South Korean Spy Blows the Whistle, Gets Asylum

by Jason Dzubow

As you might imagine, South Korea is not a big source country for asylum seekers.  So it’s newsworthy when someone receives asylum from that country–particularly when that someone is a former operative with Korea’s top spy agency, the National Intelligence Service (“NIS”).

Writing for the Korea Times, Donald Kirk reports on the asylum case of Kim Ki-sam, a South Korean intelligence agent who blew the whistle on the NIS and former South Korean President Kim Dae-jung.  Mr. Kirk also served as an expert witness at Kim Ki-sam’s asylum hearing in Philadelphia and wrote a book with Mr. Kim’s help, Korea Betrayed: Kim Dae-jung and Sunshine.

The story goes that Kim Ki-sam made public information about the “tremendous investment of time, money and resources that went into arranging the June 2000 summit between Kim Dae-jung [the former president of South Korea] and Kim Jong-il [the late and not-so-missed dictator of North Korea].”  Apparently, “hundreds of millions of dollars… flowed into North Korean coffers to grease the path to the summit while the NIS and other agencies lobbied hard for years for the Nobel Prize for Kim Dae-jung.”

People are always thinking of crazy ways to get out of Korea.

Kim Dae-jung won the Noble Peace Prize for his “Sunshine Policy” towards the North, but the award was tainted by allegations that vast sums of money flowed to the North while at the same time the South ignored human rights abuses in North Korea.

The asylum case apparently wasn’t easy.  Mr. Kim first applied for asylum in 2002.  An IJ granted asylum in 2008, but DHS appealed.  The case was remanded to the IJ and Mr. Kim presented his claim again.  Finally, last month, the IJ granted asylum and DHS agreed not to appeal.  Mr. Kim was ably represented by Janet Hinshaw-Thomas of Prime Immigration Ministry in Philadelphia.

Of course, all this makes me think of another supposed whistle blower from a democratic country–Bradley Manning, who is currently awaiting trial (and facing a possible death sentence) for revealing classified information to Wikileaks.  Perhaps it is ironic that we grant asylum to one whistle blower while we potentially put another to death, but I think the cases are distinguishable.  One difference is that Bradley Manning publicized documents that mention Afghan civilians by name.  This put the civilians in serious jeopardy of Taliban attack.  As far as I can see, Kim Ki-sam’s actions have not put people’s lives at risk.  Ironic or not, the South Korean whistle blower has now received political asylum from the U.S. government.

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Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

by Jason Dzubow

Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.”  And who has the informant been ordered to turn over this information to?  The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.  If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.

First, a bit of background.  Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.  I’ve written about him before, here and here  (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.  The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.  The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.”  Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks. 

I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas.  But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.  It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.  Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.  Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.  While discovery in civil cases is quite broad, it is not unlimited.  Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.  Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.  If  this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.  For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant. 

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Afghan Asylee Murdered in San Diego

by Jason Dzubow

Mir Najibullah Sadat Sahou was an economist and the governor of the Afghan Central Bank before he fled Afghanistan in 1992. Like many refugees and asylees, Mr. Sahou could not find work in his field.  Instead, he drove a taxi, supported his family, and continued his political activity by appearing regularly on a talk show on Ariana Afghanistan International TV. 

Mir Najibullah Sadat Sahou

Mr. Sahou, age 68, was gunned down on September 28, 2011.  According to CBS News, the police have identified a suspect and issued an arrest warrant.  It appears that the motive was robbery, but given Mr. Sahou’s political activism and his prior high-profile job, other motives cannot yet be ruled out.

The story of a prominent person who flees his country and starts over in the U.S. is fairly common among refugees.  When I worked in refugee resettlement in the early 1990’s, I knew a Russian man who had designed the radar system for the Backfire Bomber (the Soviet Union’s main long-range bomber).  In the U.S., he worked as a mechanic in a machine shop.  I also met the former Minister of Finance for the Ethiopian army.  He worked in a parking garage.  It takes a certain strength of character to go from a prominent station in life to one that is more humble.  But like many refugees, Mr. Sahou appears to have carried on for the sake of his children (one of whom is a pre-med student).

