Forget the Dream Act – Just Grant Them Asylum

by Jason Dzubow

It seems that advocates for “Dreamers”–young foreigners who would benefit from the Dream Act–are trying a new tactic: Leaving the country and then returning to seek asylum. Not long ago, I wrote about the Dream 9, who presented themselves at the U.S./Mexico border and requested asylum. They were released and will have to appear before Immigration Judges, who will decide their cases. Now, we have the Dream 30, who have done pretty much the same thing. This new tactic holds promise and risk, both for themselves and for other asylum seekers.

"Dreamers" might be a particular social group, but I am not so sure about "dreamboats."
“Dreamers” might be a particular social group, but I am not so sure about “dreamboats.”

Asylum, of course, is a legal tool that has been used and expanded by creative lawyers. When the modern asylum system was created by the Refugee Act of 1980, many people who routinely receive protection today–victims of female genital mutilation, LGBT individuals, victims of domestic violence–would likely have been ineligible for asylum. To the extent that their actions are not simply a type of civil disobedience, the Dreamers seem to be seeking to expand the category of protected individuals to include people who grew up in the U.S., and who face threats in their home countries because they are viewed as “American.” This strategy raises two basic questions: (1) Will it work? and (2) How will it affect other asylum seekers?

First, will it work? I think it might, at least in some cases. I’ve represented several asylum seekers who made claims similar to the Dreamers: A lesbian who had not been to her home country of Sudan since she was young, Afghan women (and a few men) who studied in the U.S. and who are viewed by extremists as “Westernized,” an Iraqi woman whose family was associated with the U.S. These applicants were successful (or their cases are still pending), but my guess is that their claims are stronger than most of the Dreamers’ claims. Nonetheless, the principle is the same.

A broader–and more radical–solution for the Dreamers might be if the Obama Administration defined them as a particular social group for asylum purposes. There is precedent for such a move: In 2009, DHS issued a brief in Matter of LR where it stated, “DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group…. This does not mean, however, that every victim of domestic violence would be eligible for asylum.” Prior to the end of DOMA, I (clumsily) advocated a similar approach to help LGBT couples.

If DHS agrees that deported Dreamers are a particular social group (defined as “young, Americanized Mexicans,” for example), they would then need to demonstrate that they face persecution in their home country based on their social group. DHS could potentially make a blanket determination that members of this social group would face persecution in Mexico, El Salvador or wherever, and – Voila! – Dreamers get asylum, and you effectively pass the Dream Act without Congressional action (and they could apply for asylum without leaving the U.S.).

Of course, there would be consequences to such an approach, which brings us to the second question: How will it affect other asylum seekers?

For one thing, unless significant resources were re-allocated, giving asylum to the Dreamers would completely overwhelm the asylum system. That system has already been ground to a halt by a few extra thousands arrivals at our border, so it certainly could not handle millions of new cases. 

In addition, it would be very expensive. There are no government fees for asylum applications. Presumably, if the Dream Act becomes law, Dreamers will pay a fee to regularize their status. In general, USCIS is operated based on filing fees (that is why it has not been closed by the government shutdown), so these fees would be needed to adjudicate the Dreamers’ cases.

Third–and this for me is the real problem–it will harm (or destroy) the integrity of the asylum system. Asylum, by definition, is an individualized form of relief. While one person from a particular country may have a strong asylum case, another may have no case at all. To view these cases collectively sets a very bad precedent. Worse, to grant asylum to an entire group (i.e., Dreamers), many of whom probably would not otherwise qualify, turns the asylum system into a political tool for avoiding the normal legislative process (i.e., passing the Dream Act). Such a move would do great damage to the asylum system, a system that is supposed to be free from political influence.

Asylum as a blanket solution to the Dreamers’ dilemma is certainly not the best way to solve the problem. It would obviously be much better for Congress (specifically the House of Representatives) to pass the Dream Act and Comprehensive Immigration Reform. But as a strategic approach, perhaps the “threat” of giving asylum to all Dreamers might provide an incentive for the House to take up immigration reform. After all, the language of nihilism, self destruction, and ends-justifies-the-means is the only language that the House of Representatives seems to understand.

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U.S. Embassies Violate Asylum Seeker Confidentiality

by Jason Dzubow

Two recent incidents involving my asylum seeker clients have revealed what might be a disturbing trend at the overseas U.S. consulates: A near complete disregard for asylum seeker confidentiality.

Both incidents involved family members of asylum seekers who had applied for visas to enter the United States. One incident occurred in Europe; the other in the Middle East. In each case, family members of asylum applicants applied for non-immigrant visas to the United States. The asylum cases were pending at the time the family members went for their interviews. In each case, the consular officer denied the visa and told the family member that the reason for the denial was because their relative had filed for asylum in the U.S., and that they (the family members) were thus intending immigrants, ineligible for non-immigrant visas.

Some people just can't keep a secret.
Some people just can’t keep a secret.

Asylum cases are supposed to be confidential. Confidentiality is important because some foreign governments will punish people who have “defamed” them by seeking asylum abroad. Indeed, when the U.S. government has violated an asylum seeker’s confidentiality, it may create a new basis for an asylum claim. The most well-known example is President Obama’s aunt, who received asylum after her case was leaked to the press.

I have successfully made such claims on behalf of clients whose confidentiality was violated by U.S. Embassies during overseas investigations. The most egregious case involved the U.S. Embassy in Cameroon (this was some years ago).  The Embassy submitted a letter, stating that they had inquired only whether a certain police officer worked at a certain police station (the officer had signed a warrant against my client). The Embassy letter emphasized that confidentiality had been maintained. In the response letter from the police in Cameroon, it was clear that the U.S. Embassy had revealed much more information about my client–the letter referenced the case number against the client and the date of his arrest. If the Embassy had revealed only what they claimed to have revealed about my client, there is no way that the Cameroonian police would have had this additional information. By revealing identifying information to the police, the U.S. Embassy put my client at additional risk.

The more recent cases from Europe and the Middle East are perhaps less egregious because the information was revealed to family members and not to the home government. Nevertheless, it is a problem. Many people–including many of my clients–have claimed asylum based on persecution by family members. This is true in cases involving domestic violence, forced marriage, and (sometimes) persecution based on sexual orientation, for example. Thus, revealing an asylum application, even to family members, potentially endangers the applicant.

In addition, of course, it is a violation of the law, which requires confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Indeed, government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002) (unpublished opinion) (affirming decision of Merit Systems Protection Board concluding that breach of section 208.6 was a firing offense irrespective of whether that breach was harmless).  

So what will become of my clients and their family members? And what about the consular officers who violated my clients’ confidentiality?

I don’t see how the rejection of the family members could affect my clients’ asylum cases. Of course, they will remain separated from their families, which is a severe hardship, but it should not impact their chances to receive asylum (in fact, one of the clients did recently receive asylum). As for the family members, instead of coming here immediately, they will now wait for a “follow to join” petition and they will have to come here as asylees. This may not be what they want, but there is no other option.

