Before they can receive asylum, every applicant must undergo a security background check. But what exactly does the government check? And how can they learn about an applicant’s background when she spent most of her life outside the United States?
To me, these security background checks have always been a bit of a mystery. I’ve heard that the checks involve multiple agencies (FBI, State Department, etc.) and multiple data bases, but I did not know much more than that. Now, a recent article has shed some light on at least one type of background check: The FBI’s Terrorist Explosive Device Analytical Center (TEDAC) operates the nation’s “bomb library,” which keeps data on explosive devices used in terrorist attacks. TEDAC is directed by Greg Carl and operates out of Quantico, Virginia.
Each bomb maker leaves a unique signature.
TEDAC analyzes the “remnants of improvised explosive devices… in hopes of recovering latent prints from the insurgent bomb makers who crafted them.” The Center has created a “comprehensive database of known terrorists for all law enforcement, the U.S. intelligence community and the military to share.” The Center has received evidence from the “underwear bomber,” the Boston Marathon bombing, and from attacks all across the world. The evidence collected by TEDAC comes from “bombings in as many as 25 countries from as far as the Horn of Africa and Southeast Asia, in addition to the United States:”
More than 100,000 boxes of evidence have been collected so far. They contain more than a million fragments fashioned from ordinary objects, which are barcoded and labeled before going through a wide array of forensic examinations, including toolmark identification, which allows matches of fragments to be made. Every scrap is searched for clues to a bomber’s identity.
The Center’s work seems to be effective. “According to Mary Kathryn Book, a physical scientist with the lab, ‘Approximately 60% of the time, we are able to recover prints from these items through fingerprint processing. And then later these prints are searched in our database and we attempt to identify the individuals who left them.'”
One project that is directly relevant to refugees and asylum seekers is the ongoing examination of IED material from Iraq to determine if “any Iraqi refugees relocated in the United States may be tied to IED attacks, as was the case with two Iraqi refugees based in Kentucky.” (I wrote about this issue here).
Unfortunately, our Congress has decided to cut funds from TEDAC (well, “decided” might not be accurate – they simply slashed and burned the budget indiscriminately). For all of us, there is the concern that we will be less safe due to these budget cuts. For asylum seekers fleeing persecution, it likely also means more delays for security background checks. This means longer insecurity and separation from family. In the unlikely event that Congress gets its act together, we can only hope that TEDAC will receive the funds it needs to keep operating effectively.
It seems that advocates for “Dreamers”–young foreigners who would benefit from the Dream Act–are trying a new tactic: Leaving the country and then returning to seek asylum. Not long ago, I wrote about the Dream 9, who presented themselves at the U.S./Mexico border and requested asylum. They were released and will have to appear before Immigration Judges, who will decide their cases. Now, we have the Dream 30, who have done pretty much the same thing. This new tactic holds promise and risk, both for themselves and for other asylum seekers.
“Dreamers” might be a particular social group, but I am not so sure about “dreamboats.”
Asylum, of course, is a legal tool that has been used and expanded by creative lawyers. When the modern asylum system was created by the Refugee Act of 1980, many people who routinely receive protection today–victims of female genital mutilation, LGBT individuals, victims of domestic violence–would likely have been ineligible for asylum. To the extent that their actions are not simply a type of civil disobedience, the Dreamers seem to be seeking to expand the category of protected individuals to include people who grew up in the U.S., and who face threats in their home countries because they are viewed as “American.” This strategy raises two basic questions: (1) Will it work? and (2) How will it affect other asylum seekers?
First, will it work? I think it might, at least in some cases. I’ve represented several asylum seekers who made claims similar to the Dreamers: A lesbian who had not been to her home country of Sudan since she was young, Afghan women (and a few men) who studied in the U.S. and who are viewed by extremists as “Westernized,” an Iraqi woman whose family was associated with the U.S. These applicants were successful (or their cases are still pending), but my guess is that their claims are stronger than most of the Dreamers’ claims. Nonetheless, the principle is the same.
A broader–and more radical–solution for the Dreamers might be if the Obama Administration defined them as a particular social group for asylum purposes. There is precedent for such a move: In 2009, DHS issued a brief in Matter of LR where it stated, “DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group…. This does not mean, however, that every victim of domestic violence would be eligible for asylum.” Prior to the end of DOMA, I (clumsily) advocated a similar approach to help LGBT couples.
If DHS agrees that deported Dreamers are a particular social group (defined as “young, Americanized Mexicans,” for example), they would then need to demonstrate that they face persecution in their home country based on their social group. DHS could potentially make a blanket determination that members of this social group would face persecution in Mexico, El Salvador or wherever, and – Voila! – Dreamers get asylum, and you effectively pass the Dream Act without Congressional action (and they could apply for asylum without leaving the U.S.).
Of course, there would be consequences to such an approach, which brings us to the second question: How will it affect other asylum seekers?
For one thing, unless significant resources were re-allocated, giving asylum to the Dreamers would completely overwhelm the asylum system. That system has already been ground to a halt by a few extra thousands arrivals at our border, so it certainly could not handle millions of new cases.
In addition, it would be very expensive. There are no government fees for asylum applications. Presumably, if the Dream Act becomes law, Dreamers will pay a fee to regularize their status. In general, USCIS is operated based on filing fees (that is why it has not been closed by the government shutdown), so these fees would be needed to adjudicate the Dreamers’ cases.
Third–and this for me is the real problem–it will harm (or destroy) the integrity of the asylum system. Asylum, by definition, is an individualized form of relief. While one person from a particular country may have a strong asylum case, another may have no case at all. To view these cases collectively sets a very bad precedent. Worse, to grant asylum to an entire group (i.e., Dreamers), many of whom probably would not otherwise qualify, turns the asylum system into a political tool for avoiding the normal legislative process (i.e., passing the Dream Act). Such a move would do great damage to the asylum system, a system that is supposed to be free from political influence.
