Great Britain Rules to Protect Gay Asylum Seekers

by Jason Dzubow

From the New York Times:

The British Supreme Court on Wednesday upheld the right of gay asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men — a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered — who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live “reasonably tolerable” lives in their home countries if they concealed their sexuality. The Supreme Court said that “to compel a homosexual person to pretend” that his sexuality does not exist amounted to denying “his fundamental right to be who he is.”

The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.

According to the Guardian, “Stonewall, the lesbian, gay and bisexual charity, said there were 80 UN member countries where consensual homosexual sex was still illegal, including six that imposed the death penalty.”  Anti-immigration groups feared that the ruling “could apply to millions of people around the world.”  However, (the aptly named) Lord Hope, one of the judges on the panel, stated that the ruling was necessary since anti-gay sentiment had dramatically worsened in some places, fanned by “the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of sub-Saharan Africa” and “the ultra-conservative interpretation of Islamic law that prevails in Iran.”

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Ninth Circuit Rules that Guatemalan Women May Be a Particular Social Group

by Jason Dzubow

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to “determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution ‘on account of’ her membership in such a group.” See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010). 

In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala.  Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity.  The IJ denied the application because she found that young women in Guatemala were not a cognizable social group.  The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.”  Ms. Perdomo entered the U.S. in 1991 when she was 15.  In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.

Guatemalan women celebrate their new social group.

The Ninth Circuit noted, “Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.”  The Court further noted, “Our case law examining asylum claims based on membership in a particular social group continues to evolve.”  The Court had previously defined “particular social group:”

A “particular social group” is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.

The Court had also previously concluded that “females, or young girls of a particular clan, met our definition of a particular social group.” See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005).  In Mohammed, the Ninth Circuit recognized that gender is an “innate characteristic” that is “fundamental to one’s identity.” Id.  The Court found that the social group “Guatemalan women” was not necessarily overbroad: “To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group.”  Further, the Court “rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.”  Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether “Guatemalan women” constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution “on account of” her membership in such a group.

Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.

This is not the end of the matter for Ms. Perdomo.  The case will be remanded for further consideration.  She will still need to prove that Guatemalan women are a social group and that her feared persecution is “on account of” her gender.  It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States.  Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.

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The “Unobservable Factors” that Influence Asylum Decisions

by Jason Dzubow

I recently came across an interesting article from the Journal of Refugee Studies, “A Rare Examination of Typically Unobservable Factors in US Asylum Decisions,” which analyzes data from 81 asylum cases to determine the “unobservable factors” that influenced the decisions in those cases.  The authors had access to cases litigated by the Human Rights Initiative of North Texas (“HRI”) between 1998 and 2005.  As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only.  Nevertheless, the study points to some interesting possibilities concerning how decisions are made. 

The authors refer to prior studies, which correlate asylum grants with factors other than a “well-founded fear” of persecution, for example, “the judge’s prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes.”  Also–

While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.

Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers’ files, and could look at many factors–gender, marital status, education level, religion–that are not normally available.  Some of the findings are quite surprising, and are examined below: 

Gender

The authors write: “we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women’s credibility.”  In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount.  Indeed, of all the factors studied (except possibly religion), gender was the most significant “unobservable factor” that determined the outcome in an asylum seeker’s case. 

Education

The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants.  They found “applicants with a primary or middle school education had greater success than higher educated applicants.”  However, they noted that “the sample size is small in the primary and middle categories” (although the results do seem to have some statistical significance).  They concluded, “Overall, there does not seem to be much variation in the grant rate due to educational attainment.”  People who speak English, however, are statistically more likely to succeed in their cases. 

In my own experience, I have always believed that more educated applicants are more likely to win asylum.  More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society.  I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.

 

What are the odds that this single Christian female would qualify for asylum?

Religion

The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions.  They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum.  In fact, the authors found that having a non-Judeo-Christian religion was the most influential “unobservable factor” in gaining asylum.  Their results in this regard were considered statistically significant.

