Amendments to the Terrorism Bar–or–How Fox News Enables the Holocaust

by Jason Dzubow

I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking. 

Before we begin our journey, let’s look at the laws and policies that we will be sending back in time. 

Barred from asylum: A Jewish boy provides "material support" to the Nazis.
Barred from asylum: A Jewish boy provides “material support” to the Nazis.

After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.

Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?

The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.

Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

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Hurry Up and Lose My Case

by Jason Dzubow

If you asked my clients their number one complaint about me, it’s that they think I take too long to prepare and file their affirmative asylum cases. Conversely, if you asked me my number one complaint about my clients, it’s that they are always pushing me to file their cases as quickly as possible. Since this blog is written by me, and not by my clients, I can tell you unequivocally that I am right and they are wrong. Here’s why–

Going fast does not always get you the result you want.
Going fast does not always get you the result you want.

First and foremost, it takes time to properly prepare and file an asylum case. Even in a very strong case–and especially in a case with a lot of evidence–it is important to make sure that all the letters and documents are consistent. That translations are correct. That dates, which often use a different calendar, are properly converted to the Western calendar. That the dates in the asylum form match the dates in the affidavit, and that passports, visas, and other documents make sense with the client’s chronology as she remembers it. You would be surprised how often there are problems with dates, chronologies, and translations. In fact, it is the rare case that does not involve my staff or me finding major mistakes in the documents. While this is usually the result of carelessness on the part of the client or a witness, such errors can be fatal to an asylum case, where inconsistencies are often seen as evidence of fraud. There is simply no way around it, it takes time to review all this and put together a consistent and well-crafted application.

Second, any asylum attorney who is any good will probably be busy, especially if his prices are reasonable. Indeed, the only way to keep prices reasonable is to do these cases in bulk. Therefore, if you expect to pay a reasonable price for your case, you can probably expect to wait a bit to have it filed. In our office, it typically takes one to two months to prepare and file an affirmative asylum case. Although the cases do not need to be completely finished when we file (because we can submit supplemental material a week prior to the interview), they need to be mostly done. Why? Because the timing of interviews is unpredictable. The interview may not occur for two months (or more) after we file the application, but it might occur in four weeks. So if the case is not near completion at the time we file, we may not have time to properly finish it and review everything before the interview.

Finally, attorneys–you may be shocked to learn–are human. And humans make mistakes. When we rush, we tend to make more mistakes, and mistakes sometimes cause clients to lose their cases. When we have time to prepare a case, think about the facts and the law, strategize about how to resolve problems (and most cases have problems of one sort or another), research country conditions, and carefully review all the evidence, we minimize the chances for mistakes and maximize the odds of winning.

There are, of course, very legitimate reasons for wanting to file a case quickly–separation from family, stress, uncertainty, fear of being out of status, inability to work. Probably the most legitimate reason to file quickly is to meet the one-year asylum filing deadline (asylum applicants are required to file for asylum within one year of arrival in the United States; people who file after one year risk being ineligible for asylum). But as long as there is not a one-year issue, it is far better to take a few extra weeks to file a case correctly than to rush. In my humble (and correct) opinion, if you prioritize speed over winning, you are misplacing your priorities. If you lose your case, it will likely be referred to an Immigration Judge, which can easily take several years to resolve.

So take a breath. Relax. And take the time to do your case right. Going a bit slower at the beginning may save you a lot of time in the end.

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“Refugee Status” as a Mitigating Factor in Death Penalty Cases

by Jason Dzubow

The U.S. Department of Justice recently gave notice that it would be seeking the death penalty in the case of Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. Mr. Tsarnaev and his brother allegedly killed three people in the bombing and one more person during their flight. Over 260 people were maimed or injured.

Dzhokhar Tsarnaev
Dzhokhar Tsarnaev

The DOJ determined that the death penalty is appropriate in the case because of the “heinous, cruel and depraved manner” that the murders were committed, that there was “substantial planning and premeditation,” multiple victims, and a “vulnerable victim” (a reference to Martin Richard, an eight year old boy killed in the attack). The notice also mentions several “non-statutory aggravating factors,” including the fact that Mr. Tsaenaev–

received asylum from the United States; obtained citizenship and enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States by killing and maiming people in the United States.

Other “non-statutory aggravating factors” are that Mr. Tsarnaev targeted the “iconic” Boston Marathon and that he showed a lack of remorse for his crimes.

I must admit that I have mixed feelings about the death penalty. I don’t believe it serves as a deterrent, and I do think there are serious racial and class disparities in its application. In addition, there is a real danger that innocent people or people with mental disabilities will be put to death. On the other hand, if the death of the murderer brings comfort or closure or a sense of safety to the victim’s friends and family, I believe those feelings are legitimate and should be given considerable weight.

In some ways, the Tsarnaev case is less complicated than the average death penalty case. There are no issues (at least I don’t see any) regarding race, class or mental health, and there seems to be no doubt that Mr. Tsarvaev is guilty. But what about the fact that Mr. Tsarnaev is a refugee?

In its death penalty notice, the DOJ mentions Mr. Tsarnaev’s asylum status as an aggravating factor–We helped him by granting him asylum, and then he betrayed us by bombing the marathon. Mr. Tsarnaev’s attorneys will, no doubt, view his asylum status quite differently, and could try to use that status as a mitigating factor. The relevant U.S. Code section (18 U.S.C. § 3592) lists several possible mitigating factors, including the following:

Impaired capacity.— The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

Duress.— The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

Disturbance.— The defendant committed the offense under severe mental or emotional disturbance.