Asylum as a blanket solution to the Dreamers’ dilemma is certainly not the best way to solve the problem. It would obviously be much better for Congress (specifically the House of Representatives) to pass the Dream Act and Comprehensive Immigration Reform. But as a strategic approach, perhaps the “threat” of giving asylum to all Dreamers might provide an incentive for the House to take up immigration reform. After all, the language of nihilism, self destruction, and ends-justifies-the-means is the only language that the House of Representatives seems to understand.
At the heart of the Republicans’ intransigence on the budget and the debt ceiling, and their willingness to shut our government down in order to (sort-of) block Obamacare, lies an utter contempt for America’s government and its employees. A willingness to disrespect, blame, and penalize government “bureaucrats” for everything and anything. They love to quote President Reagan‘s old trope: “Government is the problem.” Well, I have a proposal for you–if you hate government so much, why not try living in a country without one?
As an asylum attorney, many of the people I represent come from countries without decent governments. They come to America because in their countries, there is no security, no jobs, no justice. Let me tell you about some of my clients.
One is a woman from Afghanistan who was pushed into an engagement by her family and her fiance’s family. The woman was highly educated and accomplished. In her job, she helped hundreds of people and she met with many high-level officials, including a U.S. Secretary of State. Her fiance threatened to kill her if she continued her work or education. Did her government help her? No, in Afghanistan, women have no rights when it comes to family matters. She had to come to our government for help, and she received asylum.
I represented a policeman from Nepal who had worked and fought against Maoist guerrillas. Although many outside observers (including the U.S. government) consider the Maoists a terrorist group, they managed to enter politics and eventually take power in Nepal. The result was that when the guerrillas attempted to kill my client, there was no one to protect him. He fled the country and received refuge here.
Another client was a man from El Salvador whose relatives were murdered by gang members. The Salvadoran government was unable to control the gang, and so the man fled to the U.S., where he received protection.
I’ve represented an old lady from Iraq. A Shi’ite militia kidnapped her son. There was no one to protect the family, so she paid a ransom to have the son released. After that, the militia continued to extort and threaten her until she came to the U.S. and received asylum.
The list goes on and on, and it’s not just an absence of government; it’s bad government: A Falun Gong practitioner who was beaten by Chinese officials; a Somali man, shot in the leg by militiamen; an Ethiopian political activist beaten and tortured by police; a political activist from Zimbabwe who was raped by police after she attended a political rally; a Rwandan Tutsi woman who saw her family members murdered in front of her; a Syrian doctor held in a torture prison; a Russian political activist stripped of his citizenship and threatened; a gay man from Egypt beaten by the police; a lesbian from Serbia who was gang raped. And on and on and on. And that’s not counting all the corruption and discrimination that are endemic in most governments around the world, but which would not form the basis for an asylum claim.
From my point of view, there is great value in an honest (or at least mostly honest) bureaucracy. To disrespect our government workers, to punish them and hold them hostage to a political agenda, and to crush their morale is not just a disgrace. It demonstrates a shocking naivete about how the world works, and about how governments and economies work. Such naivete might be excusable in a college freshman enchanted by Ayn Rand, but it is criminally negligent in an elected official.
Since they don’t have the votes to repeal the Affordable Care Act–a law that has been properly voted on and survived a Supreme Court challenge, not to mention the re-election of President Obama–House Republicans have just shut the government down. They couldn’t do that to the United States and its employees unless they had utter contempt for those employees. That attitude moves our country in the direction of places without a good government; places like Somalia, Afghanistan, and Iraq.
So, House Republicans, I invite you to visit countries where government really is the problem. Or speak to my clients, who understand all too well what that means. Maybe if you were not so ignorant, you would be a bit more respectful of the people who keep our country great, our government employees.
One of the benefits–if that is the right word–of working on asylum cases is that you get to learn about a side of the world that is hidden. Countries that persecute people usually don’t like to publicize what they do. Most times, the knowledge really isn’t all that news worthy. It’s interesting and sad, but we’re all busy, and there’s only so much time in the day to worry about these things. But a client recently sent me this story, and I wanted to pass it on. It reflects one small piece of theSyrian refugee crisis.
Syrian refugees on the boat. The woman killed by the Egyptian Coast Guard is visible at the bottom right.
My client is a Syrian asylum seekers (currently stuck in limbo along with most asylum seekers in the U.S.). He has contacts with the Syrian Free Army and has been involved in the humanitarian effort to help his people (the UN estimate that the war has created1.5 million refugees and 4 million IDPs).
Apparently, some Syrian refugees in Egypt were trying to escape Egypt and reach Sweden. The first leg of their journey involved a boat trip to Italy. While they were still in Egyptian waters, the Egyptian Coast Guard chased them, fired on their boat with live ammunition, and then captured the refugees. Two people were killed by the gunfire. As of today, the refugees–men, women, and children–remain detained in Egypt in difficult conditions. My client was able to talk with one of the detained refugees by cell phone. Below are some excerpts from the conversation (translated from Arabic and edited by me for clarity).
The trip began last Tuesday, September 17, at 8:00 AM. We started from the shores of Alexandria, Egypt towards Italy. We hoped to reach Sweden to apply for political asylum. When the boat left, we were in extremely hard conditions and the boat itself was in very bad shape and very old. The boat was carrying almost 200 persons, including 30 children as young as four months old. There were also about 50 women; some of them are pregnant. The rest were men aged 20 to over 50.
After sailing for almost an hour, we were surprised that the Egyptian Coast Guard was tracking us. They began shooting live ammunition towards us, even though they could hear the screams of women and children and all the people on-board, and we waved our hands at them hoping they would stop shooting. They did not respond to our desperate cries and they kept shooting at us until our boat stopped. Then some Coast Guard members jumped onto our boat and threatened everyone with their guns. They did not even try to help the wounded among us.
The daughter of Fadwa Taha mourns her dead mother.
When the situation calmed down for a moment, we discovered that there were two dead people, killed by the shooting. They are Omar Dalloul, a man in his late thirties, and Fadwa Taha, a woman in her fifties. There were also two people wounded–a 15-year-old boy and a young man who is 20 years old.
