When Asylees Return Home

In the old days, when a person immigrated to the United States, he would probably never return home or see his family again.  For example, when my Great-Grandfather David came to the U.S. from Russia in 1904, he left behind his parents and six siblings.  He never saw them again, and as far as we know, they and their families died in the Holocaust. 

Today, it’s a different story.  It’s much easier to remain in contact with the homeland and to return for a visit.  However, for people who have received asylum in the United States, return to the home country may result in the termination of their status. See INA § 208(c)(2).

Sorry, asylees. Missing grandma’s cooking is probably not a valid excuse for returning to your home country.

Despite the possibility of termination, my clients who have received asylum sometimes need to return home.  There are different reasons for this–some want to visit sick relatives or help relatives who are in trouble.  Others are political activists or journalists, and they want to return home to continue their activities.  A few of my clients from Afghanistan wanted to return to their country as interpreters with the U.S. military. 

In cases like these, I explain the legal consequences of returning to the home country so that the client can weigh the risk of losing asylum status against her desire to go home.

The provision for termination of asylum,  INA § 208(c)(2), states:

Asylum… does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that… the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality.

It’s clear from this provision that the AG does not have to terminate asylum if the alien returns to her country (“Asylum… may be terminated”).  Also, return to the country in-and-of itself may not be a sufficient basis for termination if the alien has not “voluntarily availed himself or herself of the protection of the [home] country.” 

So in the above examples, there is room to argue that the clients have not voluntarily availed themselves of the protection of the home country.  In the case of an alien who returns home to help a relative, perhaps he entered the country surreptitiously and remained in hiding during his time there.  Evidence that the alien’s journey home was clandestine might help to counter an attempt to terminate asylum (asylum may be terminated if DHS shows by a “preponderance of the evidence” that the alien voluntarily availed himself of the protection his country – 8 C.F.R. 208.24).

In the example of a political activist who returns to her country to engage in political activity, she can argue that she did not avail herself of the protection of her country.  On the contrary, she challenged her country’s government and put herself at risk to do so.

In the case of an alien who returns to his country to work for (or serve in) the U.S. military, that alien has not availed himself of the protection of his country.  Rather, he is being protected by the U.S. military.

In all these examples, the alien is able to argue that he or she has not “voluntarily availed himself or herself of the protection of the alien’s country of nationality.”  The alien in each case could also appeal to the Attorney General not to terminate asylum as a matter of discretion.  In these cases, the aliens have returned to their country for good reasons.  In some cases, the reason for returning might be in the interest of the U.S. government.  Under such circumstances, the AG might agree not to terminate asylum as a matter of discretion.

Although asylees who return home can sometimes make decent arguments against termination, they put themselves at risk of losing their status.  For this reason, any asylee considering a return trip should think carefully about the potential consequences.  At a minimum, the alien should gather as much evidence as possible to show that she has not voluntarily availed herself of the protection of her country.  She would also do well to consult an attorney.

The Party Platforms and Refugees

The platforms of the various political parties are basically statements about what those parties believe and what they intend to do if elected.  Since it is now election season (the joy), I thought it might be interesting to see what the party platforms have to say about refugees, so here we go:

Republicans

The Republican Party Platform is the only platform that directly references our country’s commitment to refugees.  The Platform states:

We affirm our country’s historic tradition of welcoming refugees from troubled lands.  In some cases, they are people who stood with us during dangerous times, and they have first call on our hospitality.

“My wife owns a couple of refugees.”

This is a positive statement, and it is encouraging.  As an asylum attorney, I particularly like the second sentence, which acknowledges that some refugees are people who stood with the United States and now face persecution in their homelands.  I represent many people from Iraq, Afghanistan, and elsewhere who assisted the U.S., often at great risk to themselves.  My clients include law enforcement officers, journalists, interpreters, human rights workers, and others.  Given that they risked their lives to help us in our mission, we should offer them refuge when needed.

Unfortunately, of late, we have heard many anti-Muslim statements from prominent members of the Republican party.  It seems that such bigotry is inapposite to the Party Platform, which recognizes people like my Muslim clients who “stood with us during dangerous times.”  I hope that the spirit of the Platform–rather than the hatefulness of some Republican officials–will prevail in the Grand Old Party.

Democrats

The Democratic Party Platform does not specifically mention refugees.  It does discuss immigration, and endorses comprehensive immigration reform, the DREAM Act, and the new Deferred Action program.  However, it is disappointing that the Platform is silent on refugee issues.

“If you’re a refugee and you live in a tent, you didn’t build that.”

Since President Obama has been in office for several years, we can safely assume that his policy on refugees and asylees will continue forward if he is re-elected.  The Obama Administration has capped the number of refugees admitted into the U.S. at 80,000 per year.  However, we have never reached the cap.  In 2009, we admitted 74,602 refugees; in 2010, we admitted 73,293; and in 2011, we admitted 56,384 refugees.  As for asylees, we admitted 22,219 in 2009; in 2010, we admitted 21,056; and in 2011, we admitted 24,988 (all of this is courtesy of the DHS Yearbook of Immigration Statistics).

