Ethiopian Asylum Seekers Die Along the Smuggling Route

by Jason Dzubow

I’ve written a number of times about the route East African asylum seekers take to reach the United States.  The journey usually takes them through Africa to South Africa, and then to South America, Central America, and finally the U.S.  Along the way, the asylum seekers are passed from one smuggler to the next.  Because I deal with the people who make it here, I don’t usually think about those who do not survive the trip.

Voice of America reports that on February 2, eight Ethiopian asylum seekers suffocated to death in a closed container truck while attempting to reach South Africa:

The UN refugee agency [UNHCR] said the Ethiopian asylum seekers had been living in the Maratane refugee camp in northern Mozambique, from where they embarked on their ill-fated journey.  The driver of the truck in which they were traveling reportedly only realized the eight had suffocated when he made a stop at Mocuba, after seven hours of driving from the camp.

Statistics on asylum seeker deaths are hard to come by, so the magnitude of the problem is not well known, but I’d venture to guess that the number of deaths is quite high.  I sometimes hear anecdotal evidence from my clients about this problem.  For example, an Eritrean client recently told me about two Eritrean women who drowned while crossing a swamp in Panama.  I could not find statistics for asylum seekers coming to the U.S., but I did find some information about Britain and Australia:

The New Statesman report that 77 asylum seekers died in Great Britain during the last four years: Of the deaths, more than a third (28) were suicides following rejected asylum claims. Seven people died after being denied healthcare for “preventable medical problems.” Seven more died in police custody, while 15 lost their lives during “highly risky” attempts to enter the country. Seven were killed in racist street attacks, four after deportation to a country where they feared for their safety, two as a result of destitution, and four because they had been forced into dangerous work in the black economy. 

A website called Abolish Foreignness reports that between 2000 and 2010, 1,053 asylum seekers died in Australia or en route to that country.  The majority of the deaths were from people drowned at sea.

It is probably impossible to know how many asylum seekers die on the long and dangerous journey to the United States.  But it is clear that, despite the risk, many people are willing to make the trip.  

Continue reading

1 Comment

Immigration Judges Repudiate Asylum Officers

by Jason Dzubow

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:

There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 

The IJ grant rate for affirmative cases is significantly higher than for defensive cases:

Year

 IJ Grant Rate for Affirmative Asylum Cases

IJ Grant Rate for Defensive Asylum Cases

 FY 2006

 51%

 34%

 FY 2007

 51%

 39%

 FY 2008

 51%

 37%

 FY 2009

 55%

 36%

 FY 2010

 61%

 35%

This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.

Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 

One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 

Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case.  In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).   

When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.

Continue reading

7 Comments

New Asylum Law in Mexico Could Reduce the Flow of Refugees to the U.S.

by Jason Dzubow

Mexican President Felipe Calderon last week signed into law a new provision meant to bring Mexican asylum law in line with international standards.  Fox News Latino reports that the law was drafted taking into account the model legislation from the United Nations High Commissioner for Refugees.

Cantinflas
Until recently, Mexican asylum law was enforced by this guy.

“From now on,” President Calderon said, “Mexico will consider applications for refugee status from any person who cites a fear of being persecuted for his race, religion, nationality, membership in a particular social group or political opinion.”  Gender persecution will also be considered legitimate grounds for an asylum claim, he said.  Officially recognized refugees will have a right to work and to access health care and education.

UNHCR hailed the move:

Mexico has long been a signatory of the 1951 Refugee Convention and its 1967 Protocol and the country has a history of protecting asylum-seekers and refugees.  But, until now, Mexico lacked a specific legal framework for dealing with refugees as previous laws did not comply with international standards.

This law conforms to such standards.  It includes important principles such as non-refoulement (non forced returns); non-discrimination; no penalty for irregular entry; family unity; best interests of the child; and confidentiality.

If–and it is a big if–the new law is properly implemented, it could have an impact on the flow of asylum seekers into the U.S. via our Southern border.  As I’ve discussed in this blog previously, African, Chinese, and other asylum seekers enter the United States at the Mexican border and then file for asylum in the U.S.  If these people pass through Mexico without requesting asylum, it could negatively impact their chances for success in the United States (for example, they might be deemed less credible).  If they request asylum in Mexico, and their request is granted, they would be ineligible for asylum in the U.S., as they would be “firmly resettled” in Mexico for purposes of the immigration law. 

In addition, the U.S. currently has a “safe third-country” agreement with Canada, meaning that people denied asylum in Canada cannot apply for asylum here, and vice versa (at least that is how the agreement is supposed to work).  If the Mexican asylum law meets international standards, perhaps we will enter into such an agreement with Mexico.  This would further reduce the possibility for asylum seekers to pass through Mexico and then seek asylum in the United States.

