The Border Problem, Solved

by Jason Dzubow

We’ve been hearing a lot lately about the dramatic increase of asylum seekers and unaccompanied minors at our Southern border. There is debate about what is causing the increase–violence and poverty in the home countries vs. lax enforcement and the relative ease of obtaining lawful status in the U.S.–and no one really knows for sure. Because we receive more migrants from the more violent Central American countries and less from the more peaceful countries, I think that dangerous country conditions are a significant “push” factor. This hypothesis is supported by a new UN report that found a 435% increase in the number of Guatemalans, Hondurans, and Salvadorans requesting asylum in other, more peaceful, Central American countries. The report also surveyed several hundred child arrivals and found that, for the majority, violence in the home country was a factor in their migration. On the other hand, because the uptick in arrivals in the U.S. is generally not correlated with an uptick in violence at home, I suspect that “pull” factors also play a significant role. The fact is, if you live in a violent, poor country, and you want to find a place where you can resettle, live safely, and build a life, the U.S. is probably your best bet (yes, Canada is nice too, but it’s a bit far).

For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.
For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.

Regardless of the reasons behind it, the surge of people arriving at our Southern border has created real problems for the asylum system and for all applicants, many of whom are facing long, seemingly indefinite, delays. The influx is also problematic because large numbers of young people are making the dangerous journey North to the United States. This journey puts them at risk of physical and sexual harm, it separates families, and it provides income to the criminal organizations that smuggle people to the U.S. (often the same organizations involved in the drug trade). Indeed, the criminal/smuggling organizations apparently contribute to the influx (and their own bottom line) by encouraging people to make the journey.

So what can be done about the situation? And–more specifically–what can be done that discourages primarily economic migrants, but that also protects legitimate refugees and preserves our asylum system for those who need it? Also, can anything be done to make the journey safer and to cut criminal/smuggling organizations out of the process? 

The UN report provides some recommendations: International actors should pay more attention to the protection needs of child migrants, we should increase our capacity to deal with child arrivals and work together with other nations to address the needs of these children, and we should work to reduce or eliminate the factors leading to forced migration. While the report’s findings are very valuable (this seems to be the first time any large scale study bothered to ask the migrants themselves why they are coming here), I don’t find the recommendations particularly satisfying. It is always easy to say we need more attention and more resources to reduce a problem, but who will pay for this? And how do we build a public consensus to bring more immigrants here and pay for them? Also, to say that we should address root causes seems obvious, but how?

Perhaps a better solution would be to create Refugee Processing Centers in Mexico and Central America. Not only would this cut the smugglers out of the picture, deprive criminal/smuggling organizations of income, and greatly reduce the financial incentive for these organizations to encourage more migration, it would also curtail the need for young people to make the perilous journey North.

For this to work, we would have to end all refugee processing at the border. Anyone who arrives at the border (or who enters unlawfully and then seeks asylum) would be sent to a refugee processing center in, say, Mexico. In order to encourage people to go directly to the processing centers (instead of the border), people who go to the border first would be given a lower processing priority than people who arrive directly at the centers. A side benefit would be that legitimate refugees would no longer be arriving at the border; this would allow the Border Patrol to focus on illegal entrants.

There are obviously logistical issues to work out, for example: Where do we house people–including children–who are waiting? How do we share the burden with other countries in the region? Would other countries be willing to resettle some refugees (according to the UN report, they already are). Despite the obstacles, it seems to me that this would work better than the non-system that we currently have.

The estimated budget for resettling unaccompanied minors in 2015 is over $2 billion, and this does not even count the cost of dealing with adults who arrive without permission. If trends continue (which hopefully they won’t), our current system will fall apart. We need creative solutions; solutions which–hopefully–will reflect our humanitarian obligations and ideals, protect children, put smugglers out of business, and keep our border secure. De-coupling refugee processing and border enforcement may be one way to accomplish these goals.

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Unaccompanied Children Overwhelm Border, But No One Knows Why

by Jason Dzubow

The number of unaccompanied children arriving at the Southern border has increased 92% from the same period last year, reports the New York Times—

Administration officials said 47,017 children traveling without parents had been caught crossing the southwest border since [October 1, 2013]. Most are coming from three Central American countries: El Salvador, Guatemala and Honduras…. [There has also been] a spike in the numbers of girls and of children under 13 years old — including some barely old enough to walk.

DHS's new border drone, designed specifically to intercept unaccompanied minors.
DHS’s new border drone, designed specifically to intercept unaccompanied minors.

President Obama called the situation a “humanitarian crisis,” which it clearly is, and on Monday ordered FEMA to coordinate a response among several government agencies. The response will include providing food and shelter for the children, searching for relatives in the U.S., and adjudicating cases in Immigration Court. In addition, immigration enforcement agents are working to disrupt criminal smuggling networks and to dissuade potential migrants by broadcasting public service messages warning of the dangers of the journey. All this comes with a hefty price tag, of course, and the President has requested an additional $1.4 billion to deal with the crisis.

The response from advocates on both sides of the issue has been predictably predictable.

“This is a humanitarian crisis born out of the growing violence in Central America,” said Bishop Eusebio Elizondo of Seattle, chairman of the migration committee of the United States Conference of Catholic Bishops. “These children are refugees who deserve the protection of our nation. They should not be viewed as lawbreakers.” Similarly, an Obama Administration official stated that the surge was driven primarily by conditions in Central America, including deepening poverty, an increase in sustained violence, and by many youths’ desires to reunite with parents in the U.S.

