Refugee Terror Plot or Over-Enthusiastic Airport Screeners?

by Jason Dzubow

Arizona Central reports that two Eritrean refugees and another man have been held without bond after they were arrested by the Transportation Security Administration (“TSA”) at Phoenix Sky Harbor International Airport.  According to a TSA spokesman, Luwiza Daman tried to bring a suspicious device onto an airplane: “a box containing a paste-like substance with a cell phone taped to it.”  TSA officers spotted the package and arrested the refugees.  The “paste-like substance” turned out to be halva, a common Middle Eastern dessert, which supposedly “resemble[s] explosive material on an X-ray machine, particularly when combined with a cellphone, which is frequently used as a remote detonating device.”

This is a deadly explosive.

After receiving so much criticism over its screening techniques, TSA is quite proud of having discovered this “fake bomb.”

I suppose it’s possible that this was–as TSA claims–a “dry run” for a terrorist bombing, but based on the publicly available information, the government’s evidence appears weak at best.

First of all, it seems bizarre to claim that halva resembles explosive material.  It’s a common food in many parts of the world–friends visiting from overseas have brought me halva as a gift.  I wonder if TSA would have made these arrests if the substance had been something more familiar, like peanut butter.

To be fair, the fact that a cell phone was taped to the container of halva made the TSA agents suspicious.  This reminds me of a case from last year where two men from Yemen were arrested carrying packages with cell phones taped to them.  No charges were filed in their cases, and officials determined that the men had no connection to terrorists.  In fact, it is common for people traveling back and forth from their home countries to carry packages for others.  Often mail service in these countries is unreliable (or non-existent), so people ask their countrymen to deliver packages to their families.  In this case, one of the refugees was supposedly carrying the phone and the halva to Iowa to deliver to the brother of another suspect.  Since they often carry packages for multiple individuals, it is not uncommon for them put each person’s items together in a bag or tape them together.

This is a delicious snack.

When TSA agents questioned the suspects separately, their statements were inconsistent.  However, according to Arizona Central, the agents used an Amharic interpreter.  The principle language of Eritrea is Tigrinya and the suspects’ first language is Kunama.  It’s unclear why the agents did not find an interpreter for a language the suspects spoke (interpreters for most languages are available by telephone).  Therefore, any inconsistencies, indeed, any statements made by the suspects are of little value.

In denying bond, the judge noted that the case presents the court with two possibilities:

“One, a significant injustice to individuals lawfully present in the United States as refugees because they allegedly misunderstood English,” he said. “Or a knowing and intentional attempt by someone … to attempt a dry run.”

Given the stakes involved, it’s hard to blame the TSA for arresting the refugees, but considering the scanty evidence, this looks more like a case of the TSA getting ahead of itself than a case of terrorists on a practice run.  

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Fear and Loathing in the Asylum System, Part Deux

by Jason Dzubow

In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system.  My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State.  Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”

Mr. Krikorian is the Executive Director of the Center for Immigration Studies.  He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.”  “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.”  By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S.  Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”

Mexico doesn't seem like such a safe third country to me.

The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable.  However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations): 

The first issue is how to determine whether a given third country is “safe.”  For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?”  Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service).  What about a person who passes through several different countries and then comes to the United States?  How do we decide if a given country is safe for that person?  To give another example, it is perfectly safe for me to go to Kenya for a vacation.  However, it is probably not safe for an Ethiopian refugee to live in Kenya.  So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe.  To present that proof would require a certain amount of resources–and probably a decent lawyer.  Only those who could afford to make their case would qualify for asylum.  This seems like an arbitrarily way to determine who qualifies for protection in our country.

A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through.  Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.

Another issue is that, as a world leader, other countries follow what we do.  If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit.  This would generally weaken the international system for protecting persecuted people.

Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing.  I think this is dead wrong.  Our country greatly benefits from asylum seekers.  This has been historically true, and continues to be true today.  My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists.  I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country.  While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country. 

So, in the end, I oppose Mr. Krikorian’s “safe third country” idea.  As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief.  At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.

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Asylum for Women Who Can’t Get Abortions?

by Jason Dzubow

In Nicaragua, abortions are illegal under all circumstances.  That includes cases of rape and incest, and when the life or health of the pregnant woman is at risk.  Women and girls who have abortions are subject to long terms of imprisonment.  Health professionals who perform abortions also face stiff criminal penalties.  Of course, with abortion (as with any remotely political subject these days), there are strong opinions on all sides of the issue, and little agreement on the facts.