The impact of the Mexican law on the flow of asylum seekers into the United States will depend on how effectively the new law is implemented.  Given the Mexican government’s current challenges, I’m a bit skeptical of its ability to live up to the high standards it has set for itself.  I suppose we’ll have to wait and see.

Continue reading

18 Comments

Book Review: The Struggle to Save Soviet Jewry

by Jason Dzubow

Gal Beckerman’s new book, When They Come for Us, We’ll Be Gone: The Epic Struggle to Save Soviet Jewry, has been widely touted as the definitive work on the subject, and earlier this month, it was crowned Jewish Book of the Year by the Jewish Book Counsel.  As far as I know, Mr. Beckerman is the youngest author (age 34) to receive such an honor.

Oy vey! It's hard not to kvell over this book.

I just completed the book, and I fully agree that it deserves this high praise.  Mr. Beckerman eloquently explores the breadth and depth of the effort to free Soviet Jews, and makes a convincing argument that the movement launched the modern human rights era.  It’s a fascinating story, which alternates between Soviet Jewish activists, American Jews, who until now have received little recognition, and national figures, such as Senator Henry Jackson, co-author of the Jackson-Vanik Amendment, which linked human rights and American foreign policy (over the objection of President Nixon and Henry Kissinger).

But more than this–and like any great book–it taught me something about myself.  I had not really thought about it before, but the effort to help Soviet Jews is what initially sparked my own interest in human rights and social justice.  The book also reminded me of another struggle taking place as we speak–the effort to pass the DREAM Act.

First (since blogs are for navel gazing), a bit about me.  Like Mr. Beckerman, I had a “twin” Bar Mitzvah–In 1982, I was matched with a Jewish boy from the Soviet Union who was not permitted to have a Bar Mitzvah himself.  As my “twin,” he was mentioned several times during the ceremony, and was symbolically Bar Mitzvahed with me.  Whether he ever learned of this, I don’t know, and I basically forgot about him until I read Mr. Beckerman’s book.

Years later, during my first job after college, I helped find jobs for refugees who had settled in Philadelphia.  About half of them were from the Soviet Union, the product of the struggle to save the Soviet Jews.  While it was an interesting and rewarding position, the job was fairly prosaic, and I did not know much about the context of what I was doing.  Again, Mr. Beckerman’s book illuminated this chapter of my life.

Finally, while reading the book, I kept thinking about parallels between the Jews of the U.S.S.R. and DREAM Act students in the United States.  While Russian Jews wanted to leave and DREAM Act students want to stay, both groups faced (or face) arbitrary arrest at any moment, both lived (or currently live) in fear, both were viewed as dangerous outsiders, and both suffered these difficulties not because of something they did, but because of who they are.

I’m proud to say that the organized Jewish community–led by HIAS–has worked hard to help DREAM Act students.  It is a fitting continuation of the struggle to save Soviet Jews.  I hope Gal Beckerman’s superb book will remind us of the power of an organized community to work for social justice, and of the ethical imperative that all of us have to continue the struggle.

The best place to purchase the book (and read an interview with the author) is here.

Continue reading

1 Comment

DHS Plans Crackdown Against Smugglers in Central American

by Jason Dzubow

Many African asylum seekers enter the United States at the Mexican border.  Their journey to the U.S. is long and circuitous.  In East Africa (where some of my clients come from), people travel from Ethiopia, Eritrea or Somalia to Kenya.  From there, they go to South Africa and Brazil using false passports, and then through South America (sometimes by boat up the Amazon River!), to Central America, and then Mexico and the U.S.  Along the route, they are passed from one smuggler to the next.  Its big business for the smugglers: I’ve heard the trip costs between $10,000.00 and $15,000.00, and sometimes more.

A smuggler guides a couple illegal aliens across the border.

Last year, Abrahaley Fessahazion, an Eritrean based in Guatemala pleaded guilty to helping smuggle illegal aliens to the United States for financial gain.  Mr. Fessahazion was caught after he came to the U.S. and filed a false claim for political asylum.  He faces up to 10 years in prison.

Now, if the rumor mill is to be believed, DHS and at least one Latin American government are planning to arrest some additional smugglers in Central America.  DHS investigators have been interviewing smuggled aliens in the United States.  They have asked the aliens to identify photos of several smugglers based in Central American.  While most of the smugglers are from Latin America, at least one is African.  

It seems that DHS’s central concern involves the Somalis, who have long been viewed as a potential threat to national security (I’ve blogged about this issue here), and apparently DHS’s interrogation of the smuggled aliens has focused on Somali migrants.   

If the rumors are true, and certain Latin American governments are cooperating in the crackdown, life might be about to become difficult for the smugglers. 