On the other side, the indefatigable Republican chair of the House Judiciary Committee Robert W. Goodlatte opined, “Word has gotten out around the world about President Obama’s lax immigration enforcement policies, and it has encouraged more individuals to come to the United States illegally, many of whom are children from Central America.”

As to the argument that the surge is a result of increased violence in Central America, the (admittedly limited) data does not exactly bear that out. According to the latest information from the UN, between 2008 and 2012, homicide rates increased dramatically in Honduras, but actually fell in El Salvador and Guatemala. More recent data for El Salvador suggests that murder rates continued to decline in 2013, but by the end of the year–when a truce between two large gangs fell apart–began to increase. On the other hand, a recent report that attempted to parse out the effect of violence and corruption on migration found some correlation between increased violence and increased migration (other major factors affecting migration include the age of the migrant and her connection to friends and family who have already immigrated). At least for people coming from Guatemala and El Salvador, there does not seem to be an obvious correlation between increased violence and increased migration.

On the other side of the debate, Rep. Goodlatte argues that lax immigration enforcement is serving as a “pull,” which incentivizes young people to come to the U.S. Given that President Obama has deported more people than any other president, Rep. Goodlatte’s claim is, well, ridiculous.

So if it is not increased violence or lax enforcement, what is causing the surge in unaccompanied minors?

The short answer is, I don’t know and neither does anyone else. However, if I had to guess, I’d say that the main reason is that undocumented young people who reach the U.S. have a good chance of obtaining lawful status (through the Special Immigrant Juvenile program, asylum, T visas, etc.). As word of this has gotten out, more people come here. In other words, there is a strong “pull” factor at play for many migrants. Now don’t get me wrong, there are also very powerful push factors, with gang and cartel violence at the top of the list. Also, the fact that the journey here–especially for unaccompanied minors–is very dangerous, reduces the “pull” factor to some degree. The bottom line is, we don’t really know and we need more data about why young people are coming here.

One way to obtain this data–and I suppose this is a radical solution–is to ask the people who have come here. I imagine they know why they made the journey, and if asked, most of them will tell us. Another method is to make public and accessible statistical data about the number of people coming here, where they are coming from, what types of relief they are seeking, and the outcomes of their cases. Such data can be correlated with information about crime and violence in the sending countries, and this might give us some insight into the reasons behind the migration. With such information, we will be better able to make more appropriate policy choices and hopefully reduce the number of children coming here.

Obtaining better data should (I think) be pretty easy, and either Congress or the President could make it happen. The Executive Branch publishes some immigration data, but it is difficult to access and very incomplete. I really do not understand why DHS and DOJ don’t do a better job of organizing and presenting statistical information about immigrants. And if they won’t act, Congress could. But for all his huffing and puffing, Rep. Goodlatte has thus far shown little desire to improve the situation, and seems interested only in political hyperbole. Perhaps if he could muster some maturity and actually take some concrete steps, we might move closer to understanding what is going on. And, as they say, knowing is half the battle.

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U.S. Sex Offender Receives Asylum in Canada

by Jason Dzubow

A convicted sex offender who fled the United States to escape her 30-year prison sentence has been granted protected person status in Canada.

Canadian boys celebrated the decision in Ms Harvey's case.
Canadian boys celebrated the decision in Ms Harvey’s case.

In August 2008, Denise Harvey was convicted in a Florida court for having sex with a 16 year-old boy–a friend of her son’s. After refusing a plea deal for 11 years, Ms. Harvey went to trial. She was convicted and sentenced to 30 years in prison. While her appeal was pending, she remained free on $150,000.00 bond. In 2010, when it became clear that the appeal had failed and that she would have to report to prison, Ms. Harvey fled to Canada.

She crossed the border and moved to Saskatchewan with her husband. They settled in a small community outside Saskatoon.

The Law caught up with Ms. Harvey in April 2011, when Canadian authorities arrested her. Later that month, she appeared before an Immigration and Refugee Board (“IRB”) adjudicator and was released on a $5,000.00 bond. Ms. Harvey requested “protected person status” and claimed that the 30-year sentence was cruel and unusual. She noted that her crime–having consensual sex with a 16-year old–was not illegal in Canada.

The IRB agreed that the sentence was cruel and unusual and granted Ms. Harvey protected person status. To obtain protected person status, an applicant must show that returning to the home country would subject the person to torture, cruel and unusual punishment or death. No nexus to a protected ground is required. People who received protected person status are eligible to apply for permanent residency and eventually obtain Canadian citizenship.

The Minister of Citizenship and Immigration, Chris Alexander, appealed the IRB ruling on two occasions, but Ms. Harvey’s protected person status was finally upheld last month. The Minister commented:

I find it mind-boggling that individuals from the United States, which has been designated a safe country, precisely because it respects human rights and does not normally produce refugees, think it is acceptable to file asylum claims in Canada. Lucky for them, they have no understanding of what true persecution is, and what it means to be a genuine refugee.

I am not sure that Ms. Harvey would agree with him. And luckily for her, the Canadian courts did not agree with him either. I suppose this highlights the old trope that no country is safe for everyone all the time (and indeed, even in the United States, Ms. Harvey is not without her supporters. In her home community of Vero Beach, Florida, 2,000 people–more than 10% of the total population–signed a petition requesting that Florida’s governor pardon her).