After that, the boat was towed to Aboukir Harbor in Alexandria (which is a military harbor), the coast guard did not allow any humanitarian agencies or media to document the incident. They pressured us to leave the boat. We tried our best not to leave the boat before having any organization present like the Red Cross or other humanitarian organization. We stood on the boat for four hours and tried to contact anyone to help us, but it was no use. Finally, the Egyptians promised that we would go to the police station for an hour to sign some paperwork and then be released. But when we arrived at the police station, they took our passports and we have not been allowed to leave.
Immediately after we left the boat, we were detained in the port for 15 hours in the open. The children and women slept on the floor without any blankets. Finally, at around 2:00 AM on Wednesday, our group was divided up and we were transferred to two police station in Alexandria: Almountazah 2 Police Department and Aboukir Police Point.
Syrian men and boys detained at the Egyptian police station.
The situation is very bad in prison. The part of the prison where we are does not have water or bathrooms because it is still under construction. Every day, construction workers and painters come and work here and the kids are suffering from the smell of paint. Also, there is a swamp nearby and so we are suffering from mosquitoes and flies.
We have babies who need nursing and the police won’t let them out of the prison. We have a boy who is here alone without his parents. When his family came to take him, the police didn’t agree. They said that he is charged and he needs to stay in prison. He is nine years old.
No media have covered our story, but we think some charity knows we are here because we are receiving food. We are not sure who is providing it, but it is not from the prison.
As far as I know, the refugees are still detained in Alexandria. Of course, I cannot verify this story, but it comes from a source I trust.
Egypt has signed the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. We can only hope that despite the turmoil in their own country, the Egyptians will live up to their obligations and treat these and other refugees with respect.
Just prior to the 2008 presidential election, the AP broke a story about Candidate Obama’s Aunt Zeituni, a rejected asylum seeker who was living in the U.S. illegally. The source for the story was an unnamed “federal law enforcement official.” At the time, it appeared that the leak was designed to harm Obama’s chances for success in the election. As you may have noticed, it didn’t.
After news of the leak broke, ICE initiated an investigate, and speculation about the source abounded.
“Outing” asylum seekers ain’t classy, San Diego.
Fast forward to September 2013 when a heavily-redacted version of the report from the ICE Office of Professional Responsibility was finally made public. The report, which was actually completed in August 2010, states that ICE/OPR identified the leaker, who admitted what he did. However, it does not name names, nor does it indicate whether the leaker was punished. However, from a careful review of the report, some on-line research, and a bit of deduction, we can make a pretty good guess about who leaked Aunt Zeituni’s name and immigration status to the press.
We begin with the initial AP article, which was written by Eileen Sullivan and Elliot Spagat. The article does not name the source of information, but it states that the Aunt’s asylum application was denied in 2004 and she was ordered deported.
The ICE/OPR report indicates that the leaker was interviewed by “OPR/San Diego” in May and June 2010. The leaker admitted that he spoke with a male reporter (the names of the journalists are redacted, but it is most likely Elliot Spagat). The leaker stated that the disclosure was an “error in judgment.” He also claimed that he had no “political motivations.” Instead, he revealed the aunt’s illegal status because it was “very interesting information” and he thought “the American public has a right to know that.”
According to the report, the leaker had spoken with the reporter before and had a history of getting together with him socially. The leaker was first introduced to the reporter in 2007 by someone at the DHS Office of Public Affairs (which is the “primary point of contact for news media, organizations and the general public seeking information” about DHS). The leaker did two or three interviews with the reporter in the course of their relationship.
From this, we can glean some useful information about the source of the leak.
First, since the interview was conducted by OPR/San Diego, we can guess that the leaker is in San Diego. This conclusion is supported by the fact that the reporter (Mr. Spagat) is based in San Diego, and apparently the reporter and the leaker had met up socially a few times.
Second, the fact that the journalist had interviewed the leaker for two or three prior stories, and that the leaker was purposefully introduced to the journalist by the Office of Public Affairs points to a higher-ranking ICE officer. A lower-ranking employee would probably not be introduced to a journalist by the Office of Public Affairs or interviewed several times.
Since the leaker admitted to having been interviewed “two or three” times between 2007 (when he met the journalist) and October 31, 2008 (the date of the leak), we can look for names of ICE agents who appear in Mr. Spagat’s articles during this period.
Some on-line research revealed a few names, though one stood out because he appeared in several articles by Mr. Spagat in 2007 and 2008, but did not appear in any article after the election. While this person was the most likely suspect, I certainly did not have enough evidence to be sure.
I thought the best approach would be simply to ask the person. I found his email, and sent the following message:
I have been investigating the disclosure of President Obama’s aunt’s case prior to the 2008 election. My research has led me to believe that you informed AP reporter Elliot Spagat about the aunt’s case. I am writing to ask whether you would be willing to discuss this situation. Please let me know.
A few days later, I received this response from an attorney in Washington, DC who specializes in national security law:
My friend [redacted] contacted me about your e-mail inquiring about the disclosure of President Obama’s aunt’s case prior to the 2008 election. As I am sure you can imagine as a current ICE agent [redacted] would never be permitted to discuss a specific case without authorization from his agency. Respectfully, therefore, he can not respond to your e-mail.
Since this email came from a lawyer (and a pretty fancy lawyer at that) instead of DHS Public Affairs, and since it was not a denial, I suppose it provides some additional support for my theory about the leaker’s identity, but it was still not enough. I responded as follows:
Thank you for writing… I understand his position. Given the evidence I currently have, it seems very likely to me that he is the person who leaked the information. That said, it is currently not my intention to name him in the blog post (even as a suspect), as I do not wish to implicate anyone unless I am 100% certain about my information. If anything changes in that regard, I will contact you before I publish anything.
And that is as far as I got. So I guess I will not be winning any prizes for investigative journalism. While I feel that the public has a right to know who violated Aunt Zeituni’s confidentiality, I believe it would be wrong to accuse someone by name without stronger proof.
The OPR report indicates that “no prosecutorial actions” were taken in the case. I suppose that means that the leaker was not punished. He could have been: It is a violation of the law to violate an asylum seeker’s confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002).