Amnesty International issued a report documenting the opposition to the law from Nicaraguan health care professionals, and documenting some unintended consequences of the law–certain treatments are now less available to pregnant women because the treatment might put the fetus at risk.  Amnesty also cites the case of a pregnant woman with cancer who could not get treatment because of the law.  On the other hand, a pro-life website called Life Site News claims that the maternal mortality rate in Nicaragua has dropped by almost 30% since the law went into effect (though I have not seen any evidence that the law actually caused the drop in mortality rates).

Apparently, Nicaragua is not in the running this year.

While I personally think this law is a bad idea, the morality or efficacy of the law is not my concern here.  Rather, I wonder whether women who are prevented from terminating their pregnancies, or health care professionals who perform abortions, might be eligible for asylum in the United States.

Nicaraguan Women

To obtain asylum, a woman would need to show a well-founded fear of persecution based on a protected ground.  The protected ground that might apply here is “particular social group.”  I can think of two possible “particular social groups:” (1) women who have had an abortion, and who now face jail time, and (2) women who are pregnant and face risks to their life or health (physical or mental health) because they are not permitted to abort their pregnancies.

While the first category seems to me a cognizable social group, such women would have a hard time demonstrating that the prison time they face rises to the level of “persecution,” as that term is defined by case law.  I’ve actually spent some time in a Nicaraguan prison (long story), and what I saw would likely not qualify as persecution.  Of course, I am no expert, and if prison conditions are bad enough, they may be considered persecution. See, e.g., Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005).

The second category–pregnant women who face health problems because they are unable to obtain abortions–is more interesting.  Again, this is probably a cognizable particular social group.  The harm, which includes physical and mental harm, and even the possibility of death, could, I think, qualify as persecution.  The Board of Immigration Appeals has held that severe economic deprivation, including deprivation of liberty, food, housing, and other essentials of life may constitute persecution. See Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).  Health care is certainly an “essential of life,” and if a woman is denied the care she needs, she can demonstrate a possibility of persecution.

So it seems to me that women in the second category–and perhaps also in the first–would qualify for asylum under the Immigration and Nationality Act.

Nicaraguan Health Care Workers

The law also provides for incarceration of health care workers who perform abortions, even so-called therapeutic abortions, which are done to protect the life or health of the mother.  As I discussed above, I doubt that prison time in Nicaragua would be considered “persecution,” so the health care workers would have difficulty establishing this element of an asylum claim.  Even assuming they could demonstrate persecution, I think they would have a hard time showing that the persecution is based on a protected ground.

One possible protected ground is political opinion, i.e., that women should be allowed to have abortions.  However, the Nicaraguan government does not arrest health care workers (or anyone else) on account of their opinion that women should be permitted to obtain abortions; the government arrests people who actually perform abortions.

The other possible protected ground is particular social group–health care workers who have performed abortions.  The problem here is that the health care workers are seeking classification as a particular social group based on the criminal act that causes them to fear persecution.  In Bastanipour v. INS, 980 F.3d 1129 (7th Cir. 1992), the Seventh Circuit held:

Whatever its precise scope, the term “particular social groups” surely was not intended for the protection of members of the criminal class… merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other….  We suppose there might be an exception for some class of minor or technical offenders… who were singled out for savage punishment in their native land.  

Bastanipour does not completely close the door on the Nicaraguan health care workers, but it certainly presents a hurdle for them to demonstrate that they constitute a “particular social group.”

So far, I do not know of any United States asylum cases arising from Nicaragua’s  abortion law (or similar abortion laws in other countries), but I would not be surprised if we see some soon.  If you are interested to learn more about this topic, check out Rights Undone, a blog about the “struggle to repeal the ban on life-saving abortions in Nicaragua.”

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New BIA Decision Will Harm Asylum Seekers

by Jason Dzubow

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

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Fear and Loathing in the Asylum System

by Jason Dzubow

Since the news broke that Nafissatou Diallo, a hotel housekeeper in New York who claims she was raped by Dominique Strauss-Kahn, admitted to lying on her asylum application, there has been much discussion about the problem of asylum fraud.  “Solutions” to the problem of asylum fraud have come from various quarters, and so I thought I would address a couple of them here.

First, though, I must mention that the problem of asylum fraud seems to me overblown.  In my practice, I might do 35 or 40 asylum cases each year.  Some, I suspect to be fraudulent (though I try to be cautious in reaching such a conclusion, as I discuss here); others are clearly bona fide.  In the U.S., between the  Asylum Offices and the Immigration Courts, about 21,000 people are granted asylum each year.  Compared to the approximately one million immigrants coming to our country annually, the total number of asylum seekers is quite small (2%).  Even if many of the cases are false, the numbers just aren’t that significant.  That said, I suppose I understand the desire to reduce fraud, although I don’t accept that it is worth denying legitimate asylum seekers in order to weed out some fraudulent cases.  Anyway, enough of my ramblin’.  Here is one proposed solution, and my response:

Our Foreign Service Officers apparently have nothing better to do, so they might as well adjudicate asylum cases.