Another aspect of Mr. Sahou’s story that strikes me is his on-going concern  for his home country.  Although he did not have a professional position in his field, he continued to work for the betterment of Afghanistan by educating the public through his television show. 

Finally, although the motive for the attack seems to have been robbery, there have been many instances of foreign agents operating clandestinely in the United States and attacking political opponents.  The most famous example is probably the 1976 assassination in Washington, DC of Chilean activist Orlando Letelier, who was murdered by agents of the Pinochet government, but many foreign government have engaged in violent acts against their nationals in the United States, including China (against the Falun Gong), Cuba (against anti-Castro Cubans), and Iraq (under Saddam Hussein).  Just last week, the Justice Department announced it had uncovered an Iranian plot to kill the Saudi Ambassador in the United States (a claim disputed by Iran).  Given the frequency of such activity, it would be wise to look closely at Mr. Sahou’s case to be sure that no foreign government or agency is behind the attack.

Of course, whatever the motive, the murder of a family man who worked hard, served his home country, and loved his adopted country is a terrible tragedy.  May he rest in peace.

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Jewish Lawyers; Muslim Immigrants

by Jason Dzubow

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, “when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

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Fear and Loathing in the Asylum System, Part III: A “Solo” Visa for Refugees

by Jason Dzubow

For those who seek to limit immigration to the U.S., one area of concern is so-called “chain immigration,” where one immigrant brings multiple family members to the United States. 

This applies to asylees and refugees as follows: Such people can immediately bring their spouses and under-21, unmarried children to the United States (the term “immediately” here means that there is no backlog – processing the family member takes anywhere from six months to several years).  Asylees and refugees are eligible for their green card after one year, and then their citizenship four years later.  Once they have their green card, they can file for their over-21 children (including the child’s spouse and under-21 children), and once they become citizens, they can file for their parents, siblings (including the sibling’s spouse and under-21 children), and married children (including the spouse and under-21 children).  In short, after the asylee or refugee becomes a U.S. citizen, she is eligible to bring multiple family members to the United States–“chain migration.”

In a recent blog post on the Center for Immigration Studies website, David North argues that we could limit chain immigration by prohibiting asylees and refugees  from filing for family members other than spouses and under-21 children.  Before responding to Mr. North’s proposal, I want to mention a few points.  First, I disagree with the presumption behind the proposal–the idea that immigration has a negative effect on our society and should be more limited than it already is.  Of course, too many immigrants could not be absorbed and integrated, but I am not convinced we have reached that level.  Second (and maybe this is a contradictory point), I believe we should eliminate the “siblings” category of immigrants.  There are large backlogs for many categories of immigrant.  I think we would be better off eliminating the siblings category and using those slots for children and spouses of lawful permanent residents.  It never made sense to me that we allow the principal immigrant to come here with a green card, but we make his family members wait for years to join him.  This greatly delays the family members’ integration into our society, keeps family members unnecessarily separated, and causes the principal to send his earnings out of the U.S. to support his family.  We’d be better off bringing the family members here sooner, and one way to do that is to use the visa numbers that are currently given to siblings.

Reunited and it feels so good...

All that said, I must respectfully disagree with Mr. North’s proposal for several reasons.  For one thing, allowing asylees and refugees to bring their family members here does not greatly increase the overall number of people immigrating to our country.  For most categories of family immigrants, there are numerical limits on the number of people who can immigrate to the U.S. each year.  Thus, at worst, the relatives of the asylees and refugees will displace the relatives of other people who are waiting to immigrate.  There will be very little increase in the overall numbers.

Second, I disagree with the idea of making asylees and refugees “different” from others who come to the U.S.  It seems to me, if we are bringing such people to the U.S., we ought to treat them the same as every other immigrant once they become lawful permanent residents or U.S. citizens.  It is better to integrate these people into our community, rather than erect barriers that make them feel excluded. 

