Chilean Revolutionary “Demands” Political Asylum – Gets Bupkis

by Jason Dzubow

I’ve long had a soft spot in my heart for Worker’s World newspaper, with its tag line: “Workers and Oppressed Peoples of the World Unite!”  I can’t say I always agreed with the paper, but is does sometimes highlight issues not covered by more mainstream news outlets.  

Victor Toro: Revenge is a dish best served Chile... er, cold.

One recent story caught my attention.  Last December, the paper had an article about Chilean “revolutionary” Victor Toro.  Mr. Toro claims to be a leader and founder of the Movimiento de Izquierda Revolucionaria (MIR – the Revolutionary Left Movement) of Chile.  He was tortured in Chile because of his political opposition to General Pinochet’s dictatorship.  Mr. Toro has also been a well-known activist for immigrant’s rights in New York City for many years. 

According to Worker’s World, Mr. Toro, who is undocumented, was “racially profiled” by immigration agents and arrested in 2007.  He was then placed into removal proceedings where he “demanded” political asylum.

First, it strikes me as a bit ironic that a Chilean revolutionary–someone who opposed the U.S.-backed coup that violently overthrew elected president Salvador Allende in 1973–would seek asylum in the United States, the same country that helped orchestrate the coup. 

Second, it seems strange to “demand” asylum.  Maybe it is a technical point, but asylum is a discretionary form of relief; this means that the U.S. government can deny asylum in the exercise of its discretion (say, for example, if the asylum seeker is not a person of good moral character).  Given the discretionary nature of the relief, no one can “demand” asylum.  They have to ask for it.  Nicely.

Earlier this month, the Immigration Judge denied asylum.  Mr. Toro’s attorney issued a strongly-worded statement condemning the decision and vowing to appeal.  From what I can glean from the statement, the IJ denied relief principally because Mr. Toro did not file for asylum within one year of arriving in the U.S. and because country conditions in Chile had changed, making it safe for him to return. 

I have never worked on an asylum case from Chile, but given the current country conditions (good), I am not surprised that Mr. Toro’s case was denied.  What seems a real shame is that, had Mr. Toro applied in a timely manner, he might well have qualified for “humanitarian asylum.”  Humanitarian asylum is available to people who have suffered severe persecution in their country, and is available even if country conditions have improved.  Basically, it is a recognition that some people should not have to go back to a country where they suffered severe persecution.  

Mr. Toro was tortured severely in Chile, but apparently his failure to timely file for asylum prevented him from obtaining humanitarian asylum.  Thus–once again–an arbitrary filing deadline has caused real harm.  Frankly, I have my doubts that Mr. Toro will suffer persecution if he returns to Chile.  But considering that he suffered torture in his country previously, he should have received humanitarian asylum.   

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Mexican Asylum Seekers Form Coalition

by Jason Dzubow

I’ve written before about the escalating violence in Mexico and the corresponding increase in people seeking asylum in the United States.  The chances of a Mexican person gaining asylum in the U.S. are very low – only about 2% of Mexican asylum cases are granted.  Now, apparently, Mexican asylum seekers and their advocates have formed a coalition to support each other in their case.  From the Americas Mexico Blog:

Cipriana Jurado: El pueblo unido jamas sera vencido!

Immigration attorneys and immigrant-rights groups in the Texas border city of El Paso said they have formed a coalition aimed at providing greater support for asylum seekers facing a hurdle-ridden application process.

The director of the Las Americas Immigrant Advocacy Center in El Paso, Louie Gilot, said cases of Mexicans fleeing drug-related violence have risen significantly over the past two years and that the asylum seekers include former police officers, rights activists, journalists, business leaders and even government officials.

Announcement of the coalition of asylum applicants coincides with a statement by Mexican activist Cipriana Jurado that she has begun the process of seeking political asylum. Jurado told Efe Tuesday that she had kept up her activism over the past five years despite the slayings of more than 19 colleagues and family members but finally decided to flee Mexico to save her own life and seek protection for herself and her children in the United States.

The violence in Mexico is some of the worst in the world.  Perhaps the new coalition will help improve the chances for Mexicans seeking asylum in the United States.  Given the low success rate of Mexican asylum cases, it is apparent that those fleeing the drug violence need all the help they can get.

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Asylum for an Anti-Semite?

by Jason Dzubow

A recent editorial in the Moscow Times calls on the U.S. to deny political asylum to Ashot Yegiazaryan, a member of the Russian Duma from the nationalistic Liberal Democratic Party, who fled to the United States to escape criminal charges related to some shady business deals.

For these guys, you can't spell Russia without SS.

