Florida Congressman Moves to Limit the Cuban Adjustment Act

by Jason Dzubow

Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:

The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.

Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

Reforming the CAA is like upgrading your 8-track.

It is interesting that a politician from Florida–particularly one with the anti-Castro bona fides of Mr. Rivera–would have the chutzpa to challenge the Cuban American community on this issue.  It doesn’t strike me as a particularly wise move politically, even if it makes sense from a policy point of view.

Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera’s proposed reform–which is ostensibly to help preserve the CAA–seems pointless given that the law is simply not worth preserving.

Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don’t see what this propaganda victory has achieved.  The CAA was passed in 1966 and–45 years later–the Castro brothers are still in charge.

Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:

“No matter what the reason for stepping foot in Cuba, you lose your status,” Lofgren said. “If you go to visit family members you haven’t seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status.”

Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee’s immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.

In any case, it seems Mr. Rivera’s proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.

Continue reading

14 Comments

Want to Help Gay Couples with Immigration? Give Them Asylum

by Jason Dzubow

I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.  The two men started a successful business and are pillars of their community.  But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.  This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act: DOMAnd Dumber.

Last week, a federal appeals court struck a blow against DOMA.  The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.  However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter.  Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.  We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner. 

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions.  When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move.  For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.  Also, people who fear coercive family planning in China are eligible for asylum.  For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief. 

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.  In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).  More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.  Witness the new regulations on waivers.  Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.  This often meant a long separation from family members while the waiver was processed.  Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.  So why not do something for the thousands of same-sex couples faced with forced separation?  Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.  If DOMA is repealed or overturned, the government could re-visit this definition of persecution.  But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.  We should grant asylum to gay and lesbian spouses of U.S. citizens.

Continue reading

4 Comments

Guatemala Massacre Survivors Reunited After 30 Years

by Jason Dzubow

In 1982, during the Guatemala civil war, a squad of soldiers led by Lt. Oscar Ramírez Ramos attacked the town of Dos Erres.  They killed over 250 people, mostly women and children.  

Lt. Ramírez Ramos spared a 3-year-old boy named Oscar, and brought the child home to live with him (the phenomena of persecutors adopting the children of their victims is not as uncommon as you might think–the New Yorker recently had an interesting article about how this played out during Argentina’s Dirty War).  After Lt. Ramírez Ramos died in an accident, his family continued to raise Oscar as their own.  The family never told him about his past, and he grew up idolizing his “father,” the man who killed his mother and eight siblings.

Tranquilino Castañeda reunited with his son and grandchildren.

Oscar’s real father, Tranquilino Castañeda, was away from home during the attack, and for 30 years, he mourned the death of his wife and children, including Oscar.  But last year, an investigation by Guatemalan prosecutors revealed that one son–Oscar–had survived.  A DNA test last August confirmed that the two men were father and son, and they were reunited via Skype.

Oscar had come to the United States in 1998, and has been living here illegally since that time.  After they learned about each other, Oscar’s father came to the U.S., and the pair reunited after 30 years apart:

“Yesterday I had the chance to see him in person. It is quite different from seeing him on the computer or on pictures,” Tranquilino said. The Guatemalan farmer has green eyes and the leathery skin of someone who has worked in the fields all his life. He is a man of few words.  Tranquilino and Oscar, who is 33, met for the first time at a New Jersey airport, just a few hours after Castaneda landed there from Guatemala. [Oscar], his son, traveled to New Jersey from Framingham, Mass., a blue-collar suburb of Boston where he lives with his wife and four children.

After he learned the truth about his family, Oscar decided to seek asylum in the U.S. based on his fear that he would be a target in Guatemala.  “The military retains great power in his native land and most atrocities from the 36-year civil war, which ended in 1996, have gone unpunished.”  He has a pro bono attorney, R. Scott Greathead, and his asylum interview is set for June 21, 2012. 

Given that his case is so high profile, he probably has a good chance for success.  But one issue will be that his father has been living in Guatemala for all these years and has testified against the soldiers responsible for the Dos Erres massacre (one of the soldiers was sentenced to 6,060 years in prison).  If the father lives in Guatemala in relative safety, it may be difficult for Oscar to demonstrate that he will face harm.

It seems to me that another basis for him to remain in the U.S. is humanitarian asylum (I imagine he is also eligible for Cancellation of Removal if his case ends up before an Immigration Judge).  Under humanitarian asylum, Oscar could remain in the United States if he demonstrates “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”  It may be a bit novel, but the facts of the case–his family’s massacre, his abduction by the man (at least partly) responsible for their deaths, and growing up with that man’s family–may constitute compelling reasons why Oscar cannot return to Guatemala. 

With humanitarian asylum, even if it is now safe for Oscar to return to Guatemala, he can obtain asylum based on the severity of the persecution he previously suffered.  What is interesting here is that Oscar did not know until recently that he had been persecuted.  Generally, asylum seekers are entitled to the benefit of the doubt, and here–where the harm was so severe–humanitarian asylum seems appropriate.

