Report from the AILA Conference

by Jason Dzubow

So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference.  I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn’t think I would get much out of it.  Turns out, I really enjoyed the conference–it is fun to meet and hear about people who are doing the same work as you and who speak the same “language,” though invariably I spent most of the time hanging out with people I already knew.  Although the fee was pretty steep, I’m glad I went, and maybe I will go again next year if I am feeling flush.

I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney.  The subject was the UN Convention Against Torture (“CAT”).  More specifically, we talked about how the Torture Convention might apply to non-governmental actors.  My role was pretty easy–I presented some hypothetical examples for the audience and the panelists to discuss.  Since I am not so creative, my hypos were actual cases that I had litigated.  One “hypo” examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT.  In real life, I lost that case, though I managed to convince the IJ that FGM was torture.  At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006).  The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities.  That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.

The audience responds to my analysis of the UN Convention Against Torture.

Aside from that panel, there were a number of panels–and some informal meetings–relevant to the asylum practitioner.  Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a “particular social group.”  I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass). 

AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice.  Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference.  The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense.  One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner.  Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys.  There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.  

Overall, it was a useful and energizing conference.  I hope to be back next year.

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Accused Russian Spy Was an Asylee

by Jason Dzubow

Among the 10 people arrested and accused of “conspiring to act as unlawful agents of the Russian Federation within the United States” and “conspiracy to commit money laundering” are “Vicky Pelaez and the defendant known as ‘Juan Lazaro,'” her husband, both residents of Yonkers, New York. 

Ms. Pelaez is a journalist and a native Peruvian.  While working as a journalist in December 1984, members of the Tupac Amaru Revolutionary Movement kidnapped Ms. Pelaez and her cameraman.  She was released a day later after her TV station agreed to air a propaganda piece by the guerilla movement.  Before she was released, she apparently persuaded one of the group’s leaders to let her interview him.  The interview later appeared in a left-leaning newspaper. 

Only one man can stop the Commies and still look this good.

After the kidnapping, Ms. Pelaez and her husband came to the United States where she applied for asylum.  Her case was granted, and she went on to become a U.S. citizen and a popular writer for a Spanish language newspaper in New York.  Apparently, Ms. Pelaez has been supportive of socialist governments in Latin America, including Cuba, Venezuela and Bolivia.  She has also opposed the U.S. wars in Iraq and Afghanistan and supported the rights of Indigenous peoples and undocumented immigrants in the United States.

Ms. Pelaez’s husband, “Juan Lazaro,” admitted that the Russians paid for his home and that he passed letters to their intelligence service, but he has refused to reveal his true name, according to prosecutors.  It seems that Ms. Pelaez’s attorney is disputing this account, and I have not verified it.

All the defendants, including Ms. Pelaez’s husband, are being held without bail, except Ms. Pelaez, who is expected to be released today, although she will be confined to home detention.  It seems that she is the only member of the group that did nto receive “spy training” from the Russians.  

Ms. Pelaez’s political views have led some to believe that this is a case of political persecution by the U.S. government.  Her criminal attorney describes a conversation he had with her:

“When I first met Vicky I asked her: if you are innocent why the U.S. government would bring this charges against you.” Vicky Pelaez believes that her criticism against the U.S. policies have converted her in a target for many people “that are very angry” at her political views.

An interesting side issue is the status of her husband.  Whether he was granted asylum or came here as her derivative (or came here in some other way) is unclear.  If he received asylum himself or entered the U.S. as Ms. Pelaez’s derivative, his entry into the U.S. represents a failure of the background security check: he entered using a false name and he was apparently not born in Uruguay, as he had claimed.  Of course, the husband came to the United States 25 years ago, and the security systems have (hopefully) improved since then. 

As we learn more about this strange case, maybe the details of Ms. Pelaez and her husband’s entry into our country will be revealed.  Time will tell if there are lessons to be learned.

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“Son of Hamas” Granted Asylum

by Jason Dzubow

In an anti-climatic end to a three-year legal battle, the Department of Homeland Security agreed that Mosab Hassan Yousef should be granted asylum in the United States, reports the San Diego Union Tribune.  Mr. Yousef is the son of a founding member of Hamas.  He converted from Islam to Christianity, spied for Israel, and wrote a book about his experience.  On his blog, Mr. Yousef desceibes what happened and thanks his supporters.  “Honestly, I am still in shock,” he writes.