Finally, many asylees and refugees will never return to their home countries.  For some, the only hope of seeing their family members is that they can file petitions for them to come to the U.S.  Given the very long waiting times for an immigrant visa, and depending on which relatives are petitioned, such people can expect to wait anywhere from five to 20 years (or more) to see their family members.  Thus, while many asylees and refugees have only a slim hope of seeing their family members again, I suppose this is better than no hope at all. 

In the end, Mr. North’s proposal is quite modest.  I just believe that the “benefits” (i.e., a small reduction in the number of people coming to the U.S.) are not worth the costs.

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Bolivian Man Accused of Genocide Has Asylum in the U.S.

by Jason Dzubow

Late last month, Bolivia’s Supreme Court of Justice convicted seven former military and government officials of genocide, reports Indian Country Today Media Network.  The military officials received 10-15 years imprisonment and the civilians three years in prison.  However, the primary suspects in the case, former president Gonzalo Sánchez de Lozada and former defense minister Carlos Sánchez Berzain, remain in the United States.  As far as I can tell, Mr. Sanchez de Lozada is either a citizen or a permanent resident of the United States.  Mr. Sanchez Berzain was granted asylum in the U.S. in 2008 (sparking protests in Bolivia).

Carlos Sanchez Berzain: Accused mass murderer and...

The convictions and accusations stem from a 2003 incident known as the Bolivian Gas War, where protesters blocked a natural gas shipment from Bolivia to Chile.  The then-president of Bolivia used the military to open the road.  As a result of this incident, as many as 67 people died (all of them members of Bolivia’s indigenous Aymara community) and 400 were injured.  The “war” was part of a larger economic and social conflict in Bolivia, and as a result President Sanchez de Lozada resigned from office.  The current president, Evo Morales, was a leader of the protesters.

Since Messrs. Sanchez de Lozada and Sanchez Berzain have been in the U.S., the Bolivian government has filed a formal extradition request, which so far has not been acted upon.  Also, victims of the alleged genocide have filed a lawsuit under the Alien Torts Statute against the two Bolivian leaders seeking to hold them accountable for the deaths in 2003.  The lawsuit involves some heavy hitters on both sides.  For the plaintiffs: Ira Kurzban, Harvard University’s Human Rights Clinic, the Center for Constitutional Rights, and the law firm Akin Gump.  Representing the defendants are my former idol Alan Dershowitz (who seems to have repositioned himself from a defender of civil liberties to a defender of all things right-wing), and the law firms Williams and Connelly, LLP and Greenberg Traurig.  In November 2009, the District Court dismissed some counts of the complaint and allowed others to go forward.  The defendants appealed, and the case is currently before the U.S. Court of Appeals for the Eleventh Circuit.

Ned Flanders look-alike.

As there is (probably) enough evidence for the civil case to move ahead, I wonder whether the Department of Homeland Security is investigating the asylee defendant, Mr. Sanchez Berzain.  Under the law of asylum, one who engaged in genocide or persecution of others is ineligible for asylum.  Clearly, there is some evidence that Mr. Sanchez Berzain was involved in persecuting people.  Aside from the District Court ruling, a leader of the indigenous peoples of Bolivia called Mr. Sancehz Berzain the “specific intellectual author” of the 2003 massacre. 

Given the calls to deport the housekeeper in the DSK case (who seemingly lied about her asylum claim), I wonder whether there will be a similar outcry here, where the asylee is accused of much worse than lying.  My guess is–since our country has a rocky relationship (at best) with President Morales–it’s likely DHS will look the other way when it comes to Mr. Sanchez Berzain.  And that’s too bad–asylum law is supposed to be based on international principles; not politics.   

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CBS Special About Refugees and Faith-Based Organizations

by Jason Dzubow

CBS News has announced a new interfaith religion special, “Refugee Resettlement: Faith Communities Making a Difference,” to be aired on Sunday, September 25, 2011.