Continue reading

Remembering Algeria’s Jewish Refugees – 50 Years Later

by Jason Dzubow

This June marks the 50th anniversary of the Evian Accord, the agreement recognizing Algeria’s independence from France.  Since Roman times, Algeria was home to a large Jewish community.  During the French colonial period, Jews were granted French citizenship.  After independence, however, Algeria denied citizenship to its Jewish population and most of the country’s 140,000 Jews left for France. By 2004, there were less than 100 Jews remaining in Algeria, and most of those fled during the civil war (1991-2002) when the Armed Islamic Group threatened to exterminate them.

Ghardaia

I had an opportunity to visit Algeria in 2001.  I traveled with an Ibadite Muslim friend who is from the M’Zab Valley, an oasis in the Sahara, about 500 km south of Algiers.  The principal city of the M’Zab Valley is Ghardaia, which a French philosopher described as a “Cubist painting beautifully constructed” (maybe I am a bit more pedantic, but to me it looks like the video game Q*bert).  There, I visited an old abandoned synagogue and the Jewish graveyard.  As we are approaching the 50th anniversary of the Evian Accord, I thought I would share some photos and facts about the Jewish community of Ghardaia.

As best as we know, Jews arrived in Ghardaia in two waves.  The city’s original Jews arrived in the 13th or 14th century, a few hundred years after the town was founded.  The Jews were invited to the M’Zab to work as jewelers and smiths, professions traditionally avoided by the local Muslims.  Legend tells of four families who came to the desert town from Djerba, an island off the coast of Tunisia.  The Jews of Djerba trace their lineage back to Biblical times.

The second group arrived in the late 15th century.  At the time, an extremist Muslim movement (possibly fueled by the failure of Islam in Spain) attacked and expelled Jewish communities in Morocco.  Some Jews fled to Ghardaia.  They joined the existing community, and over time, the two groups merged together.

Abandoned Synagogue in Ghardaia

The Jews of Ghardaia lived in relative harmony with their neighbors until the mid-20th century.  By then, Algeria was controlled by France, and the population of Ghardaia was divided between Ibadite Muslims (who originally settled the M’Zab Valley), Jews, and Sunni Muslims.  When the war of independence began in 1954, the situation for the Jews of Algeria deteriorated, and by June 1962, all the Jews of Ghardaia had been forced to seek refuge abroad.

Just as this 800-year chapter of Jewish history was drawing to a close, two anthropologists arrived on the scene, hoping to study genetic traits of the Jewish people there.  Instead, they documented the final years and days of Ghardaia’s Jews.  The anthropologists, Lloyd Cabot Briggs and Norina Lami Guede, wrote up their observations in an amazing (and obscure) paper called “No More Forever: A Saharan Jewish Town.”  The paper begins: “This book is the record of a people who are gone.”  Recalling their own departure, through newly established rebel checkpoints in the now independent Algeria, Briggs and Guede write:

The notebooks and pictures that we carried with us were the only coherent record that remained of a curiously distinctive way of life which had gone on for centuries and came suddenly to an end, leaving behind it only empty houses and an abandoned cemetery in the desert.

The same synagogue, circa 1958

It so happened that I was visiting Algeria during Passover, and so I was particularly keen to find other Jews, or at least visit Jewish sites.  With the help of several friends, I was able to visit the old synagogue of Ghardaia and the Jewish graveyard.

The synagogue had been empty for almost 40 years when I visited, and it was in bad shape.  A man lived there, and he allowed us to visit for a few minutes.  I took some pictures, which you can see here, and I said a prayer.  It was quite moving to pray in that abandoned temple, where (I assume) no Jew had prayed for almost 40 years.

The synagogue was a typical Sephardic design, with blue and white walls, and numerous thick columns.  A wooden bimah (stage) would have formed the center piece of the room, but it was gone.  Parts of the domed roof had collapsed, covering the floor with piles of stone and mortar.  The ceiling above the women’s section had fallen in, filling the balcony with rubble.  A few chains hung from the ceiling.  At one time they held lamps with an eternal flame, long since extinguished.  Two Stars of David were all that remained to confirm that we were in a synagogue.

Another view of the synagogue.

After visiting the synagogue, we walked to the Jewish cemetery, which is a mile or two outside the town.  It’s difficult to get a sense for the size of the graveyard, as it blends perfectly with the rocky surroundings.  It was here, in 1962, that the last Jews of Ghardaia buried their old prayer books, before departing their oasis homes forever (in Jewish tradition, books containing the name of G-d are buried, not thrown away).  The oldest dated grave is from 1749 (5509 in the Jewish calendar), but some graves are probably centuries older.  Members of the community used to come to a small grotto here to light candles and pray for assistance from their ancestors.  Women who reached menopause came here to pray for one more male child.  I also said a prayer at the graveyard and I placed stones on some of the graves (it is a Jewish tradition to place stones on the graves).

