The Cato Institute’s Alex Nowrasteh recently published a piece in the Huffington Post called Saving the Asylum System. The title accurately reflects the author’s point, and of course I agree that our asylum system should be preserved (and–really–cherished). But where Mr. Nowrasteh gets it wrong, I think, is his analysis of the problem.
Recipe for a refugee: Take one economic migrant, add persecutors, mix thoroughly.
The “fundamental problem” according to Mr. Nowrasteh is that intending economic migrants who arrive illegally at the border and get caught are requesting asylum as a way of gaining entry into the U.S. to work. He views this as an “unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.” He posits that “creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system [would remove] the incentive for some of them to make dubious asylum claims.”
Cato is a Libertarian think tank, and Mr. Nowrasteh’s proposal is a Libertarian solution (free flow of labor and all that).
Before I respond, I must admit to a certain prejudice against Libertarianism in general. To use a fancy law school word, I find the whole philosophy jejune. It seems perfectly fine for high school juniors with Ayn Rand fantasies, but I feel it fails utterly in the real world. In other words, to me, “Libertarian think tank” is an oxymoron. On the other hand, I have some good friends who are staunch Libertarians, and sometimes they even give me free cigars (though I suppose this must be in exchange for some utility they get from my company–or maybe they just hope I die from lung cancer). So perhaps I am being a bit too harsh. Anyway, the point is, it’s only fair to put my prejudice on the table before I respond.
That said, I think that Mr. Nowrasteh is simply wrong that most–or even a significant portion–of asylum seekers are economic migrants. To be sure, asylum seekers come to the U.S. (as opposed to Namibia, for example) because they can settle here, get a job, and build a new life. But this does not make them economic migrants in the normal sense of the phrase. Economic migrants are not fleeing their country because their life or freedom is threatened; they are leaving for a better job.
Stated another way, with all immigrants (including asylum seekers) there is a push and a pull. For refugees, the most important “push” factor is a threat to life or freedom in the home country. For economic migrants, the push is a bad economic situation. The pull for both groups is freedom, opportunity, peace, the ability to gain acceptance, and all the other tangibles and intangibles of “America.”
So why do I think that most asylum seekers are not economic migrants who file fraudulent asylum claims in order to circumvent immigration restrictions?
The main reason, I must admit, is anecdotal. I have represented hundreds of asylum seekers, and while I have suspicions about the motivations of some clients, most clearly face threats in their home countries. Also, many of my clients held good jobs in their home countries and they are unlikely to achieve the same level of success in the United States (due to language barriers, lack of transferable skills, etc.).
Another reason I believe that asylum seekers are not mere economic migrants is because countries that produce large numbers of asylum seekers have widespread human rights problems. The source country for the most asylum seekers in the U.S. is–by far–China. Of late, China has produced between 20 and 25% of affirmative asylum cases and a whopping 45% of defensive asylum grants in FY2013. China has a repressive government and–probably more importantly for purposes of this discussion–Congress passed a law to provide asylum to victims of forced family planning, and these people come almost exclusively from China. While the U.S. economy provides more opportunities than China’s, the repressive nature of the government combined with a special law to help Chinese asylum seekers suggests that asylum applicants from China are more than just economic migrants–they are refugees.
A possible counter argument here is that the increase in credible fear applicants, who have lately been overwhelming the asylum system, comes from people arriving from Mexico, Guatemala, Honduras, and El Salvador, which all have very low asylum grant rates. There are two reasons why I think this argument fails, however. First, many people seeking asylum from these countries face severe threats and persecution from gangs and cartels, or from crime and domestic violence. Such people are genuinely afraid (for good reason), but they rarely qualify for asylum since they cannot show that the feared harm is “on account of” a protected ground. Second, all these countries are very violent places. The less violent countries in the region–Belize, Costa Rica, Nicaragua, and Panama–have weak economies compared to the U.S. (especially mi país Nicaragua, which is the poorest country in the Western Hemisphere aside from Haiti). If Mr. Nowrasteh’s theory is correct, we would expect these countries to be sending us comparable numbers of (fraudulent) asylum seekers, but they are not. To me, all this supports the notion that people leaving the region and seeking asylum in the U.S. are driven more by a fear of harm than by the desire for a better job.
So in the end, while I am happy that the Cato Institute is thinking creatively about ways to preserve our asylum system, I am not convinced by their analysis. While a guest worker program (especially for Mexico and Central America) might marginally reduce the number of asylum seekers, the overlap between refugees and economic migrants is pretty minimal. If we want to reduce the number of asylum seekers at our Southern border, we should spend more time supporting good governance in the region and less time meddling in our neighbors’ affairs.
Do people fleeing persecution have a “right” to illegally enter the United States? A new report from Harvard Law School about changes in Canadian asylum policy got me thinking about this question.