Continue reading

5 Comments

Deportation Leads to Abortion

by Jason Dzubow

For many immigration attorneys, the people we can’t help are the ones we remember the best.  I received a sad call last week and there was little I could do to assist.

Apparently, the caller’s husband had applied for asylum prior to the marriage.  He was denied and then failed to leave.  Later, he met the caller, they fell in love, and married.  Whether she knew about his immigration problems prior to the marriage, I do not know.  In any case, she got pregnant. 

Two months into the pregnancy, the husband was detained by ICE (Immigration and Customs Enforcement), and quickly returned to his home country in West Africa, leaving his wife alone in the United States.

The wife called me to ask about the possibilities for him to return, based on the marriage.  She told me that she was working seven days a week to support herself.  She felt that without her husband’s help, she was incapable of taking care of a child.  She told me that since she was separated from her husband, she would probably not keep the baby.

I advised her of the legal consequences of the husband’s overstay and removal (he is barred from returning for 10 years), and discussed the possibility of him returning based on the marriage.  Although the couple could apply for a waiver to allow the husband to return to the U.S. in less than 10 years, I doubt he will return quickly–certainly not in time for the baby.

I understand that the husband is likely to blame for his family’s predicament, and I am not sure what, if anything, “the system” did wrong.  Maybe I am also being sensitive, having recently become a father myself.  Nevertheless, the caller’s story is a sad example of an unintended consequence of the immigration system.

Continue reading

1 Comment

Must Attorneys Always Ask Their Clients About FGM?

by Jason Dzubow

In a strongly-worded dissenting opinion, Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit Court wrote that an immigration attorney provided ineffective assistance of counsel for failing to ask her client about whether the client had been subject to female genital mutilation (“FGM”).

In Teclezghi v. Holder, Nos. 07-70661 & 07-71463 (9th Cir. Jan. 4, 2011), Judge Pregerson writes:

An attorney representing an asylum seeker has a duty to investigate all grounds upon which an applicant may be entitled to relief… [and must] inquire as to whether her female client has suffered female genital mutilation when (1) nearly 90 percent of women in the client’s home country endure such a brutal procedure, and (2) it is well-settled that female genital mutilation constitutes persecution sufficient to warrant a grant of asylum.

The Judge concludes by rejecting the majority’s reasoning that an attorney should not be required to inquire about something as personal as FGM:

The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief. The panel majority’s decision allowing attorneys to forego investigating intensely personal facts in an asylum claim diminishes the attorney’s role in the asylum process. Our precedent tells us that competent attorney performance requires more. I believe that our court should instill a greater sense of professional responsibility in attorneys who represent asylum seekers.

It’s a powerful argument–and a cautionary tale for those of us who represent women from countries where FGM is widespread.  If Judge Pregerson’s position were adopted, attorneys would be required to ask about FGM not just in asylum cases, but also for clients seeking other forms of relief.  And we would–I suppose–be required to file FGM-based asylum applications for all clients who have been victims of the practice.  I have mixed feelings about this.

An anti-FGM poster in Kenya.

One problem is that it takes considerable time to develop an asylum case; particularly a case based on FGM.  For private attorneys, we would need to charge money for this time.  For non-profit attorneys, more time on one case means taking fewer cases overall.  Thus, fewer asylum seekers would be represented. 

Another problem is that adding an additional claim for relief may weaken the overall case.  It’s a question of strategy, but generally, if I have a strong basis for relief, I would rather not include a second, weaker claim for relief.  The weaker application tends to distract from the stronger, and increase the odds that both applications will fail.  Under the regime outlined by Judge Pregerson, I might feel obliged to include the FGM claim, even if I felt it would distract from the main focus of the case (if only for CYA–cover your ass–purposes).

On the other hand, if asylum might be available to a client based on FGM, the lawyer has a duty to at least explore that option.  I think it goes too far to label an attorney “ineffective” for failing to file an FGM asylum claim, especially where the attorney determines that such a claim is not the best strategy for the case.  However, where the attorney fails to ask about FGM when the client hales from a country where that practice is prevalent, there is a good argument that the attorney has provided ineffective assistance of counsel.

Continue reading

3 Comments

FAIR Gets It Wrong

by Jason Dzubow

The Federation for American Immigration Reform recently issued a report called Refugee and Asylum Policy Reform.  I already blogged about flaws in the report’s methodology and some points in the report I agree with.  For today, I want to discuss some points that I disagree with (i.e., where FAIR got it wrong).

The Hebrew Immigrant Aid Society (HIAS)

The FAIR report basically attacks HIAS:

I wonder if this refugee family - reunited with help from HIAS - thinks the organization has outlived its purpose.