The Jewish cemetery near Ghardaia

The last Jews of Ghardaia left Algeria in 1962.  They fled to France and most of them are still there.  All in all, over 800,000 Middle Eastern Jews were forced to flee their homes between 1948 (the founding of the state of Israel) and the 1970’s.  Like the Jews of Ghardaia, they came from communities that had existed for centuries (and in some cases millennium).  Also like the Jews of  Ghardaia, they lost most of their property and were lucky to escape with their lives.  Having seen a bit of this history makes me lament the loss of these ancient and diverse communities, but it also reminds me of the importance of offering refuge to those fleeing persecution.

For more information about the Jews of Ghardaia, take a look at Jews of the Sahara by Ronald L. Nagel.

Continue reading

5 Comments

Some (Unsolicited) Advice for the Anti-Refugee Crowd

by Jason Dzubow

It’s easy to find anti-immigration websites and blogs on the internet, but there really aren’t many websites devoted exclusively to opposing refugees and asylum seekers in the U.S.  Of course, many of the anti-immigration websites periodically discuss these issues, but this is not the same as a restrictionist website focusing on asylum. 

The only blog I’ve found that is devoted exclusively to these issues is Refugee Resettlement Watch, which (as the name implies) was founded to highlight problems in the U.S. refugee resettlement program.  RRW advocates for fewer refugees and better oversight of the resettlement program.  It also opposes bringing in “Muslim refugees, Somalis in particular, who have no intention of becoming Americans.”  The blog authors add a note for those who might think the website racist:

Some of you reading this have for way too long intimidated and silenced people you disagree with by calling them racists, xenophobes, hatemongers and on and on and on.  It doesn’t work here, in fact, when you start with that sort of attack and don’t address the issues we raise, it validates our work.

The bloggers for RRW are very active, and post several articles each day.  They also attract a fair bit of attention–according to their website statistics, the site has received almost 1.2 million hits.

Although I obviously disagree with the main goal of RRW, I don’t think there is anything inherently wrong with advocating for the reduction or elimination of our refugee and/or asylum programs.  Indeed, I can think of a number of legitimate arguments supporting such a move: Our money would be more effectively spent helping refugees overseas; these programs are too costly given our current economic woes; refugees integrate too slowly–or not at all–into our communities; we should only help refugees who are “culturally compatible” with our society.  I won’t address these arguments here.  Instead, I want to talk about RRW (in other words, it’s time for the unsolicited advice).

"Why are people always dis-ing Ishtar?"

First, RRW would be more effective if it was less partisan.  The blog is not even close to neutral in its approach; it reports almost exclusively negative news about refugees.  If a refugee jaywalks in Cincinnati, RRW will cover it.  But if a refugee saves 10 children from a burning school bus, you won’t hear about it on RRW.  Perhaps the point is to destroy the myth of refugees as innocent victims and replace it with a more sinister image.  While this type of advocacy might do well with the already converted, it is unlikely to change many people’s minds.  So my advice to RRW is, try to be a bit more subtle.  If you want to convince me that Dustin Hoffman is a crummy actor, you can’t only talk to me about Ishtar.  You have to address The Graduate and (G-d forbid) Meet the Fockers.  My point being, unless RRW acknowledges in a meaningful way the positive aspects of the refugee and asylum programs, it will not have much legitimacy to address the negative aspects.   

Second, while I am willing to  accept RRW’s claim that it is not racist or xenophobic, it certainly provides a safe space for racists, xenophobes, and hatemongers.  A quick purview of the comments (and RRW’s responses) demonstrates this pretty clearly.  Even the Center for Immigration Studies–a well known restrictionist group that has itself been (unjustly in my opinion) called a hate group by the Southern Poverty Law Center–keeps a safe distance from RRW.  So my advice is, don’t allow hateful and racist comments to go unchallenged.  When you actually demonstrate that you oppose racism and xenophobia, instead of just saying it on your “about us” page, people will take you more seriously.

Finally, many of the articles on RRW take a contemptuous tone towards refugees and advocates for refugees.  While these repeated–and often nasty–comments might be viscerally appealing to people who oppose (or hate) refugees, they are a big turn off to the unconverted.  My advice: Have a sense of humor and give people the benefit of the doubt, at least once in a while.  Everyone who advocates for refugees is not a self-serving, crypto-jihadist, and many refugees are simply ordinary people fleeing terrible circumstances.  A more respectful tone towards such people might actually win you some converts.

Of course, I don’t expect RRW to listen to my advice (does anyone listen to advice these days anyway?). Perhaps they are satisfied speaking to a like-minded audience and avoiding honest debate with their political opponents.  To engage in a real discussion with people who have different views requires listening, humility, patience, and courage.  I know from personal experience that it is not always easy to engage in such discussions.  But that is how we learn and grow, and it is how we get closer to the truth.