Like a number of Russian oligarchs, Mr. Yegiazaryan made his money in the freewheeling 1990’s and then entered politics.  His troubles began when a multi-billion dollar business deal in Moscow went bad, and lawsuits and criminal accusations followed.  Ultimately, Mr. Yegiazaryan left Russia and made his way to (where else?) Beverly Hills.  Now, depending on the rumor you choose to believe, he will be seeking political asylum in the United States, or he already has a green card.  Mr. Yegiazaryan has denied the latter rumor, as it is apparently illegal for a member of the Duma to hold residency in another country.  In the mean time, the Russian Duma has stripped Mr. Yegiazaryan of his immunity and the Russian government is pursuing criminal charges.

This scenario–of a businessman rising rapidly to wealth and prominence only to be brought down by criminal charges and accusations of fraud–seems common in Russia these days.  When I was a law clerk at the Arlington Immigration Court (in 1999), I worked on such a case.  Alex Konanykhin, was a Russian businessman whose case bounced between the Immigration Court, the BIA, and the U.S. District Court.  In the end, he received asylum and wrote a book about his experience.  Then, of course, there is the case of Russia’s richest businessman, Mikhail Khodorkovsky, who is currently sitting in a Russian prison, convicted of criminal fraud.

Like these other cases, it is difficult to tell whether Mr. Yegiazaryan is a criminal or a victim.  What’s clear in his case, however, is that he is a member of the Liberal Democratic Party, a party founded and dominated by Vladimir Zhirinovsky, who has made many anti-Semetic and rascist remarks. 

Whether, as the Moscow Times posits, Mr. Yegiazaryan should be denied political asylum (assuming that he qualifies for asylum in the first place) on account of his membership in the LDP may be a complex question.  If the LDP has “ordered, incited, assisted, or otherwise participated in” the persecution of people based on a protected ground, than Mr. Yegiazaryan would not be eligible for asylum.  The key word here is “incited.”  I do not know what Mr. Yegiazaryan might have said or done, but others in his party, in particular the party’s leader, Mr. Zhirinovsky, have accused Jews of ruining Russia, sending Russian women to foreign countries as prostitutes, selling children and organs, and provoking the Holocaust.  That sounds like incitement to me.  At the minimum, for Mr. Yegiazaryan to win asylum, he will have some explaining to do.

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A New Guide to Establishing Asylum Eligibility for Victims of Human Trafficking and Forced Marriage

by Jason Dzubow

The World Organization for Human Rights USA has recently published a Guide to Establishing the Asylum Eligibility of Victims of Human Trafficking and Forced Marriage.  Even a cursory review of the new guide reveals that it will be an important new resource for attorneys and others who represent people seeking asylum on the basis of gender persecution.  From the World Organization for Human Rights USA website:  

Human trafficking – as well as forced marriage, often a form of trafficking – is indisputably recognized around the world as an egregious human rights abuse, and many victims of this abuse fear that they cannot safely return to their home countries after escaping.  Increasingly, courts around the world are concluding that victims of trafficking and forced marriage are eligible for refugee protection.  While some U.S. immigration judges and asylum officers have also recognized this principle, there is not a large body of binding U.S. precedent specifically addressing trafficking or forced marriage.  But with a targeted litigation strategy, attorneys can convince more and more adjudicators to recognize what is becoming firmly established in international law.

The guide is designed to assist attorneys in crafting arguments and writing briefs to support their clients’ asylum applications based on trafficking and/or forced marriage. 

I’ve litigated a few cases like this, and they can be tough.  Although both human trafficking and forced marriage are types of persecution, they do not easily fit into the protected grounds set forth in asylum law.  I suppose that was once true for persecution based on female genital mutilation and sexual orientation, but now, persecution based on those grounds may form the basis for an asylum claim.  Hopefully, the new guide will help establish trafficking and domestic violence as basis for asylum, so that people fleeing such persecution can gain protection in the United States.

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Asylum Training for Health Professionals

by Jason Dzubow

Physicians for Human Rights will conduct a training for health professionals on April 9, 2011 in Houston, Texas.  The program is titled, Aiding Immigrant Survivors of Torture and Other Human Rights Abuses: Physical and Psychological Documentation of Trauma.  It aims to instruct health professionals on the skills necessary to perform physical and psychological evaluations of survivors of human rights abuses:

PHR’s volunteer network of over 400 health professionals assists survivors of human rights abuses by conducting forensic psychological and physical evaluations to document evidence of torture and abuse. Our clinicians have specialized training and expertise in recognizing and documenting the trauma of conflict, displacement, abuse, discrimination, and oppression—issues at the heart of many humanitarian relief applications. The medical-legal affidavits that they submit to courts on behalf of survivors are frequently the determining factor when judges grant asylum or other relief from deportation.