President Obama’s policies have been comparable with his predecessors, and I think we can expect similar policies if he has a second term.

Libertarian Party

Since I have an affinity for third parties, I thought I would mention two.  The first is the Libertarian Party.  The party’s Platform is silent on refugee issues.  The only mention of human rights is in the context of property law: “Property rights are entitled to the same protection as all other human rights.”  The Platforms mentions immigration and states:

Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws.

Given the general Libertarian philosophy (“We would end the current U.S. government policy of foreign intervention, including military and economic aid”), I’d imagine that they would leave refugee assistance up to private individuals and agencies, such as churches or humanitarian NGOs.  Like much of Libertarianism, this is nice in theory, but has problems in practice.  For various reasons, refugees impact national security and relationships between nations.  For this reason, governments cannot always leave refugee policy in the hands of private organizations.

Green Party

Finally, the Green Party Platform mentions refugees several times, but always in the context of the Israeli-Palestinian conflict: “We reaffirm the right and feasibility of Palestinian refugees to return to their homes in Israel.”

While I support the rights of Palestinian refugees, this is pretty ridiculous.  Why single out Palestinians among all the world’s refugees while at the same time completely ignoring refugees from other countries, including many who are living (and dying) under worse conditions than the Palestinians?  It seems to me that this is not a serious party platform, which is unfortunate, as we could certainly use a strong, articulate liberal voice on this and other issues.

OK, so there you have it.  To judge solely by party platform, I’d say that the Republicans win on the refugee issue, though I suppose the win is mostly by default.

BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here).  The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges).  Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

A BIA Board Member addresses the Ninth Circuit.

First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue.  The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit.  Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).

In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances.  However, these are two independent tracks.  According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.

The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).”  The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS).  The BIA concludes that

[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status.  The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).

What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge.  The IJ does not have to accept the determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.

The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.”  Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.

Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA).  Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important.  I expect we will see much litigation about these issues over the next few years.

Bill Linking Palestinian and Jewish Refugees Sets a Dangerous Precedent

A new bill in the House of Representatives seeks to link resolution of the Palestinian refugee situation with the plight of Jews (and Christians) expelled from Arab lands.  Both Palestinians and Jews suffered as a result of expulsions from their home countries during and after the creation of the State of Israel.  Palestinians left and were forced to leave Israel (and the West Bank and Gaza).  And most Jews living in Muslim countries left or were forced to leave their homes as well.  The bill is designed to ensure that these Jews are not forgotten by linking resolution of their issues with resolution of the on-going Palestinian refugee crisis.  The bill’s supporters state:

Any comprehensive Middle East peace agreement can only be credible and enduring if it resolves all issues related to the rights of all refugees in the Arab world and Iran, including Jews, Christians and others.

In the chess game of life, Palestinians are everyone’s favorite pawn.

The legislation has bipartisan support in the House and calls on the Obama administration to pair any reference to Palestinian refugees with a similar reference to Jewish and other refugees.

While I agree that it is important to remember and address the grievances of Jews and others expelled from Arab lands (I recently wrote about this issue), linking the resolution of that problem with the issue of Palestinian refugees sets a dangerous precedent and undermines international law related to the protection of refugees.

The United Nations Convention Relating to the Status of Refugees (1951) defines a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The majority of Palestinians who fled Israel and now live in various Arab countries are “refugees” according to this definition.  They do “not [have] a nationality and [are] outside the country of [their] former habitual residence as a result of such events.”  Of course one reason they remain refugees is because the different Arab governments have refused to grant them citizenship.  The other reason is that Israel does not permit them to return home.

As opposed to the Palestinians, the large majority of Jews who fled Arab countries are not “refugees” as that term is defined in international law.  Most (if not all) such Jews have been granted citizenship in their new country of residence (be it Israel, the U.S., France or some other country).  Also, for the most part, Jews expelled from Arab lands do not wish to return to their home countries.  This does not mean that these Jews do not have legitimate claims for compensation for lost land, property, and the lives of loved ones.  They most certainly do.  But this is not the same as being a refugee.  Thus, the new bill is factually incorrect when it refers to such Jews as refugees.

Far worse than the semantics of “who is a refugee” is the problem of politicizing a humanitarian benefit.  Anyone who meets the definition of “refugee” is a refugee.  Period.  Such people are entitled to protection in the host country because they are refugees.  There are no other requirements (though obviously there are exceptions for persecutors, criminals, and terrorists). 

By linking the fate of one refugee population to another, the bill adds an external contingency to international refugee law.  We no longer protect refugees because they are refugees.  Now, we only protect them if some other conditions are met.  Does this mean that we should deport legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa’s 1916 invasion?  Can Great Britain deny asylum to all Egyptians unless Egypt returns the Suez Canal?  Is Japan permitted to reject all Chinese asylum seekers until China returns “Manchukuo?”