In a 15-minute hearing before the San Diego Immigration Court yesterday, the DHS attorney indicated that “There has been a change in the department,” and told the Judge that DHS would no longer oppose Mr. Yousef’s application for asylum.  DHS originally opposed the application because Mr. Yousef allegedly gave “material support” to Hamas, a terrorist organization.  Mr. Yousef claimed that any “support” he gave to Hamas was solely for the purpose of determining the group’s plans and foiling attacks against Israelis and Palestinians.   

During the course of his legal ordeal, Mr. Yousef because a cause celebre for pro-Israel groups, as well as certain Israeli officials and members of Congress, all of whom claimed (quite credibly) that his actions saved many lives.  Recently, a former Israeli security agent arrived in the U.S. to testify on Mr. Yousef’s behalf, and several members of Congress wrote letters to the Immigration Judge supporting his application.  Given the evidence–at least the publicly available evidence–it seems clear that the decision yesterday was the right result.  Mr. Yousef does not appear to be a terrorist, and he would certainly face persecution or death if he returned to the Palestinian territory.

One interesting side note, many people, including some members of Congress, complained loudly about President Obama’s aunt, whose case was reopened and who was recently granted asylum.  They speculated–without any evidence–that President Obama somehow improperly influenced the asylum process to help his relative.  I wonder if these same members of Congress will complain about their fellow Congresspeople who wrote to the IJ in Mr. Yousef’s case.  These Congresspeople clearly intended to influence the Judge and the DHS attorney, and the case ended with the result they were seeking.  Personally, I don’t see any evidence of improper behavior in either case, but one would hope that if a Congressperson opposes improper outside interference with one case, he should oppose it in another.

The Need for Reform

Finally, this case illustrates the need for Congress to reform the law on “material support.”  Mr. Yousef is hardly the only person to be labeled a “terrorist” under this broad provision.  Others who have been forced on pain of death to provide food and other supplies to terrorist groups are subject to the same problems.  The members of Congress who supported Mr. Yousef should consider supporting the Refugee Protection Act, a bill that would modify the definition of “material support” to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars.  The bill would, of course, continue to bar those with legitimate ties to terrorist activity from entry into the United States.  Perhaps Mr. Yousef’s case will provide some momentum to this worthy bill.

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Rwandan Woman Who Became US Citizen Is Accused of Genocide

by Jason Dzubow

Beatrice Munyenyezi, 40, of Manchester, New Hampshire was indicted last week on two counts of lying to obtain her U.S. citizenship.  According to a report from the Associated Press, Ms. Munyenyezi left Rwanda in 1994 after the genocide that killed over 800,000 people.  She entered the U.S. as a refugee in 1998 and became a permanent resident one year later.  In 2003, she was sworn-in as a U.S. citizen.  In all her applications, Ms. Munyenyezi denied any involvement in the genocide.

Now federal authorities have arrested her and issued an indictment.  According to a press release from the United States Attorney’s Office:

The Indictment alleges that MUNYENYEZI obtained her U.S. citizenship unlawfully after making material misrepresentations on a number of occasions before and after she came to the United States from the country of Rwanda. In particular, the Indictment alleges that MUNYENYEZI participated, committed, ordered, oversaw, conspired to, aided and abetted, assisted in and directed persecution, kidnapping, rape and murder during the Rwandan genocide of 1994. It is alleged that MUNYENYEZI misrepresented these facts in order to obtain immigration and naturalization benefits.

If the blogosphere is to be believed, Ms. Munyenyezi’s guilt is far from certain, and the U.S. government along with corrupt U.S. government agents are complicit in an international effort to frame her and other Hutus, while ignoring atrocities committed by the Rwandan Patriotic Front (the Tutsi rebel group who put an end to the genocide).  While I can accept that Rwandan government leaders do not have clean hands, the effort to re-write history sounds pretty dubious to me.  At the time of the genocide, I was an intern in the Bureau of Population, Refugees, and Migration at the U.S. State Department.  We were closely following events in Rwanda, and I don’t remember there being many questions about who was murdering whom.  That said, the U.S. government bears the burden of proving that Ms. Munyenyezi lied on her applications, and it will have to submit evidence of her involvement in the persecution.   

Ms. Munyenyezi is not the only person in her family accused of human rights violations.  A United Nations tribunal has also charged her husband and her mother with involvement in the mass murder.  If convicted in the U.S., Ms. Munyenyezi faces up to 10 years imprisonment, followed by 3 years of supervised release and a $250,000 fine, along with revocation of her U.S. citizenship.

