The Most Important Words in Every Lawyer’s Vocabulary: I Don’t Know

by Jason Dzubow

Recently, I worked on a couple cases where my clients got bad advice, which got them into trouble.

The first case involved a woman with an otherwise strong asylum claim. As a young girl, she and her family were refugees in Iran. Someone in her community advised her it would be better not to tell the U.S. government (or her attorney) that she had been in Iran. The community adviser thought it would harm my client’s chances for relief if she revealed that she spent time in Iran. The client took this advice and did not tell the U.S. government (or me) that she lived in Iran for a few years. The problem, of course, was that the U.S. government–and the Asylum Officer who interviewed her–knew that she had been in Iran. Nevertheless, she denied having been there. After the interview, she told me that she had, in fact, been in Iran, and we submitted a letter to the Asylum Office explaining what happened. She may still get asylum, but her lie damaged her credibility, which could easily result in a denial. We shall see.

If you don't know what you're talking about: Stifle, would-ya?
If you don’t know what you’re talking about: Stifle, would-ya?

The second case involved a woman who had been in the United States for more than one year. She was still in lawful status when conditions in her country changed causing her to fear return. About eight months after the changed circumstances, she went to a reputable non-profit organization to ask about asylum. She did not speak to an attorney, but was advised by a paralegal (or maybe a secretary) that she was ineligible for asylum since she missed the one year filing deadline. In fact, the client met two exceptions to the one-year filing deadline: First, changed circumstances, since country conditions changed, giving rise to her fear of persecution, and second, extraordinary circumstances given that she was still in lawful status when she went to the non-profit seeking advice about asylum. I recently litigated this case and the Immigration Judge granted asylum, but it was a close call. Had the client filed for asylum in a more timely manner, it would have been a much cleaner case.

In both cases, the advisers were (probably) well meaning, but in each case, they gave advice that greatly reduced the client’s chances for success. So my question is, when people don’t know what their talking about, why do they feel compelled to open their mouths and release some sort of useless–and worse than useless–noise?

I remember a similar phenomenon from when I lived in Nicaragua (and I and other people have experienced it in different countries). I would need to find the post office, for example, and so I would ask someone on the street. The person would give an answer, like “Walk two blocks towards the lake, make a left at the church and you’ll see it on the next block.” In fact, the person had no idea where the post office was; he just didn’t want to admit that he didn’t know.

So what gives? Maybe in part, its because people like to look knowledgeable and don’t like to admit ignorance. People often think they know more than they do, or that they understand the way things work, when they don’t. This can be a particular problem in an area like immigration law, where the rules of logic and common sense often do not apply.

To quote Noah ben Shea, “To be wise, we only have to go in search of our ignorance.” Indeed, had my clients’ advisers simply stated that they did not know, it would have saved everyone a lot of trouble. And so here is my advice for asylum seekers: Be careful when taking advice from friends or community members who “know how things work.” The law can be complicated and it sometimes changes. Just because your friend got asylum does not make him an expert–no two cases are the same, and what worked for one person might result in disaster for another. It feels uncomfortable and self serving for me to tell people to hire a lawyer, but time and time again, I see people whose cases (and lives) have been screwed up by bad advice. So find a reputable attorney and pay for some decent advice. In the long run, it may save you a lot of money and a lot of heartache.

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Edward Snowden and the Realpolitik of Asylum

by Jason Dzubow

As of this writing, it appears that Edward Snowden, the NSA “whistleblower,” is holed up in the Moscow airport looking for a country to take him in. He already has offers of asylum from Bolivia, Venezuela, and (mi país) Nicaragua. I’ve previously written that Mr. Snowden likely does not qualify for asylum under international law, so why would these countries offer him refuge? The answer is what I would call the “realpolitik” of asylum law.

Realpolitik has been defined as “politics or diplomacy based primarily on power… rather than ideological notions or moralistic or ethical premises.”  

Remember when living in an airport used to be cute?
Remember when living in an airport used to be cute?

As applied to asylum law, realpolitik means that the receiving country is not concerned about whether the applicant meets the international law definition of refugee. Rather, the receiving country has some ulterior motive for granting asylum; it hopes to benefit itself or harm a rival by granting refuge.

In Mr. Snowden’s case, it’s not hard to imagine why certain countries–Russia, China, Bolivia, Venezuela, and Nicaragua–have been willing to facilitate his journey. Russia and China, for example, have poor human rights records, authoritarian governments, and restrictions on press freedom (Freedom House rates both countries “not free”). China in particular is known for censoring the internet and cyber piracy. Venezuela has a less than stellar record when it comes to press freedom and free speech, and it apparently spies on its own citizens. Maybe by assisting Mr. Snowden, these countries hope to improve their own image while bringing the U.S. down a notch or two. Bolivia and Nicaragua perhaps see helping Mr. Snowden as “pay back” for years on the receiving end of American foreign policy (I’m thinking of the Contras in Nicaragua and–more recently–the diversion of the Bolivian president’s plane in an effort to capture Mr. Snowden).

In addition, all these countries might want to show the world that they are not afraid to stand up to the U.S. They might gain prestige (at least in their own minds) if they are seen confronting the big kid on the block.

Another reason that the different countries might offer asylum to Mr. Snowden is that they want to encourage people who damage the U.S. government’s foreign policy. Particularly when foreign relations are viewed as a zero sum game, it makes sense to diminish your rival in order to help yourself. I can see how this rationale might apply to China and the Latin American countries, but I am not sure it works with Russia. Both the U.S. and Russia have been harmed by extremist Islamic terrorists, and you’d think that there would be a mutual interest in fighting this threat (the two countries worked together after the Boston Marathon bombing, for example). It would seem to me that Russia’s protection of Mr. Snowden (and the implied endorsement of his actions) would be counter to that country’s interest in cooperating with us to stop terrorism.