Continue reading

1 Comment

Iconic Afghan Asylee Adopts to Life in the U.S.

by Jason Dzubow

Aesha Mohammadzai, the Afghan woman who was featured on the cover of Time magazine after relatives cut off her nose and ears, appears in a new CNN on-line piece called Saving Aesha.

Aesha Mohammadzai: The face that launched a thousands quips.

When she was 12 years old, Aesha’s father promised her to a Taliban fighter in order to satisfy an obligation.  Not surprisingly, the marriage was abusive and when she was 18, Aesha fled.  She was captured and returned to her husband’s family.  As punishment for attempting to escape, her husband’s family cut off her nose and ears, and left her to die.  Aid workers and the U.S. military rescued her, and she was brought to a shelter run by Women for Afghan Women. 

Although generally protective of Aesha’s privacy, WAW ultimately brought her case to the attention of Time magazine.  As CNN reports:

The organization’s decision to allow Time to photograph Aesha in 2010 was calculated and deliberate. The group wanted to influence the conversation about U.S. troop withdrawals, and Aesha was its best chance. She became the poster child for the 15 million Afghan women and girls it fears will be brought to their knees, again, if troops leave too soon and the Taliban regain control.

Possibly due to the publicity surrounding her case, she was able to come to the U.S. for reconstructive surgery.  But Aesha did not adjust well to the United States.  She was still suffering from severe mental and emotional trauma, and her reconstructive surgery had to be postponed due to her fragile emotional state.  Women for Afghan Women took over her care and provide her with housing and volunteer tutors. 

Perhaps due to her emotional condition, it seems Aesha was a difficult charge.  She constantly threw fits, and one roommate after another fled her apartment.  At one point, she was hospitalized for 10 days.  After that incident, her medications were changed and she started doing better.

CNN reports that in late 2010, Aesha’s father-in-law was arrested for his role in her mutilation:

Authorities said he held Aesha at gunpoint and ordered five other men — including her husband — to cut her. The father-in-law was released last July, however, reportedly because he didn’t do the cutting himself and because Aesha is no longer around to pursue the case.

Aesha received asylum in the United States in November 2011.  Although I was unable to find information about the basis for her asylum, there are a number of possible grounds: The claim could have been based on her particular social group–one formulation for this claim might be women who fear persecution in Afghanistan based on resistance to forced marriage.  Also, she might have framed the claim in terms of religious persecution–her family members harmed her because she would not comply with their version of Islam.  In addition, since she claims her husband in the forced marriage was a Taliban, she might have a fear of persecution based on imputed political opinion after her case became public and she moved to the U.S.  Obviously, the government of Afghanistan is unable and unwilling to protect her. 

Aesha’s case illustrates several important points.  First, refugees are often very damaged people.  Aesha is much worse off than most refugees, but people who flee persecution, who have been injured, who have lost loved ones, and who have lost their homes and property often have mental health issues.  Such people may be difficult to deal with, and those who assist refugees must be patient and understanding.  For me, at least, it is not always easy to be patient with difficult clients, especially when I am under pressure from several cases at once.  I imagine this is true for many people assisting refugees.

A second point involves media coverage.  According to CNN, Women for Afghan Women made a decision to publicize Aesha’s case in order to influence the debate about American troops in Afghanistan.  Given Aesha’s fragile condition, it is unclear whether she had the capacity to understand the effect of going public, even if she did give consent (which is not clear from the CNN article).  Lawyers and their clients sometimes have diverging interests, particularly when there is an opportunity for publicity.  Most lawyer want publicity, but most clients prefer anonymity.  I doubt that WAW had a fiduciary duty to Aesha when they publicized the case, but they certainly had a moral responsibility.  If the CNN article is accurate, it raises serious issues about WAW’s decision to publicize Aesha’s case. 

A final point raised by Aesha’s case is that women are often ill-served by our asylum law.  Many female asylum seekers fear persecution based on forced marriage, FGM, domestic violence, and the like.  But these issues do not fit neatly into the protected categories for asylum (race, religion, nationality, political opinion, and particular social group).  Fortunately, enterprising lawyers (and judges) have broadened the basis for asylum to protect women from some of these harms.  Wouldn’t it be nice, though, if the Refugee Convention specifically recognized these types of harms?

Aesha’s case illustrates how complicated and difficult it can be to assist a refugee and help her rebuild her life.  In this process, asylum is often only a first step.  

Continue reading

1 Comment

India Needs an Asylum Policy

by Jason Dzubow

India is one of the few remaining countries that has not ratified the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (the U.S. is a party to the Protocol, but not the Convention).  This means that India has no regular procedure for granting asylum to people fleeing persecution.  Nevertheless, according to UNHCR:

[The] country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation.  India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar.

While this arrangement protects certain people seeking asylum, others who need assistance cannot get it, or are left to languish in refugee camps.