This is not how international refugee law works.  We do not blame the victims and hold them hostage until some outside contingency–in this case a contingency not of their own making–is satisfied.  In other words, it is not the fault of Palestinian refugees that Jews were expelled from Arab lands.  So why should the Palestinians’ fate be tied to compensation for the Jewish “refugees” (something over which they have no control)?

I think the real motivation for this bill is not to help Jews from Arab lands.  Rather, it is to justify Israel’s refusal to allow Palestinians to return to their homeland by demonstrating that there was suffering and loss “on both sides.”  This seems to me a cynical and sinister use of international refugee law.  I hope the bill will be soundly rejected. 

Julian Assange: Legitimate Asylee or Propaganda Pawn?

Ecuador has granted asylum to Wikileaks founder Julian Assange.  Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial.  “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital.  “Ecuador is convinced that his procedural rights have been violated.”  Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.  Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

Could this be Julian Assange escaping from the Embassy?

I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.”  While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.  For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.  Such people now face increased danger in their home country.  Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.  Exposure damaged our international relationships and did nothing to further the cause of freedom.  Our diplomats and our military officials need to communicate frankly with each other.  This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).  I suppose overall, I believe that Mr. Assange did more harm than good.  But I also suppose that my opinion in this regard is not all that important.  What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.

It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.  First of all, Mr. Assange is a citizen of Australia.  He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.  If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.  Normally, a person receives asylum from his home country; not from a third country.  As a citizen of Australia, he should receive protection from his own government.  There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).  Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.  Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.  

Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden.  He claims that the charges have been contrived to punish him for exposing state secrets.  That may well be true, but there is no indication that Sweden would deny him a fair and public trial.  Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.  All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.

Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.  So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).  That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?   

Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States.  As far as I know, exposing government secrets is illegal in every country.  People who violate this law may be punished according to the law.  Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.”  In Mr. Assange’s case, there is no reason to believe that he would face the death penalty.  Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.  Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.  It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.  As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.

For all these reasons, Mr. Assange would not qualify for asylum under international law.  Ecuador has its own reasons for granting Mr. Assange asylum.  Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.  Maybe they just want to annoy the the U.S. and the West.  Maybe they see it as a way to score propaganda points.  Who knows?  What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.

Sudanese Lost Boy Will Run for Gold with Team USA

A dozen years ago it seemed impossible that Lopez Lomong would be running as a member of the United States Olympic team.  In 2000, he was 15 years old and living in Kenya.  Most of his life had been spent in refugee camps.

Lopez Lomong: Living the Dream.

Mr. Lomong grew up in rural Sudan, without running water or electricity.  When he was still a boy, rebel soldiers kidnapped him and other children, intending to turn them into soldiers.  The rebels drove the children to their camp in a truck–it was the first time Mr. Lomong had ridden in a vehicle.  He escaped from the camp with other boys and ultimately arrived in Kenya, where border guards sent them to a refugee camp.

Life in the camp was difficult–there was not enough food and nothing to do.  Mr. Lomong began running as a form of escape: “When I ran, I was in control of my life,” he writes. “I ran for me.”  He got into the habit of running the perimeter of the camp–18 miles–in bare feet.

In 2000, he walked five miles with some friends to watch the Olympics on a small black and white television.  Inspired by American runner Michael Johnson, his dream was born: To run in the Olympics for the United States of America.

In 2001, the U.S. brought 3,800 “lost boys” to the United States for resettlement.  Among them was Lopez Lomong.  In the U.S., he continued running–it was something familiar to him in his new country.

In 2007, Mr. Lomong became a United States citizen.  “Now I’m not just one of the ‘Lost Boys,'” he told reporters. “I’m an American.”  He went to Beijing with the U.S. Olympic team in 2008, but he did not qualify for the final round due to an injury.

Since he has been in the U.S., Mr. Lomong wrote a book about his experience, Running for My Life, and established a foundation to help people in his native South Sudan.

Now, he is again competing with Team USA.  (As a side note, more than 40 athletes on our national team are foreign-born.)

This time around, Mr. Lomong has a chance for gold.  He has qualified for the finals of the men’s 5,000 meter race, which is scheduled for tomorrow.  Hopefully, we’ll see him on the podium.  It would be another remarkable achievement in an extraordinary life.

North Koreans Find Refuge in the United States

The United States accepted five North Korean refugees in June, bringing the total for FY 2012 to 11, and the total since 2006 to 135, according to Yonhap News Agency.

The refugees entered the country under the North Korean Human Rights Act, which Congress passed in 2004.  The Act calls for the provision of financial aid to help improve North Korea’s human rights situation and acceptance of North Korean defectors into the United States.  According to DHS (see Table 14), 2006 was the first year we accepted North Korean refugees, and we have accepted between eight and 37 refugees from North Korea each year since then.

Kim Jong Un: If Adolf Hitler and the Pillsbury Doughboy had a child.