Other factors.— Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

The first three factors seem like a bit of a stretch, but you can imagine some type of argument tying Mr. Tsarnaev’s mental state to the trauma of being a refugee. Indeed, I would guess that there are at least two types of trauma that refugees suffer: The trauma of the events that led them to flee their country, and the trauma of the refugee/resettlement process itself. There are certainly examples of refugees who engage in self-destructive behavior (I’ve written about that issue here), but without something more–such as a diagnosed mental illness–I doubt refugee status alone would qualify Mr. Tsarnaev for mitigation under one of the first three factors listed above.

The fourth factor–the catch all–provides the most likely opportunity for Mr. Tsarnaev to demonstrate how his status as a refugee might mitigate his punishment. He could argue that he was young, isolated in a new country, heavily reliant on his older brother (who participated in the bombing and was later killed), and influenced by terrible events in his homeland. While I can believe that Mr. Tsarnaev’s refugee status helped shape, and perhaps distort, his worldview, I have a much harder time accepting these problems as a mitigating factor here.

Had his crime been substance abuse, or even some type of impulsive, violent act, I could see how refugee status might be viewed as a mitigating factor and how there might be opportunities for positive intervention in his life. But in this case, Mr. Tsarnaev and his brother planned, prepared, and carried out a terrorist attack. This is not the type of crime that results from a traumatic past. It is the type of crime that comes from having a distorted world view and a total disregard for human life.

I have known many refugees, and many people who have suffered severe trauma–much more severe than anything I have heard about in the Tsarnaev case. While most such people work hard to overcome their past difficulties, some turn to drugs or alcohol; others commit crimes. But none are like the Tsarnaevs. Their’s was a carefully planned and orchestrated act. To allow Dzhokhar Tsarnaev to use his refugee status as a mitigating factor would be an insult to the many refugees who have overcome their terrible past. While there may be other factors that allow Mr. Tsaenaev to avoid the death penalty, his status as a refugee should not be one of them.

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Measuring a Country by Its Olympic Asylum Seekers: Russia vs. UK

by Jason Dzubow

If imitation is the highest form of flattery in art, immigration is the highest form of flattery in politics. The decision to move to a particular country demonstrates the belief that that country is worth living in. So as the Winter Olympics in Sochi, Russia approaches, it will be interesting to compare the number of athletes who seek asylum in Russia to the number who sought asylum during the 2012 Games in Great Britain.

Sochi-o-path
Sochi-o-path

To make this comparison, we first have to determine how many athletes sought asylum in 2012. I have not seen a concrete count of the number of athletes who “defected” during the 2012 Games. This is because asylum is confidential, and so the British government has not published any figures on Olympic asylum seekers. However, one source estimates that at least 20 athletes and coaches defected during the Games. Cameroon had the most defections: Seven of its 37 athletes did not return home.

When athletes (or anyone) seeks asylum, we can assume that there is a “push” and a “pull.” The “push” is the bad conditions in the home country that lead the person to flee, and the “pull” is the good conditions in the country where the person seeks refuge. The “pull” of the UK is obvious: It is  a developed, liberal democracy that generally respects human rights and offers opportunities (educational, professional) for its residents. People fleeing persecution (or economic deprivation) would generally be lucky to start a new life there.

The “pull” of Russia is less obvious. For one thing, Russia is not known as a welcoming destination for non-Russians. Racism and xenophobia are problems, and many minorities have been targeted and killed. Homophobia is also rampant, and institutionalized (though the mayor of Sochi claims that there are no gays in his city). In terms of its economy, Russia is not as an attractive destination as Western Europe or the U.S., but it is better than many places. Finally, the Russian language is not spoken by nearly as many people as English, and so this might create some disincentive for potential asylum seekers. For all these reasons, I doubt we will see many athletes defecting to start new lives in Russia.

To be fair, many of the source countries for asylum seekers do not send athletes to the Winter Olympics. But even if they did, I doubt many of them would desire to resettle in Russia. Conditions there are simply not conducive to starting a new life, particularly for people who come from Africa or Central Asia.

There have, of course, been a few high profile asylum seekers in Russia. Edward Snowden is one, but I don’t think he deliberately chose Russia as his destination country. Instead, it seems he got stuck there on the way to somewhere else. So the Russians really can’t claim him as someone who had a burning desire to resettle in their country.

Another immigrant to Russia is Gerard Depardieu, a “tax refugee” from France who (sort-of) left his homeland due to high taxes and (kind-of) settled in Russia. I suppose in Mr. Depardieu’s case, there was a “pull” from Russia, but that seems more to do with his friendship with President Putin (who summarily granted him citizenship last year) than with his desire to seek a better life there. Indeed, though Mr. Depardieu has citizenship and an address in Russia, it is unclear how much time he actually spends there.

The bottom line is, I don’t think Russia is seen by many as a desirable place to resettle, and I expect that we won’t see many athletes defecting during the upcoming Games. Perhaps the Russians will be pleased by this (Russia for the Russians!). But maybe upon reflection, they will find that it demonstrates a darker truth about the culture and society that they have created.

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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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Asylum Seekers and the Right to Illegal Entry

by Jason Dzubow

Do people fleeing persecution have a “right” to illegally enter the United States? A new report from Harvard Law School about changes in Canadian asylum policy got me thinking about this question.