In an op-ed in the Philadelphia Inquirer, Temple University Law School Professor Jan C. Ting suggests that “asylum claims should be removed from the Departments of Homeland Security and Justice, and returned to the Department of State, whose foreign service officers are best informed of conditions in various foreign countries and therefore most likely to detect false stories and recognize the truth.”  Professor Ting claims that “there are strong political pressures today on the adjudicators at the Departments of Homeland Security and Justice” and that “Outside groups monitor the adjudicators to identify and apply political pressure on any whose asylum approval rate is lower than the average, or who approve some nationalities less than others, even though each case is supposed to be decided on its own set of facts.”

Professor Ting fails to name the nefarious “outside groups” that are supposedly applying “political pressure” to asylum adjudicators.  The reason for this, I suspect, is because there are no such people pressuring adjudicators.  Sure, there are groups (such as TRAC) that track and publish asylum statistics.  When such information is made public, outliers (decision-makers who grant asylum too often or too rarely) might feel pressure to conform, but this is hardly improper influence.  Indeed, when an adjudicator’s grant rate is out of line with the mainstream, it is completely appropriate to examine whether something is amiss.  Other “groups” might lobby for reforms to the system that make it easier to obtain asylum (just as certain restrictionist organizations lobby to tighten up the asylum system), but again, there is nothing improper about that.  Finally, as for Professor Ting’s proposal that foreign service officers who “are best informed of conditions in various foreign countries” should adjudicate cases, this seems impractical and unlikely to really reduce fraud.  The plurality of asylum seekers are from China.  Do we really have enough foreign service officers familiar with China to leave their duties at DOS and adjudicate thousands of asylum cases?  If we have an asylum seeker from, say, Burundi, do we search out and find a foreign service officer familiar with that country and send her to adjudicate the case?  I’d venture that whatever marginal benefit we might receive from using FSOs to adjudicate cases will be more than counteracted by the officers’ lack of experience (and interest) in deciding such cases.  In short, it is better to allow decision-makers who know the asylum law to make decisions, and if they need to consult an expert at DOS, they should do so.

Next, I’ll discuss a proposal by Mark Krikorian, Executive Director of the Center for Immigration Studies, to expand the “Safe Third Country” idea.  But I’ll save that for a future post.

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Doonesbury Takes on Asylum

by Jason Dzubow
Trff Bmzklfrpz and Duke in happier days.

Gary Trudeau’s comic strip Doonesbury is running a series about a deposed dictator named Trff Bmzklfrpz who is seeking asylum in the United States.  The dictator is living with (and mooching off) Uncle Duke, and Duke wants him out of the house.  He tries to convince–and coerce–Trff to attend his asylum hearing and “get his green card,” so he can find a job and get out of the house.  If you are interested, here is a link to the first strip in the series.

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Should the U.S. Send Asylum Seekers to Mexico?

by Jason Dzubow

The government of Australia recently entered into an agreement with Malaysia whereby the next 800 asylum seekers who arrive illegally by boat in Australia will be sent to Malaysia where their asylum cases will be processed.  The deal still needs to have some kinks ironed out, but it seems that if an asylum case is approved, the asylee would join the (long) queue of registered refugees waiting for resettlement to Australia or elsewhere.  While the asylum seekers’ cases are pending, they will have permission to work or study in Malaysia, and they will have access to healthcare (at least theoretically: the Malaysian government does not have a great reputation for its treatment of refugees).  In exchange for taking the asylum seekers, Australia will accept 4,000 refugees–i.e., people who have already been determined to qualify for refugee status–from Malaysia, and Australia will pay for the plan.  The hope is that by sending asylum seekers to Malaysia and putting them at the back of the resettlement line, the new plan will eliminate the incentive for people to come illegally to Australia.

Malaysian Tourism Minister laments the new plan: "Not even refugees want to come here!"

The United Nations Commissioner for Human Rights has questioned the legality of this arrangement.  But Australia is pressing ahead with the plan, and has already identified the first boatload of asylum seekers who will be sent to Malaysia.  The Australian Prime Minister sees this plan as a way to reduce the lucrative alien smuggling business and protect refugees:

“I made it very clear that what I wanted to do was to break the back of the people smuggling model, to take away from them the very product that they sell, to stop people risking their lives at sea and to stop people profiting from human misery,” Australian Prime Minister Julia Gillard said at a news conference. “I wanted to see us do something to end the profitability of people smuggling.”