Despite its extreme insularity, it is quite clear that the human rights situation in North Korea is an utter disaster.  The recent book Escape from Camp 14 by Blaine Harden tells the story of one man’s escape from the most notorious prison in the enormous gulag that is North Korea’s political prison system.  The Washington Post review describes the prison:

In Camp 14, children are punished for the political sins of their fathers. Hunger is so omnipotent that every prisoner behaves like “a panicked animal” at mealtimes. Teachers at the camp school beat students to death for minor infractions. Medieval torture devices are employed in dungeon-like underground cells. And human relationships are so degraded that prisoners inform on family members.

Also, according to the Post: “The U.S. government and human rights groups estimate that 150,000 to 200,000 people are now being held in the North’s prison camps.”  “Many of the camps can be seen in satellite images, but North Korea denies their existence.”

Most North Korean refugees go to China, where, until recently, they faced repatriation and (probable) torture or execution.  However, according to the Shanghaiist website, a few months ago, China announced that it would stop returning North Korean refugees to their country.  Assuming this information is correct, it represents a significant step forward for human rights in China and it is obviously good news for the refugees themselves.  Between 20,000 and 30,000 North Korean refugees live in China.

The North Korean Human Rights Act was reauthorized in 2008 for four years, and will again need to be reauthorized this fall.  Despite all the partisan nonsense on Capitol Hill these days, I suspect that the Act will have support from both parties.  Given the mass torture and mass murder perpetrated by the regime in Pyongyang, we should continue to do everything we can to aid those who escape from North Korea.

UN Report: 4.3 Million Newly Displaced People in 2011

According to a new United Nations report, 2011 was the worst year for refugees since 2000: 4.3 million people were newly displaced; 800,000 of them fled their countries and became refugees (the remaining people were displaced but did not leave their countries, so they do not meet the definition of “refugee;” rather, they are considered IDPs – internally displaced persons). 

At the end of 2011, there were 42.5 million displaced people worldwide.  That is more than the entire population of Canada.  The numbers break down as follows: 15.2 million refugees; 26.4 million IDPs; and 895,000 people in the process of seeking asylum. According to the UN:

“2011 saw suffering on an epic scale. For so many lives to have been thrown into turmoil over so short a space of time means enormous personal cost for all who were affected,” said the UN High Commissioner for Refugees António Guterres. “We can be grateful only that the international system for protecting such people held firm for the most part and that borders stayed open. These are testing times.”

There are more displaced people in the world than the entire population of Canada, though the Canadians probably make more noise.

The UN reports that Afghanistan remains the biggest producer of refugees (2.7 million) followed by Iraq (1.4 million), Somalia (1.1 million), Sudan (500,000) and the Democratic Republic of the Congo (491,000).  This is particularly sad given that the top two countries producing refugees are places where we went to war.  Obviously, our efforts have not made Iraq and Afghanistan safe, at least not in the minds of the millions of people who have decided that they cannot return home. 

Viewed on a 10-year basis, the UN report shows several worrying trends: “One is that forced displacement is affecting larger numbers of people globally, with the annual level exceeding 42 million people for each of the last five years.”  “Another is that a person who becomes a refugee is likely to remain as one for many years – often stuck in a camp or living precariously in an urban location.”  “Of the 10.4 million refugees under UNHCR’s mandate, almost three quarters (7.1 million) have been in exile for at least five years awaiting a solution.”

The news was not all bad:

Despite the high number of new refugees, the overall figure was lower than the 2010 total of 43.7 million [displaced] people, due mainly to the offsetting effect of large numbers of IDPs returning home: 3.2 million, the highest rate of returns of IDPs in more than a decade.

However, among refugees, “2011 was the third lowest year for returns (532,000) in a decade.”

Despite the high number of refugees, the U.S. resettled less refugees in 2011 than in any year since 2007.  In 2011, we resettled 56,419 refugees, which is far less than the proposed ceiling of 80,000 people.  For the years before 2011, the figures are as follows: 2010 – 73,311; 2009 – 74,656; 2008 – 60,193; and 2007 – 48,281.  According to the Obama Administration:

[The admissions total for FY 2011 were] lower, however, due largely to the introduction of additional security checks during the year, including pre-departure checks shortly before refugees travel to the U.S., instituted mid-year, that enhance the vetting of applicants against intelligence and law enforcement information.

The proposed ceiling for FY 2012 is 76,000 refugees.  We will see how many people are actually resettled in the U.S.  Given the high number of displaced people worldwide–and considering how many of them are displaced directly as a result of our wars in Afghanistan and Iraq–it seems to me that this is the least we can do to assist such people.

Florida Congressman Moves to Limit the Cuban Adjustment Act

Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:

The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.

Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

Reforming the CAA is like upgrading your 8-track.

It is interesting that a politician from Florida–particularly one with the anti-Castro bona fides of Mr. Rivera–would have the chutzpa to challenge the Cuban American community on this issue.  It doesn’t strike me as a particularly wise move politically, even if it makes sense from a policy point of view.

Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera’s proposed reform–which is ostensibly to help preserve the CAA–seems pointless given that the law is simply not worth preserving.

Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don’t see what this propaganda victory has achieved.  The CAA was passed in 1966 and–45 years later–the Castro brothers are still in charge.

Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:

“No matter what the reason for stepping foot in Cuba, you lose your status,” Lofgren said. “If you go to visit family members you haven’t seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status.”

Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee’s immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.

In any case, it seems Mr. Rivera’s proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.

Remembering Algeria’s Jewish Refugees – 50 Years Later

This June marks the 50th anniversary of the Evian Accord, the agreement recognizing Algeria’s independence from France.  Since Roman times, Algeria was home to a large Jewish community.  During the French colonial period, Jews were granted French citizenship.  After independence, however, Algeria denied citizenship to its Jewish population and most of the country’s 140,000 Jews left for France. By 2004, there were less than 100 Jews remaining in Algeria, and most of those fled during the civil war (1991-2002) when the Armed Islamic Group threatened to exterminate them.

Ghardaia

I had an opportunity to visit Algeria in 2001.  I traveled with an Ibadite Muslim friend who is from the M’Zab Valley, an oasis in the Sahara, about 500 km south of Algiers.  The principal city of the M’Zab Valley is Ghardaia, which a French philosopher described as a “Cubist painting beautifully constructed” (maybe I am a bit more pedantic, but to me it looks like the video game Q*bert).  There, I visited an old abandoned synagogue and the Jewish graveyard.  As we are approaching the 50th anniversary of the Evian Accord, I thought I would share some photos and facts about the Jewish community of Ghardaia.

As best as we know, Jews arrived in Ghardaia in two waves.  The city’s original Jews arrived in the 13th or 14th century, a few hundred years after the town was founded.  The Jews were invited to the M’Zab to work as jewelers and smiths, professions traditionally avoided by the local Muslims.  Legend tells of four families who came to the desert town from Djerba, an island off the coast of Tunisia.  The Jews of Djerba trace their lineage back to Biblical times.

The second group arrived in the late 15th century.  At the time, an extremist Muslim movement (possibly fueled by the failure of Islam in Spain) attacked and expelled Jewish communities in Morocco.  Some Jews fled to Ghardaia.  They joined the existing community, and over time, the two groups merged together.

Abandoned Synagogue in Ghardaia

The Jews of Ghardaia lived in relative harmony with their neighbors until the mid-20th century.  By then, Algeria was controlled by France, and the population of Ghardaia was divided between Ibadite Muslims (who originally settled the M’Zab Valley), Jews, and Sunni Muslims.  When the war of independence began in 1954, the situation for the Jews of Algeria deteriorated, and by June 1962, all the Jews of Ghardaia had been forced to seek refuge abroad.

Just as this 800-year chapter of Jewish history was drawing to a close, two anthropologists arrived on the scene, hoping to study genetic traits of the Jewish people there.  Instead, they documented the final years and days of Ghardaia’s Jews.  The anthropologists, Lloyd Cabot Briggs and Norina Lami Guede, wrote up their observations in an amazing (and obscure) paper called “No More Forever: A Saharan Jewish Town.”  The paper begins: “This book is the record of a people who are gone.”  Recalling their own departure, through newly established rebel checkpoints in the now independent Algeria, Briggs and Guede write:

The notebooks and pictures that we carried with us were the only coherent record that remained of a curiously distinctive way of life which had gone on for centuries and came suddenly to an end, leaving behind it only empty houses and an abandoned cemetery in the desert.

The same synagogue, circa 1958

It so happened that I was visiting Algeria during Passover, and so I was particularly keen to find other Jews, or at least visit Jewish sites.  With the help of several friends, I was able to visit the old synagogue of Ghardaia and the Jewish graveyard.

The synagogue had been empty for almost 40 years when I visited, and it was in bad shape.  A man lived there, and he allowed us to visit for a few minutes.  I took some pictures, which you can see here, and I said a prayer.  It was quite moving to pray in that abandoned temple, where (I assume) no Jew had prayed for almost 40 years.

The synagogue was a typical Sephardic design, with blue and white walls, and numerous thick columns.  A wooden bimah (stage) would have formed the center piece of the room, but it was gone.  Parts of the domed roof had collapsed, covering the floor with piles of stone and mortar.  The ceiling above the women’s section had fallen in, filling the balcony with rubble.  A few chains hung from the ceiling.  At one time they held lamps with an eternal flame, long since extinguished.  Two Stars of David were all that remained to confirm that we were in a synagogue.

Another view of the synagogue.

After visiting the synagogue, we walked to the Jewish cemetery, which is a mile or two outside the town.  It’s difficult to get a sense for the size of the graveyard, as it blends perfectly with the rocky surroundings.  It was here, in 1962, that the last Jews of Ghardaia buried their old prayer books, before departing their oasis homes forever (in Jewish tradition, books containing the name of G-d are buried, not thrown away).  The oldest dated grave is from 1749 (5509 in the Jewish calendar), but some graves are probably centuries older.  Members of the community used to come to a small grotto here to light candles and pray for assistance from their ancestors.  Women who reached menopause came here to pray for one more male child.  I also said a prayer at the graveyard and I placed stones on some of the graves (it is a Jewish tradition to place stones on the graves).

