Hi Mathew and David – I appreciate your strong advocacy for the Dream Activists. I know that is what great advocates do. David’s comment helps alleviate one big concern that I have about these activists, but it does not make me feel a whole lot better about the over-all strategy. It sounds like what he is saying is that the Dream 30 (or 34) left the US at different times and for different reasons. Once they returned to Mexico, they developed a well-founded fear. Thus, their claims will be based on “changed circumstances.” What worries me is that these cases are being used to promote a political agenda (Dream Act) – and it is an agenda unrelated to the substance of their claims (fear of persecution in Mexico). While asylum applicants are free to say whatever they please about their cases, I think my concern about how their Dream Act activism impacts the asylum system is completely legitimate. It is a subject very worthy of discussion, and I do not see how such a discussion is in any way “defamatory.”

This is an important difference from the case of 3 of the participants of the Dream 9 action, who had left the U.S. shortly before the action (the other 6, however, had left or been deported before DACA). Many of the 34 had experienced threats, extortion, or physical attacks after arriving in Mexico. Many hail from states like Sinaloa, Veracruz, Guerrero, Nuevo Leon, and Michoacan, that have had high rates of cartel violence and official corruption. Several had family members who were kidnapped or killed. One was sexually assaulted after her return. Several are gay or lesbian. None presented “frivolous” claims.

You may not have been aware of the timing of my clients’ departure from the U.S., but it is an important factor in their cases. I think immigration attorneys and Americans in general have misconceptions about the situation in Mexico. The country is still in the midst of a drug war that has claimed between 50,000 and 100,000 lives. Civil militias have arisen in Michoacan because the Knights Templar are the de facto government there. The entire police force of Veracruz was disbanded in 2011 because it was unreformable. A culture of machismo makes the drug war particularly dangerous for women and LGBT people.

The drug war is relatively recent, and a settled body of case law has not developed around Mexican social group claims. Likewise, the “Dreamer” social group claim is largely untested. We know that the immigration system as a whole disproportionately targets Mexicans (EWI penalties, Operation Streamline, racial profiling, etc.), and the asylum process is no exception. Even if courts are initially skeptical of a new type of claim, it is our job as zealous advocates to push the bounds of the law to recognize realities on the ground and gain protection for our clients. Had other lawyers not done this, we wouldn’t have domestic violence, FGM, or LGBT claims recognized as social groups as they are now.

There is certainly a political element to the action. But each of the participants has a legitimate fear of harm that, had they entered individually, would likely have satisfied the credible fear threshold as it is normally applied. None of the denials were based on credibility concerns. All were represented at the interviews by pro bono counsel, either myself or co-counsel at the University of Texas clinic or DMRS in El Paso. Most conducted their interviews in English (all are fluent) and there were few, if any, discrepancies between the fear interviews and the border interviews. DHS responded to a political action with another political action by changing the credible fear process for my clients to generate an unusually high rate of denial. (And as you noted, ICE is still holding without explanation 6 of my clients who passed their interviews or court review.) This was a conscious shift from the Dream 9, all of whom passed their interviews on similar facts. Note that all 3 of the activists in the Dream 9 action who left the U.S. in order to participate in the action passed their fear interviews. I’m certain DHS believes the shift is justified by broader concerns, and maybe you agree, but it is undeniable that they treated these cases differently.

I have handled asylum cases since I started practicing immigration law, and have represented clients from around the world. I have little faith in the U.S. government’s commitment to protecting the rights of displaced and persecuted people who seek protection here. I have seen too many heartbreaking cases to put my trust in the system. I believe that advances come only when we refuse to accept the crumbs that the government, backed by a misinformed public, throws our clients, and instead fight back.

Their lawyer David Bennion does, and you insinuate that he presented his clients for the purpose of filing frivolous claims for political reasons. That is a dangerous, and potentially unethical supposition, especially considering the fact that two-thirds of them have established credible fear, and you don’t know the facts.

So let me ask you this, when you speak to a client for the very first time, and they tell you that they want to apply for asylum but don’t give you any of the particulars of their case do you make a generic assessment based solely on their country of origin? I sincerely hope not.

Your inference that the DREAM 30 are not legitimate asylum seekers is both reckless, and wrong, not to mention defamatory.

I’d seriously consider a retraction.