As for the consular officers, it is unlikely that my clients will make complaints against them. We do not even know their names (though I suppose we could find out) and it would be the family members’ words against the consular officers, so I doubt anything would come of it.

I do hope that the State Department will be more careful about revealing confidential information in the future. There really was no reason to tell the family members about my clients’ asylum applications. The consular officers could simply have denied the visas without an explanation (as they often do anyway).

Confidentiality of asylum claims is important to the asylum seekers and to the integrity of the asylum system. I hope that consular officers will take their responsibility in this regard more seriously.

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The “Dream 9,” and the Use and Mis-use of Asylum

by Jason Dzubow

If you’re at all following the current debate about immigration reform, you are probably familiar with the Dream 9. The LA Times provides a neat (and mostly accurate) summary of their case:

Last month, the five women and four men, who were brought to the U.S. illegally as children, staged an unconventional and risky protest at the U.S.-Mexico border to spotlight the thousands of people deported under the Obama administration. [Three of the activists left the U.S. recently. They returned with six others who had either left voluntarily or been deported.]
 
When the Dream 9 — named for the Dream Act, which would provide such immigrants a path to legalization — attempted to reenter the U.S. at the Nogales, Ariz., port of entry on July 22, they were arrested. They had been in federal custody since.

On Tuesday [August 6], immigration asylum officers found that all nine had credible fear of persecution or torture in their birth country [Mexico] and could therefore not be immediately removed.

The Dream 9 (minus one): "Mr. Obama - Tear down this wall, a bit."
The Dream 9 (minus one): “Mr. Obama – Tear down this wall, a bit.”

All nine were released, but must appear before an Immigration Judge, who will determine whether they are eligible for asylum. Such cases routinely take two years or more, and the nine men and women will be allowed to remain in the United States while their cases are pending. 

Among immigration advocates and attorneys, there is a heated–and not entirely civil–debate about the effectiveness of the Dreamers’ protest. But in this post, I am more interested in how the Dream 9 used the asylum law to avoid deportation and obtain release from detention. Here’s more from the LA Times:

Some of the Dream 9 are petitioning for asylum, saying that they have family members who have been killed and face death threats themselves.

However, many in the Dream 9 claim they should be granted asylum because they belong to a particular group of people — that they are singled out and persecuted in Mexico because they have lived most of their lives in the U.S. They could become targets for criminal organizations that see them as easy prey for extortion and violence, they claim.

Of course, I know almost nothing about the activists’ asylum claims (and no, that won’t stop me from commenting about them), but given the above information, it sounds like their claims are barely cognizable. Not that that necessarily should stop them from seeking asylum, especially where there is no other option. I’ve litigated many cases that seemed weak, and others that were nearly hopeless, and we managed to win a good number of them. While all that is great for my clients who received asylum and hopefully for the Dream 9, it’s not so great for “the system.”

Essentially what is happening with the Dream 9–and with many others arriving at our Southern border–is this: They reach the border, surrender or get caught, and then express a fear of return to their home country. DHS detains them and schedules them for a credible fear interview. At the interview, an Asylum Officer asks the alien about her case. If she expresses a fear of return based on race, religion, nationality, political opinion or particular social group, she “passes” the interview, and is then placed into removal proceedings where an Immigration Judge will (eventually) make a decision in her case. Many aliens will be released from detention while their cases are pending.

While the theory behind the credible fear interview is sound (screening out meritless asylum claims), the low threshold allows knowledgeable applicants to game the system, pass the interview, and–most likely–be released from detention. Probably the only reason that the system is not completely overwhelmed is because most aliens arriving at the border are not knowledgeable about how to frame their asylum claim in order to pass the credible fear interview. And, of course, almost none of the arriving aliens are represented by attorneys (the Dream 9 are represented by a lawyer, but I do not know whether they received legal advice prior to their credible fear interviews).

This all begs the question: Does the credible fear interview system still work? The problem is complicated by the fact that the number of people arriving at the border has increased dramatically over the last few months and the fact that the new arrivals seem more sophisticated about making claims for asylum. These issues, I will cover in the next posting. But for now, I will say that the Dream 9 have shed light on a real problem with the credible fear interview process: Inadmissible aliens can gain entry into the United States by making barely legitimate claims for asylum. While many of these aliens will “pass” the credible fear interview, most will be denied asylum (only about 2% of Mexican asylum claims are granted). The problem is that the increasing number of claims is causing long delays and is threatening to overwhelm the asylum system.

This problem is not new, and it has been known to Asylum Officers and advocates for some time. However, I suspect that the publicity of the Dream 9–combined with the upsurge of people arriving at the border and expressing a fear of persecution–will bring the system under greater scrutiny. So while I support the effort of the Dream 9 to bring attention to the plight of undocumented immigrants, I fear that a side effect of their activity will be further damage to the credible fear system, and further difficulties for legitimate asylum seekers.

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Arguing with Idiots–or–Why We Still Need HIAS

by Jason Dzubow

For some reason, the Washington Jewish Week–the local Jewish newspaper where I live–found me, and decided I needed a subscription. So for the last few months, I’ve been receiving the paper free of charge (yeh, yeh – insert Jewish joke here).

At first, I was pleased, as I thought it would be good to learn more local Jewish news. But as I read more, I became less thrilled. If the WJW’s goal is to make Jews like me feel part of a larger community, it has failed. The paper might be fine for those Jews (a minority in DC) who oppose President Obama at all costs, support Israeli occupation of the West Bank for all eternity, and who generally don’t like Muslims. But for the majority of us, the–dare I say it–liberal Jews, the paper only helps alienate us from the broader community.

Don’t get me wrong, I enjoy reading points of view that differ from my own–when they are well-reasoned and based on facts. But that’s not the WJW.

The editorial that has most recently raised my hackles is basically a hit piece against the Hebrew Immigrant Aid Society (HIAS).

With its mission accomplished, HIAS employees can finally relax.
With its mission accomplished, HIAS employees can finally relax.

As you may know, HIAS was founded in the late 19th century to help Jewish refugees from Eastern Europe. Over the years, the organization has changed to reflect changing needs. It helped Jewish refugees during and after the two World Wars. Later, it helped thousands of Jewish refugees fleeing the Soviet Block, Ethiopia, Iran, and other countries. HIAS also helped eliminate the discriminatory immigration quota system in the U.S. that–among other things–blocked many Jews from escaping the Holocaust. HIAS also assisted Vietnamese refugees after the fall of Saigon. As the number of Jewish refugees has (thankfully) fallen, HIAS’s mission has evolved. These days, most of its work has little to do with helping Jewish refugees. And that’s where the WJW editorial comes in.