Even Bollywood endorses helping refugees (at least the good looking ones).

In a recent editorial, writer Harini Calamur eloquently explains why India needs an asylum policy.  Ms. Calamur relates the story of Rinkle Kumari, a 19-year-old Hindu girl living in Pakistan.  Earlier this year, a group of Muslim men broke into Rinkle’s home, kidnapped her, and forced her to convert to Islam and marry her neighbor.  The group of men was connected with a local Pakistani politician and the government failed to intervene.  After the case gained national attention, the Supreme Court of Pakistan sent Rinkle to a shelter where she could decide whether to remain with her husband or return to her parents.  She decided to remain with her husband.  Most observers believe that her decision was based on coercion–she feared that her family would be harmed if she returned home.

Ms. Calamur asks what would happen if Rinkle escaped from Pakistan and sought asylum in India.  Given the absence of an asylum system, Ms. Calamur writes that in the best case, Rinkle would end up in a refugee camp:

Refugees live in camps and have neither the right to free movement within India nor are they entitled to work. Most are in a state of suspended animation and have their lives at standstill. If Rinkle and her family escaped to India this is what they would face, and there is something terribly wrong and unjust about that.

Ms. Calamur makes the case for India to adopt an asylum system:

To be considered a world power, you don’t just need a nuclear arsenal and growing prosperity. There needs also to be a measure of compassion, sharing and providing of refuge. India needs to start by offering asylum and citizenship to the persecuted minorities in its neighbourhood. There will be those who misuse this open policy, as they have in other countries. But the needs of the persecuted, the fate of one Rinkle, far outweighs the misuse of an asylum policy.

Well said, Ms. Calamur.  I hope those in the West who question the need for an asylum system hear your words.

Continue reading

Albanian Informant and His Family Granted Asylum – Finally

by Jason Dzubow

A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling.  He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe.  The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony.  He was deported to Albania.

The Fifth Circuit decision means that if JR gets shot, the Ewings don't get asylum.

In Albania, Mr. Bedini was waiting.  He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S.  This time, he was granted Withholding of Removal.

Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported.  The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy.  The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family.  The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.

While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family.  Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:

The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] were targeted because they are people who are important to Mr. Demiraj—that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession.  Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.

Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court.  They were supported by a number of amicus briefs, including one by former law enforcement officials.  That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family.  Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.”  The Fifth Circuit’s decision would obviously discourage such cooperation.

In the end, the petition for certiorari was withdrawn.  DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family.  The result is certainly a relief to the Demiraj family.  But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books. 

Congratulations to Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, LLP, who represented the Demiraj family.

Continue reading

Congress Considers Waiving the One-Year Asylum Deadline for Indonesian Christians

by Jason Dzubow

Note to policy advocates: If you want Congress to pass a law helping immigrants, try to frame the law in a way that sticks it to the Muslims.  That is exactly what has been happening with a proposed bill (HR 3590) to help Indonesian Christians who were persecuted by Muslims in the late 1990’s. 

The bill would allow Indonesians who filed for asylum between 1997 and 2002, and whose cases were denied solely because they missed the one-year filing deadline, to reopen their cases and seek asylum (people seeking asylum in the U.S. are required to file their applications within one year of arriving here).  The bill has been pushed by advocates for Indonesian Christians, and there are currently 16 co-sponsors in the House of Representatives, where Muslim-bashing is all the rage.

People of all faiths will celebrate if the one-year deadline is repealed.

First, it must be said that many Indonesian Christians were persecuted by Indonesian Muslims during the late 1990’s and early 2000’s (I have represented several such people myself). 

My problem with what Congress is doing is not that they are helping Indonesian Christians by essentially waiving the one-year filing requirement.  Rather, I do not see why other groups who have suffered equal or worse persecution in their countries should not be afforded the same benefit as the Indonesian Christians.  In other words, since it is clearly unfair and ineffective at preventing fraud (the purported purpose of the deadline), why not just eliminate the one-year filing deadline for everyone?  I previously discussed this idea here.

The reason–I believe–that HR 3590 has gotten some traction in Congress is because it protects Christians from Muslims, our current boogeymen.  This is the same reason why Congress passed various resolutions regarding Darfur but ignored a more severe genocide in the Democratic Republic of the Congo.  It is also the same type of reasoning that gave us the Cuban Adjustment Act–a law giving legal status to any Cuban who arrives in the United States even though country conditions in Cuba are not as bad as in other places.  In the case of the CAA, the driving force behind that law was our desire to stick it to the Commies.

I suppose all this represents an underlying tension in asylum law between using that law to further our foreign policy goals (what I would call realpolitik) and simply applying international humanitarian law in a neutral way.  This point deserves further attention, and I will come back to it in a future posting.  For now, I will say only that I hope HR 3590 becomes law; not because I think Indonesian Christians deserve better treatment than other asylum seekers, but because I hope it will be a step towards eliminating the nonsensical one-year filing deadline for all asylum seekers.