The report, Bordering on Failure: Canada-US Border Policy and the Politics of Refugee Exclusion, concludes that recent changes to Canadian refugee and border policy have made it more difficult for legitimate asylum seekers to find refuge in Canada.

Training program for rookie Liaison Officers.
Training program for rookie Liaison Officers.

The recent changes include the Multiple Borders Strategy (“MBS”), whose goal is to “push the border out” and to “intercept improperly documented persons as far away from Canada’s territorial borders as possible.” Canada “enacts measures that deter and deflect the arrival of asylum seekers at… countries of origin, visa screening points, airline check in points, points of initial embarkation, transit areas, points of final embarkation, and points of final arrival.” How do they do this? Canada has 63 liaison officers in 49 “strategic locations around the world.” The officers “train and work with airlines, local immigration authorities, and local law enforcement agencies to identify improperly documents persons, including some asylum seekers, and block them from boarding Canada-bound boats or planes.” The officers have intercepted 73,000 people between 2001 and 2012. Another part of the MBS is to sanction airlines and shipping companies that allow improperly documented people to arrive in Canada. The Canadians have also imposed stricter visa requirements on people from refugee source countries when refugee arrivals from those countries increase. In short, Canada is doing more to block people from illegally entering the country. So what’s wrong with that?

The Harvard report raises a few points. For one, some of those people blocked from arriving in Canada are refugees (though we don’t know how many). The liaison officers and the carriers do not consider whether a person qualifies for asylum; they block anyone with improper documentation. Another problem is that by tightening security, some asylum seekers will resort to other means of gaining entry into Canada–human smuggling, for example. This puts the asylum seekers at risk of harm. The report concludes that by “closing its borders to asylum seekers, Canada is setting a poor example for other nations, and contributing to the deterioration of refugee protection around the world.”

Aside from criticizing the (probable) negative impact of the MBS on asylum seekers, Harvard offers little in the way of solutions. Should Canada loosen its entry requirements? Should liaison officers allow people with fraudulent documents to go to Canada if those people express a fear of persecution? Should Canada get rid of the liaison officers so it is easier to enter Canada improperly? Should it eliminate carrier fines, so that airlines will be encouraged to allow anyone to fly into the country, even if they do not have permission to enter?

The basic problem, it seems to me, is that refugees who are rich enough to qualify for a visa or to hire a competent smuggler, will likely get in. Ditto for those clever enough to obtain fraudulent travel documents. Poor people, less educated people, people who are not resourceful enough, will not get in. Tightening or loosening the border (or even “pushing out” the border) will, as the Harvard report points out, exclude people in “arbitrary and unprincipled ways,” but this impact is tiny compared to the basic–and very arbitrary–distinction between the rich, the educated, and the lucky, who will probably get in, and the poor, the uneducated, and the unlucky, who will probably be excluded. Thus, even if Canada had not implemented any of the new restrictive changes, the asylum seekers who manage to reach Canada are able to get there because of factors (such as wealth) that are completely unrelated to the merits of their asylum claims. Given that the ability of potential asylum seekers to enter Canada is completely arbitrary anyway, why should it matter if Canada imposes another layer of arbitrariness on those seeking admission? In other words, why should it matter if an arbitrary portion of an arbitrary group is blocked from seeking asylum?

Or, to return to our initial question in a more specific way: Do those asylum seekers lucky enough to have the ability to reach a safe country have a “right” to travel to that country to seek asylum? If you accept the basic premise of sovereignty of nations (and there are very good reasons not to), it is difficult to answer that question in the affirmative. But to answer that question in the negative would invalidate much of international law and practice related to protecting refugees.

Perhaps the key to resolving this dilemma is to recognize that most countries–including Canada and the United States–have given up some of their sovereignty when they voluntarily entered into treaties protecting refugees. Nevertheless, the Harvard report highlights an odd reality: People who are smart enough, rich enough or sneaky enough to evade border security and gain entry into a safe country have a right to seek asylum in that country. But those who are unable to reach a safe country–even if the reason for their failure is that the safe country managed to prevent their entry–do not have a right to seek asylum in that country.

So I guess the answer to the initial question is a qualified yes (or perhaps a qualified no, if you are a glass-is-half-empty sort of person): Asylum seekers have a right to illegally enter the United States, but only if they manage to get in. Or, to paraphrase Robert Anton Wilson, “rights” are what you can get away with.

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Ten Years an Asylum Lawyer

by Jason Dzubow

It’s hard to believe that I am marking my 10-year anniversary as an owner of my own law firm. It seems like so much longer.

During those years, I have represented over 750 clients, most of whom were asylum seekers. I’ve also had five offices, six partners, two employees, a few contract attorneys, and a whole heap of interns. In short, it’s been an incredible, challenging, exhausting, exhilarating, frustrating, funny, and bizarre 10 years. In commemoration of this grand occasion, I thought I would list some of the more memorable moments of my career as a small-firm lawyer. So without further ado, here we are:

– Starting Out: Before starting my firm, I had to pay back my student loans. Once that was accomplished, I moved to Nicaragua, tried to learn Spanish, and then returned and rented an office below a restaurant in DuPont Circle, DC (at $375/month). I decided to use my old computer, as I didn’t have a lot of cash for a new one. Unfortunately, I had been away for a while and my anti-virus program expired. So as soon as I connected to the internet, my computer got a virus that wiped the entire system. It took over a month to get the computer up and running. An auspicious start it was.

Me, at the beginning of my solo lawyer career.
Me, at the beginning of my solo lawyer career.