In the editorial, called HIAS in search of a mission, the WJW argues that HIAS has outlived its usefulness. Given that there are “virtually no more Jewish refugees,” the paper asks, “Is there still a need for HIAS?” You can guess the paper’s answer:

[It] takes a certain maturity, and healthy doses of self-confidence and self-awareness for an organization to declare success and move on. Very few organizations are able to do that. Instead, they get caught up in their own stories and start believing their own PR, and view themselves as indispensable societal contributors.

HIAS has had its successes. It served well for close to a century as the Hebrew Immigrant Aid Society. Now its leadership acknowledges that the organization’s original mission is no longer necessary. Rather than search for a new mission in order to justify its continued existence, perhaps it would be better for HIAS to consider an orderly sunset.

So HIAS’s leaders are not mature or self aware? They are caught up in their own PR? How insulting. Oh, and here’s a good one: “HIAS has had its successes.” Talk about minimizing the organization’s accomplishments. Since its inception, HIAS has helped approximately 4.5 million people, in big ways and small. It has saved countless lives.

But I suppose it’s a fair question: Is HIAS still relevant? Here are some facts that were conveniently left out of the WJW editorial: (1) In partnership with Israeli NGOs, HIAS provides trauma counseling and social services to thousands of refugees from Darfur, including many children; (2) From a base in Kenya, HIAS provides resettlement services and social services to hundreds of refugees from East Africa–aside from the UN, HIAS is the only NGO providing these services in the region; (3) It is one of only a few NGOs in Jordan providing assistance to refugees from the Syrian civil war; (4) In the U.S., HIAS provides legal assistance to victims of torture, including those who are detained; (5) It provides resettlement assistance to refugees all across the United States; (6) HIAS works to help pass meaningful immigration reform; (7) HIAS provides an outlet for hundred of young Jews to engage in public service and, in the process, brings them closer to their own Jewish community. And there is much more, as anyone who cares to review HIAS’s programs can easily see. So does WJW think these services are no longer needed, or that HIAS is not the right organization to provide them? Or–as I suspect–did the editors at WJW not know that HIAS provides these services because they didn’t bother to learn what the organization does before they decided to trash it?

Finally, since HIAS’s mission was originally to help Jews, and since Jews are generally not in need of this type of assistance, shouldn’t HIAS just close down? Well, should Catholic Charities only help Catholics? Should Lutheran Immigration and Refugee Services only help Lutherans? Should the Tahirih Justice Center only help Baha’is? You get the point. The religious-based NGOs are an expression of their members’ religious convictions. Just as these groups help refugees (and many others) as an an expression of their faith, so too, HIAS helps refugees–all refugees–as an expression of our Jewish faith. In Judaism, it’s called Tikkun HaOlam–repair of the world–and to limit Tikkun to assisting only Jews is mean spirited, short-sighted, and anti-Jewish.

So here’s a message for the good folks at WJW: Maybe its time to exercise some self awareness of your own, and recognize that your paper suffers from a lack of intellectual honesty. It takes maturity and self confidence to look at the world as it is, and to consider points of view other than your own. And if you can’t adapt to the needs of the Jewish community, maybe its time for an orderly sunset. Or–at the very least–please cancel my subscription because I am no longer interested in what you have to say.

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The Most Important Words in Every Lawyer’s Vocabulary: I Don’t Know

by Jason Dzubow

Recently, I worked on a couple cases where my clients got bad advice, which got them into trouble.

The first case involved a woman with an otherwise strong asylum claim. As a young girl, she and her family were refugees in Iran. Someone in her community advised her it would be better not to tell the U.S. government (or her attorney) that she had been in Iran. The community adviser thought it would harm my client’s chances for relief if she revealed that she spent time in Iran. The client took this advice and did not tell the U.S. government (or me) that she lived in Iran for a few years. The problem, of course, was that the U.S. government–and the Asylum Officer who interviewed her–knew that she had been in Iran. Nevertheless, she denied having been there. After the interview, she told me that she had, in fact, been in Iran, and we submitted a letter to the Asylum Office explaining what happened. She may still get asylum, but her lie damaged her credibility, which could easily result in a denial. We shall see.

If you don't know what you're talking about: Stifle, would-ya?
If you don’t know what you’re talking about: Stifle, would-ya?

The second case involved a woman who had been in the United States for more than one year. She was still in lawful status when conditions in her country changed causing her to fear return. About eight months after the changed circumstances, she went to a reputable non-profit organization to ask about asylum. She did not speak to an attorney, but was advised by a paralegal (or maybe a secretary) that she was ineligible for asylum since she missed the one year filing deadline. In fact, the client met two exceptions to the one-year filing deadline: First, changed circumstances, since country conditions changed, giving rise to her fear of persecution, and second, extraordinary circumstances given that she was still in lawful status when she went to the non-profit seeking advice about asylum. I recently litigated this case and the Immigration Judge granted asylum, but it was a close call. Had the client filed for asylum in a more timely manner, it would have been a much cleaner case.

In both cases, the advisers were (probably) well meaning, but in each case, they gave advice that greatly reduced the client’s chances for success. So my question is, when people don’t know what their talking about, why do they feel compelled to open their mouths and release some sort of useless–and worse than useless–noise?

I remember a similar phenomenon from when I lived in Nicaragua (and I and other people have experienced it in different countries). I would need to find the post office, for example, and so I would ask someone on the street. The person would give an answer, like “Walk two blocks towards the lake, make a left at the church and you’ll see it on the next block.” In fact, the person had no idea where the post office was; he just didn’t want to admit that he didn’t know.

So what gives? Maybe in part, its because people like to look knowledgeable and don’t like to admit ignorance. People often think they know more than they do, or that they understand the way things work, when they don’t. This can be a particular problem in an area like immigration law, where the rules of logic and common sense often do not apply.

To quote Noah ben Shea, “To be wise, we only have to go in search of our ignorance.” Indeed, had my clients’ advisers simply stated that they did not know, it would have saved everyone a lot of trouble. And so here is my advice for asylum seekers: Be careful when taking advice from friends or community members who “know how things work.” The law can be complicated and it sometimes changes. Just because your friend got asylum does not make him an expert–no two cases are the same, and what worked for one person might result in disaster for another. It feels uncomfortable and self serving for me to tell people to hire a lawyer, but time and time again, I see people whose cases (and lives) have been screwed up by bad advice. So find a reputable attorney and pay for some decent advice. In the long run, it may save you a lot of money and a lot of heartache.

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Senators Try to Help Women Immigrants, But Ignore Women Asylum Seekers

by Jason Dzubow

A proposed amendment to the Senate Immigration Bill would reserve 30,000 green cards for people in jobs traditionally held by women, such as nannies, home health-care workers, and early childhood educators. The amendment is sponsored by 12 of the 20 women in the U.S. Senate.

According to the Washington Post, the “lawmakers say pending immigration legislation is unfairly weighted toward male workers because it rewards applicants who are better educated and have more technical skills.”