A prime example of a refugee resettlement organization whose raison d’etre has become self-perpetuation is the Hebrew Immigrant Aid Society (HIAS). The venerable organization that has helped Jews fleeing pogroms, the Holocaust and, more recently, oppression in the Soviet Union, has been confronted with a situation that might otherwise be considered a positive development: There [are] remarkably few Jewish refugees in need of resettlement. Without a real mission, HIAS has resorted to inventing one rather than declaring its mission accomplished and closing its doors. By its own admission, only a small percentage of the people resettled by HIAS are the people whom the organization ostensibly exists to serve.

This statement is pretty ridiculous.  Today, there are over 14 million refugees in the world.  HIAS was created to help Jewish refugees.  Now that (thankfully) there are few Jewish refugees, HIAS uses its expertise to assist other people in need.  To anyone concerned about helping others, this seems like a no-brainer.  Apparently, though, FAIR doesn’t get it. 

Particular Social Group

FAIR complains that the definition of “particular social group” has been expanded too far.  Specifically, the report mentions homosexuals, and argues that most cases of persecution based on sexual orientation involve persecution by private individuals where the government cannot or will not protect the individual from harm.  FAIR objects to this in principle:

In essence, decisions of this type put the United States in the position of a safety valve whenever foreign governments fail to exercise their responsibilities to protect their own citizens. That may be a noble objective, but it is an unreasonable burden.

First, while some cases of persecution of gays involve non-state actors, a number of countries persecute homosexuals, including Iran and Saudi Arabia, where the “offense” of homosexuality is punishable by death.  Second, protecting individuals who face harm or death is not an “unreasonable burden” (when is saving someone’s life ever really an unreasonable burden?).  There are no statistics about the number of people granted asylum based on “particular social group,” but my guess is that only a small percentage of asylum seekers fear persecution on account of their particular social group.  So even if we are concerned with the number of people winning asylum based on this protected ground, that number is fairly small.  Finally, the asylum law does not require state action–people who face persecution from non-state actors are eligible for asylum if their government cannot or will not protect them.  To the person who is persecuted or killed, it may not matter much whether he is killed due to government action or government inaction.  Dead, as they say, is dead.

Asylum Should Be Temporary

FAIR also believes that a grant of asylum should generally be temporary:

Asylum protection should be temporary, maintaining the focus of the individual on the need to return to the home country to work for positive change.

By this logic, we should have sent Einstein back to Nazi Germany to work for “positive change.”  

The hope, of course, is that asylum seekers will return to their country if conditions improve, but the reality is that most will not–even if it becomes safe to go back.  For one thing, it usually takes a long time for country conditions to change.  I represent many asylum seekers from Ethiopia.  That country has had the same repressive government for almost 20 years, and it does not look to improve anytime soon.  Also, people need to feel that they are safe.  To grant someone asylum, only to deport her later, leaves her in a frightful limbo, unable to move forward with her life or to feel secure.  Finally, when helping another person, it is important to respect that person.  We should respect asylees enough to allow them to make their own decision about whether it is safe to return.

So I suppose that concludes my comments on FAIR’s report.  While I disagree with many of the recommendations, the report raises points that are worth discussing, and I hope the conversation will continue.

Continue reading

1 Comment

Why It Is Offensive to Read the Constitution

by Jason Dzubow

I may belong to the last generation of Americans who make analogies to Eddie Haskell, Wally Cleaver’s two-faced friend from Leave It to Beaver who used to give Beaver “the business” and then turn around and feign sweetness towards his mother.  Mrs. Cleaver never bought Eddie’s act, but she was always too polite to say anything.  In the current scenario, the House Republicans are Eddie Haskell and the American People are June Cleaver. 

Golly Gee Willikers! What's wrong with reading the Constitution?

The House Republicans read the Constitution at the start of the new Congress, and then dared anyone to object: What red-blooded American could oppose reading the Constitution, they ask with feigned incredulity.  I object, and I think all Americans should too. 

So what’s wrong with reading the Constitution?  The problem, of course, is not the Constitution itself, but the underlying message, delivered with a wink: We Republicans and Tea Partiers–not you–own this document.  It is ours to interpret.  We–not you–know what it means.  We’ll explain it to you in our folksy, no nonsense, commonsensical style.  We’ll use words like “originalism,” “Judeo-Christian,” and “American exceptionalism.”  No reasonable person—no real American—could possibly hold any other view of our founding document.  It’s so simple, the Republicans tell us, even a liberal could understand.

But the Constitution does not belong to the Republicans, or the Tea Partiers.  It belongs to all Americans.  To everyone.  The triumph and the tragedy of the Constitution is that it is subject to different interpretations.  The search for certainty in the document is a red herring.  In the 1920s and 30s, the search for certainty led many countries to turn to the Übermensch, the strong father figure who promised security in a dangerous and uncertain world.  We all know how that turned out.  As adults, we must accept that certainty is an illusion. 