Finally, I suppose it’s possible that the countries aiding Mr. Snowden are helping because they truly believe he did the right thing and they want to support him. Call me cynical, but this I doubt. The idea that Russia or China believe in the principle of government transparency is laughable. Even the Latin American countries, with their Left leaning governments that might support government transparency, seem more interested in antagonizing the U.S. and asserting their independence than in standing up for the principles that Mr. Snowden represents.

As a lawyer interested in humanitarian international law, I fear that when the asylum law is misused for realpolitik purposes, the system is weakened and made less legitimate. Asylum cases always implicate international relations; Mr. Snowden’s case more than most. But the hope is that such considerations can be minimized in order to provide protection to people fleeing persecution, regardless of the political consequences of granting (or denying) asylum.

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Remembering the Evian Conference, 75 Years Later

by Jason Dzubow

Next week marks the 75th anniversary of the Evian Conference, held from July 6-15, 1938. The purpose of the meeting was to find a solution to the problem of Jewish refugees fleeing from Nazi Germany. Unfortunately, the conference was an utter failure.

First, a bit of background: Adolph Hitler came to power in 1933, in the midst of a world wide depression. At the same time, tight immigration quotas limited the number of people permitted to come to the United States, and given the dire economic situation, there was little political will or public interest in lifting restrictions to assist refugees. Meanwhile, the noose was tightening around German Jewry. As early as 1933, laws were enacted to restrict Jewish rights. In 1935, the Nazi government passed the Nuremburg Laws, which deprived Jews of their German citizenship. German Jews began to flee the country in increasing numbers. 

You know you're in trouble when you make Rafael Trujillo look like a humanitarian.
You know you’re in trouble when you make Rafael Trujillo look like a humanitarian.

By 1938, about half of Germany’s 900,000 Jews had left the country, mostly to British Palestine (this, despite strict limits on the number of Jews who were legally permitted to immigrate to Palestine). Meanwhile, in March 1938, Hitler annexed Austria, bringing an additional 200,000 Jews under Nazi jurisdiction.

A few months later, in July 1938, Great Britain, the United States, and 30 other countries met in France at Evian-les-Baines. The purpose of the Evian Conference was to address the refugee crisis created by Jews and others fleeing Nazi persecution. Despite high hopes, in the end, the conference accomplished little. The U.S. agreed that its existing quota of 30,000 immigrants per year from Germany and Austria would be reserved for Jewish refugees. Great Britain committed to accept a similar number of refugees, and Australia agreed to accept 15,000. With the exception of the Dominican Republic, no other country agreed to take significant numbers of refugees.  

In an interesting historical footnote, the dictator of the Dominican Republic, Rafael Trujillo, who was responsible for killing tens of thousands of his own people, agreed to accept 100,000 Jewish refugees. He even donated land in his country for them to settle. Ultimately, only about 800 refugees were able to reach the Dominican Republic, and after the war, most resettled in the United States.

The American politician Walter Mondale eloquently summed up the conference’s failure 40 years after the fact:

At stake at Evian were both human lives – and the decency and self-respect of the civilized world. If each nation at Evian had agreed on that day to take in 17,000 Jews at once, every Jew in the Reich could have been saved. As one American observer wrote, “It is heartbreaking to think of the …desperate human beings … waiting in suspense for what happens at Evian. But the question they underline is not simply humanitarian … it is a test of civilization.”  

According to the United Nations, there are currently about 15 million refugees and 27 million displaced persons in the world. As we debate the current immigration bill, and decide how we will respond to this ongoing crisis, I wonder how our actions will be judged by history. I hope we have learned something in the last 75 years, and that we will remember our moral duty to help those in need.

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Immigration Reform and Asylum Fraud

by Jason Dzubow

As lawmakers consider changes to the asylum system, one area of concern is asylum fraud.

If it takes one to know one, Congress should be great at eliminating fraud.
If it takes one to know one, Congress should be great at eliminating fraud.

The Senate Bill, in its current form, would eliminate the one-year asylum filing deadline. This deadline was created in an effort to stop asylum fraud. In reality (and as I discuss here), the one-year deadline does little to stop fraud, but often harms legitimate refugees. What, then, could the Senate do to help reduce asylum fraud? Below are a few suggestions:

  • Investigate and Prosecute Attorneys and Notarios Suspected of Facilitating Fraud – Based on my experience and my conversations with Asylum Officers and DHS attorneys, I believe that a small number of attorneys and notaries are responsible for a large percentage of fraud. Asylum Officers, DHS Attorneys, and Immigration Judges will often harbor suspicions about which attorneys and notaries are producing fraudulent asylum cases. The Government could (1) create a national database of suspected fraudsters; (2) question the clients of suspected fraudsters closely, in order to determine what role the attorney or notario played in preparing the case. Such information could be entered into the database to help build a case against the suspect; (3) if there is sufficient evidence against a particular fraudster, the person could be investigated; (4) attorneys and notarios should be prosecuted for fraud, and—where prosecution is not possible—a bar complaint should be filed against suspected attorneys; and (5) where possible, notarios should be prosecuted for practicing law without a license.
  • Create a Mandatory Immigration Bar – The Executive Office for Immigration Review (“EOIR”) is in the process of creating an electronic registry for attorneys who practice before the Immigration Courts. This registry could be expanded into a mandatory immigration bar. Immigration Judges and Asylum Officers who suspect an attorney’s involvement in fraud could submit a complaint to the bar for investigation. Also, aliens who have been victimized by an attorney could make a complaint to the bar association. 
  • Create a Mandatory Notario Registry – The asylum form, Form I-589, requires that the applicant give the name and contact information for whoever helped the applicant prepare the form. The I-589 form could request additional information about the preparer: (1) whether she charges a fee; (2) what her relationship is to the applicant (hired professional, friend, family member); (3) whether she is an attorney; (4) if she is not an attorney, whether she has informed the applicant that she is not an attorney; and (5) a copy of her photo ID. DOJ and DHS could require all hired preparers to register, and could track the cases they submit in a notario data base. Notarios who engage in bad behavior could then be punished and/or prevented from providing services to asylum applicants.