To me, it is ironic that the leaker’s confidentiality received more protection than that of the asylum seeker. However, the fact that ICE investigated the leak and took it seriously will, we can hope, deter others from revealing such confidences in the future.
This piece was originally published by [wherever] magazine, an out of place journal of travel literature, travel culture, and travel politics. I will periodically be blogging for the new magazine, which seems like a very cool publication (probably too cool for the likes of me, but for now, I’m still in).
I wrote this piece because I am contacted pretty regularly by U.S. citizens who are seeking asylum abroad, or who are thinking about it. Some of these asylum seekers are not so legitimate in my estimation–criminals who hope to avoid the consequences of their crimes. Others represent sad situations that involve people who have been frustrated by their inability to receive help from the government. Victims of domestic abuse are one example in this category. Also, there are those who are engaged in political activity (or what they consider political activity) that could result in criminal penalties here. Edward Snowden falls into this category. So do certain cannabis activists and others in favor of drug legalization (people who consider drug use a political act).
Some people need to flee the U.S.; others just need to leave already.
OK, without further ado, the original piece is here (where you can also check out some interesting articles and photos), and a slightly shortened version is below:
Let’s say you’ve decided to flee the United State of America. You’re not some high-profile asylum seeker like Edward Snowden, who can count on help from a rival government (Russia). Instead, you’re just an ordinary asylum seeker, who will have to demonstrate that you qualify for protection under international law. How would you go about it?
To qualify for asylum, you need to demonstrate that you are a “refugee” under international law. According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.” The first thing you need to do in order to qualify for asylum is to leave the United States.
While a Julian Assange might get away with living in a friendly embassy (Ecuador in his case), you’re probably no Julian Assange. Most people who ask for refuge inside an embassy will be summarily evicted. So don’t think you can simply waltz into the nearest consulate of your choice, tell them you need assistance, and that they will provide you with a bed and three squares. It just doesn’t work that way. So you’ll first need to get out of the U.S.
Assuming you make it safely to your new country, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. “Persecution” has been defined as “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” So for example, if you’re a cannabis activist who faces jail time for smoking pot, you likely would not qualify for asylum because this punishment is not severe enough to constitute “persecution.”
Even if you have been persecuted, that might not be enough to win your asylum case—the persecution has to be on account of race, religion, nationality, membership in a particular social group, or political opinion. If you fear harm because you revealed government secrets, a la Edward Snowden, that might not be considered one of the protected grounds, and so you would be out of luck (though perhaps you could argue that your “whistleblowing” was a form of political activity and thus gain protection). Also, if you fear persecution from criminal gangs, or you face domestic violence, or you will be harmed because of your sexual orientation, you may or may not qualify for asylum—it depends on the law of the country where you are requesting protection. For this reason, you would be well served by doing some research about the country where you plan to seek protection before you make the trip.
So how do you actually make the claim for asylum once you reach your destination country? In many countries (including most countries you’d actually want to go to), there is a form to complete where you provide information about yourself and your claim. You also need to submit evidence—identity documents like your passport, and school and work records, evidence of harm such as medical records and police reports, letters from people attesting to your problems. Then you will be interviewed about your application. Small mistakes on the form or during the interview—a wrong date for example—might cause the adjudicator to conclude that you are not credible, and that your claim is false. Also, seeking asylum from a powerful and influential country like the U.S., a country that generally respects human rights, will be an uphill battle. And remember, there is a good chance you will be doing all of this in a language you don’t understand, possibly while the host government is detaining you as an illegal migrant. The case will take months if you are lucky and years if you are not. Some governments provide limited benefits such as housing and a small stipend for people with pending asylum cases; other governments require asylum seekers to fend for themselves.
Assuming you pass the interview and are granted asylum, what then? You might receive some assistance from the host country—housing, language instruction, job placement—or you might not. In some countries, you can petition to bring your immediate relatives (minor children and spouse) to join you. This will likely take many months, on top of the many months you already waited for the decision in your case. If you ever return to the U.S., you will quite possibly lose your asylum status and be deported from your new home. So there is a good chance you can’t ever come back, and you probably won’t see many of your relatives and friends again.
As you can see, asylum is often a difficult, frightening, and traumatic process. Good Luck (though you will need more than that!).
It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.
Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?
The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.
This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).
One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).
If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.
Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.
You can see more reviews of Bench Pressed and buy the book here.
Two recent incidents involving my asylum seeker clients have revealed what might be a disturbing trend at the overseas U.S. consulates: A near complete disregard for asylum seeker confidentiality.
Both incidents involved family members of asylum seekers who had applied for visas to enter the United States. One incident occurred in Europe; the other in the Middle East. In each case, family members of asylum applicants applied for non-immigrant visas to the United States. The asylum cases were pending at the time the family members went for their interviews. In each case, the consular officer denied the visa and told the family member that the reason for the denial was because their relative had filed for asylum in the U.S., and that they (the family members) were thus intending immigrants, ineligible for non-immigrant visas.
Some people just can’t keep a secret.
Asylum cases are supposed to be confidential. Confidentiality is important because some foreign governments will punish people who have “defamed” them by seeking asylum abroad. Indeed, when the U.S. government has violated an asylum seeker’s confidentiality, it may create a new basis for an asylum claim. The most well-known example is President Obama’s aunt, who received asylum after her case was leaked to the press.
I have successfully made such claims on behalf of clients whose confidentiality was violated by U.S. Embassies during overseas investigations. The most egregious case involved the U.S. Embassy in Cameroon (this was some years ago). The Embassy submitted a letter, stating that they had inquired only whether a certain police officer worked at a certain police station (the officer had signed a warrant against my client). The Embassy letter emphasized that confidentiality had been maintained. In the response letter from the police in Cameroon, it was clear that the U.S. Embassy had revealed much more information about my client–the letter referenced the case number against the client and the date of his arrest. If the Embassy had revealed only what they claimed to have revealed about my client, there is no way that the Cameroonian police would have had this additional information. By revealing identifying information to the police, the U.S. Embassy put my client at additional risk.