This is the one observation that seems to me flawed.  The authors’ cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America.  People from these countries are very unlikely to gain asylum in the U.S.  Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world–regions where it is more likely that they will be granted asylum.  For example, many of my cllients are asylum seekers from Ethiopia and most are Christian.  They have a very high likelihood of success in their cases (usually based on political persecution).  Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.

Marital Status

A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants.  However, the authors of the current study found that being married significantly decreases the odds of an asylum grant.  I’ve never noticed any difference in the grant rates for my married vs. single clients.  However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee’s entire family will be “following to join” him in the United States.

Some Thoughts

As the authors point out, their sample size is small, and the results are only suggestive.  Nevertheless, it seems safe to say that “unobservable factors”–or at least factors that are not related to the legal requirements for asylum–do influence decisions in asylum cases.  I imagine the same is true in criminal cases and civil cases.  Not that this makes the situation any better, but the fact is, such “improper” influences are difficult to eliminate in any type of case.  More study is clearly needed.  If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.

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“Son of Hamas” Granted Asylum

by Jason Dzubow

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

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

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

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

The Need for Reform

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

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

by Jason Dzubow

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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Help for the Stateless?

by Jason Dzubow

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

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

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

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

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

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

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Can DNA Stop Asylum Fraud?

by Jason Dzubow

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

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

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

A UKBA scientist tests for Somali nationality.

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

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

Current TV reports on a second part of the test:

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

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

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

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

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“Son of Hamas” Seeking Asylum in United States

by Jason Dzubow
Hamasochist?

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

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

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

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

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

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

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

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Man Connected to Terror Plot Was Failed Asylee

by Jason Dzubow

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

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

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

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

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

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

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

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Briefing in Advance of World Refugee Day

by Jason Dzubow

The Bureau of Population, Refugees and Migration of the Department of State and the U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security co-hosted a background press briefing on June 3, 2010 on U.S. refugee and asylum-seeker resettlement programs. The discussion was held in advance of World Refugee Day, June 20, 2010.

The speakers gave basic background information on refugee and asylum issues and answered journalists’ questions (for purposes of this briefing, your humble blogger was considered a journalist).  The speakers explained that refugees were people outside the United States who had suffered past persecution or who had a well-founded fear of future persecution based on race, religion, nationality, political opinion or particular social group.  Asylum seekers are people who are in the United States (or at the border) who claim that they are refugees.  A few points that I thought were interesting:

Most refugees come to the U.S. from Iraq, Bhutan (via Nepal), and Burma (via Thailand and Malaysia).  The top three countries that accept refugees are the United States, Canada, and Australia.  The number of refugees resettled in the U.S. has increased 25% from last fiscal year.

For cases heard at the eight Asylum Offices in the U.S., a supervisor reviews every case.  Certain sensitive cases are reviewed by headquarters.  Asylum Officers receive an initial six weeks of training and then four hours of training each week.  Officers are trained to identify fraudulent documents. 

USCIS is working on a system to share biometric data with other countries; Canada in particular.  Presumably, the purpose of this is to determine whether the asylum applicant previously filed for asylum in another country and was rejected.

Violence along the Mexican border has caused some Mexicans to seek asylum at the border (though over the past few years, the number of Mexican asylum seekers has been dropping).  In the first six months of FY 2010, 233 Mexican nationals expressed a fear of persecution at the border.  Of those, 84 were deemed to have a “credible fear” and were referred to an Immigration Judge for an asylum hearing.  We can assume that the other 149 people were found not to have a credible fear of persecution and were removed under the expedited removal rules.

If you are wondering, I asked about a problem I have heard about from a number of clients and clients’ family members.  When an alien expresses a fear of return to her country, the ICE or CBP officer is supposed to refer the person for a credible fear interview with a USCIS Asylum Officer.  Apparently in some cases where a detained alien, or an alien at the border, expresses a fear of persecution, the ICE officer tries to convince the alien to sign papers agreeing to removal, and to not make a claim for asylum.  I have heard about this from different sources, though many of the people involved are expressing a fear of persecution by criminal gangs in Central America.  The USCIS spokesperson was not aware of the problem and indicated that ICE and CBP officers are supposed to refer such cases for credible fear interviews.