It seems to me that the above approaches would do more to reduce fraud than the one-year asylum filing deadline. In my experience, the deadline does nothing to stop fraudulent cases.  Instead, it tends to block legitimate asylum seekers who are ignorant of the law, or who don’t file because they hope the situation back home will improve. Other people miss the deadline because they have been traumatized in their country and they do not want to re-live their difficult experiences by having to prepare an asylum case.  One group that has been particularly hard hit by the one-year deadline is LGBT asylum seekers. Often, such people are not “out” when they come to the United States, and they need time before they are able to discuss their sexual orientation publicly. Another group disproportionately affected by the deadline is women, who often fail to file due to shame or lack of knowledge about the asylum system.

Requiring notarios and attorneys to register, and keeping track of them, is more work than simply imposing an arbitrary deadline, but it would have the virtue of actually doing something to solve the problem.

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Senators Try to Help Women Immigrants, But Ignore Women Asylum Seekers

by Jason Dzubow

A proposed amendment to the Senate Immigration Bill would reserve 30,000 green cards for people in jobs traditionally held by women, such as nannies, home health-care workers, and early childhood educators. The amendment is sponsored by 12 of the 20 women in the U.S. Senate.

According to the Washington Post, the “lawmakers say pending immigration legislation is unfairly weighted toward male workers because it rewards applicants who are better educated and have more technical skills.”

You're in
You’re in

While I agree that the immigration system has been skewed in favor of male immigrants, I am not sure that this is the best way to help female immigrants. Either we need high skilled workers in our economy or we don’t; either we need more nannies in our economy or we don’t. Why not set the number of visas for each category based on the needs of our economy, and then reserve a certain percentage (say 50%) of visas for women. Is this discriminatory? Yes, but Congress has the power to discriminate when it comes to immigration law, and if the idea is to help women and aid our economy, then this would be one way to achieve that goal.

If members of the Senate are inclined to help women immigrants, I have another idea: Do something to rectify the male-centric asylum law.

Modern U.S. asylum law is based on a definition of “refugee” that was codified in the 1950’s. The types of people seeking asylum in those days were mostly men–political activists fleeing persecution, for example–and this is what the law reflects. Gender violence was not part of the equation, and the statute (INA § 101(a)(42)) did not (and does not) protect victims of domestic violence, female genital mutilation, forced marriage or sexual assault. 

The last legislative change to the definition of refugee occurred in 1996 when Congress made forced abortion and forced family planning a basis for refugee status. My impression is that this amendment had more to do with domestic politics (showing fealty to pro-life voters and sticking it to the Chinese Communists) than to helping women, but nevertheless, many women (and men) have benefited from the change.

You're out
You’re out

Other pro-women changes to the law in recent decades have been driven by lawyer advocates. As a result of these changes, it is now possible for victims of FGM and forced marriage to receive asylum. Victims of domestic violence can also sometimes receive asylum. But if Congress is planning to amend the immigration law, and if the Senate wants to help women, why not do something to codify and protect these advances? 

In addition, I would hope that the pro-women Senators would support the elimination of the one-year asylum filing deadline (aliens who fail to file for asylum within one year of arrival in the United States are ineligible for asylum). A study from Temple University and Georgetown (my two alma maters!) has shown that female asylum seekers are 50% more likely to file for asylum three years or more after arrival. In an excellent piece on this point, Elisa Massimino of Human Rights First explains that one reason for the delay is the shame many women feel when they have to publicly describe their persecution. This jibes with my experience–many of my female clients filed late because of shame, depression, ignorance about the asylum system (and whether the persecution they face would qualify them for protection), and what might be called “conditioned subservience.”

I agree with the Senators who believe that something needs to be done to help female immigrants. Helping women who face persecution–and who are currently falling through the cracks of our asylum system–would be an excellent place to begin.

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When Clients Lie

by Jason Dzubow

I once represented a Russian woman who paid a notario (or whatever you call the Russian equivalent of a notario) $10,000.00 to concoct a phony story about how the woman was a lesbian who faced persecution in her home country. The application was denied, in part because the notario failed to inform the asylum seeker about the contents of her application, and the woman was referred to Immigration Court.

Admit your mistakes and you may get asylum... or even a seat in Congress.
Admit your mistakes and you may get asylum… or even a seat in Congress.

By the time I got the case, the woman had married a United States citizen (a man) and was facing deportation. We had to decide how best to approach the case, given the client’s previous lies. What we did is the same approach I have used many times since, because it tends to work. We admitted that she lied, explained how the lie happened (basically, a naive young woman following the advice of a high-paid crook), accepted responsibility for what she did wrong, and apologized.

In the end, the client received her green card based on the marriage. My favorite part of the case was when I informed the Immigration Judge that I would have an expert at trial to testify concerning country conditions in Russia: The husband was African American, and if his wife was deported, he planned to follow her to Russia, where he would likely face problems with skinheads and other racists. The Judge, who was also black, told me, “I don’t need an expert to tell me that there is racism in Russia.” We skipped the expert and won the case.

This basic formula–admit the lie, take responsibility, and apologize–is one that has worked for my clients on numerous occasions.

Just last month, for example, we completed the case of an asylee who had been convicted of stealing money from his employer. The crime was an aggravated felony under the Immigration and Nationality Act (because he was sentenced to more than one year in prison). The refuge waiver, under section 209(c) of the INA, is one of the rare waivers that allows an aggravated felon to adjust status from asylum or refugee to lawful permanent resident. It’s not an easy waiver to get, and really isn’t that common (which–I hope–means that asylees rarely commit aggravated felonies).

In that case we used the same formula.  The client took responsibility for his crime, apologized, and promised that he would not engage in such behavior again. We also submitted evidence of rehabilitation. The waiver was granted, the client was released from detention (after a good eight months in jail), and he received his green card.