You're in
You’re in

While I agree that the immigration system has been skewed in favor of male immigrants, I am not sure that this is the best way to help female immigrants. Either we need high skilled workers in our economy or we don’t; either we need more nannies in our economy or we don’t. Why not set the number of visas for each category based on the needs of our economy, and then reserve a certain percentage (say 50%) of visas for women. Is this discriminatory? Yes, but Congress has the power to discriminate when it comes to immigration law, and if the idea is to help women and aid our economy, then this would be one way to achieve that goal.

If members of the Senate are inclined to help women immigrants, I have another idea: Do something to rectify the male-centric asylum law.

Modern U.S. asylum law is based on a definition of “refugee” that was codified in the 1950’s. The types of people seeking asylum in those days were mostly men–political activists fleeing persecution, for example–and this is what the law reflects. Gender violence was not part of the equation, and the statute (INA § 101(a)(42)) did not (and does not) protect victims of domestic violence, female genital mutilation, forced marriage or sexual assault. 

The last legislative change to the definition of refugee occurred in 1996 when Congress made forced abortion and forced family planning a basis for refugee status. My impression is that this amendment had more to do with domestic politics (showing fealty to pro-life voters and sticking it to the Chinese Communists) than to helping women, but nevertheless, many women (and men) have benefited from the change.

You're out
You’re out

Other pro-women changes to the law in recent decades have been driven by lawyer advocates. As a result of these changes, it is now possible for victims of FGM and forced marriage to receive asylum. Victims of domestic violence can also sometimes receive asylum. But if Congress is planning to amend the immigration law, and if the Senate wants to help women, why not do something to codify and protect these advances? 

In addition, I would hope that the pro-women Senators would support the elimination of the one-year asylum filing deadline (aliens who fail to file for asylum within one year of arrival in the United States are ineligible for asylum). A study from Temple University and Georgetown (my two alma maters!) has shown that female asylum seekers are 50% more likely to file for asylum three years or more after arrival. In an excellent piece on this point, Elisa Massimino of Human Rights First explains that one reason for the delay is the shame many women feel when they have to publicly describe their persecution. This jibes with my experience–many of my female clients filed late because of shame, depression, ignorance about the asylum system (and whether the persecution they face would qualify them for protection), and what might be called “conditioned subservience.”

I agree with the Senators who believe that something needs to be done to help female immigrants. Helping women who face persecution–and who are currently falling through the cracks of our asylum system–would be an excellent place to begin.

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Immigration, Asylum Reform and the New Terrorism

by Jason Dzubow

The situation is still developing in Boston.  As of this writing, one terrorist is dead; another is on the loose, and a third man–dubbed “an accomplice”–is in police custody. There are still many unanswered questions about the men’s motivation and what connections, if any, they have to other terrorists. One thing we do now know is that the two men who placed the bombs are from Chechnya.

Chechnya is part of the Russian Federation. It has been seeking independence since the break-up of the Soviet Union. The state is majority Muslim and the war against Russia has attracted radical Islamists and has helped radicalize some of the indigenous population. The Russian government has committed terrible atrocities in Chechnya, and Chechen separatists are some of the most evil terrorists around (their worst attack came in 2004, when they took an entire school hostage–in the end, over 380 people were killed, including many, many children).

We still do not know if the Boston attack was somehow related to the conflict in Chechnya, but here are some things we do know: The two bombers were brothers who came to the United States legally with their family. The older brother has been a lawful permanent resident since 2007. At least one brother had a driver’s license (apparently, investigators used facial recognition software to help match a photo of the man with his driver’s license). The younger brother attended school in the U.S., at least since the seventh grade.

One question is how they obtained legal status here? Slate reports that the family escaped the war in Chechnya and went to Kazakhstan and then came to the U.S. as refugees. If this is correct, it will raise questions about the U.S refugee program. I have discussed this issue before, and perhaps will revisit the question once we have more information.

Another question is whether the men were sent here to commit terrorist acts? If it is correct that the brothers have been LPRs since 2007, it seems unlikely that they were sent to the U.S. to engage in terrorist acts. Once a refugee arrives in the U.S., he can become an LPR after one year. This means that the brothers–ages 26 and 19–must have been here since at least 2006. In 2006, they would have been ages 19 and 12. I doubt they could have been sent here at those ages with the idea that they would attack U.S. targets years later. It seems more likely that they somehow got involved in terrorism while in the United States.  

A final questions (for now), is how the revelation that the attackers were Chechen will affect the debate over immigration and asylum reform. I have no doubt that opponents of reform will use the attack to try to derail any new law. But on the other hand, when something like this happens, it is perfectly legitimate to raise security concerns. On this point, I would offer a few observations:

– Immigration reform brings otherwise invisible people out of the shadows. If we legalize people who have been here for years, we learn more about those people. One of the Boston terrorists was identified, in part, because he had a driver’s license. If he was living here illegally, he might not appear in any state or federal database. Thus, legalization reduces the number of unknown people and helps us know more about the people who are here.

– Second, if we are worried about terrorists within our foreign-born populations, we should encourage people within those communities to cooperate and trust law enforcement officials. If foreigners without legal status are afraid of law enforcement, it is less likely that they will cooperate with government investigations. If such people have a path to lawful status, they will be less afraid, and thus more likely to cooperate.

– Finally, the vast majority of immigrants and asylees are law abiding. Many of my asylum-seeker clients have worked closely with the U.S. military in countries like Iraq and Afghanistan. They have risked their lives to fight terrorists and extremists. Punishing and stigmatizing such people, and hundreds of thousands of other law-abiding foreigners, for the actions of two or three terrorists is simply wrong. And, in a country premised on individual rights and responsibilities, it is un-American.

In the coming days and weeks, we will learn much more about the terrorists, their motivation, and how they got to the U.S. We will also learn how the attack will impact the debate over immigration reform. While national security issues should certainly be a part of this debate, I hope that the attack will not destroy the hopes of thousands of good, law abiding immigrants.

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One Hell of a Monday

by Jason Dzubow

Last Monday was a busy day for my family and me. Originally, I planned to attend an asylum hearing for a Burmese client in Virginia and to send another attorney (Ruth Dickey) to cover an Eritrean asylum case in Baltimore. At the same time, my wife and I were expecting our second child on Tuesday. Since our first born arrived late, and since the doctor seemed to think Number Two would follow a similar pattern, I hoped to complete both cases and then focus on the family.  Of course, nature takes its own course, and things did not work out as I planned.

When a new baby arrives, hijinks are sure to ensue.
When a new baby arrives, hijinks are sure to ensue.

Early Monday, my wife’s water broke, and we were off to the hospital. I figured the Eritrean client was in good hands, and I left a message at 2:00 AM for the court clerk in the Burmese case stating that I would not be able to attend the hearing that day. I figured the Immigration Judge would understand, and I already gave the client a letter to present to the IJ in case the baby arrived early.