As for me, I must agree that a 30-year sentence for consensual sex with a 16-year-old boy is a bit over the top. Of course, reasonable people can differ about this, but the Canadians (and who is more reasonable than the Canadians?) have not even criminalized this behavior. Also, there is no indication that the victim suffered particular trauma as a result of the “unlawful sexual activity.” If there was evidence that he had been traumatized by Ms. Harvey’s conduct, then the punishment might be more easily justified.

While I agree with the result, the IRB decision does leave some unanswered questions: Would the decision have been the same if the perpetrator was a man and the victim was a 16-year-old girl? What if the sentence had been less severe? Does Canada plan to offer protected status to every U.S. citizen convicted for a crime that is not punishable in Canada? Does it plan to evaluate each U.S. sentence to determine whether it is “cruel and unusual”? The death penalty has been eliminated in Canada, so if a U.S. citizen facing the death penalty reaches Canada, will he be offered protected status?

The Canadians may have to deal with these issues in future cases, but Ms. Harvey’s case is relatively easy. The sentence is so excessive and the crime so seemingly minor that Ms. Harvey appears deserving of protection. Only time will tell if other convicted criminals will follow Ms. Harvey’s lead. If so, it will be interesting to see how the Canadian authorities respond, and if the U.S. government takes offense.

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Beirut Embassy Bomber Gets US Asylum, New Book (Incorrectly) Claims

by Jason Dzubow

A new book by Pulitzer-Prize winner Kai Bird claims that the Iranian intelligence officer behind the 1983 bombing of the U.S. embassy in Beirut–and many other terrorist attacks–received asylum in the United States. Among those killed in the 1983 attack were the CIA’s top Middle East analyst, a “good spy” named Robert Ames, who purportedly cultivated friendly relations with Arab leaders. Mr. Bird speculates that had Robert Ames lived, the U.S. would have had a different, better relationship with the Arab World.

Use of correct terminology is always appreciated.
Use of correct terminology is always appreciated.

According to The Good Spy: The Life and Death of Robert Ames, the CIA and President Bush brought Ali Reza Asgari, the terrorist responsible for the 1983 attack, to the United States in 2007. He came here in exchange for information about Iran, Hezbollah, and other U.S. rivals in the Middle East. This intelligence supposedly led to the assassination of Hezbollah’s number two man and the bombing of a secret Syrian nuclear facility, among other things. 

Like many people who review books, I have not actually read The Good Spy (though it certainly sounds delightful). In my defense, I don’t really plan to review the book. I just want to talk about one word used by Mr. Bird: Asylum. Mr. Bird writes (and here I quote the book):

The decision to give Asgari political asylum under the CIA’s Public Law 110 program was probably opposed by veteran CIA officers who have some knowledge of Asgari’s alleged responsibility for Roberts Ames’s murder…. But they and the agency were reportedly overruled by the George W. Bush administration’s National Security Council.

The emphasis is mine. If Mr. Asgari did, in fact, come to the U.S. under the Public Law 110 program, he did not receive political asylum. Aliens in the United States who fear persecution in their home countries can apply for asylum under INA § 208 (also known as 8 U.S.C. § 1158). Public Law 110, on the other hand, appears at 50 U.S.C. § 403h:

Whenever the Director [of the CIA], the Attorney General, and the Commissioner of Immigration and Naturalization shall determine that the entry of a particular alien into the United States for permanent residence is in the interest of national security or essential to the furtherance of the national intelligence mission, such alien and his immediate family shall be given entry into the United States for permanent residence without regard to their inadmissibility under the immigration or any other laws and regulations, or to the failure to comply with such laws and regulations pertaining to admissibility.

In other words, if certain high-ranking leaders in the U.S. determine that a terrorist should be allowed to live in the U.S., the terrorist will be allowed to live in the U.S. But this is usually a quid pro quo and has nothing to do with asylum or the asylum system. Indeed, given his terrorist activities, Mr. Asgari would not be eligible for asylum, as he would be subject to numerous bars under INA § 208(b)(2).

Maybe this is a small point, but I think it is important. Mr. Bird’s book is attracting widespread attention–everyone from Newsweek to Glen Beck’s blog, the Blaze is carrying the story–and it is unfortunate that these outlets are repeating Mr. Bird’s error. The asylum system is already under assault by those who claim it is an entryway for terrorists and criminals, and so Mr. Bird’s incorrect use of the term has unfairly impugned a system that protects thousands of legitimate refugees and that has been specifically designed to block people like Mr. Asgari.

While colloquially, we might label anyone who fears harm and who is admitted into the United States as having received “asylum,” this is simply incorrect, and it damages the asylum system to taint it with association to the likes of Mr. Asgari. I am not saying that Mr. Asgari should not have been brought to the United States. Perhaps the intelligence he provided was worth allowing a mass murderer to resettle in our country. But he came to the United States because our elected officials determined that bringing him here was the best course of action for our country, not because he qualified or was eligible for asylum.

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That Pesky Nexus

by Jason Dzubow

To receive asylum in the United States, an applicant must show not only that he faces persecution in his home country, but that the feared persecution is “on account of” a protected ground (race, religion, nationality, particular social group or political opinion).

GW law students react to Todd and my appointment to the adjunct faculty.
GW law students react to Todd and my appointment to the adjunct faculty.