The recent changes include the Multiple Borders Strategy (“MBS”), whose goal is to “push the border out” and to “intercept improperly documented persons as far away from Canada’s territorial borders as possible.” Canada “enacts measures that deter and deflect the arrival of asylum seekers at… countries of origin, visa screening points, airline check in points, points of initial embarkation, transit areas, points of final embarkation, and points of final arrival.” How do they do this? Canada has 63 liaison officers in 49 “strategic locations around the world.” The officers “train and work with airlines, local immigration authorities, and local law enforcement agencies to identify improperly documents persons, including some asylum seekers, and block them from boarding Canada-bound boats or planes.” The officers have intercepted 73,000 people between 2001 and 2012. Another part of the MBS is to sanction airlines and shipping companies that allow improperly documented people to arrive in Canada. The Canadians have also imposed stricter visa requirements on people from refugee source countries when refugee arrivals from those countries increase. In short, Canada is doing more to block people from illegally entering the country. So what’s wrong with that?
The Harvard report raises a few points. For one, some of those people blocked from arriving in Canada are refugees (though we don’t know how many). The liaison officers and the carriers do not consider whether a person qualifies for asylum; they block anyone with improper documentation. Another problem is that by tightening security, some asylum seekers will resort to other means of gaining entry into Canada–human smuggling, for example. This puts the asylum seekers at risk of harm. The report concludes that by “closing its borders to asylum seekers, Canada is setting a poor example for other nations, and contributing to the deterioration of refugee protection around the world.”
Aside from criticizing the (probable) negative impact of the MBS on asylum seekers, Harvard offers little in the way of solutions. Should Canada loosen its entry requirements? Should liaison officers allow people with fraudulent documents to go to Canada if those people express a fear of persecution? Should Canada get rid of the liaison officers so it is easier to enter Canada improperly? Should it eliminate carrier fines, so that airlines will be encouraged to allow anyone to fly into the country, even if they do not have permission to enter?
The basic problem, it seems to me, is that refugees who are rich enough to qualify for a visa or to hire a competent smuggler, will likely get in. Ditto for those clever enough to obtain fraudulent travel documents. Poor people, less educated people, people who are not resourceful enough, will not get in. Tightening or loosening the border (or even “pushing out” the border) will, as the Harvard report points out, exclude people in “arbitrary and unprincipled ways,” but this impact is tiny compared to the basic–and very arbitrary–distinction between the rich, the educated, and the lucky, who will probably get in, and the poor, the uneducated, and the unlucky, who will probably be excluded. Thus, even if Canada had not implemented any of the new restrictive changes, the asylum seekers who manage to reach Canada are able to get there because of factors (such as wealth) that are completely unrelated to the merits of their asylum claims. Given that the ability of potential asylum seekers to enter Canada is completely arbitrary anyway, why should it matter if Canada imposes another layer of arbitrariness on those seeking admission? In other words, why should it matter if an arbitrary portion of an arbitrary group is blocked from seeking asylum?
Or, to return to our initial question in a more specific way: Do those asylum seekers lucky enough to have the ability to reach a safe country have a “right” to travel to that country to seek asylum? If you accept the basic premise of sovereignty of nations (and there are very good reasons not to), it is difficult to answer that question in the affirmative. But to answer that question in the negative would invalidate much of international law and practice related to protecting refugees.
Perhaps the key to resolving this dilemma is to recognize that most countries–including Canada and the United States–have given up some of their sovereignty when they voluntarily entered into treaties protecting refugees. Nevertheless, the Harvard report highlights an odd reality: People who are smart enough, rich enough or sneaky enough to evade border security and gain entry into a safe country have a right to seek asylum in that country. But those who are unable to reach a safe country–even if the reason for their failure is that the safe country managed to prevent their entry–do not have a right to seek asylum in that country.
So I guess the answer to the initial question is a qualified yes (or perhaps a qualified no, if you are a glass-is-half-empty sort of person): Asylum seekers have a right to illegally enter the United States, but only if they manage to get in. Or, to paraphrase Robert Anton Wilson, “rights” are what you can get away with.
The blog entry was originally posted on Wherever Magazine‘s website. It’s not uncommon for me to meet clients who have been victims of human trafficking. Most of them were trafficked from East Africa to the Arabian peninsula, and then to the U.S. as domestic servants. Occasionally, I also meet clients who were victims of sex trafficking. For this post, I combined several of my own cases and one publicly available case in order to illustrate the problem of modern day slavery:
Amelia was a promising twenty-something working as a teacher in her native Indonesia. After she lost her job due to religious and ethnic discrimination, she wanted to move some place safe. She began looking for ways to come to the United States.
The past isn’t really past.
Through an ad, Amelia found a position in the restaurant industry in New York. An agency arranged her travel to the U.S., but when she reached JFK, things were not as expected.
Her “contact” met Amelia at the airport and immediately took her passport and other documents. Instead of bringing her to the promised job, he took her to a brothel. When she protested, her contact threatened Amelia with a gun.
For the next several months, Amelia was transported from one brothel to the next and forced to have sex with many different men. Her captors kept her under close watch at all times.
Finally, one day, she escaped through an unlocked window. Even after she was free, Amelia knew no one in the United States and she did not know where to go for help. She lived on the street until she met someone who put her in touch with law enforcement.