And while the lack of certainty might be discomfiting, this is also the brilliance of our founding document.  It requires vigorous debate.  It requires engagement on substantive issues.  Without the uncertainty of the Constitution, we would not have had the great or the terrible decisions that shaped our nation: Dred Scott, Brown v. Board of Education, Roe v. Wade, Bush v. Gore.  The Constitution’s ambiguity led us to debate the important issues of our time, but the document has also given us an historic framework and a legal process for those debates.   

They say, we are who we are because of, and in spite of our parents.  We as a nation are what we are because of and in spite of the Constitution.  By attempting to seize exclusive control of this document through a seemingly innocent, Eddie Haskell-like reading, Conservatives want to force their interpretation upon us and to cut off debate.  They did the same thing with the American flag, turning it into a symbol for the Right, worn on every “real American’s” lapel.  Co-opting jingoistic symbols of patriotism is one thing, but when they try to make us swallow their version of the Constitution and no other, we need to stand up and say no.  That is why the Republican’s reading of the Constitution in the House was so offensive.

Continue reading

3 Comments

Mental Health for Refugees and Asylum Seekers

by Jason Dzubow

The below post was prepared by a friend who is a keen observer of the immigration system, and who has seen many cases in immigration court, at the asylum office, and with USCIS.  My friend wishes to remain anonymous: 

Refugees and asylum seekers more often than not arrive in the United States after having endured difficult conditions and traumatic experiences.  As a consequence, many are affected by stress and trauma-related mental health issues, such as PTSD (Post-Traumatic Stress Disorder).  

Newly arrived asylum seekers often have difficulty finding mental health assistance, especially when many are unlikely to venture beyond their close family and friends, and there are stigmas attached to seeking such assistance.  Fortunately across the country, there are many organizations that provide low-cost or free mental healthcare.

According to the Transactional Record Access Clearing House (“TRAC”), the bulk of asylum cases (six out of ten) are decided in four of the fifty-two immigration courts across the country: New York City, Miami, San Francisco, and Los Angeles.  Finding assistance in one of those four cities is probably easier than in other places, since immigrant communities are more established.

Regardless of location, the links below should provide a good starting place to find the help needed.  The below list is far from comprehensive, so please feel free to share any other sources in the comments section.

 And of course, inclusion on this list does not constitute an endorsement.  Rather, the organization listed below should provide a starting point for people in need of assistance:

Mental Health Association of California: www.mhac.org (California Only)

Florida Mental Health Counselors Association: www.floridamhca.org (Florida Only)

The Pro Bono Counseling Project: www.probonocounseling.org (Maryland only)

CAIR (Capital Area Immigrant’s Right’s) Coalition: www.caircoalition.org  (Maryland, Virginia, and DC)

Mental Health America: www.mentalhealthamerica.net (Nationwide)

Another good place to seek out assistance is any local teaching hospital.  Hopefully this list will provide a starting point for those seeking assistance. 

Continue reading

1 Comment

The Federation for American Immigration Reform (FAIR) Gets It Right

by Jason Dzubow

Recently, the Federation for American Immigration Reform (FAIR) released a report called Refugee and Asylum Policy Reform.  Last week, I wrote about some problems with the report’s methodology.  Since it’s a new year, I wanted to do something more positive, so for today’s post, I will discuss some recommendations in the report that I agree with. 

The Cuban Adjustment Act

The report recommends that the Cuban Adjustment Act be scrapped as a Cold War anachronism:

The exemption of Cubans in the United States from being required to justify a well-founded fear of persecution if sent back to Cuba is a political rather than humanitarian provision that encourages illegal immigration from Cuba.  The Cuban Adjustment Act should be repealed and the “wet-foot-dry-foot” policy that paroles Cubans into the country should be rescinded by the president.

While I oppose the Cuban Adjustment Act, Cuba's loss has been our gain: Rapper Cuban Link

This policy has never made much sense to me, especially since the end of the Cold War.  I’ve represented Cubans who gained their residency in the U.S. through the Cuban Adjustment Act, and they have all been very nice people.  But they were not political dissidents or people who faced persecution in Cuba.  Maybe the original idea behind the Act was to score a propaganda victory against Cuba, but after 50 years of the “Revolution,” I don’t know that it’s done much good (on the other hand, all those Cubans coming to the U.S. have greatly enhanced our country).  Rather than allow any Cuban who reaches the U.S. to remain here, we would do better to require each person to prove that he has a well-founded fear of persecution in Cuba, just like asylum seekers from other countries.    

Coercive Family Planning

Congress has defined the term “refugee” to include victims of China’s coercive family planning policies.  The FAIR report recommends that the “expansion of the definition of a refugee to include coercive family planning policies should be reversed.”  “It deviates from international practice and encourages illegal immigration from China.”  