My question is, could the U.S. adopt such a model to discourage asylum seekers who enter the U.S. at our Southern border?  Such people often make a long and dangerous journey from their country to ours.  They pass through many countries before entering the United States illegally and applying for asylum.  Thus, it seems these asylum seekers are subject to a “push” (a reason to leave their home countries) and a “pull” (a reason to come to the U.S. rather than another country).  What if we eliminated the “pull” by sending such people to a third country to process their cases?  Some thoughts:

For a start, we would need a country willing to accept our asylum seekers.  The most obvious choice is Mexico.  Mexico is trying to comply with international refugee law, and most asylum seekers entering the U.S. illegally have to pass through Mexico to get here.  The asylum seekers from China and Africa who pay thousands of dollars to smugglers, are paying to come to the U.S., not to Mexico.  And–no offense to Mexico–I don’t think asylum seekers would pay these exorbitant sums if their journeys ended in Mexico.  So if we sent our asylum seekers to Mexico, it would reduce the “pull” factor and might discourage large numbers of people from trying to come here illegally (and risking their lives in the process).

On the other hand, there are good reasons why we should not adopt Australia’s model.  A letter from Human Rights Watch to the Prime Minister of Australia makes some convincing arguments against “outsourcing” asylum seekers.  First, there are real questions about whether the receiving country will treat asylum seekers in accordance with Australia’s (or our) human rights obligations.  Second, forcibly transferring asylum seekers may violate treaty commitments.  The HRW letter continues:

We are also concerned that this deal is premised on the dangerous notion that obligations of states party to the Refugee Convention can be transferred to states with no such convention obligations.  Finally, we also fear that this deal tries to subvert the principles underlying refugee resettlement by transforming resettlement from a tool of international protection into a mechanism of migration-control.

To these reasons, I would add that transferring asylum seekers sets a bad precedent for how other countries will treat asylum seekers.  The United States sets the standard for many areas of international law and policy.  If we shirk our commitment to asylum seekers, other countries will follow suit.  Finally, we often forget how much asylum seekers contribute to our country.  Check out this list of famous refugees for some well-known examples of refugees who have contributed greatly to their host countries.

We will see how the Australian experiment proceeds.  It will be relatively easy to determine whether the plan reduces the number of illegal migrants, but it will be difficult to measure how the plan impacts human rights.  We need to look at both sides of the equation before we consider such an approach for our country.

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Refugee Congress to Meet in DC

by Jason Dzubow

As part of UNHCR’s 60 year anniversary, the agency is hosting a Refugee Congress in Washington, DC on August 3 and 4, 2011.  The Congress will focus on refugees in the United States, and will provide an opportunity for the refugees themselves to share their experiences and help ensure that people still in need are not forgotten.  In the end, the Refugee Congress plans to create recommendations for the U.S. Congress and to generate a report for a Ministerial Meeting in Geneva later this year.

Hopefully the Refugee Congress is more functional than these guys.

One refugee who will attend the Congress is Haidar Al Mamoury, an Iraqi refugee who came to the U.S. in 2009.  Mr. Al Mamoury was working with U.S. contractors to help rebuild Iraq when he began receiving death threats.  He and his family fled the country and settled in Nashville, TN.  Now, Mr. Al Mamoury is working on a Master’s Degree and encouraging his children to learn English.  He hopes that the Refugee Congress will help other refugees adjust to life in the United States.

The delegates will meet at Georgetown University Law Center, and then go to Capitol Hill for a reception and to meet with different Congressional representatives.  Speakers include Vincent Cochetel from UNHCR, Eskinder Negash, director of the Office of Refugee Resettlement, and Eric P. Schwartz from the State Department Office of Population Refugees, and Migration.  But the big draw is probably Alek Wek, a British-Sudanese supermodel who is a long-time advocate for refugees.  

The Refugee Congress will be held in conjunction with the National Consultation, the Office of Refugee Resettlement’s annual stakeholder meeting.  According to ORR, “The annual Consultation provides a unique opportunity for stakeholders throughout the network to share ideas, engage in discussion, and expand the partnerships that form the backbone of the [refugee resettlement] program.”

Hopefully these events will bring some positive attention to the plight of refugees in the U.S. and worldwide.