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Journey to the U.S. Can Be Especially Dangerous for Women

by Jason Dzubow

Asylum is one of the few mechanisms for people who enter the U.S. illegally to obtain legal status in our country, and many asylum seekers risk the difficult journey from their home countries, through South America, Central America, and Mexico, and into the United States.  The trip is dangerous for everyone, but women face particular hardships. 

A recent report from the Immigration Policy Center by Kavitha Sreeharsha notes that “70% of women who cross without spouses or other [family members] are sexually assaulted during the border crossing.”  “Advocates report that women are encouraged to take birth control pills before traveling across the border in anticipation of the sexual assault.”  Probably as a result of this danger, the ratio of female to male asylum seekers who enter the country at the Southern border is very low (according to DHS, only about 17% of people apprehended at the U.S./Mexican border are female).

In my own practice, I regularly see asylum seekers who have traveled from Africa and crossed into the United States illegally.  Some have been apprehended at the border and later released; others have avoided capture.  It’s very rare for me to see female asylum seekers who entered the United States in this manner.  In fact, I can only think of one woman client who crossed the border without inspection.  She traveled from Africa to South America and then to Central America and Mexico.  She met different smugglers in each country.  Sometimes, she traveled with other Africans, but other times, she was alone.  She made the journey with no particular problems and then she crossed the Rio Grande River with a few dozen migrants.  Once she was in the United States, the smugglers separated her and another woman (and that woman’s small children), and locked them in a house.  The smugglers raped my client.  After some days, she escaped and contacted the police.  The smugglers were never captured.

My client’s story illustrates the danger faced by women traveling alone along the smuggling route.  Of course, we hope that the countries where these smugglers operate will crack down on the practice, but such reforms seem a long way off in most places.  The story also illustrates the risks people will take to escape their problems and seek a better life in our country.  To paraphrase the old idiom: immigration is the sincerest form of flattery.

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Decision to Deny Asylum to “Son of Hamas” Is “Idiotic”

by Jason Dzubow

We’ve reported before about Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  He has been living in California for the last few years and his application for asylum was recently rejected because he supposedly provided “material support” to Hamas, a designated terrorist organization.  Mr. Yousef claims any “support” he provided was done in the course of learning about the organization in order to prevent terrorist attacks.  His case is currently before an Immigration Judge, who will review his claim for asylum de novo.

Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef’s claim.  The Jewish Journal reports that Gonen Ben-Yitzhak confirmed that Mr. Yousef provided information that “prevent[ed] attacks that saved countless Israeli and Arab lives.”  Mr. Ben-Yitzak will testify at Mr. Yousef’s upcoming asylum hearing. 

It is illegal for a former Shin Bet agent to publicly reveal his name, and Mr. Ben-Yitzak faces potential legal trouble in Israel when he returns:

“It’s my country, my land. I love the Shin Bet, and I love Israel. But I have to help my friend,” he said of the San Diego hearing. “This is my duty — to stand with him and say the truth. It’s something I need to do. He always stood beside me. In the harshest days of the second intifadah, I called and asked about his opinion because his understanding about Hamas is unbelievable.”

The two men received awards at a dinner sponsored by the Endowment for Middle East Truth, a pro-Israel organization.  Other muckety-mucks at the dinner included Senator Sam Brownback, Congressman Brad Sherman, and Congressman Doug Lamborn.  The event was held at the U.S. Senate, leading Mr. Yousef to joke, “How did security let a terrorist like me into this building?” 

Mr. Yousef’s asylum hearing is scheduled for next week.  There seems little doubt that he has a well-founded fear of persecution in the Palestinian territory–not just for his efforts against Hamas, but also for his apostasy (he has publicly referred to Islam as a religion of hate).  The issue is whether his “support” for Hamas will disqualify him for asylum.  Mr. Ben-Yitzak’s testimony should go a long way towards solving the “material support” problem.  And even if the Immigration Judge determines that Mr. Yousef supported Hamas, he should still qualify for relief under the United Nations Convention Against Torture, which would allow him to remain in the United States.

When asked about the U.S. government’s effort to deport Mr. Yousef, Mr. Ben-Yitzak, the former Shin Bet agent, said, “It’s hard for me to understand — very hard for me to understand.”  Former CIA director James Woolsey was less diplomatic.  “My view is that the decision to deny him political refugee status was incredibly idiotic,” Woolsey said.  “It’s hard to think of a worse immigration decision in history.  It’s fundamentally nuts.”