I have always felt that it is unfair to condemn China for its one-child policy.  That country faces a very real and very dangerous population crisis, and the government instituted a policy (however unpalatable) to avoid disaster.  The law that FAIR opposes is more narrowly written than the report indicates, but it is still over-broad.   INA § 101(a)(42)(B) defines “refugee” as follows:

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

The law appropriately defines “refugees” to include past victims and possible future victims of forced abortion and forced sterilization.  However, those who “resist” the family planning policy are also covered.  I would limit the definition of “refugee” to include only those who suffer from the coercive policies, not those who merely oppose such policies (though in my understanding, asylum is not given willy-nilly to anyone who expresses opposition to the one-child policy, and in this respect, I think FAIR’s concern is a bit over-blown). 

Asylum Fraud

The FAIR report is concerned with “combating the documented fraud in the asylum system.”  Fraud is a problem in the asylum system, and it is one I have written about before in a post creatively titled Fraud and Asylum.  I believe the most effective method to combat fraud–and I did not see this mentioned in the FAIR report–is to aggressively go after attorneys and notarios who engage in fraudulent practices.  To quote my own blog on this point:

Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the “client” engage in fraud, the attorney could be charged with a crime….  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.

So, I am pleased to have found a few points of agreement with the FAIR report.  In a future post, I will discuss some areas of disagreement.  Happy New Year.  

Continue reading

3 Comments

FAIR’s Report on Asylees and Refugees Offers a Distorted Picture

by Jason Dzubow

The Federation for American Immigration Reform (FAIR) recently released a report calling for reform of our country’s refugee and asylum policies.  The report, titled Refugee and Asylum Policy Reform, was authored by FAIR’s Director of Special Projects, Jack Martin.  The report covers a wide range of topics, from refugee admissions, to Temporary Protected States (TPS), to Chinese family planning asylum.  In general–and as expected–it calls for restricting humanitarian benefits for people seeking protection in the United States.  Concerning asylum, the report states:

Our country’s asylum law has been expanded by legislation and by court decisions to the extent that it has grown from a small program intended for unusual situations, where the return to a home country would constitute exposure to persecution, to become a major component of immigrant admissions. It too, by the absence of evidentiary standards, is open to fraud by persons who have no other basis for entry as immigrants.   

Having reviewed the report, there are some points I agree with, more points that I disagree with, and a few questions I have about the report’s methodology.  The report is fairly long (36 pages), and there are a number of points worth discussing, so I will devote a couple blog posts to my response.  For today’s post, I want to raise a few questions about the report’s methodology. 

The report, p. 5, states that “combined refugee and asylee admissions have hit new levels in recent years, exceeding 200,000 in 2006,” but it is not clear where FAIR gets its numbers.  According to the Department of Homeland Security, in 2006, 41,150 people were admitted into the United States as refugees, 12,873 were granted asylum affirmatively, and 13,240 were granted asylum defensively.  By my calculation, the total number of refugee and asylee admissions for 2006 was 67,263 people.  The figure of 200,000 likely refers to the number of asylees and refugees who adjusted status to lawful permanent residents in 2006.  These are not new admissions.  Rather, these are people who have been in the United States–in some cases for many years–who were able to adjust status after the cap on refugee adjustments was lifted in 2005. 

Does anyone really trust statistics?

Also on page 5 of the report, there is a chart showing how many refugees and asylees were admitted into the U.S. from 1990 to 2009.  The data on the chart purportedly comes from the Yearbook of Immigration Statistics.  But even a casual comparison of the Yearbook to FAIR’s chart reveals major discrepancies.  For example, FAIR’s chart shows that over 100,000 refugees were admitted into the United States in 2009.  However, the Yearbook of Immigration Statistics (Table 13) states that 74,602 refugees were admitted in 2009.  The chart also shows over 100,000 refugee admissions in 2002, but the Yearbook (Table 13) indicates that only 26,765 refugees were admitted in 2002.  Again, FAIR’s numbers appear to be the number of refugees who adjusted status (i.e., obtained their green card) in a given year, not the number of refugees who actually entered the United States in the specified year.

Page 6 of the report refers to refugees from the Soviet Block.  The report notes that the number of refugees has “nosedived” since the collapse of the Soviet Union, but states: “It is significant, however, that the admission of refugees from Russia and the Ukraine has not ended.”  Next to this statement is a chart, purportedly showing the number of refugees from the “Soviet Union/Ukraine.”  The chart shows that about 4,000 refugees came from the “Soviet Union/Ukraine” in 2009.  A review of the Yearbook of Immigration Statistics (Table 14) shows that in 2009, 495 refugees came from Russia and 601 came from the Ukraine, for a total of 1,096, far short of the 4,000 refugees listed on FAIR’s chart.  Again, FAIR seems to be listing the number of refugees from the former Soviet Union who are adjusting status, not the number of new admissions.  Some of these refugees may have lived in the U.S. for decades before adjusting status.