The more recent cases from Europe and the Middle East are perhaps less egregious because the information was revealed to family members and not to the home government. Nevertheless, it is a problem. Many people–including many of my clients–have claimed asylum based on persecution by family members. This is true in cases involving domestic violence, forced marriage, and (sometimes) persecution based on sexual orientation, for example. Thus, revealing an asylum application, even to family members, potentially endangers the applicant.
In addition, of course, it is a violation of the law, which requires confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Indeed, government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002) (unpublished opinion) (affirming decision of Merit Systems Protection Board concluding that breach of section 208.6 was a firing offense irrespective of whether that breach was harmless).
So what will become of my clients and their family members? And what about the consular officers who violated my clients’ confidentiality?
I don’t see how the rejection of the family members could affect my clients’ asylum cases. Of course, they will remain separated from their families, which is a severe hardship, but it should not impact their chances to receive asylum (in fact, one of the clients did recently receive asylum). As for the family members, instead of coming here immediately, they will now wait for a “follow to join” petition and they will have to come here as asylees. This may not be what they want, but there is no other option.
As for the consular officers, it is unlikely that my clients will make complaints against them. We do not even know their names (though I suppose we could find out) and it would be the family members’ words against the consular officers, so I doubt anything would come of it.
I do hope that the State Department will be more careful about revealing confidential information in the future. There really was no reason to tell the family members about my clients’ asylum applications. The consular officers could simply have denied the visas without an explanation (as they often do anyway).
Confidentiality of asylum claims is important to the asylum seekers and to the integrity of the asylum system. I hope that consular officers will take their responsibility in this regard more seriously.
In the last couple posts, I wrote about how the asylum system is being strained by a significant uptick in the number of credible fear interviews and for other reasons. I concluded that the “new normal” for asylum seekers will be longer delays. This means longer separation from family, and greater stress and uncertainty. Today, I want to discuss some ideas for alleviating this problem.
The most obvious solution is probably the least likely–throw money at the problem. Of course we live in a time when politicians are falling all over themselves to cut spending. But if you will indulge an old (well, middle aged) lawyer, I’d like to suggest some reasons why the asylum program is worthy of more financial support.
Replacing Asylum Officers with computers is one way to save money. What could go wrong?
For one thing, there are over 45 million displaced people world-wide (this includes refugees and internally displaced people). As a world leader, the United States has an important role to play in the humanitarian realm. If we do not assist refugees and asylum seekers, other countries will follow suit. Fulfilling our international obligations is part of what makes us a world leader.
Second, while it obviously costs us money to resettle refugees and asylees, over the long run, I believe that most of these people greatly benefit our nation. Some of those we help (such as many of my clients) are men and women who assisted us in our missions in Afghanistan and Iraq. If we wish to maintain credibility with future allies, we cannot abandon those who helped us in the past. More generally, many asylum seekers are successful, talented people who will make important contributions to our country.
Third, we have created many of the messes that led to the large number of displaced people in the world today. That is particularly true in Central America where we toppled governments and supported dictators pretty much willy nilly. It’s also true to a lesser extent in Indochina and the Middle East. I am not saying that in many cases we did not have legitimate geo-political objectives, but since we (inadvertently) helped create the mess, we should help clean it up.
Finally–and this is probably the most important reason in my opinion–helping people in need is simply the right thing to do.
So for all those reasons, our asylum program deserves sufficient funding to fulfill its purpose without undue delays. The program assists incredibly vulnerable people, fulfills our international obligations, helps us maintain our leadership position in the world, and brings to the United States many ambitious, intelligent, and highly motivated people who will make our country a better place. Thus, my number one solution for reducing delays in the asylum process is to devote more resources to the system.
Some other–less expensive–thoughts on how to solve this problem:
– Issue work permits immediately: If the Asylum Offices know that cases will be delayed more than 150 days (the waiting period before an applicant can file for her work permit), why bother to make people wait? When the Asylum Offices know that a case will be delayed, they should allow the applicant to obtain a work permit immediately. This might require some creativity when it comes to the current law, but it should be do-able, and it would alleviate some of the pressure on asylum applicants.
– Prioritize cases based on family separation, past harm, and strength of the case: While such an evaluation would necessarily be imperfect, giving priority to cases that meet certain criteria would be better than doing nothing. Especially in cases of family unity, moving certain cases more quickly would make a big difference to the more needy applicants.
– Help Mexico: Many asylum seekers come through Mexico, a country that has been making some efforts to improve its asylum law. I wrote about this two years ago, but with all the problems in Mexico, we have not heard much about this lately. If Mexico could fully implement an effective asylum law, asylum seekers could be required to ask asylum in Mexico instead of passing through to the U.S. Something tells me that Mexican asylum law will not be up to speed in the near future, but if our goal is to reduce the number of people seeking asylum in the United States, one way to do that is to assist Mexico in getting their humanitarian act together.
– Eliminate or reform the Cuban Adjustment Act: As I have written before, I am not a fan of the CAA–I think that Cubans should apply for asylum like everyone else. But if we are going to keep this law, it should be reformed. Presently, for various reasons, many Cubans end up in the asylum system while they wait for adjustment under the CAA (they have to be here one year before they can adjust status and obtain their U.S. residency). Since they will obtain status based on the CAA, there is no need for them to have any involvement with the asylum system. It is a complete waste of resources. I don’t think this is a major factor in creating delay, but it certainly wouldn’t hurt to segregate Cuban cases from other asylum cases, as there really is no reason for them to be using any asylum seeker resources.
– Eliminate forced family planning asylum: The largest number of asylum seekers in the U.S. come from China. One reason for this is because we have a law offering asylum to victims of forced abortion and forced family planning. The anecdotal evidence suggests that a high percentage of these cases is fraudulent. If the special provisions for Chinese asylum seekers were eliminated, it would likely reduce the number of applicants and the instances of fraud.