This same strategy can be used for clients who lied to obtain a visa or who entered the country illegally. The fact finders want to hear that the alien accepts responsibility for what she did. And in asylum cases, there really is little to gain from covering up such lies, as people who falsely obtain a visa (or enter the U.S. illegally) in order to escape persecution are not ineligible for asylum.

The point of all this is not that the client can say the magic words and win permission to remain in the United States. Rather, the alien who accepts responsibility for what he did (and tries to turn his life around) is much more likely to receive relief than the alien who tries to cover it up or blame someone else.

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Former CIA Official Reveals Secrets, Plans to Seek Asylum Abroad

by Jason Dzubow

The man who revealed the U.S. government’s program of secret surveillance, including of millions of U.S. citizens, has fled to Hong Kong and indicated that he will be seeking asylum from “any countries that believe in free speech and oppose the victimization of global privacy.”

Edward Snowden is a 29-year former CIA employee who was working for the consulting firm Booz Allen Hamilton, where he contracted with the National Security Agency. The Washington Post describes the details of Mr. Snowden’s reveal:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets….

Mr. Snowden fled to China, where stealing U.S. secrets is a national pastime.
Mr. Snowden fled to China, where stealing U.S. secrets is a national pastime.

The Director of National Intelligence James R. Clapper responded to the revelations last week:

Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.

Mr. Snowden came forward and identified himself over the weekend. “I have no intention of hiding who I am,” he said, “because I know I have done nothing wrong.” Mr. Snowden is clearly convinced of the righteousness of his cause:

I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.

I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.

By revealing himself, Mr. Snowden has put his freedom and his future (and perhaps his life) at risk.

Here, I don’t want to discuss the virtues of Mr. Snowden’s actions (though I will note that I have been critical of another whistleblower/asylum seeker, Julian Assange, whose revelations put many people at risk). Rather, I want to discuss the merits of any potential asylum claim by Mr. Snowden.

To qualify for asylum under international law, a person must demonstrate a well-founded fear of persecution on account of race, religion, nationality, particular social group or political opinion. At least under U.S. asylum law, whistleblowers have been found eligible for asylum in some circumstances:

Whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution…

So the first question is whether Mr. Snowden’s actions constitute whistleblowing. I suppose that would depend on whether he was blowing the whistle against illegal activities or simply against activities that he disagreed with. If it was the latter, it would seem to me that granting him asylum would set a dangerous precedent. Does anyone who disagrees with a democratically elected government have the right to break laws they disagree with, search for a country willing to accept them, and then flee to that country for asylum? Sad to say, the answer is probably “yes,” but I think this does not bode well for international law or relations.

Reasonable minds can differ on whether Mr. Snowden’s actions were justified or whether they constitute whistleblowing. But assuming we accept that such actions are whistleblowing, we need to be prepared to deal with the consequential damage to the rule of law. 

Second, even if Mr. Snowden’s actions constitute whistleblowing and can be characterized as an expression of his political opinion, he still needs to demonstrate that he faces persecution–as opposed to prosecution–on account of those actions. While I would like to think that any asylum seeker fleeing the U.S. would have a hard time demonstrating that he faces prosecution, I am not so sure. Between waterboarding, indefinite detention, and the over-use of solitary confinement (not to mention the death penalty, which probably would not apply to him), an asylum seeker like Mr. Snowden can probably make a decent argument that he would suffer persecution if he were returned to the United States.

Overall, I think Mr. Snowden will have a difficult–but not impossible–time qualifying for asylum under international law. However, like Julian Assange, there will probably be a number of countries willing to offer him asylum. If so, it likely will not be based on a careful analysis of international law, but instead on a calculation of that country’s own interests vis-a-vis the United States.

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Yours Truly on NPR

by Jason Dzubow

As the new Immigration Bill heads from the committee to the full Senate, NPR turned for comment to a brilliant and seasoned asylum lawyer. Unfortunately, he wasn’t available, so they called me.

NPR listeners hear me explain the finer points of asylum law.
NPR listeners hear me explain the finer points of asylum law.

Yes, your humble blogger debuted earlier this week on the NPR show Talk of the Nation. This was my first ever appearance on radio (though sometime in the mid-1980s, I did appear on a local TV talk show as an example of a kid who did not kill himself as a result of Dungeons & Dragons).

While I am used to talking to judges, appearing on radio before a live audience is quite terrifying. I assumed that I would fall into the fetal position and cry for my mommy. But it was not to be. In fact, I thought the interview went pretty well (you can hear it or read the transcript here).

The title of the show was “Who Gets Asylum, Who Doesn’t and How that May Change.” I was the only guest to appear in-studio, with host Ari Shapiro. Other guests were Dan Stein of the restrictionist group FAIR (which wits on the Left have dubbed “un-FAIR” – we need better wits) and NPR Congressional Correspondent David Welna.

In the space of about 30 minutes, I managed to insult the governments of Pakistan, China, Eritrea, Cuba, Indonesia, Serbia, and possibly Mexico. I also (hopefully) made a decent argument for why the one-year asylum bar should be eliminated (the current version of the Bill would eliminate the bar). I tried to give many examples of asylum seekers who had been persecuted and who were worthy of protection (hence the need to insult numerous governments). And I hopefully made the case for preserving and strengthening the asylum system.

Although I enjoyed my experience at NPR, I can’t say I am particularly optimistic that the current Bill will make it into law. The most important aspects of the Bill are not related to asylum seekers, but the main provision related to asylum–elimination of the one year filing deadline–is important to many people, and thousands of legitimate refugees would benefit if the bar were removed.

We’ll see what happens in the coming weeks. At least one senator predicts that the Bill will pass the Senate with 70 votes prior to July 4th. I hope he is right, but even if he is, the Bill still has to get through the Republican-controlled House. To me, it seems like an up-hill battle. But it is definitely a battle worth fighting.

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First Muslim Lesbian Couple to Wed in UK Seeks Asylum

by Jason Dzubow

The Daily Mail reports that a “pair of Pakistani women have made history as the first Muslim lesbian couple to get married” in the United Kingdom:

The couple could not find an Imam to marry them or, apparently, a decent wedding photographer (focus!).
The couple could not find an Imam to marry them or, apparently, a decent wedding photographer (focus!).