This means that if MS-13 gang members want to kill you because you refuse to join the gang, you probably won’t qualify for asylum. On the other hand, if the Ethiopian government wants to detain you for a year because you attended an anti-government protest, you probably will qualify. To me, the regime created by the nexus requirement seems incongruous and unjust.

I’ve seen this play out in many of my cases, where we often have to shoehorn our client’s claim into a protected category. For example, Eritreans who flee the National Service (really, a form of never-ending slavery) would not ordinarily receive asylum since the (very serious) harm they face for trying to escape is not generally “on account of” a protected ground. One strategy to help such people obtain asylum is to show that the Eritrean government views them as enemies. In other words, that it imputes to National Service evaders an anti-government political opinion. Sometimes this works; sometimes it doesn’t. But the question is, why do we have an asylum system that forces us to contort legitimate claims so that they fulfill the nexus requirement?

This is essentially one of the questions that my esteemed co-professor Todd Pilcher and I asked our students on their final exam. As an aside, this was the first year that either of us taught a law school course (Asylum and Refugee Law at George Washington University Law School). Even having practiced primarily asylum law for the last 10 years, it was amazing how much I learned by teaching this class. I also learned that it is better not to know what goes on behind the scenes with grading. Suffice it to say that as a mere adjunct professor, we had quite a bit of power to grade as we wished; more power, actually, than we were comfortable with (but on the bright side for our students, despite a killer exam–sorry about that–they did very well).  

But back to the nexus requirement. In theory, it exists because it reflects our values. We care about political expression and the exercise of religion, and so we protect people who face persecution on those grounds. In reality, it exists because some Dead White Men created relatively arbitrary categories that seemed appropriate in the post-WWII world. So–as we asked our students–would we be better off without it?

The students were split in their responses, and obviously reasonable people can differ (though of course we flunked everyone who disagreed with us).

For me, the nexus requirement is an arbitrary way to limit the number of people eligible for asylum. That the nexus requirement has worked so well in this regard is more an accident of geography than anything else. It just so happens that the main reasons people from Mexico and Central America flee their countries are not reasons that easily fulfill the nexus requirement (fear of gangs and cartels). Imagine if we lived next to China, where many refugees face political persecution (or persecution for forced family planning, which is considered political persecution under U.S. asylum law). Or what if we lived next door to Iran or Afghanistan, where people flee due to religious persecution. The nexus requirement would do little to stem the flow of refugees from those places.

So if we eliminated the nexus requirement, how could we keep from being overwhelmed by asylum seekers?

The first question, I suppose, is, Would we be overwhelmed by asylum seekers if we gave asylum to everyone who faces persecution irrespective of nexus? Certainly the number of people eligible would go up. And we have seen that asylum seekers respond to policy changes (witness the surge of credible fear interviews at the U.S.-Mexico border). So it certainly seems possible that the number of asylum seekers would increase, but by how much, no one can say. If I had to guess, I would say that the increase would not be as dramatic as we might imagine. Why? Because asylum seekers who want to come here will come here and try for asylum regardless of the odds. Just because you have a one in ten million chance of winning the lottery does not mean you won’t play. So while I suspect that if the nexus requirement were eliminated, more people would be incentivised to come here, I am not sure how many would actually change their behavior and make the trip.

There are, of course, other ways to limit the number of asylum seekers. One way is to change the level of proof. Instead of a 10% chance of future persecution, how about a 50% chance or a 75% chance. While this would reduce the number of people qualifying for asylum, it would also result in legitimate refugees being returned to countries where they face persecution. Also, given the arguments above, I doubt it would do much to actually reduce the number of people coming here for asylum.

Another option would be to resettle anyone qualifying for asylum to a third country. In other words, if a person wins asylum in the U.S., she will be resettled in Argentina. While this would likely reduce the number of people seeking asylum here, I doubt whether many other countries would agree to such a scheme. Also, I imagine there would have to be some sort of reciprocity, so if people were granted asylum in Greece, for example, they might be resettled here. While this plan eliminates some of the incentive for seeking asylum in the U.S., I just don’t see how it could work in the real world.

In the end, the nexus requirement is not going away anytime soon. I do think it is helpful and important to recognize, however, that the requirement really is quite arbitrary. It would do far less to limit the number of asylum seekers if we lived in a different part of the world or if conditions in our neighborhood changed. But for the foreseeable future, we lawyers will continue looking for ways to fit our clients’ cases into one of the protected categories.

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Where Cato Gets It Wrong on Asylum

by Jason Dzubow

The Cato Institute’s Alex Nowrasteh recently published a piece in the Huffington Post called Saving the Asylum System. The title accurately reflects the author’s point, and of course I agree that our asylum system should be preserved (and–really–cherished). But where Mr. Nowrasteh gets it wrong, I think, is his analysis of the problem.

Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.
Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.

The “fundamental problem” according to Mr. Nowrasteh is that intending economic migrants who arrive illegally at the border and get caught are requesting asylum as a way of gaining entry into the U.S. to work. He views this as an “unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.” He posits that “creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system [would remove] the incentive for some of them to make dubious asylum claims.”

Cato is a Libertarian think tank, and Mr. Nowrasteh’s proposal is a Libertarian solution (free flow of labor and all that).