So there you have it. We seem to be in a time of change for the U.S. asylum program. I am hopeful that our system is flexible enough to deal with the current (hopefully temporary) changes and that we will continue to serve as a refuge for people fleeing persecution. It is our responsibility and our privilege. And it is the right thing to do.
Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?
I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:
“Don’t worry. The Asylum Office will get to your case before you’re my age. Probably.”
First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).
Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.
Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.
All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.
For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.
In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.
Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.
Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system.
All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.
Last time, I wrote about the Dream 9–nine Dream Act activists who were detained at the border when they tried to enter the U.S. without permission. They were released from detention after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the Asylum Officer that they fear persecution in their home country based on race, religion, nationality, particular social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an Immigration Judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asylum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”
Here are some recent statistics from the Department of Homeland Security:
Fiscal Year
Number of Credible Fear Cases Completed
2009
5,523
2010
8,926
2011
11,716
2012
13,607
2013
22,775
So you can see that over the last several years, the number of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done–these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:
Month in FY 2013
Number of Credible Fear Cases Completed
October
1,596
November
1,242
December
1,603
January
1,795
February
1,921
March
2,139
April
3,124
May
3,336
June
3,776
Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?
It seems the system is one wafer thin mi(gra)nt away from bursting.
The most obvious explanation (and one that other commentators and I have discussed before) is that escalating violence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source (and their report has been called into question), the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but–at least based on the statistical data we have now–that does not seem to be a factor.
Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smugglers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point. And why not? We are already seeing organizations in the U.S. trying to make money before the reform has even passed (check out this website, which purports to know what the reform will be, what the fees will be, and will charge you a mere $3,000.00 + $2,500.00 in fees to Get Started Now!).
Further evidence that smugglers are driving the increase in arrivals can be found by examining the source countries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals (AILA members can see all these stats here). Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from multiple countries indicates that “pull” factors (i.e., the immigration reform debate) are playing a larger role than “push” factors (problems in the source countries).
The increasing number of people arriving in the United States and expressing a credible fear of persecution is straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local Asylum Office (Arlington, VA), for example, the interview process has basically ground to a halt. I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that in the next posting.
If you’re at all following the current debate about immigration reform, you are probably familiar with the Dream 9. The LA Times provides a neat (and mostly accurate) summary of their case:
Last month, the five women and four men, who were brought to the U.S. illegally as children, staged an unconventional and risky protest at the U.S.-Mexico border to spotlight the thousands of people deported under the Obama administration. [Three of the activists left the U.S. recently. They returned with six others who had either left voluntarily or been deported.]
When the Dream 9 — named for the Dream Act, which would provide such immigrants a path to legalization — attempted to reenter the U.S. at the Nogales, Ariz., port of entry on July 22, they were arrested. They had been in federal custody since.
On Tuesday [August 6], immigration asylum officers found that all nine had credible fear of persecution or torture in their birth country [Mexico] and could therefore not be immediately removed.
The Dream 9 (minus one): “Mr. Obama – Tear down this wall, a bit.”
All nine were released, but must appear before an Immigration Judge, who will determine whether they are eligible for asylum. Such cases routinely take two years or more, and the nine men and women will be allowed to remain in the United States while their cases are pending.
Among immigration advocates and attorneys, there is a heated–and not entirely civil–debate about the effectiveness of the Dreamers’ protest. But in this post, I am more interested in how the Dream 9 used the asylum law to avoid deportation and obtain release from detention. Here’s more from the LA Times:
Some of the Dream 9 are petitioning for asylum, saying that they have family members who have been killed and face death threats themselves.
However, many in the Dream 9 claim they should be granted asylum because they belong to a particular group of people — that they are singled out and persecuted in Mexico because they have lived most of their lives in the U.S. They could become targets for criminal organizations that see them as easy prey for extortion and violence, they claim.
Of course, I know almost nothing about the activists’ asylum claims (and no, that won’t stop me from commenting about them), but given the above information, it sounds like their claims are barely cognizable. Not that that necessarily should stop them from seeking asylum, especially where there is no other option. I’ve litigated many cases that seemed weak, and others that were nearly hopeless, and we managed to win a good number of them. While all that is great for my clients who received asylum and hopefully for the Dream 9, it’s not so great for “the system.”
Essentially what is happening with the Dream 9–and with many others arriving at our Southern border–is this: They reach the border, surrender or get caught, and then express a fear of return to their home country. DHS detains them and schedules them for a credible fear interview. At the interview, an Asylum Officer asks the alien about her case. If she expresses a fear of return based on race, religion, nationality, political opinion or particular social group, she “passes” the interview, and is then placed into removal proceedings where an Immigration Judge will (eventually) make a decision in her case. Many aliens will be released from detention while their cases are pending.
While the theory behind the credible fear interview is sound (screening out meritless asylum claims), the low threshold allows knowledgeable applicants to game the system, pass the interview, and–most likely–be released from detention. Probably the only reason that the system is not completely overwhelmed is because most aliens arriving at the border are not knowledgeable about how to frame their asylum claim in order to pass the credible fear interview. And, of course, almost none of the arriving aliens are represented by attorneys (the Dream 9 are represented by a lawyer, but I do not know whether they received legal advice prior to their credible fear interviews).
This all begs the question: Does the credible fear interview system still work? The problem is complicated by the fact that the number of people arriving at the border has increased dramatically over the last few months and the fact that the new arrivals seem more sophisticated about making claims for asylum. These issues, I will cover in the next posting. But for now, I will say that the Dream 9 have shed light on a real problem with the credible fear interview process: Inadmissible aliens can gain entry into the United States by making barely legitimate claims for asylum. While many of these aliens will “pass” the credible fear interview, most will be denied asylum (only about 2% of Mexican asylum claims are granted). The problem is that the increasing number of claims is causing long delays and is threatening to overwhelm the asylum system.
This problem is not new, and it has been known to Asylum Officers and advocates for some time. However, I suspect that the publicity of the Dream 9–combined with the upsurge of people arriving at the border and expressing a fear of persecution–will bring the system under greater scrutiny. So while I support the effort of the Dream 9 to bring attention to the plight of undocumented immigrants, I fear that a side effect of their activity will be further damage to the credible fear system, and further difficulties for legitimate asylum seekers.