The Jewish cemetery near Ghardaia

The last Jews of Ghardaia left Algeria in 1962.  They fled to France and most of them are still there.  All in all, over 800,000 Middle Eastern Jews were forced to flee their homes between 1948 (the founding of the state of Israel) and the 1970’s.  Like the Jews of Ghardaia, they came from communities that had existed for centuries (and in some cases millennium).  Also like the Jews of  Ghardaia, they lost most of their property and were lucky to escape with their lives.  Having seen a bit of this history makes me lament the loss of these ancient and diverse communities, but it also reminds me of the importance of offering refuge to those fleeing persecution.

For more information about the Jews of Ghardaia, take a look at Jews of the Sahara by Ronald L. Nagel.

Some (Unsolicited) Advice for the Anti-Refugee Crowd

It’s easy to find anti-immigration websites and blogs on the internet, but there really aren’t many websites devoted exclusively to opposing refugees and asylum seekers in the U.S.  Of course, many of the anti-immigration websites periodically discuss these issues, but this is not the same as a restrictionist website focusing on asylum. 

The only blog I’ve found that is devoted exclusively to these issues is Refugee Resettlement Watch, which (as the name implies) was founded to highlight problems in the U.S. refugee resettlement program.  RRW advocates for fewer refugees and better oversight of the resettlement program.  It also opposes bringing in “Muslim refugees, Somalis in particular, who have no intention of becoming Americans.”  The blog authors add a note for those who might think the website racist:

Some of you reading this have for way too long intimidated and silenced people you disagree with by calling them racists, xenophobes, hatemongers and on and on and on.  It doesn’t work here, in fact, when you start with that sort of attack and don’t address the issues we raise, it validates our work.

The bloggers for RRW are very active, and post several articles each day.  They also attract a fair bit of attention–according to their website statistics, the site has received almost 1.2 million hits.

Although I obviously disagree with the main goal of RRW, I don’t think there is anything inherently wrong with advocating for the reduction or elimination of our refugee and/or asylum programs.  Indeed, I can think of a number of legitimate arguments supporting such a move: Our money would be more effectively spent helping refugees overseas; these programs are too costly given our current economic woes; refugees integrate too slowly–or not at all–into our communities; we should only help refugees who are “culturally compatible” with our society.  I won’t address these arguments here.  Instead, I want to talk about RRW (in other words, it’s time for the unsolicited advice).

"Why are people always dis-ing Ishtar?"

First, RRW would be more effective if it was less partisan.  The blog is not even close to neutral in its approach; it reports almost exclusively negative news about refugees.  If a refugee jaywalks in Cincinnati, RRW will cover it.  But if a refugee saves 10 children from a burning school bus, you won’t hear about it on RRW.  Perhaps the point is to destroy the myth of refugees as innocent victims and replace it with a more sinister image.  While this type of advocacy might do well with the already converted, it is unlikely to change many people’s minds.  So my advice to RRW is, try to be a bit more subtle.  If you want to convince me that Dustin Hoffman is a crummy actor, you can’t only talk to me about Ishtar.  You have to address The Graduate and (G-d forbid) Meet the Fockers.  My point being, unless RRW acknowledges in a meaningful way the positive aspects of the refugee and asylum programs, it will not have much legitimacy to address the negative aspects.   

Second, while I am willing to  accept RRW’s claim that it is not racist or xenophobic, it certainly provides a safe space for racists, xenophobes, and hatemongers.  A quick purview of the comments (and RRW’s responses) demonstrates this pretty clearly.  Even the Center for Immigration Studies–a well known restrictionist group that has itself been (unjustly in my opinion) called a hate group by the Southern Poverty Law Center–keeps a safe distance from RRW.  So my advice is, don’t allow hateful and racist comments to go unchallenged.  When you actually demonstrate that you oppose racism and xenophobia, instead of just saying it on your “about us” page, people will take you more seriously.

Finally, many of the articles on RRW take a contemptuous tone towards refugees and advocates for refugees.  While these repeated–and often nasty–comments might be viscerally appealing to people who oppose (or hate) refugees, they are a big turn off to the unconverted.  My advice: Have a sense of humor and give people the benefit of the doubt, at least once in a while.  Everyone who advocates for refugees is not a self-serving, crypto-jihadist, and many refugees are simply ordinary people fleeing terrible circumstances.  A more respectful tone towards such people might actually win you some converts.

Of course, I don’t expect RRW to listen to my advice (does anyone listen to advice these days anyway?). Perhaps they are satisfied speaking to a like-minded audience and avoiding honest debate with their political opponents.  To engage in a real discussion with people who have different views requires listening, humility, patience, and courage.  I know from personal experience that it is not always easy to engage in such discussions.  But that is how we learn and grow, and it is how we get closer to the truth.

Iconic Afghan Asylee Adopts to Life in the U.S.