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Security Concerns Should Not Derail the Iraqi Refugee Program – Here’s Why

by Jason Dzubow

In the wake of revelations that two Iraqi refugees turned out to be former insurgents, the U.S. government is re-checking more than 58,000 Iraqi refugees against newly available data bases.  The Los Angeles Times reports:

The investigation was given added urgency after U.S. intelligence agencies warned that Al Qaeda leaders in Iraq and Yemen had tried to target the U.S. refugee stream, or exploit other immigration loopholes, in an attempt to infiltrate the country with operatives.

Would you believe we have to re-check all 58,000 Iraqi refugees?

The Times article continues:

So far, immigration authorities have given the FBI about 300 names of Iraqi refugees for further investigation.  The FBI won’t say whether any have been arrested or pose a potential threat.  The individuals may have only tenuous links to known or suspected terrorists.  The names were identified when authorities rechecked phone numbers, email addresses, fingerprints, iris scans and other data in immigration files of Iraqis given asylum since the war began in 2003.  They checked the data against military, law enforcement and intelligence databases that were not available or were not utilized during the initial screening process, or were not searched using sufficient Arabic spelling and name variations.

It addition to the Iraqis, authorities have re-screened a smaller number of refugees from Yemen, Somalia and other countries where terrorist groups are active.

Of course, this begs the question: Why are we admitting refugees from these countries in the first place?  Some commentators, including Mark Krikorian from the Center for Immigration Studies, argue that we should reduce or completely stop resettling refugees from Iraq.  It’s a fair point, but let me give my reasons why I believe we should continue to bring such refugees to our country.

First, I think there is an important foreign policy benefit that accrues to us by demonstrating our loyalty to people who risked their lives to help our cause.  It certainly would not serve our interest to be known as a country that uses people and then abandons them.  A few months ago, Esquire magazine did an article about one of my clients who captured or killed dozens of terrorists in Iraq.  Now, despite our best efforts (and an approved immigration petition), he and his family are stuck in Iraq, where they face a very real possibility of being killed.  Such stories do not inspire others to stick their necks out for us.

Second, I think we have a moral obligation to assist people who face danger on account of our actions.  The right thing to do is to take responsibility for our actions, and to correct problems we helped to create.  As the leader of the free world, we need to set an example and do the right thing.

Third, millions of foreigners come to the U.S. every year (for example, in 2009, according to DHS, over 160 million foreigners came to the U.S. for one reason or another).  If a terrorist or a criminal wants to come to the United States, entering as a refugee is probably one of the least effective ways to get here.  The security screenings and other hurdles to entry are more difficult for a refugee than for almost any other category of entrant.  If we close the door to refugees because we fear they might harm us, we should close the door to all other non-citizens (and the billions of dollars they contribute to our economy).   Such an isolationist path seems impractical and undesirable.

Finally, to give up on our humanitarian ideals because we fear terrorism seems to me a response unworthy of our nation.  Sometimes, compromise is necessary.  And sometimes, discretion is the better part of valor.  However, to give up on our refugee program because we fear terrorism would be a victory for the terrorists.  

We certainly need to be vigilant, and we need to do a better job of screening refugees.  We also need to re-check anyone who might be a security risk.  But we should not end our assistance to refugees because we fear terrorism.  We should not let the terrorists win.  

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ICE Should Fire Insubordinate Agents

by Jason Dzubow

I wrote recently about the ongoing insubordination at ICE.  The most recent flare up involves a dispute over a new memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.  The memo basically prioritizes who should be deported and directs ICE to target criminals and people who pose a security threat over aliens with equities in the U.S.  I read the memo, and it is pretty non-controversial.

Where's Trump when we need him?

The ICE Union disagreed and posited that the memo was a backdoor amnesty (this despite the fact that the Obama Administration has been deporting record numbers of illegal aliens and, as these statistics show, has re-prioritized deportations to focus on criminal aliens).  Chris Crane, President of the National ICE Counsel, had this to say about the memo and the Obama Administration:

Any American concerned about immigration needs to brace themselves for what’s coming… this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.

In my prior post, I tried to give the Union the benefit of the doubt, even though their claim seemed unfounded.  Now, several immigration experts, including a former general counsel of INS under President George W. Bush, have reviewed the controversial memo.  They conclude that the memo is “perfectly consistent with existing law on the use of prosecutorial discretion and serve[s] to guide its sound exercise in immigration law enforcement decisions.”

The experts’ conclusion–and a plain reading of the controversial memo–makes it painfully obvious that the Union’s complaints are baseless.  Worse, the attacks, such as the quote from Mr. Crane above, seem blatantly partisan in nature.  