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Fraud and Asylum

by Jason Dzubow

A recent report from Ireland found that almost two thirds of asylum seekers who claimed to be from Somalia were lying.  The investigation found that the “Somalis” were from other countries, such as Tanzania, Kenya, and Yemen.  Apparently, some of the asylum seekers were found out based on language or a lack thereof; others had previously applied for visas to the UK using different nationalities.  There may be some reason to doubt whether these techniques for outing “Somalis” are valid.  For example, some Somali nationals may have been refugees for many years, raised in other countries without knowledge of Somali languages.  Others may have used false passports from other countries to travel to Europe.  Nevertheless, the high percentage of cases that are likely fraudulent presents a problem for the “system” and for those who represent asylum seekers. 

Of course, the problem is not confined to Europe.  In 2007, the U.S. Embassy in Ethiopia issued a cable (I have not been able to find it online) entitled: Report on fraud trends in Ethiopian asylee claims: A guide for DHS adjudicators.  The cable talks about “following to join” cases where an alien has been granted asylum in the United States and has filed a form I-730 for his relatives to join him in the U.S.  From August 2005 to May 2006, the Embassy reviewed 1,449 following-to-join cases, which represented 288 asylum grants in the United States.  The Embassy writes that “Almost every [following-to-join] interview at Post uncovers information that calls into question the petitioner’s original claim.”  In addition, the Embassy has found that “more than 75 percent of documents investigated were fraudulent” and consular officers “suspect that the fraud rate is well over 50 percent.”  Again, there may be problems with the Embassy’s methods of investigating fraud, but the cable certainly presents evidence of a problem. 

The U.S. Embassy in Cameroon has issued a cable similar to the Ethiopian cable.  It states that asylum claims have increased dramatically since 1992.  The Embassy knows of no corresponding increase in political problems, though the economy has gotten worse, leading to the conclusion that many asylum seekers are economic migrants (the State Department Report on Human Rights conflicts somewhat with this view, listing human rights abuses such as torture, arbitrary arrest, and life-threatening prison conditions).  The Embassy also reports that Cameroonians have been detained entering the United States with all sorts of fake documents that could be used to create fraudulent asylum claims.  Relatives following to join frequently know nothing about the asylees’ political activities or persecution.  As a result of this fraud, non-immigrant visa refusal rates have increased from 35% in 2001 to 60% in 2004.  Further, the Embassy complains that fraudulent applications and following-to-join applications have dramatically increased its workload.  It recommends that Cameroonian asylum cases be viewed skeptically. 

Other evidence is more anecdotal.  A recent report from the blogosphere–I cannot vouch for the report’s credibility–indicates that an Ethiopian diplomat at the Embassy in Washington, DC quit his job, claimed asylum, and then returned to work at the Embassy as a public relations officer.  He was even listed on the Embassy website.  The report states that the diplomat’s asylum claim was false, and urged the U.S. government and the Ethiopian government to investigate.  

The problem of fraud presents a dilemma for attorneys who specialize in asylum and a challenge to the “system.” 

Attorneys who specialize in asylum have generally entered the field to assist those who genuinely fear persecution (we certainly don’t specialize in asylum for the money!), not to help facilitate fraud.  However, for the most part, we can’t know which cases are genuine and which are not, and it’s sometimes dangerous to judge.  I remember one Ethiopian woman whose case I doubted.  We won, and a few months later she returned to my office and asked whether I could help her find a doctor.  Ever since her detention and beating, she said, she had been suffering pain on one side of her body.  Although I don’t know whether this was true or not, she had no reason to lie.  Experiences like this make me cautious about judging my client’s veracity.  Instead, it’s better to represent my clients to the best of my ability and to let the Immigration Judge decide the case.

The problem of fraud also presents a challenge to the legal system.  Our country has–I think quite properly–taken a generous approach to asylum.  We would rather allow some fraudulent cases to succeed than turn away genuine asylum seekers.  Of course, if fraud becomes too pervasive, it might cause us to re-consider how we evaluate asylum claims.  The Australia government recently initiated a six-month freeze on processing asylum applications filed by Afghani and Sri Lankan asylum seekers who arrive by sea.  The system was becoming overwhelmed by applicants, and the government reacted with a heavy hand.  Such a broad brush approach is questionable under international law, and would obviously affect legitimate and illegitimate asylum seekers. 