Rehana Kausar, 34, and Sobia Kamar, 29, made history when they tied the knot in a register office civil ceremony, then immediately applied for political asylum after they were wed, claiming their lives would be in danger if they returned to their native country.

The pair, from the Lahore and Mirpur regions of Pakistan, said they had received death threats from opponents in Pakistan – where homosexual acts are illegal and considered against Islam. And since news of their wedding earlier this month spread, the pair claimed they had even received death threats from the UK.

The couple was not married in an Islamic ceremony because they could not find an Imam in Britain willing to marry them.

Pakistan has become a fairly violent and lawless society, and–given this couple’s visibility and the death threats they have received–I suspect that their asylum claim will have a high probability of success.

A quick review of reader comments about the Daily Mail article shows that people’s main concern is that the women’s case will open the floodgates, and that anyone claiming to be gay will be able to obtain asylum in the UK (just so you know, my summary of the reader comments is more polite than the actual comments). I am not so sure that this concern is justified.

For one thing, the situation in Pakistan is not as bad as you might imagine for many LGBT people. The New York Times reported on this issue last year:

Homosexual acts remain illegal in Pakistan, based on laws constructed by the British during colonial rule. No civil rights legislation exists to protect gays and lesbians from discrimination.

But the reality is far more complex, more akin to “don’t ask don’t tell” than a state-sponsored witch hunt. For a long time, the state’s willful blindness has provided space enough for gays and lesbians. They socialize, organize, date and even live together as couples, though discreetly….

[W]hile the notion of homosexuality may be taboo, homosocial, and even homosexual, behavior is common enough. Pakistani society is sharply segregated on gender lines, with taboos about extramarital sex that make it almost harder to conduct a secret heterosexual romance than a homosexual one.

Now that the marriage of Rehana Kausar and Sobia Kamar is so public, they do not have the option of being discrete. Other same-sex couples might not be so visible, and therefore would be less likely to qualify for asylum (many LGBT cases have been denied by the UK because the asylum seekers cannot demonstrate visibility or cannot submit sufficient proof to demonstrate that they are gay).

Also, most same-sex couples will probably not face death threats. And if they do face threats, the threats will most likely come from family members. To win asylum under those circumstances, they would need to show that the government is unable and unwilling to protect them and that they cannot safely relocate within the country.

Finally, while this couple was the first Muslim lesbian couple to wed in the UK, there is nothing new about LGBT people seeking asylum. I have represented many such people in the U.S. and, with one exception (from Fiji), they all received asylum. If the floodgates were going to open for LGBT asylum seekers, it would have happened a long time ago. This most recent case is (unfortunately) just one of many where an LGBT individual will be harmed if she returns to her country.

While the case of Rehana Kausar and Sobia Kamar is significant because it is a “first,” I don’t see how it is significant in terms of developing the law for LGBT asylum seekers. Given what I know of the situation in Pakistan, my guess is that this couple faces a significant threat of harm or death. I hope the UK will see fit to grant their application for protection.

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You Can’t Go Home Again (Thanks to the Tsarnaev Brothers)

by Jason Dzubow

As the Senate inches forward on immigration reform, the bombing in Boston looms large. In a recent amendment, Senators agreed that asylum seekers will automatically lose their status if they return to their home country. According to the Washington Post:

Senators unanimously approved an amendment by Sen. Lindsey O. Graham (R-S.C.) that would terminate the asylum or refugee status of anyone who returns to his or her home country. Graham introduced the amendment after investigators discovered that Boston bombings suspect Tamerlan Tsarnaev had traveled last year to Russia and Dagestan after his family sought and was granted asylum from Dagestan in 2002.

The Tsarnaev's also liked Justin Bieber. Therefore, under the new Senate bill, all immigrant Beliebers will be deported.
The Tsarnaev’s also liked Justin Bieber. Therefore, under the new Senate bill, all immigrant Beliebers will be deported.

I am sure, dear reader, that you will not be surprised to learn that I oppose this amendment. I oppose it because it is redundant, impractical, harmful to many innocent asylum seekers, and unlikely to accomplish its purported goal. Let’s take each objection in turn:

First, under the current law, if an asylee (or a lawful permanent resident who obtained his status based on asylum) returns to the country of feared persecution, he can lose his immigration status. The law as it exists now allows for some flexibility, and there is a procedure for terminating the alien’s asylum status. Given that an alien who returns to his home country will likely lose his asylum status, the Senate amendment seems redundant.

Second, the amendment is, at best, impractical. How will we know whether an alien has returned to her home country? Refugees are currently able to travel abroad using a Refugee Travel Document, which is similar to a passport. Let’s say a refugee wants to visit her home country. She can go to a neighboring country using the Refugee Travel Document, and then enter her home country with her passport. Or–better yet from her point of view–she can enter her home country without inspection (i.e., illegally). In either case, it is unlikely that the U.S. government would ever learn about the trip home.

And what about the scenario where a legitimate refugee travels abroad for a legitimate reason. He does not go to his home country, but his government lies and reports that he traveled home (the Russian government reported–truthfully–that Tamerlan Tsarnaev traveled to Dagestan). Perhaps the home government wants to harm the refugee, who the government views as a political opponent. Reports from unfriendly governments are potentially untrustworthy, so how can we rely on them?

Third, many innocent asylees have legitimate reasons to travel home: To help a sick relative, to engage in political or journalistic activities, to take care of property. Also, some people can travel home for a short trip and remain under the radar for their brief time in the home country. Just because a person is willing to take a risk and return home does not necessarily mean that she does not have a well-founded fear of persecution.

Finally, it’s hard for me to believe that this amendment would do anything to make us safer. Given how hard it is to determine whether an asylee traveled to his home country, and given the many legitimate reasons for such a journey, it seems very doubtful that the amendment will do anything to stop the next Tsarnaev-brothers type attack.