Labor progressed through the morning, and at some point I learned that the Eritrean client received asylum. The DHS attorney was fairly satisfied with the case we presented, and only asked to hear about the client’s journey to the U.S. So after a short direct and cross, focusing basically on the client’s travel, DHS agreed to a grant (and so did the IJ). (Congratulations to Ruth on a job well done).

More surprising news came later. I managed to reach my Burmese client, and I told her that I would not make it to court after all. I assumed that we would receive a new court date, and I would try the case at that time. I must admit that I wasn’t thrilled with this option. Country conditions in Burma have been improving, which is great for Burma, but not so great for Burmese asylum cases. A delay might result in a weaker case. Also, delays can be very long, and this client had already been waiting for almost two years for her day in court. But clients, like new babies, have minds of their own. My client did not want to wait for another court date, and so (unbeknownst to me) she told the IJ that she wanted to proceed with her case without me. Like the Eritrean case, the Burmese case was fairly strong, and DHS was mostly convinced that asylum should be granted. So the DHS attorney cross examined the client about her case, and in the end, agreed to a grant.

I suppose the lesson is that most asylum cases are won or lost prior to court. If the DHS Trial Attorney is presented with a strong case and is convinced that the respondent qualifies for relief, odds are good that they will agree to a grant of asylum. And when DHS agrees, the IJ will almost certainly follow suit.

So, the final results for Monday: Two asylum grants and one new baby girl (who is hanging out with me as I type this). Not a bad day’s work, if I may say so myself (and yes, I suppose some credit goes to my wife for the baby and to Ruth for litigating the case in Baltimore).

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Amerasian Homecoming Act – 25 Years Later

by Jason Dzubow

The Amerasian Homecoming Act, which passed into law in December 1987 and went into effect a few months later, began with a photojournalist, a homeless boy in Vietnam, and four high school students in Long Island, New York. Twenty five years later, almost 100,000 people have immigrated from Vietnam to the U.S. as a result of the AHA.

First, a bit of background. One of the great tragedies of the Vietnam War is the story of the Amerasians–children of U.S. servicemen and Vietnamese women. There are tens of thousands of such children. In Vietnam, they were known as “children of the dust” because they were considered as insignificant as specks of dust, and many (if not most) suffered discrimination, abuse, poverty, and homelessness. Although the fathers of these children were United States citizens, the children did not qualify to immigrate to the U.S. The situation was complicated by the absence of diplomatic relations between the government of the United States and the government of Vietnam. Ten years after the war, the situationo for the Amerasians seemed hopeless. A 2009 article from Smithsonian Magazine describes what happened next:

In October 1985, Newsday photographer Audrey Tiernan, age 30, on assignment in Ho Chi Minh City, felt a tug on her pant leg. “I thought it was a dog or a cat,” she recalled. “I looked down and there was [Le Van] Minh. It broke my heart.” Minh, with long lashes, hazel eyes, a few freckles and a handsome Caucasian face, moved like a crab on all four limbs, likely the result of polio. Minh’s mother had thrown him out of the house at the age of 10, and at the end of each day his friend, Thi, would carry the stricken boy on his back to an alleyway where they slept. On that day in 1985, Minh looked up at Tiernan with a hint of a wistful smile and held out a flower he had fashioned from the aluminum wrapper in a pack of cigarettes. The photograph Tiernan snapped of him was printed in newspapers around the world. The next year, four students from Huntington High School in Long Island saw the picture and decided to do something. They collected 27,000 signatures on a petition to bring Minh to the United States for medical attention.They asked Tiernan and their congressman, Robert Mrazek, for help.

Mrazek began making phone calls and writing letters. Several months later, in May 1987, he flew to Ho Chi Minh City. Mrazek had found a senior Vietnamese official who thought that helping Minh might lead to improved relations with the United States, and the congressman had persuaded a majority of his colleagues in the House of Representatives to press for help with Minh’s visa.

Minh came to the U.S., where he still lives. but once he got to Vietnam, the Congressman realized that many thousands of Amerasian children were living in Vietnam, often in terrible conditions. Congressman Mrazek resolved to help these children. The result was the Amerasian Homecoming Act, which went into effect in early 1988.

The AHA allowed Amerasians to come to the United States as lawful permanent residents. They are not considered refugees, but they do receive benefits (such as financial assistance and housing) normally reserved for refugees. In an important way, the law was quite succcesful–as a result of the AHA, approximately 25,000 Amerasians and about 70,000 of their family members immigrated to the United States.

However, the law was not a success by all measures. For one thing, not all Amerasians in Vietnam learned about the AHA, and so many people who might have qualified to leave Vietnam were unable to do so.

Another problem was fraud. One type of fraud involved people who claimed to be Amerasian, but who were not (there was no easy way to tell who was an Amerasian, and many decisions were made based on the person’s physical appearance). However, the more pervasive problem of fraud involved “fake families.” These were people who attached themselves to the Amerasian immigrants’ cases in order to come with them to the U.S. In many cases, the Amerasians agreed to this fraud because the fake families would pay the Amerasians’ expenses. Without this assistance, the Amerasians could not have afforded to immigrate. The extent of the fraud is unknown, but a November 1992 GAO report found that in 1991, about 20% of applicants were rejected for fraud. By 1992, 80% of applicants were rejected for fraud.

A final problem–though perhaps this is not a problem with the AHA itself–is that many Amerasians had a tough time adjusting to life in the United States. A 1991-92 survey of 170 Vietnamese Amerasians found that some 14 percent had attempted suicide; 76 percent wanted, at least occasionally, to return to Vietnam. As one advocate put it, “Amerasians had 30 years of trauma, and you can’t just turn that around in a short period of time.”

Of course, Amerasians did far better here than they could have in Vietnam, but given their difficult lives back home, the adjustment was often not easy. According to the Encyclopedia of Immigration:

In general, the Amerasians who came to the United States with their mothers did the best in assimilating to American society. Many faced great hardships, but most proved resilient and successful. However, only 3 percent of them managed to contact their American fathers after arriving in the United States. By 2009, about 50 percent of all the immigrants who arrived under the law had become U.S. citizens.

Now, Amerasians host black tie galas to celebrate their success as a unique immigrant community. And even in Vietnam, where they were vilified for many years, negative feelings towards Amerasians have faded.

Finally, on a personal note, my first job out of college was for a social service agency that did refugee resettlement, and so I worked with Amerasians (and others) for a few years in the early 1990s. Of the populations we served, it seemed to me that the Amerasians had been the most severely mistreated. Many were illiterate in Vietnamese and spoke no English. They were physically unhealthy, and they had a hard time adjusting. Twenty five years after the AHA, it seems that Amerasians are finally achieving a measure of success in the United States. Their long journey serves as a reminder that persecuted people need time to become self sufficient. But the Amerasians–like other refugee groups–are well on their way to fully integrating into American society.