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Help for the Stateless?

by Jason Dzubow

According to a recent report, about 4,000 people known to be stateless are living in the United States.  Probably, many more are living here under the radar.  Refugees International reports that there are over 12 million stateless people world-wide: “Statelessness results from factors such as political change, border demarcation or secession, forced expulsion, discrimination, nationality based solely on descent, and laws regulating marriage and birth registration.”  Stateless people have “limited access to health care and education; prospects for employment are poor, leading to generations of poverty; and their right to freedom of movement is routinely violated. Stateless people face social exclusion, harassment, and violence.”

Current U.S. law does not provide stateless people with any legal status.  Unable to return to their former countries, stateless individuals living in the United States risk being detained and must apply annually for permission to work.  They also face travel restrictions and are often required to report regularly to immigration officials–a requirement that can last indefinitely. 

When the Dan Glickman of Refugees International testified before Congress last month, he gave the example of Tatianna, a stateless woman from the former Soviet Union:

Tatianna is a 61 year-old mother and grandmother, a piano teacher who has lived in the United States for over 20 years.  She was born in Russia during Soviet times and eventually moved to what is now Ukraine.  In 1992, after being persecuted by the authorities for her political beliefs, she came to the United States with the younger of two sons and applied for asylum.  Their case was denied in 1997.  Following its independence Ukraine passed a law requiring people to have resided in Ukraine for two years following independence to be eligible for citizenship. Tatianna had fled before having lived in Ukraine for two years and she is therefore not recognized as a Ukrainian citizen. Russia doesn’t recognize Tatianna as a citizen either because Russian nationality laws require individuals to have lived in Russia after the collapse of the Soviet Union, which Tatianna did not.

This means that the United States had nowhere to return Tatianna after denying her asylum claim. Tatiana and her son are stateless.  No country recognizes Tatianna as a citizen. She has no nationality, and there is no legal pathway for her to acquire citizenship in the U.S.  She lives in limbo and is unable to fully participate in society.  She has no travel documents and no means to acquire them.  She has been separated from some of her closest family members for decades.  And although she and her son have paid taxes in the United States since they arrived 20 years ago, she is not eligible for social security.  Tatianna must check in with the Department of Homeland Security (DHS) every month by telephone and every six months in person.  She never knows what might happen when she goes to DHS and lives in fear that she could be arbitrarily jailed.

The proposed Refugee Protection Act addresses the problem of statelessness and provides a path for stateless residents of the U.S. to obtain their permanent residency and ultimately their citizenship.  Hopefully, support for the RPA will gain momentum and provide help to stateless people in the United States.

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Congressional Hearing on EOIR

by Jason Dzubow
On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR).  The hearing was called by Chairwoman Zoe Lofgren (D-CA) as part of a long-running effort to understand why the Immigration Courts and Board of Immigration Appeals (BIA) are as backlogged, inefficient, and overwhelmed as they are. 
 

Where the magic happens.

While ranking member Steve King (R-IA) continued his crusade to find out what “really happened” in the asylum case of President Obama’s aunt, the rest of the Subcommittee and witnesses got straight to the crux of EOIR’s problems:  lack of resources, insufficient staffing and training of immigration judges, and a complete disconnect between EOIR’s capacity to adjudicate cases and ICE’s skyrocketing enforcement efforts.   

First up was Juan Osuna, former Chairman of the BIA and current Associate Deputy Attorney General at the Department of Justice.  As the DOJ representative before the Subcommittee, he was obliged to highlight the positive changes made during the Obama Administration’s stewardship of EOIR.  These efforts include the proposed hiring of 47 new immigration judges by the end of 2010, making the complaint process against IJs more transparent, improving the training regime for IJs, and having “meetings” with ICE to express EOIR and DOJ’s discontent with the massive number of immigration court cases being initiated by ICE right now. 

Mr. Osuna is right to be concerned about the astonishing increase in cases before the immigration courts.  He testified that there are a record 275,000 pending matters before EOIR.  Coupled with the decline of IJs actually hearing cases, this has resulted in an average wait-time of 439 days for a case to go to trial.  That’s right—the average person who has a case in immigration court has to wait over a year for a hearing on the merits of his or her claim.  Meanwhile, armed with a gargantuan budget and an enforcement mandate, ICE keeps arresting, detaining, and issuing “notices to appear” to as many noncitizens as it possibly can.  EOIR has no control over this and clearly isn’t keeping up.   