It is frankly shocking that ICE and DHS would tolerate this type of insubordination.  My guess is that the Administration is too cowed by right wing bullies to do anything about the problem (witness the Shirley Sherrod fiasco).  It’s past time for the Obama administration to stand up to this sort of nonsense.  ICE should fire the insubordinate agents immediately.

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Pirates Brought to the U.S. for Prosecution Might Seek Asylum

by Jason Dzubow

During the first half of 2011, piracy attacks in the Indian Ocean increased by 36%.  But prosecution of captured pirates remains relatively rare.  In fact, four-fifths of captured pirates are released without further ado.  

A recent incident is proving an exception to the rule.  A group of Somali pirates was captured last February after they murdered four American on a sailboat off the coast of East Africa.  The men were transported to Virginia (which apparently has a long history of prosecuting pirates).  Eleven plead guilty and three others will be indicted on various charges later this month.  They could face the death penalty.     

The Virginia example notwithstanding, why are so few pirates being prosecuted?  One reason may be logistics.  It’s not easy to transport pirates from the high seas near African to a courtroom in the West (or even to Kenya, where some pirates are tried based on an international agreement).  Another reason might be a fear that the pirates would claim asylum once they reached a Western country.  A recent law review article by Yvonne M. Dutton explores this very question.

In her article, Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice, Professor Dutton argues that there is little danger of pirates gaining asylum (or Withholding of Removal  or relief under the UN Convention Against Torture).  Any danger of a pirate claiming asylum, she writes, is offset by the need to bring the pirates to justice.

Yaar! I'll be claimin' political asylum.

Professor Dutton writes that most Somali pirates would not qualify for asylum–they do not fear persecution in their country based on race, religion, nationality, membership in a particular social group or political opinion.  She also writes that many pirate-asylum seekers would automatically be disqualified from asylum due to their criminal histories.  She believes that pirates would generally not qualify for relief under the Torture Convention because they could not demonstrate a likelihood of torture if they return to their home country.  And, even if a pirate-asylum seeker demonstrates that he faces torture, the U.S. could seek diplomatic assurances that he would not be tortured if returned home.  Also, pirates could possibly be removed to a safe third country.  Finally, Professor Dutton concludes that even if some pirates do seek asylum, that is a reasonable price to pay for assuring that pirates are prosecuted: “Captured pirates should not be able to get away with murder simply because developed nations do not wish to deal with a relatively few additional asylum claims.”

While I generally agree with her conclusions, I can’t help but think that Professor Dutton is underestimating the creativity of Somali asylum seekers (and their attorneys).  There are plenty of former gang members from Central America who seek–and sometimes obtain–asylum, Withholding of Removal or Torture Convention relief.  In some ways, their cases are not very different from the Somali pirates (though one key difference is that the pirates are being transported to the U.S. for prosecution, while the former gang members usually make their own way here).

I also disagree with Professor Dutton’s idea that pirates could be returned to Somalia after receiving diplomatic assurances that they will not be tortured.  To the extent that Somalia has a government, I doubt it can be trusted with any diplomatic assurances. 

Finally, I have real doubts that a third country would be willing to accept the pirates who we cannot return home. 

These points are all pretty minor.  Very few Somali pirates would qualify for asylum or any other relief if they are brought to the U.S. for trial.  And–given the scope of the problem–it seems well worth the risk to end the culture of impunity that allows piracy to flourish off the African coast.  

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My Guest Blog Posting in the New York Times

by Jason Dzubow

Earlier this week, the New York Times had an article about fraud and asylum, Immigrants May Be Fed False Stories to Bolster Asylum Pleas.  The article was inspired by revelations about the maid who accused former-IMF chief Dominique Strauss-Kahn of sexual assault.  It turned out that the maid was an asylee, who likely gained asylum by fabricating a claim of past persecution. 

The NY Times asked several professionals in the field–including yours truly–to contribute their thoughts about how the asylum system can be improved.  Our comments appeared in a forum called Room for Debate.  I suggested that the government make a greater effort to prosecute lawyers and other people who help immigrants create fraudulent cases.  Not only is this more efficient than going after individual asylum seekers, but it ultimately would protect immigrants by reducing the number of fraudsters involved in the business.  Here are my comments (slightly modified since my essay in the Times was limited to 300 words and here I can use as many words as I want):  

Go After the Lawyers

There is an old adage in criminal law: Better that 10 guilty people go free than convict one innocent person. Our asylum law is based on the opposite philosophy: It is better to allow some asylum seekers to enter the United States fraudulently, than return one person to a country where he faces persecution or death. For this reason, the burden of proof for asylum is relatively low (as opposed to criminal law, where the burden for a conviction–beyond a reasonable doubt–is quite high). 