Before I respond, I must admit to a certain prejudice against Libertarianism in general. To use a fancy law school word, I find the whole philosophy jejune. It seems perfectly fine for high school juniors with Ayn Rand fantasies, but I feel it fails utterly in the real world. In other words, to me, “Libertarian think tank” is an oxymoron. On the other hand, I have some good friends who are staunch Libertarians, and sometimes they even give me free cigars (though I suppose this must be in exchange for some utility they get from my company–or maybe they just hope I die from lung cancer). So perhaps I am being a bit too harsh. Anyway, the point is, it’s only fair to put my prejudice on the table before I respond.

That said, I think that Mr. Nowrasteh is simply wrong that most–or even a significant portion–of asylum seekers are economic migrants. To be sure, asylum seekers come to the U.S. (as opposed to Namibia, for example) because they can settle here, get  a job, and build a new life. But this does not make them economic migrants in the normal sense of the phrase. Economic migrants are not fleeing their country because their life or freedom is threatened; they are leaving for a better job.

Stated another way, with all immigrants (including asylum seekers) there is a push and a pull. For refugees, the most important “push” factor is a threat to life or freedom in the home country. For economic migrants, the push is a bad economic situation. The pull for both groups is freedom, opportunity, peace, the ability to gain acceptance, and all the other tangibles and intangibles of “America.”

So why do I think that most asylum seekers are not economic migrants who file fraudulent asylum claims in order to circumvent immigration restrictions?

The main reason, I must admit, is anecdotal. I have represented hundreds of asylum seekers, and while I have suspicions about the motivations of some clients, most clearly face threats in their home countries. Also, many of my clients held good jobs in their home countries and they are unlikely to achieve the same level of success in the United States (due to language barriers, lack of transferable skills, etc.).

Another reason I believe that asylum seekers are not mere economic migrants is because countries that produce large numbers of asylum seekers have widespread human rights problems. The source country for the most asylum seekers in the U.S. is–by far–China. Of late, China has produced between 20 and 25% of affirmative asylum cases and a whopping 45% of defensive asylum grants in FY2013. China has a repressive government and–probably more importantly for purposes of this discussion–Congress passed a law to provide asylum to victims of forced family planning, and these people come almost exclusively from China. While the U.S. economy provides more opportunities than China’s, the repressive nature of the government combined with a special law to help Chinese asylum seekers suggests that asylum applicants from China are more than just economic migrants–they are refugees.

A possible counter argument here is that the increase in credible fear applicants, who have lately been overwhelming the asylum system, comes from people arriving from Mexico, Guatemala, Honduras, and El Salvador, which all have very low asylum grant rates. There are two reasons why I think this argument fails, however. First, many people seeking asylum from these countries face severe threats and persecution from gangs and cartels, or from crime and domestic violence. Such people are genuinely afraid (for good reason), but they rarely qualify for asylum since they cannot show that the feared harm is “on account of” a protected ground. Second, all these countries are very violent places. The less violent countries in the region–Belize, Costa Rica, Nicaragua, and Panama–have weak economies compared to the U.S. (especially mi país Nicaragua, which is the poorest country in the Western Hemisphere aside from Haiti). If Mr. Nowrasteh’s theory is correct, we would expect these countries to be sending us comparable numbers of (fraudulent) asylum seekers, but they are not. To me, all this supports the notion that people leaving the region and seeking asylum in the U.S. are driven more by a fear of harm than by the desire for a better job.

So in the end, while I am happy that the Cato Institute is thinking creatively about ways to preserve our asylum system, I am not convinced by their analysis. While a guest worker program (especially for Mexico and Central America) might marginally reduce the number of asylum seekers, the overlap between refugees and economic migrants is pretty minimal. If we want to reduce the number of asylum seekers at our Southern border, we should spend more time supporting good governance in the region and less time meddling in our neighbors’ affairs.

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Top 10 Reasons the EOIR Computer System is Down

by Jason Dzubow

If you are an attorney or an immigrant with a case before the Immigration Court, you’ve probably noticed that the computer system has been down for almost two weeks. The phone system for checking case status is not working, and there are all sorts of problems at the courts and the BIA. Apparently, the cause of these difficulties is that some servers in Fairfax, Virginia are broken and cannot easily be repaired. No one seems to know why this happened, and EOIR (the Executive Office for Immigration Review) is not telling us much. The EOIR website says only that they are experiencing a “hardware failure.”

EOIR computer techs are working day and night to solve the problem.
EOIR computer techs are working day and night to solve the problem.

As a public service, I have decided to step in and fill this information gap with unfounded speculation. I figure that if I take the time to write something down, people might as well believe it. So to all those waiting for the system to start up again, take comfort. I present to you the top 10 reasons that the EOIR computers are not working:

10. Juan Osuna forgot to pay the electric bill.

9. The Y2K bug finally kicked in. 

8. The computer shut itself down after it played 35 million games of tic-tac-toe and learned that it is impossible to “win” a removal case. 

7. It is getting more and more difficult to find new vacuum tubes and punch cards.

6. Once the computer calculated that the average time to the next hearing exceeds the life expectancy of the average respondent, it decided there was no point and turned itself off.

5. Everyone who signed up for Obamacare has accidentally been deported.

4. Someone asked the computer to figure out how the Asylum Clock works, and it blew up.

3. Joe Arpaio arrested the computer for helping “illegals” remain in the U.S.

2. If you build a 500 gigabyte computer, someone will file a 501 gigabyte case.

1. Everyone who knows how to fix a computer has already been deported.

There you have it. Some of these explanations may even prove to bear a relationship to reality. If so, remember that you heard it here first.