As Representative Pedro Pierluisi (D-PR) pointed out, the overwhelming caseload and lack of support is creating a great deal of strain on immigration judges themselves.  Witness and Immigration Judge Dana Marks (also President of the National Association of Immigration Judges), noted that the average Federal district court judge handles 400 cases per year and has three law clerks to assist him.  The average immigration judge completes 1500 cases per year and gets ¼ of one law clerk.  Further, TRAC Immigration reports have indicated that an IJ gets an average of only 70 minutes to hear an immigration case.  Practically speaking, that means that in just over an hour, an IJ has to decide whether the law requires him to split up a family, keep someone detained, or send someone back to his home country to face persecution.  And the DOJ wonders why it has a hard time finding qualified, experienced immigration judges? 

The laundry list of problems raised at the hearing could go on for pages, so I’ll stop here.  I think it is clear enough that as a starting point, EOIR needs more resources if ICE is going to continue to funnel record numbers of people into deportation proceedings.  For other suggestions on how to reform the immigration court system, I recommend reading a recent ABA report called “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.” You can read the full ABA report here.

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UN World Refugee Day

by Jason Dzubow

As millions of people around the globe were marking World Refugee Day on Sunday, UNHCR chief António Guterres called on the international community to do more for the forcibly displaced.

High Commissioner made his call during a press conference in Syria – broadcast on a live video link – where he met earlier in the day with President Bashar Assad and other top leaders. Syria hosts about 1 million mainly Iraqi refugees, according to the government.

“I appeal to the international community to do more to host refugees,” Guterres said just two days after the UN refugee agency announced that 100,000 Iraqi refugees have been referred for resettlement from the Middle East to third countries since 2007, a major milestone for one of the world’s largest refugee populations.

UN Secretary-General Ban Ki-moon, meanwhile, also made an appeal on behalf of refugees in a special World Refugee Day message. “Refugees have been deprived of their homes, but they must not be deprived of their futures,” he said, while calling for working with host governments to deliver services and for intensified efforts to resolve conflicts so that refugees can return home.

To read more, click here.

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The ICE Plan Cometh

by Jason Dzubow

Immigration and Customs Enforcement (ICE) has announced a new five-year Strategic Plan.  The Plan’s top three priorities are: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.  There is not a whole lot in the Plan that relates to asylum, perhaps because ICE does not view asylum seekers as a major concern.  However, a few sections of the Plan may impact asylum seekers:

One objective of the plan is to dismantle organized alien smuggling.  In my practice, I’ve seen a number of asylum seekers who have followed a smuggling route from Africa to the U.S. (via South and Central America).  My guess is, this operation is too small to garner much attention from ICE, though there certainly are examples of individual smugglers brought to justice.  We’ll see if ICE’s plan impacts these small-scale operations, and whether it does anything to stem the modest flow of asylum seekers entering at our Southern border. 

The report also states that “newly arriving aliens who do not successfully evade detection are apprehended, detained, and removed as appropriate by law.”  As long as these arriving aliens continue to have opportunities to request asylum and credible fear interviews at the border, this provision should not greatly impact asylum seekers.  The danger is that the practice of cajoling, threatening, and tricking arriving aliens into waiving their right to seek protection will become more common in a culture of stepped up enforcement.  Such behavior is not supposed to happen now, but I have heard many reports that it does.  Hopefully, ICE’s get-tough approach will not compromise our human rights obligations.

The plan continues:

To best protect the system, ICE will work closely with USCIS and the Department of State to identify, address, and prevent the many large-scale, organized frauds perpetrated on the government each year. In addition, ICE will pursue criminal cases against individuals who lie on applications, engage in fraud, and pose a threat to national security or public safety. As ICE attorneys have great insight into possible fraud, they will actively refer cases to ICE agents and, as possible, serve as Special Assistant United States Attorneys to assist with prosecutions. ICE will expand the number of document and benefit fraud task forces to every Special Agent in Charge office.  Following criminal cases, ICE will work closely with USCIS to address lingering administrative fraud.  Also to protect the integrity of the immigration system, ICE will remove aliens who receive final orders, with a focus on convicted criminals and those who have most recently received orders.