People reading and discussing my NY Times article.

This low burden, combined with the very valuable benefit of asylum, creates an incentive for people to make fraudulent claims. The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

It seems to me there are three main possibilities.

One option is to devote more resources to individual cases. If asylum officers, immigration judges and government attorneys could spend more time on each case, they would probably discover more instances of fraud. But attacking fraud on a case-by-case basis seems inefficient and, given limited resources, unlikely to significantly reduce the number of fraudulent claims.

Another option is to raise the burden of proof required to obtain asylum. The problem, of course, is that such a move would exclude legitimate asylum seekers, and would degrade the high moral standard our nation set when we created our asylum system.

A final — and to me, the most effective — option is to identify attorneys and others who prepare claims deemed suspicious. Investigating and, where appropriate, prosecuting these people can dramatically reduce fraud, since each such person produces and/or facilitates large numbers of false claims. A few high-profile prosecutions would also help deter others who might engage in such practices.

I have represented many asylum seekers, including journalists, human rights workers, diplomats, rape victims, and survivors of genocide. Such people have legitimate claims and would face persecution or worse if they returned home. In responding to fraud, we should remember our ethical responsibility to protect such people.

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CRS Report: Country Conditions Are the Driving Force Behind Asylum Seekers

by Jason Dzubow

A recent report from the Congressional Research Service concludes that “data analysis of six selected countries (the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source countries are likely the driving force behind asylum seekers.”  These six countries represent the majority of asylum seekers coming to the U.S., and the new report is significant for several reasons.

CRS employs some of the most logical people on Capitol Hill.

First, critics of the asylum system claim that it is a backdoor for economic migrants and that many asylum cases are fraudulent.  While fraud is a problem and economic conditions certainly affect the flow of migrants (including asylum seekers), the CRS report lends support to pro-asylum types (such as myself), who believe that most asylum seekers are fleeing persecution and repression in their homelands.

Second, since CRS is the organization tasked with supporting “the Members, committees, and leaders of the House and Senate at all stages of the legislative process,” its policy papers are influential in shaping legislation.  Maybe it is naive to believe that ideologues in Congress will consider the new report when making policy, but at least those in the pro-asylum camp will have some new data to help make their arguments.

Finally, there are a couple of asylum-related issues pending in the current Congress.  One is the Refugee Protection Act, which offers some new protections to asylum seekers.  The CRS report mentions the RFA, and seems to have been written with that bill in mind.  The RFA has been floating around the Senate for over a year, and no progress seems forthcoming.  However, Zoe Lofgren–a great advocate for protecting immigrants–introduced a companion bill in the House last month.  So perhaps we will see some action on this front.     

The other piece of asylum-related news in Congress is Senator Rand Paul’s hearing on terrorism and asylum.  Senator Paul called for hearings after two Iraqi refugees were arrested on terrorism charges (I wrote about this here).   The hearing is scheduled for July 13, 2011.  The CRS report is relevant to this hearing as well.  Although there are legitimate concerns related to national security and asylum, the instances of asylum seekers or refugees committing (or being accused of) terrorist acts are extremely rare.  The report shows that many asylum seekers are genuine refugees who face persecution in their home countries.  The Senate should keep this in mind when balancing national security with our humanitarian and moral responsibilities.

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Insubordination at ICE

by Jason Dzubow

In a unanimous vote in June 2010, leaders of the Immigration and Customs Enforcement (ICE) Agents’ Union accused ICE Director John Morton of “gross mismanagement within the Agency as well as efforts within ICE to create backdoor amnesty through agency policy.”  Now, the union is again attacking its leadership. 

In a recent press release, available here, the Union refers to new policies that were crafted based on the “desires of foreign nationals illegally in the United States.”  The result of these policies, according to Union leader Chris Crane, is that “every person here illegally [can] avoid arrest or detention, as officers we will never know who we can or cannot arrest.”  It seems the focus of the agents’ complaint is a memo issued last month by the ICE Director entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.”  A link to the memo is available here.  

Deport gang members, not grannies.

After reviewing the memo, it is difficult to understand the ICE agents’ concern.  Essentially, the memo states the obvious: ICE has limited resources for removing illegal aliens from the U.S.  Therefore, ICE should prioritize the removal of criminal aliens and people who endanger our national security.  The memo lists positive and negative factors that officers should consider when deciding how to prioritize cases.  In other words, the memo basically orders ICE agents to prioritize the removal of gang members over grandmas.  How this equates to a “backdoor amnesty” is a mystery. 