It seems to me that this amendment is an example of the Senate fighting the last war, and not fighting it very well. There are better ways to search for terrorists and extremists within the asylum seeker ranks. But I will leave that discussion for a future post.

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American Lawyer Assists Australian Asylum Seekers

by Jason Dzubow

Michael “Dan” Mori is a former Marine Corp attorney who gained fame defending Guantanamo Bay detainee David Hicks, an Australian national captured by the Americans in Afghanistan.  With Mr. Mori’s help, Mr. Hicks accepted a favorable Alfred plea (basically meaning that he did not admit guilt, but agreed that there was enough evidence to convict him). He was sentenced to seven years in prison for supporting terrorists, a charge that he denies. All but nine months of the sentence were suspended. Mr. Hicks served most of his nine months in Australia and was released. The plea came after five years at Gitmo, under less than pleasant circumstances. The case gained quite a bit of attention, as it was the first conviction by a U.S. war crimes tribunal since World War II.

After the Hick’s case, Mr. Mori’s career in the Marines apparently stalled. He alleged (in a lawsuit) that the military retaliated against him for his work on Mr. Hick’s case. He eventually was promoted, but retired soon thereafter and moved to Australia. There, he started work at the plaintiff law firm Shine as a Social Justice Consultant.

It seems that Mr. Mori’s latest project is to help asylum seekers detained by the Australian government on the island of Nauru.

Come on, Mori, admit it - You took the Nauru gig for the beaches!
Come on, Mori, admit it – You took the Nauru gig for the beaches!

Nauru is a small island republic in a remote part of the Pacific Ocean. The country became wealthy in the 1960s and 70s by exploiting mineral resources, but when those ran out, the economy went bust. In 2001, Nauru entered into an agreement with Australia to house refugees seeking admission to Australia. In exchange, Australia provides Nauru with financial assistance and technical aid.

The refugee detention center on Nauru has been controversial, and it has closed and re-opened several times. The latest incarnation of the detention center  opened last year in August and holds about 400 men. After a visit to Nauru, Amnesty International described the camp as “a human rights catastrophe … a toxic mix of uncertainty, unlawful detention and inhumane conditions.”  

In September 2012, there was an alleged riot at the camp and property was destroyed. The government charged 10 detainees with rioting and destruction of property. The case of the “Nauru 10” is currently pending, and this is where Mr. Mori comes into the picture.

Mr. Mori and other defense lawyers filed a habeas corpus petition in Nauru, claiming that the detainees are being unlawfully held. The defense team convinced a Nauru court to adjourn the criminal charges until the habeas issue is resolved, and that issue remains pending.

“Whether or not you agree with the process… you have to agree that people being detained should have access to legal help,” said Mr. Mori, who compared the situation in Nauru with Guantanamo Bay. “You have to push the politics aside and remember, if someone’s detained they need access to the law.”

There is a lot at stake for Nauru, which has become dependent on the Australian aid, and for the asylum seekers, whose fate rests in the hands of the Nauru court system. I hope that Mr. Mori and the other lawyers can bring a measure of justice to this obscure corner of the globe.

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In Defense of Muslim Asylum Seekers

by Jason Dzubow

Since the Boston bombing, we’ve heard much talk about restricting access to asylum (and immigration) for Muslims. Opponents of reform have wondered aloud how the Tsarnaev brothers entered the U.S. and why their father received asylum in the first place (the brothers obtained derivative asylum based on their father’s application). One commentator called for a halt to student visas for Muslims; another for an end to all Muslim immigration.

As Ben Franklin said, "Hang together or get hanged alone."
As Ben Franklin said, “We must all hang together or assuredly, we shall all hang separately.”

The common belief among such people is that Muslims coming to America pose a threat. And even if only a small percentage of Muslims actually present a threat, we’re better off excluding all Muslims, just to be on the safe side.

Of course I disagree with this viewpoint. In my practice, I have represented many Muslim asylum seekers–from countries such as Afghanistan, Iraq, Iran, Egypt, Somalia, and Syria. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. It’s not uncommon for my clients to have letters of recommendation from members of the military, including high-ranking officers like Generals McChrystal and Petraeus. Indeed, I suspect that my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of the U.S. than the commentators who routinely disparage them.

To illustrate the point, here is a sampling of a few of my recent cases involving Muslim asylum seekers (I have changed the names to protect my clients’ confidentiality):

Daoud is an Afghan man who worked as an interpreter for a private contractor. He served directly with soldiers from the United States military in Afghanistan and was several times in combat situations. His main job was to provide interpretation between the U.S. military and local people. He also provided cultural training to the soldiers. In a counterinsurgency operation, gaining the trust of local people is crucial for identifying and eliminating insurgents. Daoud’s role in his unit’s missions was indispensable. Along with Daoud’s application for asylum, we included letters attesting to his service from many members of the United States military. The letters came from soldiers who served with Daoud and from a two star general familiar with his work. We are currently waiting for a decision in his asylum case.

Fatima is a woman’s rights activist who founded an NGO to educate girls in Afghanistan. The NGO received support from USAID and other international donors, and expanded its work into many Afghan provinces. The Taliban learned of Fatima’s activities and repeatedly threatened her. At some point, the threats became too much, and she decided it was unsafe for her to return to Afghanistan. Her asylum application is pending.

Brahim is an Egyptian activist for gay rights and women’s rights. After the Egyptian revolution, he faced increasing harassment from government officials. He was attacked on several occasions and the police refused to help (once, they actually detained him, even though he was the victim of an assault). With the ascendance of the Muslim Brotherhood, he felt unable to remain safely in Egypt. His application for asylum has received preliminary approval.

Abdul is a journalist and peace activist from Iran. He is also related to an important Iranian opposition leader who lives in exile. Abdul assisted that leader by providing on-the-scene reporting from Tehran during the Green Revolution. After he went to study abroad, the Iranian authorities arrested Abdul’s girlfriend and threatened to arrest him. Rather than return to Iran, Abdul filed for political asylum. His application was granted earlier this year.