– Rats and Flies: Since the office was under a restaurant, you can imagine there were some issues. I shared the office with a friend and fellow asylum lawyer. Once, while he was talking to a client, a rat kept running around the office. I did my best to distract the client and herd the rat out the door. The client was too polite to say anything, but I don’t think she ever came back. We also had numerous infestations of Amityville-Horror-style flies, and one time, part of the ceiling collapsed spilling some strange brown liquid onto our printer.

– My First “Real” Asylum Case: I had done bits and pieces of a few asylum cases before, but I got my first real case in 2004. It was an Ethiopian guy who entered the U.S. illegally at the Mexican border. Two attorneys had already passed on the case because they didn’t like it, so he was stuck with me. Somehow, he ended up receiving asylum, and that win led to one referral and then another. In the last 10 years, I’ve probably represented close to 200 Ethiopians seeking asylum.

– Afghan Cases: By 2006 or 2007, I had done a few Afghan cases, but it was a very small (albeit very interesting) part of my business. Then a potential client came in who had been a well-known TV star in Afghanistan. He couldn’t afford to pay my fee, and so he didn’t hire me. I thought about it for a few days and decided that I wanted to do his case–it was too interesting to pass up. So I called him and said he could pay whatever he could afford. We won the case, and that led to many more Afghan clients. They now represent the majority of my asylum clients.

Me, after ten years.
Me, after ten years.

– Removed from Court in a Stretcher: If you practice immigration law, you know that Immigration Courts are slow. They make geologic time seem speedy. One of my clients from Morocco was particularly eager to receive her green card so she could visit her family back home. But when she heard her court date–something like two years later–she collapsed and could not be revived (even by a DHS attorney who was a former EMT). The end result, she was removed from court on a stretcher. Happily, she was fine, and the next week, we received a notice that her case had been rescheduled for the following month. I have not advised other clients to collapse when they hear their court dates, but I have been tempted…

– My First Lozada Case: Immigration cases that have been denied due to ineffective assistance of counsel can be reopened under Matter of Lozada. Such cases generally requires a bar complaint against the ineffective attorney. Most lawyers (me included) hate this requirement. But in cases of bad misconduct, there is something satisfying about filing a complaint. The first time I filed such a complaint was against an attorney who was incompetent and dishonest. We proved using the lawyer’s own documentation that she had lied to her (now my) client and to the Immigration Court. The Virginia Bar found that she had violated the rules of professional conduct, but declined to punish her because there were “exceptional circumstances.” What were these circumstances? Turns out, she had already been suspended for three years for messing up two other people’s cases (and lives), so the Bar Association felt there was no need to punish her in my case. As I said to the Immigration Judge in our (successful) motion to reopen, the offending lawyer was saved by her own incompetence.

– The Pain of Exile: I represented an Ethiopian asylee who was in removal proceeding after committing a crime. We filed for a 209(c) waiver, which would allow him to remain in the U.S. One witness, his uncle, was a famous singer who had lived in exile since the mid-1970s. Many of his songs were about Ethiopia. We were trying to show that it was unsafe for the nephew (my client) to return to Ethiopia. I asked the uncle, what he thought of his country. “I love my country.” “Would you like to go back,” I asked. “If it was safe, I would go back tomorrow.” Somehow it struck me as profoundly sad that this man had not been back to Ethiopia in 30+ years, but he still loved and missed his country, and kept writing songs about his homeland. The nephew’s case was approved, in part on the strength of this testimony. And as far as I know, the uncle has not yet returned to Ethiopia.

– The Client Who Paid Me $1 Million: OK, this one didn’t happen yet, but here’s hoping.

– The Clients: There are too many to mention. A few I can remember are journalists from Pakistan, Afghanistan, and Iraq. Human rights activists from Russia, DR Cong, Zimbabwe, and Iran. Police officers from Peru and Nepal. A Rwandan woman who saw her family murdered during the genocide. Interpreters for the U.S. military from Iraq and Afghanistan. A Russian politician who was stripped of his citizenship. LGBT people from Serbia, Egypt, Kenya, and especially Sudan (you know who you are). Women’s rights advocates from Afghanistan. Diplomats from Ethiopia, Iran, and Ukraine. People persecuted due to their religion from China, Egypt, Iraq, Bangladesh, and Eritrea. Victims of gang and cartel violence in Central America. And on and on.

Finally, I should also take a moment to thank the people who have helped make this all possible: My staff, who does all the work while I sit around making witty remarks and eating bon bons, and my family, who tolerates long hours, mediocre pay, and occasional rants about the Man. Thank you.

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Judiciary Committee Hearing on Asylum Abuse: Some Questions for Rep. Goodlatte and for Asylum Advocates

by Jason Dzubow

Lately, I’ve been worrying that asylum might become a victim of its own success. Thanks to lawyers pushing the law, the number and categories of people eligible for asylum has increased pretty dramatically: Victims of FGM and domestic violence, LGBT individuals, certain victims of crimes. This is a good thing, as many lives have been saved. But it has started to attract the attention of immigrant restrictionists, who think the asylum system is too generous. Could the tide be shifting? Might we be on the verge of a backlash?

The Romans aren't all that popular this time of year.
The Romans aren’t all that popular this time of year.

