. If ICE were more selective about who it tried to deport, DHS attorneys and IJs could focus more on those cases. We don’t ticket everyone who drives over the speed limit. We don’t prosecute everyone who is caught with a joint. We don’t arrest everyone who illegally downloads music. Why? Because we don’t have the resources to do those things, and to do so would require intolerable levels of intrusion into our lives. In the same way, it seems to me, we could relax a bit concerning deportations. Resources–including judges’ time–is limited. We should use that limited resource more efficiently.

– Don’t allow any more IJs to retire. OK, maybe it is not technically legal to force IJs to keep working, but an immigration lawyer can dare to dream. Besides, I want Judges Iskra and Gossart back.

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Laughing at Death

by Jason Dzubow

Last week, two new clients hired me. Each told me a story that ranks among the worst I’ve heard since I’ve been practicing asylum law.

Having a positive attitude is half the battle.
Having a positive attitude is half the battle.

The first was an Iraqi grandmother. Her son worked for an international NGO and the family had received threats because of the son’s work. One day, armed militiamen pulled the son from his car, and shot him to death in front of my client, her daughter-in-law (the son’s wife), and the son’s infant child. Later, the militia bombed my client’s house and killed her elderly mother. Years before, my client lost her husband, when he was killed in a bombing raid during the Iran-Iraq War. My client’s relative/translator explained, “This is Iraq.”

The second client was from Afghanistan, and his story was not directly related to his current asylum claim. He told me that 20 years ago, he was going to a party at his relatives’ house. For some reason, he was delayed, and before he arrived, the house was hit by a missile. He reached the scene moments later, and witnessed horrific carnage (I will spare you the details he told me). Suffice it to say, he saw many relatives and friends dead and dying. At the time, he was a teenager, and what he saw sent him into shock. He was physically unable to offer assistance, and he had to be carried back to his home. Relating the story many years later, he told me how the scene was still perfectly clear in his memory.

One thing that both clients have in common is that they laughed nervously and smiled while telling me their stories.

It seems to me that laughing and smiling in response to these stories is a very human reaction. Perhaps the normal emotions–anger, grief, shock–are simply inadequate to the task of recalling and relating such events. Or maybe my clients’ embarrassed smiles are almost an apology for having to talk about such terrible stories. There probably is no appropriate affect for telling personal stories of senseless violence and life-changing horror, and so maybe the default demeanor is a shy smile or a nervous laugh.

Of course, as an immigration lawyer, I am concerned that an “inappropriate” smile or laugh might create the impression that my clients are not credible. Although they have often reacted this way during our practice sessions, my clients seldom laugh or smile during actual trials or asylum interviews. And even if a client did show an “inappropriate” emotion, I suspect that most decision makers would see the reaction for what it was, and I doubt credibility would be negatively impacted.

I also sometimes wonder about how these stories affect the people that hear them. One study I found about secondary trauma in asylum lawyers found that lawyers were at some risk of secondary trauma, and the risk increased with the amount of time the lawyers worked on asylum cases. Another study, which originally appeared in the Georgetown Immigration Law Journal (where I once served as a Senior Notes and Comments Editor), found that Immigration Judges suffered from secondary trauma and “more burnout than has been reported by groups like prison wardens or physicians in busy hospitals.”

I’ve always been a bit skeptical that people in my line of work (or me specifically) suffer from secondary trauma. The difficulty for me comes not from hearing the clients’ stories (which can be upsetting), but rather from overwork. Too many clients expect too much, too quickly. Maybe hearing terrible stories and working with people who have experience real trauma has an effect on us, but it is very hard–for me at least–to see this effect.

But of course, like my clients who laugh when they tell me their stories, I have my own ways of coping with stress. In my first job out of college, I helped find work for recently resettled refugees. Everywhere I went, I asked about employment opportunities. Finally, I decided that I could not continue that way. There was a time for work, and a time for not working. If you can’t separate the two, you ultimately won’t be successful at either. Although it is more difficult now, with my own business, I still try to keep that separation. With that said, I’m off to the pub to do some more coping. Cheers.