Continue reading

Seeking Asylum at the U.S. Embassy in China

by Jason Dzubow

When Chinese dissident Chen Guangcheng escaped house arrest and fled to the U.S. Embassy in Beijing on April 22, it touched off an international crisis.  A high-level visit to China by Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner was upstaged by the incident, which remains unresolved.

You known you're a dissident when you've been Shepard Fairey-ized.

In some ways, when a prominent political activist seeks shelter at a foreign embassy, it seems like a classic case of political asylum.  Technically, though, an embassy cannot offer asylum to someone in his or her home country.  Asylum is only for refugees, and a refuge–by definition–is “any person who is outside any country of such person’s nationality [and who has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42) (emphasis added).

Since Mr. Chen never left China, he was ineligible for refugee status and could not have been granted asylum by the U.S. Embassy.  This does not mean that our government was powerless to help him after he arrived at the embassy.  United States embassies (indeed, all embassies) can offer protection to people on embassy grounds, as the host country is not permitted to violate embassy property.

A well-known example of our government offering protection under similar circumstances was when another Chinese dissident, Fang Lizhi, fled to the U.S. Embassy after the massacre in Tienanmen Square.  Dr. Fang remained in the embassy for over a year, until the Chinese government finally agreed to allow him to leave the country.

I suppose in Mr. Chen’s case, the Embassy might have smuggled him out without getting permission from China, but that would have had serious implications for U.S.-China relations and for Mr. Chen, whose family had been threatened by the Chinese government on account of his actions.  Also, it seems, Mr. Chen had not yet made up his mind to leave the country.

As of today, the Chinese government has apparently agreed to allow Mr. Chen to travel to the U.S. to attend New York University, which has offered him a visiting scholar position (I wrote about this idea in an article called Private Asylum for Refugee Academics).  If he really is permitted to leave, Mr. Chen can claim asylum once he reaches the United States.  He obviously has a strong case for receiving protection.  But until he actually departs from China, Mr. Chen’s situation remains precarious.

Continue reading

Beautiful People Seeking Asylum

by Jason Dzubow

Two Cuban actors who star in an award winning movie, Una Noche, have defected and will be seeking political asylum in the United States.  Coincidentally, the movie tells the story of three Cuban teenagers who try to escape Cuba on a raft in order to start a new life in America. 

America's newest asylum seekers are also some of its most glamorous.

Una Noche was a low budget film directed by Lucy Mulloy, a 32-year-old Brit who shot the movie in Havana.  She says that she was inspired by a tale she heard on a trip to the island nation 10 years ago.

The film achieved unexpected success, and the three stars of the movie–all of whom are non-professional actors–traveled to Germany and later to the U.S. for film festivals.  In the U.S., the trio was scheduled to attend the Tribeca Film Festival in New York, where Una Noche won multiple awards.  However, two of the actors, Analin de la Rua and Javier Nuñez Florian, disappeared after they arrived in the United States and missed the festival (where Mr. Nuñez Florian shared an award for Best Actor in a Narrative Feature Film with the third co-star, Dariel Arrechada).

Ms. de la Rua and Mr. Nuñez Florian played brother and sister in the movie, and (in a Brady Bunch-esque twist) fell in love in real life and decided to defect together.  They recently re-appeared in Miami, represented by attorney Wilfredo Allen, who indicated that they would file for political asylum “based on possible persecution if they return to Cuba.”

Although the couple seems not to have had problems in Cuba prior to their trip to the U.S. (and indeed, they returned to Cuba after a trip to Germany), the public nature of their defection possibly puts them in danger if they return and likely qualifies them for asylum.  Of course, under the Cuban Adjustment Act, even if they do not receive asylum, they would be eligible to apply for residency after one year of physical presence in the United States.  So either way, the couple should be able to remain in the United States.  We will be looking for them in Hollywood.

Continue reading

2 Comments

Victory Is Fleeting, But Losing Lasts Forever

by Jason Dzubow

It feels good to win an asylum case, particularly a case where the client faces a real danger in the home country, or where winning seemed unlikely.  But one thing I’ve noticed about winning – that good feeling doesn’t last long.

The typical scene at my office after an asylum win.

It’s better for court cases, when you are actually present to hear the decision.  Since you’re not in the office, the win can be savored for a while; at least until you return to work.  With most Asylum Office victories, you receive the result by mail, so you might have a good couple minutes when you call the client to congratulate her.  After that, it’s back to the grind stone.

Losing, on the other hand, is a different story.  When you lose an asylum case, you need to explain to the client what went wrong.  If you’ve screwed up, you need to explain that too, and hopefully in a way that doesn’t generate a bar complaint.  If it’s the client’s fault, you need to be diplomatic–why add insult to injury? And even if you have done everything right, it’s hard not to feel guilty when a client loses his case.  Maybe you could have done more?  Of course, you can always do more, and since you lost the case, you clearly should have.