There’s precedent for such fear dating back to antiquity. When the Roman Empire conquered Greece, the various city-states had a well-developed system of temple asylum. In short, if you were a slave fleeing abuse, you could go for protection to a Greek temple. Over time, the types of people who could claim protection in Greek temples expanded, so that basically anyone, including rebels and common criminals, could find refuge in a temple. The law-and-order Romans would have none of it. In 14 AD, Emperor Tiberius ordered the temples to produce evidence of their right to offer asylum. Most temples could not do so, and so Tiberius’s little bureaucratic maneuver essentially ended asylum in the Greek city-states. So much for the history lesson.

Late last month, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Immigration and Border Security Subcommittee Chairman Trey Gowdy (R-S.C.), and Congressman Jason Chaffetz (R-Utah) announced that they would be holding hearings on asylum and credible fear “abuse” by people arriving in the U.S. via Mexico. The press announcement does not sound promising:

It’s outrageous that members of Mexican drug cartels and others involved in illicit activity are so easily able to exploit our asylum laws and live in the U.S. virtually undetected. Our asylum laws are in place to help individuals who are facing truly serious persecution in their countries. However, dangerous criminals are gaming the system by claiming they have a ‘credible fear’ of persecution when often they’ve been the perpetrators of violence themselves. Their claims almost always get rubberstamped by the Obama Administration and once these individuals are in the U.S., the illegal activity doesn’t stop. 

Unfortunately, it appears the Obama Administration is compromising our national security and the safety of our communities for its political agenda. The House Judiciary Committee plans to hold a hearing soon to closely examine this egregious abuse to see what can be done to put an end to it.

Over the last couple months, I’ve written pretty extensively about the influx of asylum seekers at the border, and there certainly seem to be issues that require attention. That’s why it’s disappointing to see such an overtly political description of the upcoming hearings. Hopefully, the hearings themselves will be more constructive (yes, for some reason, I am feeling unusually optimistic – maybe its The Season). 

Not that anyone has asked, but I thought I would raise some issues that the Committee might explore:

– We need accurate statistics about who is seeking asylum and why: It is very difficult to know who seeks asylum, who receives it, who receives other relief, and who is denied. One problem is that the two agencies that track asylum cases–DOJ and DHS–use different metrics for calculating their numbers. Another problem is that there are no stats available on people who receive Withholding of Removal and Torture Convention relief (two benefits that are similar, though inferior, to asylum). Congress should mandate better record keeping on asylum cases: Where do asylum seekers come from? What is the basis for their grants or denials? How many are detained? How many leave of their own volition after receiving a denial? How many are deported? How many cases are re-opened for fraud or due to criminal convictions? Such information will allow us to improve our policy-making and will hopefully lead to a better and more secure system.

– We need to make some decisions about how to treat asylum applicants at the borders: There has been a significant increase in asylum applicants arriving at our Southern border. Currently, most are detained and–if they pass a credible fear interview–they are released with a date to return to Immigration Court. I have not seen specific examples of individuals who have entered the U.S. in this manner and then committed bad acts. But given the number of arrivals, the possibility for this to happen seems pretty high. So do we detain these asylum seekers until their cases are heard? Such an approach makes it much more difficult for them to prepare their asylum cases. It is also very expensive. Should each person be fitted with an ankle bracelet or some other tracking device? If we had more accurate data about asylum seekers, perhaps we could better answer these questions.

– We must decide how to treat people fleeing persecution where that persecution is not based on a protected ground: Many people arriving at the Southern border face real harm from gangs, cartels, and criminals. Many others face serious harm due to sexual violence. Often, such people do not fall neatly into one of the five protected categories. Most will not qualify for lesser forms of relief, such as the Convention Against Torture. So what to do with them? Of course, we could simply deport them as we are not obligated by our international agreements to protect them. But sending innocent people to their deaths seems not in keeping with our national values (or any other notion of morality). Could something be done for such people without creating an incentive for everyone South of the border to come to the United States?

– We need to plan ahead to deal with a potentially large refugee flow from Mexico: For years, we’ve been hearing discussion about the possibility of large refugee flows from Mexico due to the violence there. If this happens, our current asylum system will likely not handle the volume. Perhaps we need a contingency plan for how to deal with such refugees. Faced with refugee crises, other countries have created temporary camps for people, where they can stay until it is safe to return (though often that takes decades or longer, and then there is no where to return to). Maybe such a model would be appropriate if the situation in Mexico deteriorates further. Or maybe some type of TPS would be more appropriate. In any case, it seems to me that we can start thinking about this now, so that we are more prepared in case of a humanitarian disaster. 

There is obviously more to say about these topics, but–since it is the season of miracles–I continue to hope that the Judiciary Committee will address these and other important issues related to our asylum system.

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The New Middle Passage: Journeys of Modern Day Slaves

by Jason Dzubow

The blog entry was originally posted on Wherever Magazine‘s website. It’s not uncommon for me to meet clients who have been victims of human trafficking. Most of them were trafficked from East Africa to the Arabian peninsula, and then to the U.S. as domestic servants. Occasionally, I also meet clients who were victims of sex trafficking. For this post, I combined several of my own cases and one publicly available case in order to illustrate the problem of modern day slavery:

Amelia was a promising twenty-something working as a teacher in her native Indonesia. After she lost her job due to religious and ethnic discrimination, she wanted to move some place safe. She began looking for ways to come to the United States.

The past isn't really past.
The past isn’t really past.

Through an ad, Amelia found a position in the restaurant industry in New York. An agency arranged her travel to the U.S., but when she reached JFK, things were not as expected.

Her “contact” met Amelia at the airport and immediately took her passport and other documents. Instead of bringing her to the promised job, he took her to a brothel. When she protested, her contact threatened Amelia with a gun.