For some reason, the Washington Jewish Week–the local Jewish newspaper where I live–found me, and decided I needed a subscription. So for the last few months, I’ve been receiving the paper free of charge (yeh, yeh – insert Jewish joke here).
At first, I was pleased, as I thought it would be good to learn more local Jewish news. But as I read more, I became less thrilled. If the WJW’s goal is to make Jews like me feel part of a larger community, it has failed. The paper might be fine for those Jews (a minority in DC) who oppose President Obama at all costs, support Israeli occupation of the West Bank for all eternity, and who generally don’t like Muslims. But for the majority of us, the–dare I say it–liberal Jews, the paper only helps alienate us from the broader community.
Don’t get me wrong, I enjoy reading points of view that differ from my own–when they are well-reasoned and based on facts. But that’s not the WJW.
The editorial that has most recently raised my hackles is basically a hit piece against the Hebrew Immigrant Aid Society (HIAS).
With its mission accomplished, HIAS employees can finally relax.
As you may know, HIAS was founded in the late 19th century to help Jewish refugees from Eastern Europe. Over the years, the organization has changed to reflect changing needs. It helped Jewish refugees during and after the two World Wars. Later, it helped thousands of Jewish refugees fleeing the Soviet Block, Ethiopia, Iran, and other countries. HIAS also helped eliminate the discriminatory immigration quota system in the U.S. that–among other things–blocked many Jews from escaping the Holocaust. HIAS also assisted Vietnamese refugees after the fall of Saigon. As the number of Jewish refugees has (thankfully) fallen, HIAS’s mission has evolved. These days, most of its work has little to do with helping Jewish refugees. And that’s where the WJW editorial comes in.
In the editorial, called HIAS in search of a mission, the WJW argues that HIAS has outlived its usefulness. Given that there are “virtually no more Jewish refugees,” the paper asks, “Is there still a need for HIAS?” You can guess the paper’s answer:
[It] takes a certain maturity, and healthy doses of self-confidence and self-awareness for an organization to declare success and move on. Very few organizations are able to do that. Instead, they get caught up in their own stories and start believing their own PR, and view themselves as indispensable societal contributors.
HIAS has had its successes. It served well for close to a century as the Hebrew Immigrant Aid Society. Now its leadership acknowledges that the organization’s original mission is no longer necessary. Rather than search for a new mission in order to justify its continued existence, perhaps it would be better for HIAS to consider an orderly sunset.
So HIAS’s leaders are not mature or self aware? They are caught up in their own PR? How insulting. Oh, and here’s a good one: “HIAS has had its successes.” Talk about minimizing the organization’s accomplishments. Since its inception, HIAS has helped approximately 4.5 million people, in big ways and small. It has saved countless lives.
But I suppose it’s a fair question: Is HIAS still relevant? Here are some facts that were conveniently left out of the WJW editorial: (1) In partnership with Israeli NGOs, HIAS provides trauma counseling and social services to thousands of refugees from Darfur, including many children; (2) From a base in Kenya, HIAS provides resettlement services and social services to hundreds of refugees from East Africa–aside from the UN, HIAS is the only NGO providing these services in the region; (3) It is one of only a few NGOs in Jordan providing assistance to refugees from the Syrian civil war; (4) In the U.S., HIAS provides legal assistance to victims of torture, including those who are detained; (5) It provides resettlement assistance to refugees all across the United States; (6) HIAS works to help pass meaningful immigration reform; (7) HIAS provides an outlet for hundred of young Jews to engage in public service and, in the process, brings them closer to their own Jewish community. And there is much more, as anyone who cares to review HIAS’s programs can easily see. So does WJW think these services are no longer needed, or that HIAS is not the right organization to provide them? Or–as I suspect–did the editors at WJW not know that HIAS provides these services because they didn’t bother to learn what the organization does before they decided to trash it?
Finally, since HIAS’s mission was originally to help Jews, and since Jews are generally not in need of this type of assistance, shouldn’t HIAS just close down? Well, should Catholic Charities only help Catholics? Should Lutheran Immigration and Refugee Services only help Lutherans? Should the Tahirih Justice Center only help Baha’is? You get the point. The religious-based NGOs are an expression of their members’ religious convictions. Just as these groups help refugees (and many others) as an an expression of their faith, so too, HIAS helps refugees–all refugees–as an expression of our Jewish faith. In Judaism, it’s called Tikkun HaOlam–repair of the world–and to limit Tikkun to assisting only Jews is mean spirited, short-sighted, and anti-Jewish.
So here’s a message for the good folks at WJW: Maybe its time to exercise some self awareness of your own, and recognize that your paper suffers from a lack of intellectual honesty. It takes maturity and self confidence to look at the world as it is, and to consider points of view other than your own. And if you can’t adapt to the needs of the Jewish community, maybe its time for an orderly sunset. Or–at the very least–please cancel my subscription because I am no longer interested in what you have to say.
You may already be familiar with the story behind the story of The Cuckoo’s Calling, a novel published under the name Robert Galbraith. Turns out, there is no Robert Galbraith. The story was actually written by J.K. Rowling, of Harry Potter fame. Ms. Rowling hoped to publish the new novel without the Potter baggage, but she was foiled by Patrick Juola, a professor at Duquesne University.
Stylometrists are always stylish. Prof. Juola (left) dressed as GQ man Abe Lincoln.
Prof. Juola is a mathematician who created a computer program–the Java Graphical Authorship Attribution Program (Jgaap)–that can recognize writing tics undetectable by human readers. According to the Chronicle of Higher Education, Prof. Juola “loaded an electronic version of Cuckoo into Jgaap, along with several other [of Ms. Rowling’s] texts.” The program then
compare[d] the sample texts to the Galbraith text using four variables: word-length distribution; the use of common words like “the” and “of”; recurring-word pairings; and the distribution of “character 4-grams,” or groups of four adjacent characters, words, or parts of words.