Page 14 of the report unfairly represents the proportion of refugees accepted by the United States.  The report states:

[The] United Nations High Commission on Refugees (UNHCR)… states that the United States accepted of 62,000 refugees out of 84,000 who were identified as needing permanent resettlement by that agency in 2009 — nearly three-fourths of the total.

In fact, footnote 23 of the FAIR report states that: “In 2009, UNHCR submitted 129,000 refugees for resettlement…. 84,000 refugees were actually resettled last year.”  So it seems to me a bit misleading to say that the U.S. accepted “62,000 refugees out of 84,000 who were identified as needing permanent resettlement,” when, in reality, the UN identified 129,000 refugees in need of permanent resettlement (and when there are about 15 million refugees worldwide).  This means that the U.S. accepted less than half of the refugees identified for resettlement, not three-fourths as stated in FAIR’s report. 

In sum, FAIR’s report gives a distorted impression of the number of refugees and asylees coming to the U.S.  The report should have relied on the number of new arrivals–not the number of refugees and asylees who are already here and who are applying for residency–to make its points.  Perhaps this would have made FAIR’s points somewhat less compelling, since the number of refugees and asylees arriving in the U.S. is less than what the report represents, but it would have had the virtue of being less misleading.

In future posts, I will discuss some points of agreement and disagreement with FAIR’s policy recommendations.    

Continue reading

3 Comments

Strange Bedfellows: Pro-Immigrant Organizations Join with Hate Group to Support Refugee Reforms

by Jason Dzubow

A recent article in the Baptist Press illustrates just how diverse the refugee advocacy community really is–and now, some pro-immigrant organizations have joined forces with an anti-Moslem, anti-gay hate group.  The issue that has brought together this “coalition of religious, conservative, and human rights leaders” is the material support bar and the Obama Administration’s failure to adopt reforms to prevent innocent refugees from being classified as terrorists (I touched on this problem in a previous post). 

Among the groups that joined together to call for reform are the Southern Baptist Ethics & Religious Liberty Commission, the Hebrew Immigrant Aid Society (HIAS), Human Rights First, Concerned Women for America, the National Association of Evangelicals, and the U.S. Conference of Catholic Bishops.

The group that really stands out to me is Concerned Women for America.  Here are some quotes from their website:

In a time when families are struggling to pay their mortgages and utility bills, much less buy Christmas presents for their loved ones, the Smithsonian Institution, which is partly funded by American taxpayers, is promoting an exhibit that degrades Christianity and exalts homosexuality….  I urge Congress to swiftly take steps to defund the Smithsonian Institution for their reckless and inexcusable judgment in funding such a project.

On September 15, 2011, CWA will present an in-depth discussion with experts on America’s most important policy issue. This issue affects foreign policy, human rights and perhaps even our own system of law in the future. Come join us and our panel as we expose underlying tenets of Sharia Law and how it threatens our nation and your family.

Another measure that failed during the lame duck session was the DREAM Act, a back door amnesty bill that would grant automatic citizenship to the children of illegal immigrants, with “children” defined as anyone up to the age of 35.

So, CWA hates Moslems and DREAM Act children.  They also hate gay people: the Southern Poverty Law Center notes that the organization’s founder “has blamed gay people for a ‘radical leftist crusade’ in America and, over the years, has occasionally equated homosexuality with pedophilia.”  But the CWA supports reforming the material support bar for refugees, and is thus part of the broader coalition.  

What’s surprising to me is that mainstream groups such as HIAS and Human Rights First–groups that I strongly support–would join together with a group like CWA.  Maybe I am naive to think that reform can occur without a broad coalition, but it seems to me that some groups are simply beyond the pale.  Don’t get me wrong–I greatly respect most of the groups that have joined together to call for reforming the material support bar.  But I respectfully suggest that they should be more careful about who they partner with in the future.  To me at least, the ends simply do not justify the means.

Continue reading

2 Comments

Funding Shortfall for Refugee Resettlement

by Jason Dzubow

The Senate’s recent decision to fund the government through a continuing resolution instead of an omnibus appropriations bill will have major implications for refugee resettlement agencies in the United States, reports the Huffington Post. 

Maybe the Spirits of Christmas will convince the Senate to save the "surplus population."

The President’s proposed budget for FY 2011 had included an 18.5% increase in funding for refugee programs, an increase that is desperately needed.  However, the continuing resolution keeps funding at FY 2010 levels.  This means that refugee resettlement agencies do not have the resources to do their jobs, and that refugees are unable to meet short term needs–such as grocery bills and rent, and long term needs–such as moving towards self sufficiency. 