For the next several months, Amelia was transported from one brothel to the next and forced to have sex with many different men. Her captors kept her under close watch at all times. 

Finally, one day, she escaped through an unlocked window. Even after she was free, Amelia knew no one in the United States and she did not know where to go for help. She lived on the street until she met someone who put her in touch with law enforcement.

Amelia was able to obtain a “T” visa—a special visa for victims of human trafficking, which allows an alien to (eventually) become a permanent resident of the United States. 

Except for the successful escape, Amelia’s story is quite typical. Social scientists estimate that there are currently about 27 million victims of human trafficking world-wide. But only a small fraction of those victims—about 40,000 people—are identified and helped each year. In the United States, as many as 200,000 children are currently at risk of sex trafficking. Most victims are trafficked within their own countries, but many people—like Amelia—are taken on long journeys from poor countries to more affluent countries, where they serve as sex slaves, domestic labor or agricultural workers.

According to U.S. government estimates, last year over 17,000 people were brought into the United States to serve as slaves.

As an attorney who represents asylum seekers, I sometimes meet victims of human trafficking. One common scenario involves women recruited to work as domestic servants in the Persian Gulf (most commonly in Saudi Arabia and the UAE). The women usually come from poor countries in Africa and are lured to the Gulf with promises of a decent wage and steady work.  

In one recent (and typical) case, my client Fatima had been detained and beaten in Ethiopia because of her political activities. She was also a victim of female genital mutilation. Fatima had to find a way out of her country. She went to an employment agency. The agency helped Fatima obtain a passport and found a job for her as a domestic servant in the United Arab Emirates. In July 2009, she left Ethiopia and started working for a family in the UAE. 

Work conditions and pay were not as promised. Originally, the agency told Fatima that she would be babysitting one child. When she arrived, she found that she would be babysitting three young children. In addition, she had to clean the house, cook, wash laundry, and tend to her employers’ guests. Fatima worked 20 hour days, and her employer banned her from speaking with other Ethiopian house servants. When she showed signs of being unhappy, the employer threatened to return her to Ethiopia. 

In August 2010, the employers announced that they would be going to Florida with the children for a six month vacation. Fatima would come with them. The U.S. government issued Fatima a visa for “personal and domestic employees” and she was on her way to America.

In the United States, Fatima continued as a domestic servant, but now her employer stopped paying her. She knew no one in Florida and had little opportunity to meet people outside her employers’ house. Finally, after five months as an unpaid, 140-hour a week domestic worker, she met some other Ethiopians in a park. They told her that she could seek political asylum in the United States. 

Fatima called her brother in Ethiopia, who put her in touch with some friends in Ohio. Those friends found someone in Florida to help. So early one morning, while her employers were sleeping, Fatima snuck out of the apartment, went to a rendezvous point and met her contact. She stayed with him for a few days until her brother’s friends arranged to bring her to Ohio and then Washington, DC.

In DC, Fatima filed for asylum. The case took several years, but finally, in September 2013, an Immigration Judge granted Fatima’s application for asylum. She has now begun her new life in the United States. 

Fatima and Amelia both escaped from their captivity. Most trafficking victims are not so lucky.

At least in Fatima’s case, the U.S. government could have done more to protect her. She received her visa without an interview at the U.S. Embassy. For domestic servants who come to the U.S., the embassies should interview each person (as they do for most other visa applicants) and ask about wages, hours, and working conditions. Where there is evidence of trafficking, visas for the workers and their employers should be denied, and the local authorities should be contacted. At least this would reduce the number of victims trafficked to the U.S. And once they are here, the employers of domestic workers should be required to verify (with evidence) that the domestic workers are receiving their salary, paying taxes, and working reasonable hours. Employers who do not comply with the law should have their visas revoked and should be prosecuted.

For trafficking victims in the U.S., there are resources available. The Department of Homeland Security’s Blue Campaign raises awareness about the issue, and there are numerous NGOs, such as the Polaris Project, involved in the anti-trafficking fight. It will take the combined efforts of governments, non-profits, and individuals to identify and free victims of human trafficking, and bring the perpetrators to justice.

In this article, the names of the women and identifying details have been changed.

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America’s First Asylum Seekers

by Jason Dzubow

As Thanksgiving approaches, I thought it might be nice to look back at our country’s earliest–and strangest–effort to help asylum seekers. I’m not talking about the Pilgrims, who came here long before our nation’s independence. I’m talking about the French colony of Asylum, founded in 1793 on the shores of the Susquehanna River in northern Pennsylvania.

In those days, the United States and France enjoyed good relations, thanks in part to France’s key role during the American Revolution. When France’s own Revolution went bad, the United States was prepared to help refugees fleeing the guillotine—and to make a profit in the process.

 

...and that's why, even today, you can find good croissants in northern Pennsylvania.
…and that’s why, even today, you can find good croissants in northern Pennsylvania.

Several prominent Pennsylvanians were involved in forming the Asylum Company, which purchased land and began constructing large houses in the untamed wilderness. The largest house, called “la grande maison,” was 84 feet long and 60 feet wide. It had eight fireplaces. Supposedly, it was built for Marie Antoinette, wife of King Louis XVI (she of the “Let them eat cake” fame). Unfortunately, Marie Antoinette was executed by the Revolution before she could find asylum in the U.S.