These cases are typical of the Muslim asylum seekers that I have represented. They—and thousands like them—have fought and sacrificed and bled in the war against Islamic extremism.

In the aftermath of the Boston attack, perpetrated by two brothers who received asylum in the United States, I understand the desire to examine security procedures for asylum seekers. When you extend a helping hand and then get bit, it’s only natural to hesitate before helping again. But as we think about changing the asylum system in response to the terrorist attack, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

We should not allow the evil deed of the Tsarnaev brothers to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. When making changes to our asylum system, we should be guided by our highest ideals, not by the dark vision of the Tsarnaev brothers.

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Would the Last Eritrean to Flee the Country Please Turn Out the Lights

by Jason Dzubow

There’s an old joke from the Soviet era where Leonid Brezhnev is talking to his deputy. Brezhnev says, “If we lift the Iron Curtain and allow our people to leave the U.S.S.R., the only ones who will be left here are you and me.” The deputy responds, “Speak for yourself.”

Repressive regimes often prevent their people from leaving. If the doors were open, everybody would go. The classic example of this in today’s world is North Korea. The state is a vicious dictatorship run by a spoiled child. Few people are able to escape from North Korea, and those who do usually end up in China, which is not exactly a paragon of human rights.

Official portrait of the Eritrean National Soccer Team.
Official portrait of the Eritrean National Soccer Team.

If there were a contest for most repressive regime after North Korea, Eritrea would certainly be in the running. The country is a single party state that allows no dissent and has no independent media (it is actually rated worse than North Korea in terms of press freedom–how is that even possible?!). There is a “national service” program that is akin to slavery and members of “unregistered” religions are severely persecuted and killed. On the other hand, they have nice weather this time of year.

Eritreans are not permitted to leave the country without permission, which is often impossible to obtain. But given conditions in Eritrea, and the fact that the country has a long–and difficult to police–land border, many Eritreans flee the country and seek asylum abroad.  Most Eritrean asylum seekers end up in neighboring countries: In 2008, for example, over 8,000 Eritreans sought asylum in Ethiopia and about 13,000 registered as refugees in Sudan. According to the United Nations, in 2011, about 11,900 Eritreans sought asylum in the industrialized world (basically North America, Europe, and Israel), and Eritrea has consistently ranked in the top dozen source countries for asylum-seekers. 

As you might expect, there have been high profile defections. Last year, two Eritrean pilots stole a government jet, flew to Saudi Arabia, and asked for asylum. Last month, a female Eritrean pilot sent to Saudi Arabia to retrieve the stolen jet also defected and has asked the Saudis for asylum. To me, the fact that a woman pilot would request asylum in Saudi Arabia–a country where women are not allowed to drive cars, let alone fly airplanes–speaks volumes about the desperation of these people.

Eritrean soccer players have also defected in droves. In 2006, four players defected in Kenya. The next year, 12 players requested asylum while in Tanzania. Also in 2007, another six players sought asylum in Angola and three more defected and requested asylum in Sudan. After that, the Eritrean government required soccer players traveling abroad to post a bond before leaving the country. Despite this precaution, 12 players defected in Kenya after a tournament in 2009. And last December, the entire team (along with their doctor) disappeared in Uganda. They requested asylum from Kampala. Given this record, its not too surprising that the team has never qualified for the World Cup or the  African Nations Cup.

In my practice, I have represented many asylum seekers from Eritrea. They fear indefinite conscription, and religious or political persecution. My clients have been physically beaten, detained in metal shipping containers, and treated as slaves. Their family members have disappeared or been killed. Indeed, the situation is so bad that the United Nations actually created special guidelines for assessing Eritrean asylum claims.

While the civilized governments of the world should be working to change the regime in Eritrea (and other countries that abuse human rights), we should continue to offer asylum to people who flee such places.

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CIS Uses Boston Attack to Condemn Asylum, Immigration System

by Jason Dzubow

The “low immigration, pro-immigrant” group Center for Immigration Studies claims that the “United States has naturalized at least a few thousand alleged terrorists in recent years.” As evidence for this dramatic claim, CIS lists exactly four (four!) examples of naturalized foreigners who engaged (or attempted to engage) in terrorist acts, including Dzhokhar Tsarnaev who is charged in the Boston Marathon bombing.

Hmm... There's something strange about this Naturalization ceremony.
Hmm… There’s something strange about this Naturalization ceremony.

How CIS got from four alleged terrorists to “thousands” is not explained. Although I often disagree with CIS’s conclusions, I’ve found them to be generally reliable when it comes to the facts. Not so in this case. To make such an outrageous and inflammatory claim with almost no evidence casts doubt on the organization’s credibility.

Concerned about the possibility of major immigration reform, is CIS becoming unhinged? Will they–like so many partisan groups–make all sorts of unsubstantiated claims in the hope of getting their way (i.e., killing immigration reform)?

It seems that in many of our country’s policy debates, the end justifies the means. “Swiftboating” has replaced reasoned debate. I hope that CIS won’t go down this road. Like I say, I often disagree with CIS, but I recognize the need for different voices in the conversation. For those voices to make a positive impact, however, they must be grounded in reality. CIS should correct their unfounded claim that the U.S. has “naturalized at least a few thousand alleged terrorists,” and issue an apology.

With that as background, I want to turn briefly to CIS’s testimony on Capitol Hill. This past Monday, Mark Krikorian, Executive Director of CIS testified about the proposed immigration reform before the Senate Judiciary Committee. He spoke about the Tsarnaev family who–he said–immigrated to the United States a decade ago after receiving political asylum. Mr. Krikorian asked:

Why were they given asylum since they had passports from Kyrgyzstan and, especially, why were they given asylum since the parents have moved back to Russia, the country supposedly they were fleeing and wanted asylum from?