And that’s the way it is…

The special will focus on Church World Service(“CWS”), which has helped over 500,000 refugees resettle in the U.S. since its founding in 1946.  The special features interviews with Erol Kekic, Director of Immigration and Refugee Program for CWS, as well as Vincent Cochetel, Regional Representative for The UN High Commissioner for Refugees.  The program also includes interviews with volunteers from interfaith co-sponsorship teams (where a Muslim and a Christian are paired to assist a refugee), as well as refugees from Eritrea and Somalia, “who are adjusting with the help of their new friends, many of whom are now like family.”

Given the hateful propaganda against Muslims in the U.S. these days, I am particularly interested in the interfaith partnerships.  This seems like a great way to bring people together while accomplishing important work.  The initiative is sponsored by the Minnesota Counsel of Churches and is called the Taking Root program.  Here is an excerpt from the Taking Root website:

Imagine you are a refugee fleeing persecution, arriving in Minnesota knowing no one. You are greeted at the airport and helped in your first months by a team of Muslim and Christian volunteers working together. In your homeland you only knew people of your own religious tradition, or your experience with other religions was one of distrust and persecution. But here your interfaith sponsors help you find a home, a job and make a successful transition to self-sufficiency. Gradually you build a new life of hope, safety, peacefulness and connection. This unique team of volunteers has also given you a gift that may have been unimaginable to you – an experience of interfaith cooperation.

The CBS documentary will help spread the word about interfaith cooperation and about refugee resettlement.  It sounds like a win-win.

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Refugee Terror Plot or Over-Enthusiastic Airport Screeners?

by Jason Dzubow

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

This is a deadly explosive.

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

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

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

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

This is a delicious snack.

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

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

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

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

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Refugee Congress to Meet in DC

by Jason Dzubow

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

Hopefully the Refugee Congress is more functional than these guys.

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

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

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

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

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

by Jason Dzubow

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

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

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

The Times article continues:

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

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

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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Senator Paul Seeks Hearing on Refugees Accused in Terror Plot

by Jason Dzubow

Last week, two Iraqi men were arrested in Kentucky and charged with (among other things) “conspiring to kill U.S. nationals abroad, conspiring to use explosives against U.S. nationals abroad, distributing information on the manufacture and use of IEDs, attempting to provide material support to terrorists and to al-Qaida in Iraq, and conspiring to transfer, possess and export Stinger missiles.”  According to the criminal complaints (available here and here), both men entered the United States as refugees in 2009, and have been living here ever since. 

Most refugees are not all that scary.

Given the obvious breach of security, Senator Rand Paul of Kentucky has called for hearings to determine “how the heck” these alleged terrorists got into our country.  Senator Paul also asked, “How do you get asylum when you come from a friendly government?”  The Center for Immigration Studies echoes this sentiment:

The bigger question is why are we taking refugees from Iraq at all? Resettlement to the United States should be used only as the absolute last resort for people who will surely be killed if they stay where they are and who have nowhere else — nowhere whatsoever — to go.

CIS complains that as conditions in Iraq have improved, the number of Iraqi refugees coming to the U.S. has ballooned–from 200 in the early years of our “Mesopotamian adventure” (as CIS calls it) to 18,000/year in recent years.

As to the first point, I agree that refugees coming to the U.S. pose a security challenge.  It’s possible to search a person’s criminal background in the United States and in most developed countries.  But refugees rarely come from developed countries.  DHS supposedly has ways to check a person’s background against certain databases, but again, it is not clear how these databases are created or how accurate they are.  Of course, we face these same challenges for anyone coming to the United States.  The question is, what do we do about it?

Some commentators, like Mark Krikorian at CIS, believe we should simply stop admitting refugees from Iraq (and possibly from everywhere else as well).   I suppose that would close the door to terrorists who might take advantage of our generous refugee program, but it seems like throwing out the baby with the bath water.  The fact is, there are very few examples of refugees who have committed (or been accused) of terrorism.  The idea that we should forsake all refugees (and our humanitarian obligations/ideals) because of a few bad actors is a short-sighted and cowardly response to the problem.  As a nation, we are a world leader in many areas, including the humanitarian area.  We have greatly benefited from our leadership role, and from the many refugees, asylees, and immigrants who have made our country their new home.  We should not give up our leadership or the benefits that accrue to us because we fear terrorism.  We should not let the terrorists win.