A number of prominent exiles did manage to reach Asylum, including members of the French Royal Court, soldiers, and businessmen. The exiles tried to re-create their aristocratic life style in America, and they enjoyed music and plays, brandy and fine wine.  Ultimately, though, the idea of an aristocratic French Court in the Pennsylvania wilderness could not be sustained; the exiles yearned to return to France. One historian described the mood in Asylum:

As time went on [the French] grew to hate the work, the monotony, and the sordid hopelessness of their life at Asylum… Nostalgia had the colony in its grip.

Finally, Napoleon Bonaparte seized power in France and ended the Revolution. He invited all French exiles to return, and promised to restore their estates. The celebration in Asylum supposedly lasted for days, and most of the residents returned to France by 1802. The Asylum Company itself proved a failure, with at least one principal landing in debtor’s prison.

All that remains today of Asylum are some archaeological ruins and a museum. The historic site serves as a reminder of our country’s earliest effort to provide refuge to those fleeing persecution.

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Mexican Asylum Seekers Need Not Apply

by Jason Dzubow

Carlos Gutierrez was a successful businessman in Chihuahua, Mexico when cartel members demanded extortion payments from him. After he could no longer afford to pay, the cartel members cut off his feet as an example to others. Mr. Gutierrez somehow survived and fled to the United States where he requested asylum. Ultimately, his case was administratively closed, leaving him in legal limbo (though I guess that beats deportation).

Carlos Gutierrez: "What matters is that you get up. I have no legs, but I am on my feet."
Carlos Gutierrez: “What matters is that you get up. I have no legs, but I am on my feet.”

To raise awareness about Mexican asylum seekers, Mr. Gutierrez–outfitted with prosthetic legs–biked over 700 miles across Texas:

“I’m not here to point the finger at anyone; simply to alert the [U.S.] government as to what’s going on with the Mexican people,” Gutierrez said. “People from other countries are granted asylum as soon as they touch American soil, but not us Mexicans. Because even with the circumstances we’ve lived through – in my case the attempt on my life – it isn’t enough to get asylum. I don’t think it’s fair that it’s this way for Mexicans just because we are from a neighboring country.”

Mr. Gutierrez’s lawyer, Carlos Spector, the founder of Mexicanos en Exilio, adds that, “Asylum law doesn’t reflect the Mexican reality, which is that much of the extortion is possible because of the relationship with the state.” He continues:

Because the police is an extension of the state… and because the police is often responsible for acts of violence or allows acts of violence to occur with impunity, the state is responsible for what happens to victims of organized crime. That, he says, makes it political persecution.

I’ve written before about the abysmally low asylum grant rate for Mexican asylum seekers: Historically, something like 2% of asylum cases from Mexico are granted. So what gives? Why is the denial rate for Mexican asylum seekers so high when conditions in that country are so violent?

First, let’s look at the statistics. Perhaps the situation today is not quite so dire as the historical data suggests. According to the Department of Justice, for FY 2012, there were 9,206 applications for asylum from Mexico received by the Immigration Courts. In the same year, the Courts granted 126 cases and denied 1,395 (an additional 337 Mexican cases were granted by the Asylum Offices, but I have seen no data on the total number of Mexican applications, so we do not know the success rate before the Asylum Offices – see DHS Statistics, Table 17). Another 138 cases were abandoned, 1,906 were withdrawn, and 2,335 were resolved in other ways. “Other” cases are mostly people who changed venue, but also people who received some other type of relief from removal. Presumably “abandoned” and “withdrawn” cases might also include people who received some other type of relief.

So just looking at granted (126) vs. denied (1,395), we have an 8.3% grant rate. But since this does not include people granted Withholding of Removal, relief under the Convention Against Torture or some other type of relief (Cancellation of Removal or adjustment of status), we can safely assume that the number of Mexican asylum seekers who win their court cases is significantly higher (with “win” being broadly defined, as not everyone who gets CAT relief views it as a win). 

Even if the grant rate is not as low as previously believed, it is still pretty darn low. Why?

One reason that the success rate for Mexican asylum seekers is so low may be that Mexican applications tend to be defensive (i.e., filed as a defense after the applicant is in removal proceedings) rather than affirmative. Although I have not seen any data on this, it is probably safe to assume that most Mexican cases are filed defensively. This is because the majority (61%) of aliens residing unlawfully in the U.S. are from Mexico, so it stands to reason that they would represent the largest group in removal proceedings. People in removal proceedings who have no other option tend to file for asylum as a last ditch effort to remain in the U.S. Such people are less likely to succeed (see DHS Statistics, page K2) for several reasons. For one, they are usually filing outside the one-year filing deadline and are thus probably ineligible for asylum. Also, some of these asylum seekers will be detained, which makes it much harder to successfully litigate their cases. Finally, some of these people will be in removal proceedings due to a criminal conviction, which also makes it more difficult (or impossible) to win an asylum case.

So while there are some legitimate explanations for the low denial rate of Mexican asylum seekers, could there be other, less proper, reasons? Mr. Gutierrez and his lawyer Mr. Spector suggest two possibilities: One, that because Mexico is a neighboring country, we tend to deny their asylum claims at a higher rate. This has been called the “floodgate” argument–if we grant asylum too easily to Mexicans, it will open the floodgates and we will be inundated with Mexican applicants. And two, adjudicators in the U.S. do not properly recognize that claims related to cartel violence are really political claims because the cartels and the Mexican state are inextricably linked (asylum claims can be granted based on political persecution, but generally not based on fear of criminal violence).