Another complaint mentioned in the Union press release is the way policies are implemented at ICE:

Agents claim that under Director John Morton the agency always presents written policies for public consumption, but then makes “secret changes” to the policies which ICE refuses to put in writing.

It is unclear how these “secret changes” are implemented in an organization with thousands of employees.  The press release continues:

The Union also alleges that ICE Field Office Directors (FODs) have confided in the Union that when the FODs raised questions about the effectiveness of the new policies, ICE Headquarters responded by telling the FODs to turn in their badges and file for retirement.

The press release ends with a plea for help from the public:

[We] are asking everyone to please email or call your Congressman and Senators immediately and ask them to help stop what’s happening at ICE, we desperately need your help.

I am an outsider and I have no idea about any “secret policies” at ICE.  However, I represent many foreigners in the U.S., and I am very well aware of the rates of detention and removal of illegal aliens.  In FY 2010 (the only year of the Obama Administration where statistics are available), we removed a record number of illegal aliens from the United States.  And it seems we will remove even more illegal aliens in FY 2011.  This hardly seems like a “backdoor amnesty.”  Given the number of aliens deported from the U.S., the ICE agents’ complaints seems unfounded and–frankly–out of touch with reality.  

Nevertheless, the allegations in the Union’s press release are serious and–considering the source–they must be taken seriously.  If the claims in the union’s press release are true, it would raise serious concerns about operations at ICE, and Director Morton should probably be removed.  On the other hand, if these allegations are exaggerations made for partisan political purposes, it is a clear case of insubordination and those responsible should be fired.

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Strauss-Kahn’s Accuser May Have Lied to Gain Asylum in the US

by Jason Dzubow

As the sexual assault case against former International Monetary Fund head and potential French president Dominique Strauss-Kahn appears to be falling apart, attention has turned to the woman who accused him of attacking her. 

NY City Maids may have judged Mr. Strauss-Kahn too quickly.

Mr. Strauss-Kahn was initially arrested in May and charged with attempting to rape a maid in his New York hotel room.  He was released under very strict supervision and resigned his job at the IMF.  Now, the conditions of his release have been dramatically eased, and the case against him appears on the verge of collapse.  The reversal came about because the NY Police Department uncovered evidence that the purported victim lied about the incident and has committed various acts of fraud, including filing a phony claim for asylum.

The alleged victim is a Guinean woman who obtained her status in the U.S. in 2004 by claiming political asylum.  The Daily Mail reports that the victim admitted to the NYPD that much of her asylum claim had been fabricated:

In her application for asylum to the U.S. for herself and her daughter in 2004 she said that the home she shared with her husband in Guinea was burned by soldiers for the country’s regime. Her husband was then supposedly tortured in jail where he died of his injuries.  According to prosecutors, she later admitted this was a lie.  Prosecutors also said that she cried when she recounted to them the story from her asylum application of how she had been gang-raped in Guinea, but later admitted that this was also a lie.

The (probably) false asylum application, combined with other evidence of fraud (including a taped phone conversation where the victim indicated she hoped to make money by pursuing charges against Mr. Strauss-Kahn) have led the prosecution to radically re-assess the credibility of the victim and the strength of their case. 

If it turns out that the victim did lie on her asylum application, she faces deportation and potential jail time.  But in evaluating what happened in her asylum case (and in the Strauss-Kahn affair), there are a few points to keep in mind.  First, many asylum seekers with legitimate claims augment their stories with the encouragement of unscrupulous lawyers or notarios.  Such asylum seekers do not understand the law and they merely follow the instructions of their lawyers.  In this way, legitimate asylum seekers are sometimes denied asylum and (rightly) accused of fraud.  Of course, even though such people are naive and are victims of dishonest attorneys, they are responsible for their own actions and they need to be held accountable.  As the authorities investigate the Guinean woman and her asylum claim, they should determine who helped prepare the asylum case and–if that person was involved in the fraud–they should prosecute the person responsible.  While asylum fraud is a problem, the best way to reduce fraud is to prosecute the attorneys or notarios who prepare fraudulent claims.

In addition, we should keep in mind that the Guinean woman is innocent until proven guilty.  After Mr. Strauss-Kahn’s arrest, the press and the District Attorney essentially convicted him before evaluating the evidence.  We should not make the same mistake again.  Rather than rush to judgment, we should wait for the case to develop and see where the evidence leads.  Asylum seekers are often people who have suffered severe traumas.  Such people are particularly susceptible to manipulation and intimidation, and might sometimes change their stories under pressure.  Maybe that is what happened here, and maybe not.  Since we don’t yet know, we should take a lesson from the case of Mr. Strauss-Kahn, and avoid reaching a conclusion until we know more.

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