Even the best doctors will benefit from this training.

I often use reports from health professionals to help bolster my cases, particularly where there are physical scars caused by torture, so I can attest to the value of such reports to asylum seekers.  A well-written report can often sway the fact finder and help a client gain asylum. 

For those interested in the training, more information is available here.

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Twenty-Year-Old Mexican Police Chief–a/k/a the Bravest Woman in Mexico–Files for Asylum

by Jason Dzubow

In October 2010, Marisol Valles became the police chief of Praxedis Guadalupe Guerrero, a small town near Ciudad Juarez, Mexico.  Her predecessor had been beheaded by a drug gang, and the whole area has been plagued by horrific drug violence.  No one else wanted the job, so Ms. Valles, a criminal justice major at a local college, stepped in.  Mexican newspapers dubbed her “the bravest woman in Mexico,” but now, sources in Mexico and the U.S. confirm that she has crossed the border to ask for asylum in the United States.

The bravest woman in Mexico is also smart enough to know when to run away.

Ms. Valles asked for an eight-day leave for a personal matter involving her child and said she would return on Monday.  The town fired her after she failed to return and they could not reach her.  Apparently, she received multiple death threats, and feared for herself and her family.

MSNBC reports that she is in the U.S. and will seek asylum before an Immigration Judge.

According to the Wall Street Journal, in northern Mexico, “hundreds of police officers have been slain by drug traffickers who have targeted officers’ families, homes, and places of work.”  Nevertheless, the odds are not in Ms. Valles favor.  According to statistics from the Executive Office for Immigration Review, of the 3,231 Mexicans who applied for asylum in Immigration Court in FY 2010, only 49 cases, or about 1.5%, were granted. 

The reason for the low success rate is that people fleeing Mexican drug violence do not generally meet the definition of a “refugee,” a person with a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  While such people have a “well-founded fear,” they generally cannot demonstrate that the fear is on account of a protected ground. 

Another possible reason for the low success rate of Mexican asylum seekers is the U.S. government’s fear of opening the floodgate to many thousands of people who fear the rampant violence in Mexico. 

Given Ms. Valles’s high profile, her odds of gaining asylum might be better than the average Mexican’s (or even the average Mexican police officer’s).  Whether or not she succeeds in obtaining asylum, her case is another sad reminder of the difficulties faced by our Southern neighbor.

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Political Asylum for Libyan Students in the US?

by Jason Dzubow

More than 1,000 Libyan students are currently studying in the United States, and the continuing unrest in their homeland has them worried.  To make matters worse, the Libyan Embassy in the U.S. apparently contacted many of the students and threatened to take away government scholarships unless they attended a pro-Khadafy rally in Washington, DC.  The Libyan Ambassador (predictably) denied any such threats.

Anti-Khadafy protestors tell it like it is.

Some of the students are politically active.  For example, a student in New York has started a Twitter account called Enough Gaddafi that has over 7,000 followers (a website is coming soon).  In Kentucky, a group of 50 Libyans gathered to voice their support for the protestors in Libya.  And Libyan students in Colorado and Oklahoma are speaking out publicly against Libyan leader Moammar Khadafy.

Given the current situation, can Libyans in the U.S. successfully claim political asylum? 

As usual in immigration law, the answer is a definite maybe.  For those students listed by name in newspapers and who engaged in anti-Khadafy political activity, or who made anti-Khadafy comments, I would imagine that they have a solid claim for political asylum.  If Mr. Khadafy remains in power, the students would face severe consequences upon their return to Libya.  There is no doubt that Mr. Khadafy’s regime tortures and murders political opponents.  Further, given the Libyan Embassy’s attempt to rally Libyans in the U.S. to Mr. Khadafy’s defense, it is very likely that the Libyan government is aware of the students’ political opinions.  

For those Libyans not mentioned in newspapers, or who were not contacted by the Embassy about attending the pro-Khadafy rally, an asylum claim might be more difficult.  Generalized strife in a person’s home country–in and of itself–is usually not sufficient to qualify for asylum.  Whether a particular individual qualifies for asylum would depend on his or her personal circumstances.

Finally, the situation in Libya is very fluid.  Perhaps Mr. Khadafy will be gone soon (we can only hope), but perhaps not.  As the situation on the ground continues to evolve, so too will the possibility for asylum for Libyans in the U.S. 

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Liu v. Holder: Frivolous Asylum Applications

by Jason Dzubow

The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011).  The Court held:

“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.