I also want to briefly address Senator Paul’s second point–that people should not receive asylum when they come from a country with a “friendly government,” like Iraq.  The law of asylum states that a person may receive asylum if he has a well-founded fear of persecution in his country.  Whether that country is friend or foe is not relevant to the law.  The law also states that a person may receive asylum if he fears persecution by a non-governmental actor, and the government is unable or unwilling to protect him.  Sometimes, governments friendly to us persecute their citizens (for example, we had a good relationship with General Pinochet, but he killed thousands of his people).  Other times, friendly governments are unable to protect their citizens, as is the case for many people fleeing the Taliban in Afghanistan or insurgents in Iraq.  Since asylum is a humanitarian relief, it should not be contingent on political alliances.  If a person meets the standards for relief, that should be enough.  

All that said, Senate hearings on security and refugees is a worthy topic.  In examining security, I hope Senator Paul keeps in mind the humanitarian nature of the refugee program, the benefits that program brings us, and the ideals that the program represents. 

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Refugee Admissions Down as a Result of New Security Checks

by Jason Dzubow

The Catholic News Service (“CNS”) reports that refugee admissions for FY 2011 have slowed dramatically due to new security measures put into place by the Department of Homeland Security.  The slow down effects not just the refugees–often times waiting in camps where they face disease and other dangers–but also the capacity of the resettlement agencies, which receive funding based on the number of people resettled.

Each refugee will receive a free copy of Andy Warhol's famous poster.

For Fiscal Year 2011, President Obama has authorized the admission of up to 80,000 refugees.  However, according to CNS, as of mid-May (7 1/2 months into the fiscal year), only 38% of the 80,000 have been admitted.  This puts us on track to admit only about 49,000 refugees for the current fiscal year.  CNS reports:

Delays in the refugee resettlement process are being caused by a backlog of security clearances and additional security “holds,” according to Larry Bartlett, acting director of the Office of Refugee Admissions for the State Department. The additional security measures are part of a larger series of security enhancements by the Homeland Security Department.

These delays have several effects.  For one, refugees are forced to endure longer waits in camps, and families remain separated for longer periods.  Further, some refugees who have already been screened and cleared are now stuck waiting for the new security checks.  During this waiting period, certain of the clearances may expire, and the refugees will need to be cleared again–resulting in even more delays.  

In addition, the receiving agencies in the U.S. receive $700.00 for each refugee resettled.  The agencies are paid only when they actually receive the refugee.  This means that agencies’ revenues are down, and this could affect their capacity (for example, if an agency is forced to lay off workers, it may not be prepared if additional refugees arrive).   

A State Department spokesman stated that refugee admissions would increase during the remainder of the fiscal year, and that DOS expected to resettle between 63,000 and 74,000 refugees in FY 2011.

Of course, it is difficult to argue against additional security background checks, especially when it is unclear what those checks entail or why they have been put into place.  Further, for agencies in the business of resettlement, it seems only fair that they must adjust to the policy changes of the U.S. government.  That said, it is difficult for me not to be a bit skeptical about the new background checks.  Hopefully, though, once the new system is up and running, refugee admissions will return to normal levels, so we can fulfill our commitment to assisting people in dire need and keep our country safe. 

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Virginia Denies Driver’s Licenses to Refugees

by Jason Dzubow

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV.  As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal. 

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum.  In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country).  Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum. 

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum.  This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia.  An asylum seeker need only show a 10% chance of persecution to obtain asylum. 

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.”  I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not.  She has been granted Withholding of Removal.  That order has not been appealed, and it is final.  There is nothing more to review.  It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license.  Her legal status is Withholding of Removal.  It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele.  It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs.  My guess is that the lawsuits are coming.  Let’s hope so.

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