I’ve written before about methods to combat asylum fraud.  While ICE can target cases of individual fraud, I’ve always felt that the best policy is to pursue attorneys, notarios, and others who create fraudulent cases.  These people are the most culpable, and removing them from the scene will have a greater impact than removing an individual alien.  Plus, from my conversations with ICE attorneys, it should not be too hard to identify the fraudsters.  The danger, of course, is that legitimate asylum seekers will be intimidated by over-zealous attorneys looking for fraud.  In an atmosphere of increased enforcement, it will be more important than ever for ICE personnel to be sensitive to the situation of legitimate asylum seekers.

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Congressman Steve King’s Aunt Onyango Stunt

by Jason Dzubow

Congressman Steve King (R-Iowa) is the latest politician to exploit President Obama’s Aunt Onyango for political gain.  Zeituni Onyango is the Kenyan half sister of President Obama’s father.  She filed for asylum in 2002 and lost, but after Obama came onto the national scene, she re-applied and her application was granted.  Applications for asylum are confidential, but that doesn’t seem to bother Rep. King.  In a letter to the Chair of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, he writes:

I am concerned about the public perception that favoritism played a role in the grant of asylum to Ms. Onyango.  The Boston Globe reported that “the [asylum] decision unleashed a firestorm of criticism from those who felt Onyango received preferential treatment because of her relationship with the president.”   In order to better determine whether favoritism played a role – especially because Ms. Onyango had been earlier turned down for asylum and ordered deported in 2004 before her nephew became president – the Subcommittee needs to hear from Ms. Onyango herself.  Therefore, I will invite her as the Republican witness on the second panel at Thursday’s hearing.  

While I understand that asylum proceedings are generally confidential, Margaret Wong, Ms. Onyango’s attorney, has clearly courted press attention regarding this matter.  In fact, I assume that the press learned that Ms. Onyango received asylum because of comments to the media made by Ms. Wong.  Therefore, Ms. Onyango has made herself a public figure and should have no hesitation about appearing before the Subcommittee.  Further, in order to facilitate Ms. Onyango’s appearance before the Subcommittee, I request that you and Chairman Conyers authorize the Committee to reimburse her travel expenses.

I’ve already written about Ms. Onyango’s case and the likely basis for granting her asylum.  Suffice it to say, for anyone familiar with the law of asylum, it’s no great stretch to imagine why Mr. Onyango’s case was approved.  Further, Rep. King’s attempt to blame Ms. Onyango’s attorney (who is apparently a bit of a self-promoter) for turning Ms. Onyango into a public figure is ridiculous–Ms. Onyango cannot be blamed for her attorney’s actions.  Finally, if there were any type of misconduct or improper influence in this case, why ask Ms. Onyango about it?  Why not subpoena the Immigration Judge or the DHS attorney?  The reason is simple.  Rep. King does not care about the truth.  He just wants to exploit Obama’s Aunt for his own political gain.

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Can DNA Stop Asylum Fraud?

by Jason Dzubow

The United Kingdom is experimenting with genetic testing as a method for reducing asylum fraud.  According to the UK Border Agency, falsifying nationality to gain political asylum has been a particular problem among East Africans (I recently discussed this problem here).  In response, the UKBA attempted to implement a program to genetically test East African asylum seekers to determine their country of origin.  The 2009 program was much criticized by scientists and immigrant advocates, and the British government ultimately shelved the plan.  However, the UK is continuing a smaller scale “proof of concept” project that is scheduled to finish up this month.  According to the UKBA: 

Participation in the project will be entirely voluntary, and will test whether there is the potential for these investigations to be supported by wider use of DNA testing and isotope analysis. Whilst this trial is being undertaken, no decisions on individual cases will be made using these techniques, and they will not be used for evidential purposes.

At the end of the project, the UKBA will evaluate the efficacy and ethics of the project and determine whether the technique could be used to augment its decision-making process in asylum cases. 

A UKBA scientist tests for Somali nationality.

The main objection to the project seems to be that it conflates nationality with ancestry.  A Somali citizen, for example, may be of Ethiopian ancestry.  The science website Singularity Hub reports:

[G]enes don’t relate to political borders. And there are strong doubts as to whether testing this particular group can even provide the slightest statistical reliability, mainly because of past and present population movements throughout the region.