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The Ancient Origins of Asylum: Part 1

by Jason Dzubow

Since it is the beginning of the year, I thought I might go back–way back–to explore the ancient origins of asylum. As you may know, the word “asylum” comes from the Greek asylos, meaning that which is inviolable or that which cannot be robbed: “a” (without) + “syle” (the right of seizure). The word originally referred to a sacred place where fugitives could find protection from their pursuers.

Even today, some refugees still seek protection from statues.
Even today, some refugees still seek protection from statues.

The origins of asylum are probably more myth than history. One candidate for the creator of asylum is the ancient Egyptian King Assyrophernes, who supposedly erected a statue in honor of his dead son (King Assyrophernes does not appear on the Egyptian King Lists, and at least one scholar claims that the whole story was made up by an historian in the early 18th century). The son’s statue later became a place of worship for the king’s servants and eventually a place where people could seek asylum. Under this theory, the concept was transferred from the Egyptians to the Hebrews, who developed and codified the idea.

Another candidate for the originator of asylum is King Ninus of Assyria, the legendary founder of Nineveh who ruled a vast Middle Eastern empire during the 21st century BC. Whether King Ninus actually existed is also an open question–the oldest written record of the king is found in a fifth century BC account by the badly-named Greek historian and physician Ctesias of Cnidus, who supposedly learned about Ninus from ancient Persian records. In this story, Ninus built a statue to commemorate his father, Belus, which served as an asylum for people fleeing harm.

A third possibility is that asylum was created by the Persians. In the first century AD, the Roman Emperor Tiberius commissioned an inquiry into the origin of asylum in Greece. At the time, the Romans had conquered Greece and the Greek system of temple asylum–which allowed for the protection of fugitives who reached a temple–was a thorn in the side of Rome. In response to Tiberius’s inquiry, two Greek cities reported that their sanctuaries were founded by the Persian kings Cyrus and Darius (fourth and fifth centuries BC) during the Persian occupation. More likely, the right to asylum existed in other Greek communities at the time, and so the two cities in question petitioned the Persians for a right already found in other parts of Greece.

In each of these stories, the refugee obtains asylum by going to a particular place where he is protected. Whether any of these stories is true is an open question, but I suppose they demonstrate that human beings have been dealing with the issue of whether to protect strangers fleeing persecution for a long time.

The earliest written record of asylum in the ancient world comes from the Hebrews. These ancient rules for asylum were created at a time when family, friends or clansman of a murder victim would revenge the death by killing the murderer (or members of his clan). Revenge killings might take place even where the initial death was inadvertent.

To regulate this problem, the Torah (the Hebrew Bible) designates six divinely-designated “cities of refuge” to protect “one who has killed another unwittingly.” The purpose of the cities is to prevent unjustified revenge killings in cases of involuntary manslaughter: “Thus the blood of the innocent shall not be shed, bringing blood-guilt upon you in the land that the Lord has allotted you.” Interestingly, the cities would “serve the Israelites and the resident aliens among them for refuge, so that anyone who kills a person unintentionally may flee there.”

The Torah also created a method for adjudicating the manslayer’s intent. The cities of refuge were run by Levites (priests), and an assembly of such men would decide the case. The system of proof might seem a bit primitive by today’s standards. For example, if the manslayer used an “iron object,” he is a murderer and should be put to death. Ditto for stone or wood tools that “could cause death” (this one seems a bit tautological).

Even if the death was ruled inadvertent and the manslayer received protection in the city of refuge, that was not the end of the matter. If he left the city, and the “blood-avenger comes upon him outside the limits of his city of refuge, and the blood-avenger kills the manslayer, there is not bloodguilt on his account.” The punishment would remain in effect until the high priest died (the death of the high priest, like the death of the sovereign in other societies, signified a new era where prior legal obligations ended). Only then could the manslayer return to his home.

Although the Israelite system was primitive and somewhat arbitrary, it was better than nothing. It also marked the first historically documented system of asylum.

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