The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”

In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence.  However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.”  The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:

First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court.  Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim.  Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application.  Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.

Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness.  In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous finding: 

(1) Notice to the alien of the consequences of filing a frivolous application; (2) A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

In other words, it’s not easy to have your asylum case found frivolous.  This is as it as it should be, given the harsh consequences for a frivolous finding.

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Think You Can Do Better Than USCIS – Let Them Know!

by Jason Dzubow

The Refugee, Asylum, and International Operations (RAIO) Directorate will hold a stakeholders meeting on March 2, 2011 at 2:00 PM (EST) in Washington, DC.  The purpose of the meeting is

to discuss changes to the organizational structure of the Directorate. RAIO aims to strengthen cohesion between its three divisions by developing directorate-level functions that will allow for more integrated planning, guidance, and management of knowledge assets. During the session, USCIS will provide an overview of the organizational changes and plans for the transition as well as address questions and concerns from stakeholders.

RAIO is the office responsible for overseeing, planning, and implementing policies and activities related to asylum and refugee issues as well as immigration services overseas.  It is made up of three divisions: (1) The Refugee Affairs Division, which is a principal partner in the United States Refugee Admissions Program, and is responsible for providing the humanitarian benefit of refugee resettlement to applicants in need of protection throughout the world while diligently protecting the U.S. homeland; (2) The Asylum Division, which manages the U.S. affirmative asylum process; and (3) The International Operations Division, which has 29 international field offices around the world and serves as the face of USCIS overseas.  The international offices play a critical role in extending immigration benefits to eligible individuals and exercising vigilance in matters of fraud detection and national security.

For more information or to sign up to attend the meeting (in person or by phone), click here.

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Mubarak Is Not Eligible for Asylum

by Jason Dzubow
When your photo is crossed out AND burned, you know it's time to go.

After 30 years of autocratic rule, the people of Egypt have forced President Hosni Mubarak to resign.  There has been much talk about Mr. Mubarak seeking asylum abroad, but does he qualify for asylum under international law?  I think the answer is an unqualified “No!”

A person who faces a well founded fear of persecution on account of race, religion, nationality, political opinion or particular social group, may qualify for asylum.  However, one who “ordered, incited, assisted, or otherwise participated in the persecution of any person” on account of a protected ground is barred from asylum.  Under this provision, Mr. Mubarak is barred from receiving asylum.

Here are some reports about Mr. Mubarak’s Egypt.  First, from the U.S. State Department:

The government’s respect for human rights remained poor, and serious abuses continued in many areas.  The government limited citizens’ right to change their government and continued a state of emergency that has been in place almost continuously since 1967.  Security forces used unwarranted lethal force and tortured and abused prisoners and detainees, in most cases with impunity….  Security forces arbitrarily arrested and detained individuals, in some cases for political purposes, and kept them in prolonged pretrial detention.

Amnesty International reports:

The government continued to use state of emergency powers to detain peaceful critics and opponents….  Some were held under administrative detention orders; others were sentenced to prison terms after unfair trials before military courts.  Torture and other ill-treatment remained widespread in police cells, security police detention centres and prisons, and in most cases were committed with impunity.

And this, from the Daily Beast:

Few know the cruelty of Mubarak’s regime better than [Kareem] Amer, who spent the last four years in prison for criticizing the dictator and “insulting” Islam on his blog.  When I asked him to describe Mubarak’s record, he said: “Many human-rights activists and journalists were imprisoned during his reign.  Some were beaten and tortured.  Others were abducted or disappeared without a trace.  The most important of these incidents was the disappearance of the Egyptian journalist Reda Helal in the heart of Cairo in 2003.  Many believe the security services were behind the abduction because of his political views.”

Mr. Mubarak has been an ally of the U.S. and he respected the peace treaty with Israel, but he was a human rights abuser who held power by torturing and killing his own people.  With such a record, it is clear that Mr. Mubarak would be barred from asylum under international law.

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Ethiopian Asylum Seekers Die Along the Smuggling Route

by Jason Dzubow

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

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

UNHCR hailed the move:

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

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

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

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

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

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DHS Plans Crackdown Against Smugglers in Central American

by Jason Dzubow

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

A smuggler guides a couple illegal aliens across the border.

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

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

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

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

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Deportation Leads to Abortion

by Jason Dzubow

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

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

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

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

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

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

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FAIR Gets It Wrong

by Jason Dzubow

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

The Hebrew Immigrant Aid Society (HIAS)

The FAIR report basically attacks HIAS:

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

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

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

Particular Social Group

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

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

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

Asylum Should Be Temporary

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

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

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

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

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

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