Current TV reports on a second part of the test:

[An] applicant will be asked to give hair and fingernail samples; by looking at which forms of certain elements the samples contain, the government scientists hope to find evidence of the person’s diet and environment [to determine the country of origin]. But isotope specialist Tamsin O’Connell says the results won’t be specific enough to be meaningful. “It is very difficult to identify individuals to very specific locations using isotopes alone,” she said.

In other words, whether or not genetics and isotope analysis can be used to determine nationality is a dubious presumption.  Further, using genetic testing in this way raises ethical issues.  Current TV reports that geneticists and isotope specialists have referred to the project as “horrifying,” “naïve,” and “flawed.”

Writing for the Singularity Hub, Christopher de la Torre imagines a time when genetic testing might be able to identify a person’s country of origin: 

Using DNA to track populations and ancestry isn’t new, but regulating according to DNA opens a Pandora’s box of potential. As the rate of technological progress grows exponentially, it’s more important than ever to balance our ability with morality. 

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Pennsylvania Man Sentenced for Asylum Fraud

by Jason Dzubow

From a June 10, 2010 Department of Justice press release:

David Lynn, 35, of Holland, PA, was sentenced today to 40 months in prison for leading an asylum fraud scheme that netted him and five co-defendants millions of dollars in illegal profits, announced United States Attorney Zane David Memeger. Lynn pleaded guilty, in October 2008, to one count of conspiracy, one count of visa/asylum fraud, one count of money laundering, and conspiracy to commit money laundering. Lynn, who was charged with five co-defendants, ran a business that filed at least 380 bogus asylum applications for clients, between January 2003 and March 2007, charging an average of $8,000 for an application.

Investigators say Lynn posed as a lawyer.  According to an ABC News report, “only a handful of Lynn’s 380 clients from around the country made it through the system by claiming they would face oppression if they returned home.”  The majority of the aliens are in removal proceedings.  Some have already left the country knowing they were going to be deported.  According to another report, the perpetrators were Russian immigrants and most clients were from Russia, Ukraine, and Poland.

Unfortunately, it is a common pattern for unscrupulous immigrants to exploit their countrymen, who are naive about the American system and are ready to trust their own kind.  What’s most amazing to me is that a guy who lost the large majority of his cases and charged $8,000 per person–far more than most legitimate lawyers–seemed to maintain a booming business.  It’s a sad testament to the gullibility and desperation of the clients, some of whom may have lost out on bona fide claims.  Other clients were likely complicit in the fraud, and it’s harder to muster sympathy for them. 

I believe the best way to stop fraud is to go after people like Mr. Lynn, who blatantly take advantage of a system that is designed to help the most vulnerable.  By stopping Mr. Lynn, the DOJ has helped to preserve the integrity of the asylum process.  Congratulations to those involved in the investigation, and keep up the good work.

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“Son of Hamas” Seeking Asylum in United States

by Jason Dzubow
Hamasochist?

The son of a founder of Hamas, a designated terrorist organization, is scheduled to appear in Immigration Court in San Diego on June 30, 2010.  Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef, says that he “accepted Christ” in 2005.  He also claims to have worked as a spy for the Israeli intelligence agency Shin Bet, and says he helped foil numerous terrorists attacks.  Apparently, his father disowned him, and he fears return to the Palestinian territory.  The younger Yousef has written a book about his experience, Son of Hamas, subtitled: A Gripping Account of Terror, Betrayal, Political Intrigue, and Unthinkable Choices.

Mr. Yousef has been blogging about his life and his asylum case.  He writes that despite his questionable pedigree, he entered the U.S. without difficulty in January 2007.  Seven months later, he applied for political asylum.  His application was rejected because the Asylum Office deemed him a danger to the security of the United States and a terrorist.  The case was referred to an Immigration Judge.  Mr. Yousef seems surprised by his situation:

My concern is not about being deported. It is that I am being forced to stand and defend myself as a terrorist! This is ridiculous. And as long as this case is in the courts, I cannot leave the United States. If I do, I will never be able to return. For what? For risking my life fighting terrorism in the Middle East for ten years? For saving the lives of Israelis, Palestinians and Americans?

Maybe so, but I can understand why the Asylum Office was hesitant to grant asylum.

Mr. Yousef claims that DHS is relying on the work he did for Shin Bet–which involved “helping” members of Hamas in order to infiltrate the organization–to charge him with providing material support to terrorists.  He writes, “If Homeland Security cannot tell the difference between a terrorist and a man who spent his life fighting terrorism, how can they protect their own people?”  He continues:

Exposing terrorist secrets and warning the world in my first book cost me everything. I am a traitor to my people, disowned by my family, a man without a country. And now the country I came to for sanctuary is turning its back.