You also need to explain the appeals process, and how much you charge.  You have to discuss the chances for success on appeal.  For most clients, this is a conversation that you will have more than once.

And then, of course, you actually have to do the appeal.  These are a lot of work.  If the appeal is with the BIA, you won’t receive a decision for a year or two.  During that time, the client will call repeatedly to ask why there is no decision.  If you lose an appeal with the BIA, you then have to explain the process in the federal circuit courts and start the whole process again. 

So what’s the lesson here?  According to a recent survey of asylum advocates in the U.S. and the UK, we need to take time to celebrate our successes.  Many advocates report that there are moments of great joy in their work.  For these advocates, seeing individuals that they have supported win asylum is a strong source of motivation.  Even though we are busy, we should take time to savor our wins.  We help make people’s lives better.  If we take some time to appreciate our successes, it will help us enjoy our work more, and that will make us better advocates for our clients.  

Continue reading

5 Comments

Letter to a Young Immigration Lawyer

by Jason Dzubow

One of the perks of working in an area of the law (asylum) that interests law students and young lawyers is that I periodically get to meet people seeking advice about starting a practice or finding a job doing asylum cases.  It’s never easy to advise people about their careers, but there are a few pieces of wisdom I’ve picked up over the years that I try to pass on.  So for what it’s worth, here are some thoughts for up-and-coming immigration lawyers:

– You can do it.  This one sounds trite, so I probably should not have put it first, but I think it is the most important piece of advice I can give.  It may seem difficult (or impossible) to get started in the field of asylum law, but people who persist almost always succeed.  In my case, I could not find the job I wanted, so I worked at another job for a few years, put most of my income towards paying off my student loans, and then opened my own practice.  I kept expecting it to fail, but so far–eight years later–I’m still here.  And once you get your first job in the field, it is easier to move around.  I’ve seen many friends move between public interests jobs, private firms, and academia.  In other words, once you’re in, you’re in.

– Experience in the field prior to and during law school is more important than grades, law school rankings or law journal.  If you are thinking of a career in asylum law, try to gain as much experience as possible while in law school.  There are many opportunities to volunteer, including at the Immigration Court or DHS, for non-profit organizations, and even for private attorneys.  Also, publishing in law school journals or other journals (or writing a blog!) is a good way to get some experience and attention.

– Try to get a clerkship.  A clerkship or an internship with a court is a great way to learn how judges decide cases.  And if you know what judges want, it will help you throughout your career.  I clerked for the Third Circuit in Philadelphia (greatest city on Earth) and for the Immigration Court in Arlington, Virginia.  Both jobs taught me a lot and made me a better lawyer.

Advice from fortune cookies and immigration lawyers should be taken with a grain of salt.

– Volunteer.  One way to get your foot in the door is to volunteer with an organization that represents asylum seekers.  There are many, and they are often in need of free labor.  Volunteering for one of these organizations will allow you to meet people in the field, learn about paying job opportunities, and learn the skills needed to effectively represent people in court and at the asylum office.  I know several people whose volunteer positions led to full time employment.  I would suggest that you think strategically about where you volunteer–some organizations are better than others for purposes of networking, learning the ropes, and getting hired.

– Keep salary expectations realistic.  Your clients are refugees for Pete’s sake. 

– Consider opening your own practice.  However, I would encourage you not to do this anywhere near Washington, DC.  If I am giving you free advice, the least you can do is not compete with me.  Starting a practice of your own may seem daunting, but it really is do-able.  In fact, most private immigration attorneys are solo or work for small firms.  There is a lot of support available from bar associations, organizations (like AILA), and other attorneys.  In fact, many bar associations have a person dedicated to helping lawyers start law firms.  Call your bar association and ask about the resources they can offer you.

If you are thinking about a career in immigration law and asylum, I hope you will be encouraged to give it a go.  It’s a rewarding area of the law where you will have an opportunity to make a real difference in your clients’ lives.

Continue reading

5 Comments

Asylum Seeker Commits Suicide to Help His Children

by Jason Dzubow

In the last few years, we’ve seen a rash of politically motivated suicides.  The most well-known case is that of Mohamed Bouazizi, whose suicide to protest mistreatment by a Tunisian government official began the Arab Spring.  There have also been a number of incidents where Tibetan Buddhist monks set themselves on fire to draw attention to the brutal Chinese occupation of their homeland.  Most recently, a Moroccan woman trapped in a forced marriage killed herself with rat poison.  The incident sparked protests against Islamic marriage laws in Morocco.

Van Gogh's painting anticipates the pain of many asylum seekers.

Now, the Irish Times is reporting the suicide of an asylum seeker from Burundi.  The incident occurred in the Netherlands, and supposedly the man killed himself in an effort to increase the chances that his children would be permitted to stay:

Alain Hatungimana lost his wife during the Burundian civil war, in which 300,000 people were killed between 1993 and 2005. Then, five years ago, he managed to escape to the Netherlands with his son, Abdillah, and daughter, Maimuna – hoping, given the political circumstances, to be granted asylum and allowed to start anew.