There is some bipartisan support for increasing funding for resettlement.  The Huffington Post reports:

Sen. Richard Lugar (R-Ind.), ranking member on the Senate Foreign Relations Committee, issued a report in July stating that funding for refugee programs is too low, and that that, in turn, puts strain on local communities stepping in to fill the void. Lugar argued the government should either accept fewer refugees, or give more funding to programs designed to help those that are allowed into the country.

In tough economic times, there is a temptation to reduce the number of refugees we admit into the United States (the admissions ceiling for FY 2011 is 80,000 refugees, which is similar to previous years).  However, if the U.S. reduces its refugee numbers, other countries will likely follow suit.  This means that thousands of refugees will be left to linger, and sometimes die, in refugee camps.  The U.S. has been–and should continue to be–the leader in assisting refugees.  Further, we bear a particular responsibility since many of the refugees come from Iraq and Afghanistan, collateral damage from our efforts to fight terrorism and extremism.

Protecting and resettling refugees helps the United States maintain its moral leadership in the world.  As they say, the U.S. is great when it is good.  We should fully fund our refugee resettlement programs to ensure that some of the most vulnerable people in our community get the assistance they need. 

Continue reading

1 Comment

Witnesses: The Triumph or Tragedy of an Asylum Case

by Jason Dzubow

I finished my last asylum trial of the year earlier this month, and I almost lost the case, thanks to a witness who had flown in from Cameroon especially for the occasion. 

I felt that our case was pretty strong–my client was a political activist who had been arrested several times in his country.  The case was well documented, and my client seemed credible.  Even the government attorney indicated that we should get it over with quickly–a sure sign that she anticipated a grant.  Then, basically out of nowhere, the witness starts babbling about the time he and my client were arrested together in Cameroon.  My client had never mentioned this arrest to me, nor had the witness told me about it during our preparation session.  In Immigration Court, attorneys are not permitted to strangle their own witnesses, so there was nothing I could do but watch my case go down the drain.  Fortunately, during re-direct, I was able to elicit some explanation from the witness.  Then we had my client return to the stand to further clarify.  In the end, the Judge granted relief, but a strong case was nearly sunk by a witness with a big mouth.

The Rules of Professional Conduct do not allow an attorney to strangle a witness, even when it seems justified.

All this raises the question: Do the benefits of witnesses outweigh the risks?  It’s a question I have thought a lot about.  On the one hand, the REAL ID Act requires us to submit reasonably available evidence, so if a witness is available and we do not bring her to Court, the IJ could use that to support a denial.  On the other hand, it is difficult to hold the respondent responsible for a witness who fails to appear, and a well-supported case will likely be granted even when there is no witness. 

Nevertheless, I tend to bring witnesses to Court if I have them.  For one thing (and perhaps this is naive), I feel a certain duty to present my case, for better or worse.  If the IJ sees that we are presenting everything we have, and being as open as possible, I believe that we are more likely to win the case.  Also, I feel it makes me a more credible lawyer, and thus helps my clients over the long run.  In addition (and again, possibly naively), I believe I can usually prepare the witness for cross examination and anticipate questions that the DHS attorney might ask.  When the respondent and her witness testify consistently about details of an event (especially when those details have not been presented previously in the written statements), it is strong evidence of their veracity.  Finally, I tend to believe (maybe yet again naively) that my clients are telling me the truth when they describe the basis for their asylum claim.  If the client is telling the truth, a well-prepared witness should only help the case.  If the client is lying about his claim, and inconsistent testimony exposes the lie, the client really only has himself to blame. 

Of course, even in a completely bona fide case, an ill-prepared or foolish witness can tank an asylum claim.  That is why I am very wary of witnesses who can corroborate large tracts of a respondent’s story.  The more the witness knows about a respondent’s story, the more opportunities exist for the DHS attorney (or the IJ) to ask detailed question about information not in the written statement and that we did not discuss during trial preparation (the idea is to ask questions that the witnesses are not prepared for, and then compare the answers to make sure the testimony is consistent).  Such questions can be confusing to witnesses who–despite repeated reminders not to do so–sometimes guess at the answers.  A better witness is a person with first-hand knowledge of one small part of the case.  Such a person is less likely to face a broad range of questions from the DHS attorney.

Despite the risks, I feel that a well-prepared witness can go a long way towards winning an asylum case.  I can think of several cases that were won by credible witnesses.  Each case is different, and there are good arguments for avoiding the risks inherent in using a witness.  Despite the risks, I will continue to favor the use of witnesses in my cases.    

Continue reading

1 Comment