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Family Members of Asylum Seekers – Beware!

by Jason Dzubow

The sister of my asylum-seeker client recently got an unpleasant surprise from the U.S. Embassy in her country. The sister is a prominent journalist who had come to the Embassy several times (at the Embassy’s request) to brief U.S. diplomats on the situation in her country. She and her family members held B-1/B-2 visitor visas to the United States. A few weeks ago, the consular section called and demanded that the sister appear for a visa “re-interview.” When she asked for a one-day delay due to a previously-scheduled medical appointment for her child, she was refused.

The sister dutifully arrived at the U.S. Embassy, where she was kept waiting for two hours. Finally, the consular officer met with her and informed her that her visitor visa was being revoked because her sister (my client) was seeking asylum in the United States. The sister, of course, objected, noting that she had the visa for some time but had not used it. Also, she explained that she had been meeting with Embassy officials to discuss the situation in her country, at some risk to herself. All this was of no avail, and the sister’s visa was revoked. To add insult to injury (and without any evidence), the consular officer accused the sister of wanting to move to the United States so her husband could get a better job and make more money.

The US Embassy proves that it's not just the NSA that can damage our diplomatic relations.
A U.S. consular officer proves that it’s not just the NSA that can damage our diplomatic relations.

On her way out, the sister ran into a local Embassy employee who she had befriended during her two hour wait. When the employee learned what happened, he told the sister that the Embassy had been revoking visas for people whose family members were seeking asylum in the United States.

Before her sister went to the re-interview, my client called me to tell me what was happening. I suggested that her sister speak to her contacts at the Embassy. Her contacts are (presumably) in the diplomatic or public affairs sections of the Embassy, not the consular section, and they told her that there was nothing they could do.

So it seems that a person who had been a useful contact for our country, and who is an up-and-coming journalist, was insulted, embarrassed, and had her visa revoked, all because her sister has a pending asylum case in the United States. For most relatives of asylum seekers, that would be the end of the story. But in this case, since the sister is somewhat high-profile, the matter worked its way up the chain to higher ranking diplomats, who were apparently quite upset at the doings of their brethren in the consular section. There is now an effort underway to re-issue the visa, but the outcome is far from clear, as officers in the diplomatic and public affairs sections do not have authority over the consular section (and heaven forbid that one section would work in concert with another).

As best as we can tell, when my client filed her asylum application, the consular section was not alerted. But when she applied for her work permit (after the application had been pending for 150 days due to the asylum backlog), the application for an employment document triggered notice to the consulate, which was (somehow) aware of her sister. The visa was then revoked.

This is not the first time that one of my clients’ family members had trouble as a result of an asylum application. I wrote previously about two clients–spouses of asylum seekers–who had their visa applications denied because of their spouses’ asylum applications. In those cases, I was more concerned with the breaches of confidentiality (the consular section informed the spouses that their visas were being revoked because of their spouses’ asylum claims; the problem is that in some cases, people seek asylum because of persecution by a family member, so informing the relatives of the asylum applications was a breach of confidentiality).

For me, the take-away from all this for asylum applicants and their family members is that family members may be denied non-immigrant visas or have their visas revoked once the consulate learns about the asylum application. But maybe the more interesting question is, how should the consulates deal with family members of asylum seekers?

The easy answer (and the one I prefer) is that consulates should not be informed about the asylum applications in the first place, and if they are informed, they should take no action against family members (and they certainly should not violate confidentiality). Asylum is a humanitarian form of relief and people (or their family members) should not be penalized for pursuing legitimate claims.

The counter-argument, I suppose, is that consulates are required to determine whether applicants for non-immigrant visas are actually intending immigrants, and the behavior of relatives may be relevant to that determination. One problem with this argument, at least in the cases I’ve mentioned, is that there was always pretty good evidence that the family members were not intending immigrants. The visas were denied or revoked anyway, seemingly solely because a relative had filed for asylum. Another problem with this argument is that all my clients’ asylum cases were legitimate (two were granted and one is pending). I can more easily understand the consulates revoking or denying a family member’s visas where their relative has filed a fraudulent claim. But that is not the situation in any of the cases I’ve discussed.

As things now stand, asylum seekers in the U.S. face a sort-of Sophie’s choice: Save myself and the family members in the U.S. with me, but sacrifice my relatives who are trying to get visas. I don’t see how this comports with the spirit of our international obligations, or with any notion of morality. It seems naive to imagine that this policy of excluding family members of asylum seekers will be discontinued anytime soon, but maybe if the consular sections continue to act contrary to the diplomatic sections, as happened to my client’s sister, there will be some pressure to behave a bit better. For the sake of diplomacy and human rights, I hope so.

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Responding to the Center for Immigration Studies on Asylum

by Jason Dzubow

The Center for Immigration Studies (“CIS”) is a restrictionist immigration group with which I rarely agree (though they did recently call me a babe, which I certainly appreciate). In a new report, Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled, CIS Fellow Dan Cadman argues that it has become easier to obtain asylum in the U.S., and as a result, more aliens–including dangerous aliens and aliens with false asylum claims–are coming to the United States and using the asylum system to gain entry into our country.

If I were a president, CIS thinks I would be Babe-raham Lincoln.
If I were a president, CIS thinks I would be Babe-raham Lincoln.