The findings were not unequivocal, but they made a pretty strong case for Ms. Rowling as the author of Cuckoo. Confronted with this and other evidence, Ms. Rowling admitted her authorship of the book. She told an interviewer that she would have liked to remain anonymous for a while longer stating that, “Being Robert Galbraith has been such a liberating experience… It has been wonderful to publish without hype and expectation and pure pleasure to get feedback under a different name.”
Stylometry, which is the application of the study of linguistic style, has broader uses than just outing famous authors. It is often used to attribute authorship to anonymous or disputed documents. It has legal as well as academic and literary applications, ranging from the question of the authorship of Shakespeare (whose works were obviously written by Francis Bacon!) to forensic linguistics. It also has application to the world of asylum.
Prof. Juola reports that he used his techniques to help an asylum seeker prove that he was the author of several politically charged articles that had been published anonymously on the internet. According to the Professor’s website, “Using statistical linguistics, we were able to analyze the writing style against an ad-hoc collection of distractor authors and to establish using non-parametric rank-order statistics that the documents had indeed been written by the [asylum] seeker.” In other words, Prof. Juola demonstrated a statistical likelihood that the asylum seeker authored the articles in question. Apparently, this evidence was helpful in the case, as the Immigration Judge granted political asylum.
I was interested to read about Prof. Juola’s work, as I faced a similar issue for an Ethiopian asylum seeker some years ago. He claimed that he wrote newspaper articles under a pseudonym, and those articles were offensive to the government. Somehow, his identity was exposed after he left the country, and he feared persecution if he returned. We needed evidence of the client’s authorship, and so I asked him for the usual stuff–rough drafts of the articles, a letter from the newspaper editor, letters from other people who knew about what he had written. In the end, we had to rely on letters from people who knew him and on his own testimony. Fortunately, it proved to be enough, and he received asylum.
Had I known about Prof. Juola, perhaps I could have used him to assist us in the case (though generally, my clients do not have a lot of money for expert witnesses). While the professor’s analysis cannot demonstrate with 100% certainty that a particular person wrote a particular article or book, Prof. Joula could possibly provide additional support to help corroborate a claim. In a close case, this could make the difference between a denial and a grant.
When I meet people who are going to be deported (or their family members), I sometimes tell them the story of Jimmy from South Philly.
In 2001, I traveled to a friend’s home town in the Algerian Sahara. We were hanging out at his neighbor’s house, when in walks a man in his early 30’s. “Yo, waasup, homey” he says to me. This is Jimmy. I learn that he immigrated to the U.S. years ago. He had a green card, but then got into trouble with drugs, alcohol, and gambling. Finally, he was deported to Algeria. Back home, he cleaned himself up, used his English skills to get a good job with a natural gas company, and he married and had children. All in all, he was doing pretty well–very well compared to most Algerians. The deportation was probably the best thing that could have happened to him.
The fact is, some people can’t make it in the U.S. Maybe they have difficulty adjusting to the new culture or the new language. Maybe they don’t do well away from their support system. For whatever reason, some people are better off returning to their home countries. That was true for Jimmy, but I think his story would be cold comfort to a new–and growing–group of deportees: Cambodian refugees who have spent years in the United States and who are now being deported.
Learning to love Cambodian food is just one of the challenges faced by returning refugees.
The Wichita Eagle reports that, starting in 2002 when Cambodia agreed to accept deportees from the United States, “hundreds of ethnically Cambodian men and women have been deported from the United States to Cambodia.” “What started as a trickle of deportations has, in recent years, turned into a flood, with the number of deportees increasing dramatically since 2009 and the total number now estimated at around 400.”
The returning refugees receive assistance from a Cambodian non-profit called RISC, the Return Integration Support Center. From the RISC website:
Deportation… often poses an enormous challenge. Individuals are separated from spouses, children, friends, communities and support groups. Most returnees left Cambodia as very young children, or were born in Thai refugee camps, and have little or no memory of Cambodia. Most have limited familiarity with the language, climate, and culture of Cambodia. Many have no known relatives or forms of support in Cambodia. Deportation is a traumatic experience that often leaves individuals feeling lost, rejected, and disoriented. Many barriers stand between returnees and stable, independent lifestyles.
In 2002, the year deportations began, RISC emerged to assist returnees overcome these barriers…. As deportations continue, and the returnee community continues to grow, RISC’s services continue to be an integral form of support for a unique group facing an extraordinary challenge.
As the law now stands, most (if not all) deportees will never be able to return to the U.S., even for a visit. As one deportee describes the situation, “Those who get sentenced to life in prison in the U.S. at least get to see their families at weekend visitations, and if someone dies they take you to the funeral. If my parents pass away I won’t even get to attend their funerals.”
On one level, it is easy to dismiss these deported refugees. The U.S. brought them here, resettled them, and gave them a chance at a new life. They blew it by committing crimes, joining gangs, and using drugs. But on a deeper level, it seems to me that it is not so easy to justify deporting these people.
First, the U.S. was not completely innocent in creating the political situation that led to the refugee crisis in Cambodia. But that aside, we made a commitment to resettle refugees, who are–almost by definition–damaged people who have suffered severe trauma. When such people are brought to an alien country, integrated (or not) into poor urban neighborhoods, and left largely to fend for themselves, it is predictable that some will have difficulty. Given this situation, deporting them after they have been punished for their crimes is basically punishing them a second time for being refugees (i.e., not being U.S. citizens).
And what is to be gained by deporting these refugees? If the point is to protect our communities from criminals, then how do we justify sending these criminals to Cambodia, a country that really has no connection with them, and certainly is not responsible for creating the situation that led them to become criminals. Why should Cambodia have to deal with them?
Under some circumstances, there are defenses to removal available for refugees (and asylees) who commit crimes, even crimes that are aggravated felonies. One is the refugee waiver under INA § 209(c). Another is a request for withholding of removal under INA § 241(b)(3) or relief under the United Nations Convention Against Torture. It is often difficult to succeed with these defenses, but for the foreseeable future, they are the only options available to a refugee facing removal for an aggravated felony.