So what can be done to reduce fraudulent asylum claims?

The U.S. Embassy in Cameroon suggests that DHS check asylum applications with records obtained at the Embassy to determine whether family members listed on the asylum form were also mentioned at the Embassy.  This would avoid the problem of asylum seekers “adding” family members in order to bring them to the U.S. after they win asylum.  If “false family members” could not follow to join, the incentive for seeking asylum might be reduced. 

Also, more generally, documented information at the Embassy could be compared with information in the asylum application.  Theoretically, this should happen already, but DHS has limited resources, and this method seems to have limited value, as most biographical information is consistent between the Embassy and the asylum application.

In many cases, friends and relatives in the home country submit letters in support of an applicant’s claim.  Such people could be called to the Embassy for questioning.  It is more difficult to create a fraudulent case if people in the home country are required to testify about the claimed persecution.  Of course, this would have to be done while maintaining confidentiality, but this should be possible given that such people already know about the asylum claim (having written letters in support of the claim).

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

The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

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A Short “Wish List” for the Refugee Protection Act

by Jason Dzubow

The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.

The Asylum Clock 

The broken asylum clock isn't even correct twice a day

Within the circle of attorneys who represent asylum seekers, the “asylum clock” may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document (“EAD”).  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock. 

Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.

Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.

One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.

Employment Authorization Document

A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture (“CAT”) are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.

Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien’s job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver’s license to the EAD, so when the EAD expires, the driver’s license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver’s license.  The alien could be left without a valid driver’s license (or any valid ID).

These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 

Finally, Some Media Attention

The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, “The Immigration Bill No One Is Talking About.”  Hopefully the article adds some momentum to the push for this worthy piece of legislation.

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The Refugee Protection Act and Asylum Interviews

by Jason Dzubow

Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed.  The Refugee Protection Act would require DHS to record these interviews.

A DHS employee demonstrates the agency's latest recording equipment

Currently, asylum interviews at the border (or the airport) are generally not recorded.  As a result, there are often disputes about what the alien said at the interview.  For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border.  He was immediately detained and requested asylum.  His friend and traveling companion served as my client’s interpreter.  The Border Patrol agent wrote down the client’s responses to the agent’s questions.  The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum.  On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border.  Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.

IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes.  Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews).  Thus, the accuracy of the prior statements is frequently an issue.  If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations.  The RPA provides for recorded interviews at the border.  It should also provide for recorded interviews at the Asylum Office.

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Laotian Asylum Seeker Just Wants to Go Home

by Jason Dzubow

An 88-year-old Hmong man from Laos who requested political asylum in 2007 has filed suit against the Department of Homeland Security seeking to have DHS return his passport so he can go home.  According to KMPH News in Fresno, California, Mr. Xiong–who has not revealed his full name in order to protect his identity–is a veteran who fought alongside U.S. forces during the Vietnam War:

Xiong’s attorney describes his client as a war hero.  He says the Hmong veteran can’t return to his native country without his passport.  It was confiscated when he filed for political asylum in the U.S. and until the process is complete he won’t be able to go home. “He’s an old man,” Attorney Ken Seeger said.  “He’s been in poor health over the past year or so.”

The veteran filed for political asylum in 2007.  “But, he’s changed his mind and he’s willing to take a risk back in Laos just because he’s really old and in bad health and thinks the end is near and he wants to die in his homeland,” Seeger said.

DHS has refused to return the passport, so Mr. Xiong filed suit to get it back.  DHS routinely keeps travel documents (and other original documents) that belong to asylum seekers.  Even after a case is completed, it is often difficult or impossible to retrieve documents.  In Mr. Xiong’s case, it would seem that DHS has every incentive to return the passport.  Let’s hope that they do.   

Traditional Hmong story cloth depicting a modern scene of war and refugees

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