Although I have no evidence to back it up, I think there is something to the floodgate argument. Decision-makers are certainly aware that granting asylum to large numbers of Mexicans will likely lead to more people coming to the U.S. Combine this with the fact that these cases are relatively easy to deny (since they usually do not fall neatly within one of the five protected categories) and you have a strong incentive to reject Mexican asylum claims.

I am a bit more skeptical of the argument that these cases are “political,” since the government and the cartels are connected. Even if the government is doing the persecuting, that does not necessarily mean that the persecution is political. It may simply be (as it seems) that the criminals and their government allies are trying to steal money from the people. Under current asylum law, it is difficult to argue that this–by itself–is a basis for asylum. 

Finally, there is no doubt that many Mexicans–including Mr. Gutierrez–face dire circumstances. Perhaps there needs to be a change in the law to help them, even when they do not meet the legal definition of “refugee.” If we can help Chinese people victimized by forced family planning, and Cubans (whether they have been victimized or not), shouldn’t we do something to help our Mexican neighbors who are daily threatened, harmed, and murdered by the cartels? 

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Dream Activists vs. Asylum Seekers, Part II (or, Why I am Still Not Convinced)

by Jason Dzubow

Last week when I wrote about Dream Activists and Asylum Seekers, I caused a bit of a kerfuffle. Hopefully, today, I will do better, and this post won’t be quite so kerfuffle-inducing (and yes, I plan to see how many times I can use the word “kerfuffle” in one post – according to Carl Kasell, so far that’s three).

First, a bit of housekeeping.  If you have not read my post from last week, this entry will be harder to follow.

Probably the main objection to my posting last week was my insinuation that the asylum claims of the Dream 30 were not legitimate. However, based on the comments from their attorneys/advocates David Bennion and Mathew Kolken, it seems that the claims are legitimate, and so I will take that as a given for purposes of this blog post.

Explaining stuff helps us understand.
Explaining stuff helps us understand.

With that as background, there are two issues I want to discuss: (1) From a moral and policy point of view, is there any problem with using the Dream 30’s asylum cases to promote a political agenda (the Dream Act) when that agenda is unrelated to the substance of the asylum claim (fear of persecution in Mexico)? and (2) Will this strategy move the Dream Activists closer to their goal?

Political asylum cases are, by their nature, political (duh). This means that the claimants have a political agenda. Normally, that agenda relates to the substance of their claim. For example, I represented a Pakistani journalist who opposed the government and faced persecution because of his activities. After he received asylum, he spoke about his case in the media to try to gain attention for his cause. This seems perfectly legitimate.

The journalist’s case is different from the Dream Activists, in that the activists are not publicizing their cases to highlight the political situation in Mexico. Instead, they are highlighting the failure of the U.S. government to pass immigration reform. I worried that this use of asylum would somehow damage the asylum system. So are the Dream Activists under any obligation to justify their actions? And, if so, is there a justification for using the asylum system in this manner?

First, why should the Dream 30 be required to justify their use of the asylum system as a form of protest? They have legitimate reasons for seeking asylum, and if they want to use their cases to gain attention for the Dream Act or for any other cause, isn’t that their business? Speaking for myself, without such a justification, I find it very difficult to support their political action (though I certainly support their right to seek asylum, as per the letter from Bill Ong Hing). Although it may sound corny, having represented hundreds of asylum seekers, I believe that our system of asylum is, in some ways, sacred. It is a system that is designed to–and does–save lives. If that system is going to be used for some ulterior motive, I, for one, would like an explanation.

I can image some possible justifications: Maybe the activists think publicizing these cases will help advance immigration reform; maybe they want to demonstrate that when undocumented immigrants leave the U.S., their lives are at risk; maybe they want to alert other Dream Act-eligible people to the possibility that they might avoid removal by seeking asylum; maybe they want to inspire other undocumented people to come forward; or perhaps there is another reason for their actions that I have not thought of. My point being, it would be nice to know what the Dream Activists want.

The second big question for me is whether the strategy of publicizing the Dreamers’ asylum claims will accomplish their political goal (whatever that might be). Assuming the goal is immigration reform of some kind, I have seen no explanation for how publicizing these asylum cases will move our country towards that goal.

Certainly, it could simply be that I am ill informed. However, I am more than a casual observer, and I am not a complete idiot (at least on my better days). So if I don’t get it, probably many others don’t either. The Dream activists have done an extraordinary job of publicizing the Dream 30 (and the Dream 9 before them), but they have failed to capitalize on this initial attention to move the discussion in a positive direction. Indeed, it seems to me that they have completely lost the initiative, as the discussion has bogged down in internecine internet warfare. Maybe if the Dreamers had been more clear from the beginning about their goals and strategy, the debate over these issues would not have taken such an unproductive turn.

It is not too late for the Dream Activists to re-take the initiative and extricate themselves from the unproductive tit-for-tat with other immigrant advocates. For a start, they need to clearly explain a few things: (1) When and under what circumstances did the members of the Dream 30 leave the U.S. and why are they seeking asylum (their lawyer David Bennion did a pretty good job of this in response to my blog post from last week); (2) What is the ultimate goal of the Dream Activists; and (3) How does the action at the border help achieve that goal.

For me–and, I suspect, for others–clear answers to these questions would be a good way to begin a productive dialogue about goals and strategy, and would go a long way towards bringing us on board with the Dream Activists’ plan. But for now, without a good explanation, I am simply not convinced that the Dreamers’ actions have done anything to advance the cause of undocumented people, asylum seekers, or immigration reform.

 Kerfuffle – 4.

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