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New Novel Explores the Lives of Asylum Seekers

by Jason Dzubow

They say that truth is stranger than fiction because fiction has to be believable. That is basically the premise that got Scott Rempell thinking about the lives and stories of asylum seekers, and which led to his new novel, Five Grounds:

The idea to write an immigration novel that delves into the asylum process first hit me when I was working at the Office of Immigration Litigation in the Department of Justice. I was sitting in my office reviewing a Department of State report on a humanitarian crisis engulfing a particular country. I remember sitting back and thinking to myself that some of what I’m reading is stranger than fiction. It’s the type of information that people might read about in a novel and say, “no way that would happen!” But it does. It happens all the time in countries around the world and very few people know about it. I wanted to write a story that would educate readers about these countries, explain how the asylum process works, and highlight the tensions in the immigration debate.

Five Grounds is great reading material while waiting for your asylum interview.
Five Grounds is great reading material while waiting for your asylum interview.

The title refers to the five protected grounds that can form the basis for an asylum claim–race, religion, nationality, membership in a particular social group or political opinion. The novel follows three asylum seekers as they flee their home countries and make their way to the United States:

In Ethiopia, Tesfaye abandons his post at the Ministry of Defense and attempts to escape the country while a crazed rebel commander hunts him down for reasons he will spend years trying to fully understand. Lin’s mother forces her to leave China to protect her from the same fate that led to her father’s disappearance. In Mexico, Sofia’s health rapidly deteriorates, so she leaves behind her two young children and the memory of a murdered husband.

The three arrive in the United States where they must confront the American asylum system. A brief excerpt captures the flavor of the book:

Tesfaye placed a hand on each of his daughters’ cheeks. “I have some business to take care of, but I will come soon. I promise.”

Unconvinced, Yenee opened the door and grabbed hold of Tesfaye’s leg. “No, you need to come with us now, please come with us.” 

Tesfaye picked up Yenee and tried to comfort her. He could feel the tears on his shoulder, seeping through his shirt. “Look at me, Yenee.” Tesfaye gently pushed up on Yenee’s chin so that her eyes met his. “Look at me,” he repeated. “I have always tried to teach you the importance of responsibility. Our country has put its trust in me and I have a responsibility to help protect it.”

“But . . .”

“You remember the importance of honoring one’s obligations?”

“Yes, it’s just . . .”

“Now I need you to be strong.” Yenee loosened her arms, which had been clenched around Tesfaye. Her body slowly slid down until her feet touched the cobblestone walkway below. After she reluctantly got back into the car, Tesfaye stuck his head inside the open window and kissed Yenee on her forehead. He walked over to the front passenger seat, reached in the car, and gently rubbed his wife’s neck, massaging her earlobe with his thumb.

“We will see you soon,” Ayana sighed, forcing herself to smile.

Tesfaye smacked the roof of the car twice with his hand and Negasi shifted into gear. The Mercedes sped down the long dirt driveway toward the front gates, dust spewing into the air. Tesfaye stood at the edge of the driveway until the dust had again settled into the bone-dry ground.

I will see them soon. I just need some time to think.

Tesfaye could not have foreseen the consequences of his decision that morning, but the circumstances of his past were already conspiring. A chain of events set in motion nearly two decades ago was about to catch up to him. Soon, the conspiracy would reveal itself, and he would spend years desperately trying to unravel it.

The author was an attorney for OIL–the Office of Immigration Litigation, which defends BIA decisions in the U.S. federal courts. Now Mr. Rempell is a professor at South Texas College of Law in Houston.

What has drawn me (and other attorneys) to the practice of asylum law is the stories of our clients: What they did in their home countries, how they survived, their journeys to the U.S., and their experience in the U.S. immigration system. Prof. Rempell writes, “my goal in writing Five Grounds is to educate and inform against the backdrop of a gripping, fast-paced story.” If you would like to learn more about Five Grounds–or buy the book, visit Prof. Rempell’s website, here.

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When Bar Counsel Comes Calling

by Jason Dzubow

Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.  In short, Lozada states that to reopen an immigration case where the previous attorney was constitutionally ineffective, the alien must file a bar complaint against that attorney.  Despite some intervening decisions, Lozada is still the controlling law.  As a result, many immigration lawyers will face a bar complaint at some point in their career.

It starts with Lozada, and ends like this.

In that happy spirit, I am re-posting an excellent article by Dolores Dorsainvil, a Senior Staff Attorney with the D.C. Office of Bar Counsel (the article is written with the DC Rules of Professional Conduct in mind, but it really applies to all jurisdictions). Ms. Dorsainvil investigates and, where necessary, prosecutes allegations of ethical misconduct of District of Columbia attorneys.  She is also an adjunct professor at the American University’s Washington College of Law where she teaches Legal Ethics.  She has an ethics blog, The Gavel, which can be found here.  Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

For many attorneys, coming across an envelope with the return address marked “Office of Bar Counsel” undoubtedly brings a sinking feeling. After reading the Bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel as a personal attack on their credibility and professionalism. Whatever the feeling, and however the complaint arose, with hundreds of Bar Counsel complaints lodged every year, attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are seven simple tips to guide attorneys in responding to a Bar Counsel inquiry should one ever become subject to such a complaint:

1. Think. Before penning an emotional response to Bar Counsel, take time to think about the legal matter, the history of the case, and the client who filed the complaint. This will aid an attorney in focusing on the issues involved in the complaint and may give him or her time to provide a response based on facts rather than emotions. An attorney may even want to review the file in its entirety to make sure he or she is able to recall every detail about the underlying legal matter.

2. Be timely. Request an extension, if needed. In its cover letter accompanying the complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason an attorney is not able to submit a timely response, he or she may wish to request an extension. Our office usually will grant an initial reasonable request for an extension. The attorney should confirm such a courtesy in writing. If a circumstance exists that requires a lengthy response period—as we all know, illnesses, deaths, vacations, business or personal matters happen—it is prudent for an attorney to explain that in writing to Bar Counsel and provide corroborating documents explaining the lengthy extension request.

3. Respond. This may seem like an obvious step, but there are attorneys who, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1(b). So, even if Bar Counsel is not able to make any findings of a violation of the D.C. Rules of Professional Conduct in the initial complaint, our office may pursue and prosecute an attorney for violating Rule 8.1(b). No matter how distasteful the prospect is of being subject to a complaint, every attorney has an affirmative duty under the rules to respond to requests for information from Bar Counsel authorities.

4. Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel in rendering a disposition; however, an attorney should be judicious. Providing a 30–page response while failing to actually address the allegations of misconduct may raise concerns.

5. Provide documents, and then some. An attorney should provide the documents our office requests, but he or she also should provide relevant documents as exhibits to the response if those documents corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that already has been addressed by a tribunal is extremely helpful. Taking this proactive step saves time in the investigation process.

6. Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as they relate to the underlying legal matter. It is important for an attorney not to assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied upon in the underlying matter is invaluable and can assist our office in determining the validity of the complaint.

7. Hire counsel, if necessary. This is a determination that can only be made by an attorney, but there are benefits to hiring representation. Respondent’s counsels usually are more familiar with the attorney disciplinary process and can help to navigate the system.

Overall, an attorney’s cooperation with a Bar Counsel investigation will contribute to a resolution in a manner that safeguards the rights of the public and protects attorneys from unfounded complaints.

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The Seven Habits of Highly Annoying Clients

by Jason Dzubow

I’ve spent some time in this blog dissing immigration lawyers, so I thought it only fair to discuss some of things that immigration lawyers don’t like about their asylum-seeker clients.  Of course, none of these bad habits applies to any of my clients (so please don’t fire me).  With that important caveat, here are the seven habits of highly annoying clients:

7 – Negotiate the Price: Yes, I understand that many people come from countries where it is standard procedure to negotiate the price of something you buy.  But we are not now in that place.  In the U.S., negotiating the price is not the norm, and we lawyers really don’t like doing it.  Most of us charge a very fair price, and some of us charge too little (I sometimes hear complaints about this from my wife and kid, who keep bugging me to buy them things like food and clothing – the nerve).  While lawyers who specialize in asylum don’t expect to get rich, we don’t want to feel that we are being taken advantage of either.  It’s difficult to do your best work when your client is not fairly compensating you for your time.  On this point, lawyers also don’t like it when clients fail to pay or pay late.  To do an asylum case correctly requires a lot of time and hard work.  When a client pays too little or doesn’t pay at all, it becomes much more difficult to make the effort to help the client.    

Some former Immigration Attorneys reminisce about their clients.

6 – Change Phone Numbers Without Telling the Lawyer: It’s understandable that clients who are new and relatively unsettled in the U.S. would move and would change their phone numbers.  What’s frustrating is when they change their contact information but don’t tell their lawyer.  I always ask my clients for an “emergency contact;” not so much for emergencies (We need to file your form I-730 – Stat!), but to have someone else to contact if my client disappears.  Remember – if your lawyer can’t find you, she can’t help you with your case.

5 – Failure to Cooperate: I tend to give my clients a lot of homework.  I want them to get their work and school records, police reports, letters from friends and family, etc., etc.  Most clients do their best to get these documents, as they understand that it will greatly help their cases.  But some clients just can’t be bothered.  Not only does this make it more difficult to win the case, it makes it more difficult to represent the client with any enthusiasm–if you don’t care about your case, why should your attorney?

4 – Bringing Documents Late: I suppose this is a sub-category of “Failure to Cooperate,” but it deserves its own mention.  Immigration Courts and the Asylum Offices have deadlines for submitting documents.  If you give a document to your lawyer at the last minute, he may not have time to properly review that document–to ensure that it is consistent with the rest of your case, for example–before submitting it.  Submitting an inconsistent document could jeopardize your case.  Also, for a lawyer to organize and submit documents in a professional manner takes time.  If we receive documents late, it is more difficult for us to do our jobs.  Ultimately, of course, this is bad for the client.

3 – “No Shows” and “Dropping By:” You should be able to contact your lawyer when you need him.  But you do not have a right to stop by any time you want without an appointment.  Lawyers have busy schedules and multiple deadlines.  The more we can organize our days, the better.  When a client shows up without an appointment, it interrupts our schedules and potentially disrupts our day.  If you want to see your lawyer, please call in advance and make an appointment.  The flip side of this is when clients make an appointment and then don’t show up without calling.  It’s common courtesy to call if you can’t attend an appointment, and it makes sense to treat your attorney–the person who is working on a case that might profoundly affect your life–with respect.  

2 – Late to Court or Late to an Interview: Even worse than missing appointments with your lawyer is missing your appointment with the Immigration Judge or the Asylum Officer.  This will potentially cause you to lose your case and be deported.  It is also a problem for the lawyer, who often has to cover for you or appear at a second hearing (if you are lucky enough to be rescheduled and not simply denied).  

1 – Don’t Keep Asking, “Is My Case Done Yet:” Once an asylum case is filed, lawyers can only do so much to make it go faster – and by “so much,” I mean basically nothing.  Bugging your lawyer about whether there is a decision yet in your case is like asking him whether the Messiah is coming soon: We can pray for it, but that’s about all.  So please be patient.  If lawyers could issue green cards, we would work a lot less and make a lot more.  

And there you have it.  If you are a person seeking asylum and you have a lawyer, try to avoid these bad habits.  Remember – a happy lawyer will do better work, and you will have a better chance to win your case.  And, to all those clients who don’t have any bad habits, from all us lawyers – Thank you!  

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Afghan Woman Who Feared Deportation Found Dead

by Jason Dzubow

An Afghan woman who was under investigation for filing a false asylum claim was found dead last month in an apparent suicide.  Gulalay Bahawdory, 60, grew up in Afghanistan and lived in Europe before coming to the United States and applying for asylum in 2000.

In her asylum application, Ms. Bahawdory apparently used a fake name.  Her husband, Bashir Bahawdory, also a former refugee from Afghanistan, states that she left the United States before receiving a decision in her case.  But ICE says that her case was denied and she was ordered removed from the U.S. in April 2001.  Both the husband and ICE could be correct: Perhaps she left before a decision was reached, and then an IJ ordered her removed in absentia.

In 2004, Ms. Bahawdory returned to the United States based on a marriage petition filed by her husband.  She became a U.S. citizen in 2009.

According to the Taliban, these girls are committing a serious crime.

Ms. Bahawdory lived in Raleigh, North Carolina.  It sounds like she had a good life there with her husband and her adult step children, who thought of her as a best friend.

For some reason, ICE began investigating her case earlier this year.  After the investigation began, Ms. Bahawdory thought of little else, her husband said.  She feared that if she were deported to Afghanistan, she would be harmed or killed by the Taliban or other extremists.

According to an ICE spokesperson, “Mrs. Bahawdory’s prior removal from the United States was discovered when ICE ran the fingerprints she provided for the spousal petition.”  ICE did not say when or why they checked the fingerprints or why it only began investigating her citizenship this year.  Also, no word on why this discrepancy was not discovered earlier.  (After all, what’s the point of taking fingerprints if they don’t reveal issues like this at the time of the application?)

Last month, Ms. Bahawdory’s body was found in a lake in north Raleigh.  Police found her car nearby.  In the car, there were three notes.  One was to her husband, stating that she loved him and knew what she had done was wrong.  She wrote a second note to her attorney, thanking her for doing what she could to help.  The third letter was left for the Raleigh police.  “I love the United States,” Ms. Bahawdory wrote.  “God bless the United States.”