The CIS report makes a number of findings and recommendations, and if you are interested in this subject, it’s worth a read (and if you are not interested in this subject, why the hell are you reading my blog?). Today, I want to talk about the report’s main recommendations. We’ll go through them one by one:

(1) Congress must take steps to legislatively curb the propensity of courts to grant protections to aliens who are members of, have participated in, or have materially supported heinous criminal organizations or insurgencies… if those organizations systematically victimize others. This can be done by amending current language that limits the persecutor bar only to those who persecute under the five designated grounds, or by adding supplementary language to establish victimization of others with the purpose of furthering unlawful objectives as a bar to asylum or refuge.

Who can argue with blocking persecutors and criminals from entering the United States? (Anyway, we have enough of our own already–I’m talking to you Dick Cheney). And CIS is correct that the persecutor bar only blocks people who persecuted others based on one of the five protected grounds (race, religion, nationality, particular social group or political opinion). This is almost as bizarre as granting asylum only to people who face persecution based on one of the five protected grounds.

Overall, I don’t really have a problem with this recommendation, except for the fact that it is totally unnecessary. The persecutor bar is not the only bar to asylum. Anyone who committed (or who the U.S. has reason to believe committed) a serious non-political crime is barred. Ditto for anyone where there are reasonable grounds to believe that the person is a danger to the security of the United States. These are mandatory bars for asylum and withholding of removal. So while there is nothing wrong with CIS’s proposal, it’s hard to imagine how it would actually change anything–all the people it seeks to block are already barred under other provisions of the statute.

(2) Congress must roll back the recently-issued “Notice of Determination” promulgated by the administration with relation to terrorism and material support waivers.

I’ve already discussed this issue pretty extensively here. In short, the only people who benefit from this change are those who provided support to terrorists where that support was coerced or unknowing. In other words, people who are innocent, and who, in many cases, are actually victims of those terrorists.

(3) DHS (and, failing its action, Congress) must immediately institute a mandatory program of routine audits of a percentage of both credible fear findings, and formal asylum grants — perhaps an across-the-board 10 percent of all cases — as a method of detecting fraud and ensuring appropriate findings of credibility, and approval of asylum cases.

This is an intriguing idea about how to stop fraud, but I don’t think it would be particularly effective. I’ve always felt that the most cost-effective way to fight fraud is to go after the attorneys and notarios who commit fraud. Randomly auditing cases probably won’t deter fraudulent applicants–they already face scrutiny from decision-makers, so what’s one more level of review going to do?

Perhaps one way to refine CIS’s idea would be to select certain applicants for a more extensive interview or court process (rather than a separate audit). This might involve consular investigations or contacting overseas witnesses, more extensive questioning of the applicant, verifying the applicant’s employment and education, etc. Applicants could be selected randomly or–better yet–selected based on an initial evaluation of the likelihood of fraud. While I still think it makes more sense to attack the source of the problem (the attorneys and notarios who facilitate fraud), subjecting suspicious (or random) cases to increased scrutiny might deter some people from making false claims.

(4) The prosecution of asylum (or refugee) fraud and misrepresentations [should be made] a priority.

Again, I think it would be more cost-effective to prosecute the lawyers and notarios who create fraudulent cases, but I have no problem with prosecuting asylum applicants who commit fraud. The problem is, such cases are difficult to prosecute given the high burden of proof (beyond a reasonable doubt) and the difficulty of obtaining evidence against the alien who faked his case. Such evidence is especially difficult (and expensive) to obtain when it comes from overseas.

(5) Congress should amend the INA to provide that refugees and asylees will only be entitled to apply for conditional residence after a year in status, and not eligible to apply for adjustment to full lawful permanent resident status until after three years…. Although the three years of conditional residence does not eliminate fraud, it acts as a levee against an overwhelming volume of fraud while at the same time permitting government officials additional opportunities to further examine the bona fides of cases before immediately granting resident alien status.

I guess I really don’t see the point of this suggestion. As things now stand, an alien who gets asylum can apply for a green card after one year. At that time, USCIS often re-considers the alien’s asylum case. For example, many Ethiopians who received asylum based on membership in a certain political opposition party have had their green cards held up (sometimes for years) due to the party affiliation (and the party’s possible relationship to an armed guerrilla group). Sometimes their asylum cases are reopened. Once an asylee gets her residency, she can apply for citizenship after four more years. At that time, USCIS often examines the bona fides of the asylum application again. Indeed, even after an alien obtains citizenship, a fraudulent application can haunt him. I recently met an Afghan man whose citizenship was revoked due to fraud. He is currently in removal proceedings. The point is, USCIS has plenty of opportunities to re-examine an asylum claim. I don’t see how one more opportunity will make much difference.

(6) Each application for adjustment of status filed by an asylee or refugee should, prior to adjudication, include careful consideration of whether there are changed conditions that merit denial of adjustment and termination of asylee or refugee status.

This seems pretty similar to # 5, above. Perhaps it also refers to changed country conditions that now make it safe for the alien to return home. I suppose USCIS could use any of the opportunities discussed above (application for green card or citizenship) to re-evaluate country conditions. But country conditions rarely change too much, and so I doubt this would result in many asylees being sent home.

(7) Congress should amend the INA to provide that return to the ostensible country of persecution, however briefly, by a refugee or asylee at any time prior to adjustment to full lawful permanent residence shall be deemed prima facie evidence that the individual is not entitled to such status, and require him to be placed into removal proceedings.