We’ll see.  I imagine Mr. Yousef knows that the judge will review his asylum claim de novo, so the Asylum Office’s conclusion should not be much of a factor.  He seems to have a strong asylum case, and his story about working for Shin Bet appears credible.  Maybe DHS believes that he is a double agent, or maybe they have evidence that we (and Mr. Yousef) does not know about.  Or maybe, as Mr. Yousef suggests, DHS is simply incapable of distinguishing between a terrorist and an anti-terrorist.  I don’t know, but I wonder, if DHS is really so concerned about Mr. Yousef, why he is not currently detained pursuant to INA § 236A (Mandatory detention of suspected terrorists)?

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Man Connected to Terror Plot Was Failed Asylee

by Jason Dzubow

Pir Khan, a 43-year-old taxi driver from Watertown, Massachusetts was arrested May 13, along with his cousin, Aftab Khan, 27, on immigration charges as part of the investigation into the May 1 car bombing attempt in Times Square.  Pir Khan allegedly gave money to the failed Times Square bomber, though Mr. Khan and his cousin deny any connection with the would-be bomber.

Pir Khan came to the U.S. from Pakistan and applied for asylum in 1994.  Apparently, his case was not denied until 2007 (13 years later!), by which time he had married a U.S. citizen.  Apparently, he is now pursuing alternative relief based on the marriage (depending on the posture of the case, this may or may not be possible). 

Mr. Khan’s case raises some important points.  First, why did the asylum case take so long?  In the 1990s there were large numbers of asylum and NACARA claims from Central America (NACARA was an act that allowed certain Central Americans and others to remain in the U.S.; such cases are processed by the Asylum Office).  That, combined with a less efficient adjudication system led to long delays, and many cases lingered for a decade or more.  Today, asylum cases are resolved more quickly, though between the Asylum Office, the Immigration Court, and the appeals process, a case could easily take three or four years.     

There has got to be a better way to identify terrorists.

This raises a second, more important point.  Could a potential terrorist use the asylum system to gain entry into the U.S. to commit a crime?  The answer is a qualified yes.  Qualified, because asylum is probably one of the worst ways for a criminal to gain access to our country.  Asylum applicants are repeatedly fingerprinted, photographed, and interviewed.  They probably have more contact with “the system” than any other category of alien save those that have committed a crime.  None of the September 11th terrorists were asylum seekers–they all entered the country through other means.  This does not mean that a terrorist could not make a false claim for asylum, or that he could not delay his removal by appealing a denied asylum claim.  However, by subjecting himself to the biometric background check, any potential terrorist could have his cover blown and his plot foiled.  This does not mean that the system is perfect, but it may be less vulnerable to such breaches than other applications.  (In an aside, a UK report from some years ago found that one in four terrorist suspects was an asylum seeker.   The term “asylum seeker” has a broader meaning in the UK than here, but nevertheless, the report reminds us to be vigilant for this type of threat.)

A related problem is the high rate of denied asylum seekers (and other aliens denied relief) who fail to depart the United States.  That was Mr. Khan–he was denied asylum, but he remained in the U.S. anyway.  One solution is to simply detain all asylum seekers (and all illegal immigrants) until their cases are decided.  Not only would this be inhumane, it would be prohibitively expensive.  Moreover, it is unclear whether the increased security gained from such an approach would be cost effective.  Couldn’t the money be better spent on more targeted methods of protecting us?  Another solution might be to detain aliens at the end of their cases if relief is denied.  This would have many of the same problems as detaining all illegal immigrants, but at a slightly lower cost.  To me, the better approach involves alternatives to detention–bond, ankle bracelets, monitoring and reporting.  Such an approach is more humane (though it can still be coercive and scary for the alien) and less expensive.  In addition, Asylum Officers and DHS attorneys should be trained to ask questions that could help reveal whether a person has any terrorist connection (aside from the very lame and very useless–but also very common–“Have you ever supported any terrorist organization?”).  Such (admittedly controversial) techniques are employed by some airlines like El Al. 

As usual, we walk a fine line between living up to our ideals and fulfilling our humanitarian obligations on the one hand, and defending against terrorism on the other.  Those who care about the asylum system should be concerned with this dilemma: If one terrorist gains entry via the asylum process, all future asylum seekers will pay the price.

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