Unfortunately for Mr. Hatungimana, the government rejected his claim and was planning to deport the family to Burundi.  This despite strong support for the family from local government officials. 

Mr. Hatungimana became depressed and, the day before he and his children were scheduled to be deported, he took his own life.  “Those who treated him [for depression] say they have no doubt the act was a final desperate attempt to prevent his children from being sent back to Burundi – though it remains uncertain whether he’s achieved even that.”

The government has a somewhat different take on the incident: “The immigration ministry in The Hague said it ‘regretted’ the suicide, noting Mr. Hatungimana had had ‘psychiatric problems.'”  The government also claimed that Mr. Hatungimana’s deportation was not imminent.

Whether the motivation was depression or a selfless (if misconceived) desire to help his children, Mr. Hatungimana’s story serves as a cautionary tale.  While I would not advocate changing law or policy based on the fear that an asylum seeker might commit suicide, Mr. Hatungimana’s example reminds us how serious these cases are.  We must do our best to ensure that legitimate asylum seekers receive the protection to which they are entitled under international law.

Continue reading

1 Comment

UNHCR: Number of Asylum Applications Up Sharply in 2011

by Jason Dzubow

A new report from the United Nations High Commissioner for Refugees (“UNHCR”) shows that asylum claims in industrialized countries have increased 20% from 2010 to 2011.  The United States continued to receive the most asylum seekers among the countries surveyed: approximately 74,000 asylum seekers in 2011.  This compares to approximately 55,500 asylum seekers for 2010, a 33% increase (among all countries, South Africa received the most asylum seekers).

The increase in asylum seekers to the U.S. is due largely to higher numbers from three countries: China (+20%), Mexico (+94%), and India (+241%).

With all the new refugees, we should at least get some interesting food joints.

The U.S. receives more asylum seekers from China than from any other country.  In 2010, we received 12,850 asylum seekers from China.  In 2011, we received 15,450 asylum seekers from China, an increase of 2,600 people or about 20%.  The large numbers are probably due to special provisions in the Immigration and Nationality Act that provide for asylum for victims of forced family planning–these provisions were created specifically to assist people from China, and they certainly seem to have encouraged Chinese nationals to seek asylum here.  Indeed, of the 24,400 Chinese asylum seekers worldwide, the U.S. received about 63% of all cases.  This is a very high number, given our physical distance from China.   If these numbers continue to rise, I wonder whether it will cause us to re-think our decision to grant asylum to victims of forced family planning.

The biggest numerical increase was among Mexicans seeking asylum in the U.S.  In 2010, there were 4,225 asylum seekers from Mexico.  In 2011, we received 8,186 asylum seekers from Mexico.  I recently wrote a post where I expressed doubt about the reported increase in Mexican asylum claims.  If the UNHCR report is correct, I was wrong and the number of asylum seekers has increased dramatically in the last year.  We will see whether the grant rate for Mexicans–which has been about 2%–will increase with the new crop of asylum seekers.  If this trend continues, it will certainly place a burden on our asylum system, and we might need to re-evaluate how we deal with the new influx.

In terms of relative increases, India had the largest increase: Up 241% from last year (the U.S. received 720 Indian asylum seekers in 2010 and 2,457 in 2011).  As far as I can tell, Indian cases are very diverse: political persecution, religious persecution, and sexual orientation, among other basis.  Why the dramatic increase in India asylum seekers?  I have no idea.  One “push factor” that seems inapplicable to Indian cases is the economy–India has one of the fastest growing economies in the world.  One year does not make a trend, so we will have to wait and see how many Indian nationals seek asylum in the U.S. in 2012.

Aside from the “big three,” there were major increases from El Salvador (2010–2,703; 2011–4,011) and Guatemala (2010–2,235; 2011–3,363), and smaller increases from Honduras, Haiti, and Nepal.  Rounding out the top 10 source countries for asylum seekers in the U.S. were Ethiopia (which saw a small drop in numbers) and Egypt, which appeared on the U.S. top ten list for the first time, perhaps as a result of difficulties related to the Arab Spring.

Worldwide, the top source countries for asylum seekers were Afghanistan (approximately 35,700 asylum seekers, up 34% from 2010), China (24,400; up 13% from 2010), Iraq (23,500; up 14% from 2010, but significantly down from 2008 when there were 40,400 claims), Serbia (21,200; down 28% from 2010), and Pakistan (18,100; up 66% from last year).

Given world population growth (there are a lot more people than there used to be), general economic malaise, and the dismal state of human rights in many countries, it is not surprising that the number of asylum seekers is increasing.  How we address these problems and how we treat people who come to us for help are some of the defining issues of our time.

Continue reading

2 Comments