This idea was much discussed after the Boston Marathon bombing. The alleged bombers were derivative asylees, and they visited the home country prior to the bombing. In fact, as the law now stands, asylees who return home can lose their status. Indeed, even after an asylee becomes a lawful permanent resident, she can lose her status if she returns home (I wrote about this here). Return to the home country does not automatically cause an alien to lose status, as there are sometimes legitimate reasons for going back, but anyone who returns as an asylee or an LPR risks being placed into removal proceedings. Because this law already exists, CIS’s suggestion here seems redundant.

So there you have it. For completeness sake, I note that I did not discuss the report’s recommendation to reject an asylum reform bill that is pending in the Senate. It seems that bill ain’t going anywhere, and so there is not much point in talking about it, especially since I’ve already rambled on long enough. Adieu.

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Raoul Wallenberg Lives! Maybe.

by Jason Dzubow

Raoul Wallenberg was a Swedish diplomat assigned to his country’s mission in Nazi-occupied Hungary. He arrived at his station in 1944, when tens of thousands of Jews were being deported to death camps.

Sometimes, to do the right thing, you have to break the rules. And follow the Raouls.
Sometimes, to do the right thing, you have to break the rules. And follow the Raouls.

Using his cover as a diplomat, Mr. Wallenberg saved thousands of Jews from deportation. He gave them Swedish identity documents (of questionable legality), which protected them from deportation. He also rented various properties that became part of the Swedish mission, and which were thus protected by diplomatic immunity. The buildings ultimately housed (and protected) almost 10,000 people. Mr. Wallenberg used all the means at his disposal–legal and illegal–to save lives. All told, he is credited with saving over 100,000 men, women, and children.

I was reminded of Raoul Wallenberg when I heard the story of how my newest client came to the United States. 

The client is a young man from Syria. A pro-government militia arrested him and his friends. They were accused of involvement in anti-regime activities and taken to prison. My client was lucky enough to recognize one of the guards, who intervened and had him released. My client’s friends were not so lucky. They were ultimately released, but not before suffering severe torture.

My client made his way to another country and applied for a U.S. visitor visa. As my client related the story, it was clear that the consular officer thought the client might seek asylum in the United States, and he questioned the client about whether he faced any threats in Syria. Although he obviously had suspicions, the officer issued the visa, and now the client is seeking asylum.

Consular officers are supposed to deny visitor visas to applicants that they think have an immigration intent (an intent to seek asylum is considered an immigration intent). My suspicion here is that the consular officer correctly surmised that the client had immigration intent, but he issued the visa anyway. Was this, perhaps, a Wallenberg-esque move? Did the officer issue the visa precisely because he knew the endangered client could (and would likely) seek asylum in the U.S. and thus escape the danger in Syria?

Obviously, I have no idea what was in the consular officer’s mind, but it is interesting to consider his situation. When a Syrian or an Iraqi or an Afghan applies for a visitor visa, there is a decent chance that the visa applicant will travel to the U.S. and seek asylum. The consular officer’s job is to prevent that from happening; to anticipate who is an immigration risk and to deny a visa to that person. But what if denying the visa might result in the person’s death?

It is easy to say that the consular officer should just do his job and deny the visa, but at the end of the day, the officer has to live with himself and his decision. For me at least, it would be difficult to meet a person who is likely fleeing for his life, and to then deny him a path to safety. Also, if it were me, I would feel that I could accomplish something positive and life-affirming by issuing the visa and helping the person come to the United States.

But of course, the visa system is designed to do more than just block intending immigrants from gaining entry into the U.S. It is also designed to block terrorists and criminals. This is not an issue that Raoul Wallenberg had to deal with. In Mr. Wallenberg’s case, he was not giving out valid travel documents. He was just giving out passes that the German and Hungarian authorities generally respected. This prevented the Nazis from murdering the people who held the passes, but no one was traveling to Sweden (or anywhere else) on Mr. Wallenberg’s passes. There was no danger that Nazi agents would use the passes to infiltrate other countries or cause other harm.

In the case of a (hypothetically) modern-day Raoul Wallenberg who gives out visas to people fleeing persecution, the danger of helping a terrorist or criminal would have to be balanced with the desire to save lives. I don’t envy the consular officers who–whether they like it or not–have to make life or death decisions where their desire to help must be tempered by their duty to protect the United States and follow the law.

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Why Has the Asylum Office Skipped My Case? Part 2: Solutions

by Jason Dzubow

Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS’s justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.

DHS has created a new, less humorous version of the old NPR gameshow.

First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I’ve heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an “expedite list,” it would be helpful to know the applicant’s place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person’s place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.

Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can’t DHS prioritize expedite requests where the applicant has a spouse or child overseas?

A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress–even a little–with the old cases, it would give hope to the people who are waiting.

Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.

In a perfect world, asylum cases would be processed in the order received. However, I understand DHS’s concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.

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Why Has the Asylum Office Skipped My Case?

by Jason Dzubow

If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has–seemingly–disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?

The storage room for backlogged asylum cases.
The storage room for backlogged asylum cases.

As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a “credible fear interview” to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.

Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS’s decision to give priority to the border cases.

To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That’s the good news.

But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the “backlog.” There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn’t DHS doing the cases in the order received?

First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.

If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.

Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.

I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.

The second issue I want to discuss is the logic behind DHS’s decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.

The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.

Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.

Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members–especially when those family members are in dangerous or precarious situations–the delays can be deadly.

So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.

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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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