A few points. Maybe this is an immigration-lawyer-geek point, but by definition, no one immigrates to the U.S. after receiving political asylum. It is only possible to obtain political asylum if you are already present in the United States. In the case of the Tsarnaev family, events are a bit unclear. It appears that the father came as a non-immigrant to the United States in 2002 with Dzhokhar, and then applied for–and received–political asylum. Afterward, he brought his wife and minor children (including alleged bomber Tamerlan) to the United States. Maybe this is a geek point, but if I were from an immigration organization testifying before Congress, I would want to get the law and terminology correct.

Second, I do not know how Mr. Krikorian knows that the Tsarnaev family had passports from Kyrgyzstan. As far as I know, the family were Russian citizens, and the father was originally from Chechnya, which is part of Russia. While it appears that at least the younger brother was born in Kyrgyzstan, this does not necessarily mean that he had a Kyrgz passport or was a citizen of that country (unlike the U.S., many countries do not automatically confer citizenship on people born within their territory). Assuming that the father had Kyrgz citizenship, he would not have qualified for asylum unless he demonstrated that he had a well-founded fear of persecution in Kyrgyzstan or that he was not firmly resettled in that country. As of now, we do not know why the father received asylum from Russia, let alone from Kyrgyzstan. Suffice it to say that the human rights situation in Kyrgyzstan is no picnic, and that country has produced several hundred thousand refugees. While Mr. Krikorian’s question (why was the family given asylum if they had passports from Kyrgyzstan?) is reasonable, the implied answer (that the family should not have received asylum) is pure speculation.

Finally, Mr. Krikorian asks why the family received asylum since the parents have moved back to Russia, the country supposedly they were fleeing. Again, the implication is that the family should not have received asylum. Mr. Krikorian does not answer his own question, and indeed, we do not know why the father returned to Russia. Maybe he felt that conditions had improved and it would be safe for him to return. Maybe the father was more concerned with his children’s safety than his own, and so once his children were safely in the U.S., he decided to return. Or maybe–as Mr. Krikorian implies–the asylum case was fraudulent from the beginning. At this point, we don’t know. And while I agree that we need to explore all aspects of the brothers’ history, I am not sure that the investigation is well served by cynical assumptions that the father’s asylum claim was false.

As I have said, I often disagree with CIS, but I believe they (and other restrictionist groups) have an important role to play in the current discussion about immigration and asylum reform. I just believe that the debate–and the credibility of CIS–would be better served if the organization speculated a little less, and got the facts right a little more.

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Immigration, Asylum Reform and the New Terrorism

by Jason Dzubow

The situation is still developing in Boston.  As of this writing, one terrorist is dead; another is on the loose, and a third man–dubbed “an accomplice”–is in police custody. There are still many unanswered questions about the men’s motivation and what connections, if any, they have to other terrorists. One thing we do now know is that the two men who placed the bombs are from Chechnya.

Chechnya is part of the Russian Federation. It has been seeking independence since the break-up of the Soviet Union. The state is majority Muslim and the war against Russia has attracted radical Islamists and has helped radicalize some of the indigenous population. The Russian government has committed terrible atrocities in Chechnya, and Chechen separatists are some of the most evil terrorists around (their worst attack came in 2004, when they took an entire school hostage–in the end, over 380 people were killed, including many, many children).

We still do not know if the Boston attack was somehow related to the conflict in Chechnya, but here are some things we do know: The two bombers were brothers who came to the United States legally with their family. The older brother has been a lawful permanent resident since 2007. At least one brother had a driver’s license (apparently, investigators used facial recognition software to help match a photo of the man with his driver’s license). The younger brother attended school in the U.S., at least since the seventh grade.

One question is how they obtained legal status here? Slate reports that the family escaped the war in Chechnya and went to Kazakhstan and then came to the U.S. as refugees. If this is correct, it will raise questions about the U.S refugee program. I have discussed this issue before, and perhaps will revisit the question once we have more information.

Another question is whether the men were sent here to commit terrorist acts? If it is correct that the brothers have been LPRs since 2007, it seems unlikely that they were sent to the U.S. to engage in terrorist acts. Once a refugee arrives in the U.S., he can become an LPR after one year. This means that the brothers–ages 26 and 19–must have been here since at least 2006. In 2006, they would have been ages 19 and 12. I doubt they could have been sent here at those ages with the idea that they would attack U.S. targets years later. It seems more likely that they somehow got involved in terrorism while in the United States.  

A final questions (for now), is how the revelation that the attackers were Chechen will affect the debate over immigration and asylum reform. I have no doubt that opponents of reform will use the attack to try to derail any new law. But on the other hand, when something like this happens, it is perfectly legitimate to raise security concerns. On this point, I would offer a few observations:

– Immigration reform brings otherwise invisible people out of the shadows. If we legalize people who have been here for years, we learn more about those people. One of the Boston terrorists was identified, in part, because he had a driver’s license. If he was living here illegally, he might not appear in any state or federal database. Thus, legalization reduces the number of unknown people and helps us know more about the people who are here.

– Second, if we are worried about terrorists within our foreign-born populations, we should encourage people within those communities to cooperate and trust law enforcement officials. If foreigners without legal status are afraid of law enforcement, it is less likely that they will cooperate with government investigations. If such people have a path to lawful status, they will be less afraid, and thus more likely to cooperate.

– Finally, the vast majority of immigrants and asylees are law abiding. Many of my asylum-seeker clients have worked closely with the U.S. military in countries like Iraq and Afghanistan. They have risked their lives to fight terrorists and extremists. Punishing and stigmatizing such people, and hundreds of thousands of other law-abiding foreigners, for the actions of two or three terrorists is simply wrong. And, in a country premised on individual rights and responsibilities, it is un-American.

In the coming days and weeks, we will learn much more about the terrorists, their motivation, and how they got to the U.S. We will also learn how the attack will impact the debate over immigration reform. While national security issues should certainly be a part of this debate, I hope that the attack will not destroy the hopes of thousands of good, law abiding immigrants.

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