Aesha Mohammadzai, the Afghan woman who was featured on the cover of Time magazine after relatives cut off her nose and ears, appears in a new CNN on-line piece called Saving Aesha.

Aesha Mohammadzai: The face that launched a thousands quips.

When she was 12 years old, Aesha’s father promised her to a Taliban fighter in order to satisfy an obligation.  Not surprisingly, the marriage was abusive and when she was 18, Aesha fled.  She was captured and returned to her husband’s family.  As punishment for attempting to escape, her husband’s family cut off her nose and ears, and left her to die.  Aid workers and the U.S. military rescued her, and she was brought to a shelter run by Women for Afghan Women

Although generally protective of Aesha’s privacy, WAW ultimately brought her case to the attention of Time magazine.  As CNN reports:

The organization’s decision to allow Time to photograph Aesha in 2010 was calculated and deliberate. The group wanted to influence the conversation about U.S. troop withdrawals, and Aesha was its best chance. She became the poster child for the 15 million Afghan women and girls it fears will be brought to their knees, again, if troops leave too soon and the Taliban regain control.

Possibly due to the publicity surrounding her case, she was able to come to the U.S. for reconstructive surgery.  But Aesha did not adjust well to the United States.  She was still suffering from severe mental and emotional trauma, and her reconstructive surgery had to be postponed due to her fragile emotional state.  Women for Afghan Women took over her care and provide her with housing and volunteer tutors. 

Perhaps due to her emotional condition, it seems Aesha was a difficult charge.  She constantly threw fits, and one roommate after another fled her apartment.  At one point, she was hospitalized for 10 days.  After that incident, her medications were changed and she started doing better.

CNN reports that in late 2010, Aesha’s father-in-law was arrested for his role in her mutilation:

Authorities said he held Aesha at gunpoint and ordered five other men — including her husband — to cut her. The father-in-law was released last July, however, reportedly because he didn’t do the cutting himself and because Aesha is no longer around to pursue the case.

Aesha received asylum in the United States in November 2011.  Although I was unable to find information about the basis for her asylum, there are a number of possible grounds: The claim could have been based on her particular social group–one formulation for this claim might be women who fear persecution in Afghanistan based on resistance to forced marriage.  Also, she might have framed the claim in terms of religious persecution–her family members harmed her because she would not comply with their version of Islam.  In addition, since she claims her husband in the forced marriage was a Taliban, she might have a fear of persecution based on imputed political opinion after her case became public and she moved to the U.S.  Obviously, the government of Afghanistan is unable and unwilling to protect her. 

Aesha’s case illustrates several important points.  First, refugees are often very damaged people.  Aesha is much worse off than most refugees, but people who flee persecution, who have been injured, who have lost loved ones, and who have lost their homes and property often have mental health issues.  Such people may be difficult to deal with, and those who assist refugees must be patient and understanding.  For me, at least, it is not always easy to be patient with difficult clients, especially when I am under pressure from several cases at once.  I imagine this is true for many people assisting refugees.

A second point involves media coverage.  According to CNN, Women for Afghan Women made a decision to publicize Aesha’s case in order to influence the debate about American troops in Afghanistan.  Given Aesha’s fragile condition, it is unclear whether she had the capacity to understand the effect of going public, even if she did give consent (which is not clear from the CNN article).  Lawyers and their clients sometimes have diverging interests, particularly when there is an opportunity for publicity.  Most lawyer want publicity, but most clients prefer anonymity.  I doubt that WAW had a fiduciary duty to Aesha when they publicized the case, but they certainly had a moral responsibility.  If the CNN article is accurate, it raises serious issues about WAW’s decision to publicize Aesha’s case. 

A final point raised by Aesha’s case is that women are often ill-served by our asylum law.  Many female asylum seekers fear persecution based on forced marriage, FGM, domestic violence, and the like.  But these issues do not fit neatly into the protected categories for asylum (race, religion, nationality, political opinion, and particular social group).  Fortunately, enterprising lawyers (and judges) have broadened the basis for asylum to protect women from some of these harms.  Wouldn’t it be nice, though, if the Refugee Convention specifically recognized these types of harms?

Aesha’s case illustrates how complicated and difficult it can be to assist a refugee and help her rebuild her life.  In this process, asylum is often only a first step.  

Case Dismissed Against “Halva Terrorists”

Last August, I wrote about three Eritrean refugees who were arrested at Phoenix airport and accused of plotting a terrorist attack.  The Eritreans were caught with a package of halva (a common Mideast dessert, which is delicious AND Kosher for Passover).  The package of halva was suspicious because it had a cell phone taped to it.  TSA suspected this was a mock up of a bomb, and that the Eritreans were on a “dry run” for a terrorist attack.  Unfortunately, in this day and age, it is hard to blame TSA for being overly cautious.  Nevertheless, the charges seemed like a bit of a stretch. 

Jello shaped likes a grenade is also a bad idea for airplane travel.

Now, the government has dismissed the case against the three refugees:

“Based on the new information, further prosecution is not in the interest of justice,” wrote Assistant U.S. Attorney Joseph Koehler in his motion to dismiss the charges.