Whatever the cause of death, this is clearly a tragic case.  If, as it appears, Ms. Bahawdory committed suicide for fear of deportation to Afghanistan, her death is doubly tragic.  For one thing, having already attained U.S. citizenship, it is not easy for the U.S. government to revoke that citizenship.  Remember John Demjanjuk?  He was a naturalized U.S. citizen who was convicted of accessory to murder of 27,900 Jews during World War II.  Despite his horrific crimes, it took over 30 years to finally de-naturalize and deport him.  If it took 30 years for a criminal like Mr. Demjanjuk, how long would it have taken for Ms. Bahawdory?

Also, even if her citizenship were revoked, Ms. Bahawdory had several defenses to removal: She could have sought asylum (or lesser forms of humanitarian relief like Withholding of Removal or Torture Convention relief); She might have been eligible for a waiver for the immigration fraud; She might have been eligible for Cancellation of Removal.  In addition, even if she were denied all relief, she could have asked for deferral of removal based on humanitarian grounds.  She certainly would have presented a sympathetic case given her age, her home country, her family ties to the U.S., and (as far as I know) her otherwise clean record.

I can certainly understand why someone–especially a woman from a country like Afghanistan–would feel tremendous stress if she felt she would be deported to her homeland.  But Ms. Bahawdory was a long way from being deported.  If she really did commit suicide because she feared deportation, this is a tragedy that should never have happened.

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Thanksgiving: The Anti-Immigration Holiday

by Jason Dzubow

Last week, I posted about how Thanksgiving is the quintessential refugee holiday.  I didn’t want to say anything negative about Thanksgiving before the holiday, as that would be a bit of a humbug.  But now, enough time has passed that most of the leftover Turkey is gone, and now I want to write about the more challenging side of the holiday for immigration advocates.  Of course, I speak about the fact that the immigrants in the Thanksgiving scenario (the Europeans) essentially eradicated the original inhabitants of their new country (the Native Americans). 

Europeans were generally not known for being cordial to the Native Americans.

It has always surprised me that more anti-immigration folks don’t use Thanksgiving as an example of what happens when immigration runs amok.  Fifty years after the first Thanksgiving, most of the Wampanoag tribe (the Native Americans who dined with the Pilgrims in 1621) were either dead or sold into slavery.  From an estimated population of 6,600 in 1610, the Wampanoag were reduced to only about 400 individuals by 1677 (they have since recovered somewhat – in 2000, the estimated population was 2,336).  In short, while the first Thanksgiving was lovey-dovey, things didn’t end too well for the native peoples who received the new immigrants.  But this is something we rarely hear about from immigration restrictionists.

I suppose one reason that Thanksgiving is not used by immigration opponents is that it’s not easy to be anti-Thanksgiving.  Thanksgiving is probably the most popular non-religious holiday in the U.S., and to oppose Thanksgiving might seem un-American (in fact, to oppose Thanksgiving is un-American).  Since immigration opponents always seem to be uber patriots, I guess they do not want to be seen opposing the holiday.

Another reason that the holiday is not used against immigrants is that the analogy between European settlers/colonialists and modern-day immigrants really does not stand up.  The settlers of old were not trying to integrate into the indigenous culture; they were trying to conquer it.  Even if–as some restrictionists might argue–modern day immigrants do not integrate into mainstream society, they are clearly not in the same position to conquer our country as the settlers who conquered the New World.  We are much larger and more unified than the pre-Colombian indigenous peoples.  The number of immigrants coming to the U.S. these days is much smaller proportionately than the number of Europeans coming here in the colonial period.  Finally, most Native Americans died from diseases, and–Lou Dobbs notwithstanding–that is not a real threat to us today (at least not because of immigration).  So even if restrictionists wanted to use Thanksgiving as a cautionary tale about too much immigration, the analogy is weak.

Thanksgiving is frequently cited by pro-immigration types (and pro-asylum types like me).  I do think the holiday could be used to raise questions about immigration: How much immigration is good for our country, whether immigrants appropriately integrate into our society, how best to handle people who are here illegally.  But for restrictionists, maybe it is safer and more effective to raise those issues separately from the Thanksgiving holiday.  That’s fine with me, as I am a fan of Thanksgiving.  Now if you’ll excuse me, I know we have some leftover cranberry sauce around here somewhere…

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Thanksgiving: The Refugee Holiday

by Jason Dzubow

They say that if you have a hammer, every problem is a nail.  In the same way, if you have an asylum blog, every holiday involves asylum.  Last Christmas, I wrote about how Jesus, Mary and Joseph were asylum seekers.  Today, I thought I’d discuss Thanksgiving and refugees.  Maybe next time, I will explain why Arbor Day is an asylum holiday. 

The connection between refugees and Thanksgiving is probably pretty obvious. 

Starting in the late 16th century, a group of Separatists who objected to certain practices of the Church of England faced persecution from ecclesiastic and state authorities.  These people were later called Pilgrims.  As a result of their tenuous situation in England, they migrated to the Netherlands in the first decade of the 17th century.

The Pilgrims were not thrilled with the libertine atmosphere on the Continent, and so they returned to England and then sailed to North America in 1620.  If they were seeking refuge today, the Pilgrim’s return to England (re-availing themselves of the protection of the English government) might very well disqualify them for asylum.  Also, the fact that they were firmly resettled in the Netherlands, and then chose to up and move to America might also disqualify them for asylum.

In any case, after a difficult 65-day journey on the Mayflower, the Pilgrims arrived at Plymouth Rock in November 1620.  That winter was particularly hard, and about 50% of the new settlers died.

Things improved the following year with a good harvest (and with the help of local Indians), and the Pilgrims decided to celebrate–this would be the first Thanksgiving dinner.  Attending the dinner were 53 Pilgrims and 90 Native Americans from the Wampanoag tribe.  The celebration lasted for three days.

After the first Thanksgiving, various public leaders and church officials would declare thanksgiving holidays, but there was no set date for the festival.  Finally in 1789, George Washington proclaimed the first nation-wide thanksgiving celebration, but the holiday was still not regularized. 

In 1863, during the height of the Civil War, President Lincoln declared that Thanksgiving would be celebrated on the last Thursday in November (and here I must mention Sarah Joseph Hale, a tireless crusader who helped make Thanksgiving a national holiday (and who wrote the nursery rhyme Mary Had a Little Lamb)).

In 1941, Franklin Roosevelt signed a bill making Thanksgiving the fourth Thursday in November.  Thus, the holiday achieved its present form.

I’ve noticed that many new immigrants to the U.S. celebrate Thanksgiving.  Because it is a holiday for giving thanks and for success in the New World, it is perhaps the quintessential immigrant holiday.  And while some have criticized the holiday as glossing over the effect of colonialism on native peoples (including the Wampanoag), the first Thanksgiving was a moment when two very different cultures encountered each other and dined together in peace.  This, to me, is the true spirit of the holiday.  Happy Thanksgiving. 

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