Philip Seplow, an attorney for one of the three, said he thinks the government simply realized the refugees were not guilty and the whole thing was a big misunderstanding, partially because of a significant language barrier.  Mr. Seplow reports that when he informed his client that she had been cleared of the charges, she wept with relief.

Of course it is better to be safe than sorry, and it is difficult to imagine how the government could have handled this case any better.  As for me, next time I travel, I will not be carrying any halva.

New Handbook on Best Asylum Practices in the US and UK

A new report from the Asylum-Network based on an 18-month study examines the challenges faced by asylum support groups in the United States and the United Kingdom, and the different ways the groups respond to those challenges.

In preparing the report, the authors found that although there were many differences between asylum support groups in the two countries, a uniting theme emerged–an enduring sense of injustice at the treatment of asylum seekers and widespread recognition of the need to do more to change the social, legal, and political situations which lead to inequalities and discrimination.

The U.S. and Britain agree: We don't like the asylum system or the French.

The report found many similarities between the U.S. and Great Britain, which led to the conclusion that “there are merits to dialogue and exchange… across these distinct country contexts.”  Some challenges faced by asylum support groups in both countries include shortages of funding, disconnection between organizations, emotional strain, and lack of legal consistency and accountability in the area of asylum law.

The report makes a number of practical recommendations, including closer collaboration among asylum support organizations and pooling resources for fundraisers, media relations, and combating emotional strain.  The report also recommends sharing ideas and policy objectives between organizations in different countries.

One statistic that I found interesting is that, on average, only 11% of an organizations connections were with groups in other countries.  Despite the relatively small amount of international cooperation between asylum support groups, survey respondents “felt that there was much potential for co-ordinated international approaches to the issues they face,” particularly issues that could draw on international experience, like alternatives to detention.  While this is true in theory, I am not exactly sure how it would work in practice.

For me–and I think for most immigration lawyers and advocates–the local connections are the most important.  I rely on a local network of attorneys and fellow travelers to answer my questions and keep me informed of new developments.  While I do sometimes rely on case law and reports from other countries (usually Canada, the UK, and Australia) to help support my clients’ claims, I can find this information on the internet without much trouble.  I certainly like the idea of connecting with asylum advocates in other countries.  It’s just that with limited time, it is difficult to establish and maintain such connections. 

In the report, the authors indicate that they are attempting to start a conversation.  I hope that this proves to be true.  Perhaps a website, an on-line journal or periodic on-line conferences would be good ways to continue and expand the dialogue.  Whatever form it may take, to succeed, the continued conversation must provide busy asylum advocates with easily digestible information that helps with practical problems.

Refugees Who Served With US Military Seek Burial in Veterans’ Cemetery

During the Vietnam War, thousands of Hmong people fought as allies of the United States against the Communist government of Laos.  An estimated 10% of the Hmong population of Laos–about 30,000 people–was killed during the war, and over 100,000 were displaced.  Now, Military.com reports that Hmong veterans who have resettled as refugees in the United States are seeking burial in U.S. military cemeteries.  Hmong leader Chue Chou Tchang testified at the Minnesota State House:

We were American soldiers fighting alongside American soldiers….  We fought like brothers.  We died together.  Coming to this country, we’d like to rest with the American soldiers that fought with us.

One way to honor foreign veterans who served with the U.S. military: Name a beer after them.

Because of a United Nations agreement not to commit American troops to Laos in the early 1960s, the CIA launched a covert operation of training and funding Hmong soldiers, first to retrieve the bodies of pilots whose planes had crashed and then to block supplies and attack North Vietnamese and Communist troops.  The Hmong soldiers fought bravely and won the respect of their American comrades.  

The main arguments against burying the Hmong fighters in U.S. military cemeteries are that the cemeteries are exclusively for people who served in the United States Armed Forces (as opposed to allied forces) and that there is limited space.  Based on a quick review of the comments on Military.com, it seems many veterans who served during the war believe the Hmong should be granted burial in military cemeteries.

Last year, after Vang Pao, an important Hmong general died, he was refused burial at Arlington National Cemetery.  However, a few months after his death, a U.S. Army Honor Guard participated in a memorial service for the General and other Hmong veterans at Arlington (though the Hmong veterans were not buried there). 

It seems unlikely that the policy on burial will change any time soon, so holding ceremonies like the one for General Vang Pao seems like a respectful way to honor our foreign allies who fought–and sometimes died–with us. 

Given the number of foreigners who served (and continue to serve) with the U.S. military, my guess is that we will see this issue raised again and again in the future.  I have represented a number of people who worked with the U.S. military and who then had to flee their homelands–from Afghanistan, Iraq, and Laos.  The military should develop a consistent policy to deal with such people when it comes to burial and other veterans’ benefits.  The model used in the case of General Vang Pao seems like a reasonable way to handle the issue of burial, but it needs to be consistently applied to all our foreign allies.  Like our own veterans, we owe our foreign allies a great debt, and we need to do right for them all.