Amelia was able to obtain a “T” visa—a special visa for victims of human trafficking, which allows an alien to (eventually) become a permanent resident of the United States.
Except for the successful escape, Amelia’s story is quite typical. Social scientists estimate that there are currently about 27 million victims of human trafficking world-wide. But only a small fraction of those victims—about 40,000 people—are identified and helped each year. In the United States, as many as 200,000 children are currently at risk of sex trafficking. Most victims are trafficked within their own countries, but many people—like Amelia—are taken on long journeys from poor countries to more affluent countries, where they serve as sex slaves, domestic labor or agricultural workers.
According to U.S. government estimates, last year over 17,000 people were brought into the United States to serve as slaves.
As an attorney who represents asylum seekers, I sometimes meet victims of human trafficking. One common scenario involves women recruited to work as domestic servants in the Persian Gulf (most commonly in Saudi Arabia and the UAE). The women usually come from poor countries in Africa and are lured to the Gulf with promises of a decent wage and steady work.
In one recent (and typical) case, my client Fatima had been detained and beaten in Ethiopia because of her political activities. She was also a victim of female genital mutilation. Fatima had to find a way out of her country. She went to an employment agency. The agency helped Fatima obtain a passport and found a job for her as a domestic servant in the United Arab Emirates. In July 2009, she left Ethiopia and started working for a family in the UAE.
Work conditions and pay were not as promised. Originally, the agency told Fatima that she would be babysitting one child. When she arrived, she found that she would be babysitting three young children. In addition, she had to clean the house, cook, wash laundry, and tend to her employers’ guests. Fatima worked 20 hour days, and her employer banned her from speaking with other Ethiopian house servants. When she showed signs of being unhappy, the employer threatened to return her to Ethiopia.
In August 2010, the employers announced that they would be going to Florida with the children for a six month vacation. Fatima would come with them. The U.S. government issued Fatima a visa for “personal and domestic employees” and she was on her way to America.
In the United States, Fatima continued as a domestic servant, but now her employer stopped paying her. She knew no one in Florida and had little opportunity to meet people outside her employers’ house. Finally, after five months as an unpaid, 140-hour a week domestic worker, she met some other Ethiopians in a park. They told her that she could seek political asylum in the United States.
Fatima called her brother in Ethiopia, who put her in touch with some friends in Ohio. Those friends found someone in Florida to help. So early one morning, while her employers were sleeping, Fatima snuck out of the apartment, went to a rendezvous point and met her contact. She stayed with him for a few days until her brother’s friends arranged to bring her to Ohio and then Washington, DC.
In DC, Fatima filed for asylum. The case took several years, but finally, in September 2013, an Immigration Judge granted Fatima’s application for asylum. She has now begun her new life in the United States.
Fatima and Amelia both escaped from their captivity. Most trafficking victims are not so lucky.
At least in Fatima’s case, the U.S. government could have done more to protect her. She received her visa without an interview at the U.S. Embassy. For domestic servants who come to the U.S., the embassies should interview each person (as they do for most other visa applicants) and ask about wages, hours, and working conditions. Where there is evidence of trafficking, visas for the workers and their employers should be denied, and the local authorities should be contacted. At least this would reduce the number of victims trafficked to the U.S. And once they are here, the employers of domestic workers should be required to verify (with evidence) that the domestic workers are receiving their salary, paying taxes, and working reasonable hours. Employers who do not comply with the law should have their visas revoked and should be prosecuted.
For trafficking victims in the U.S., there are resources available. The Department of Homeland Security’s Blue Campaign raises awareness about the issue, and there are numerous NGOs, such as the Polaris Project, involved in the anti-trafficking fight. It will take the combined efforts of governments, non-profits, and individuals to identify and free victims of human trafficking, and bring the perpetrators to justice.
In this article, the names of the women and identifying details have been changed.
Last week when I wrote about Dream Activists and Asylum Seekers, I caused a bit of a kerfuffle. Hopefully, today, I will do better, and this post won’t be quite so kerfuffle-inducing (and yes, I plan to see how many times I can use the word “kerfuffle” in one post – according to Carl Kasell, so far that’s three).
First, a bit of housekeeping. If you have not read my post from last week, this entry will be harder to follow.
Probably the main objection to my posting last week was my insinuation that the asylum claims of the Dream 30 were not legitimate. However, based on the comments from their attorneys/advocates David Bennion and Mathew Kolken, it seems that the claims are legitimate, and so I will take that as a given for purposes of this blog post.
Explaining stuff helps us understand.
With that as background, there are two issues I want to discuss: (1) From a moral and policy point of view, is there any problem with using the Dream 30’s asylum cases to promote a political agenda (the Dream Act) when that agenda is unrelated to the substance of the asylum claim (fear of persecution in Mexico)? and (2) Will this strategy move the Dream Activists closer to their goal?
Political asylum cases are, by their nature, political (duh). This means that the claimants have a political agenda. Normally, that agenda relates to the substance of their claim. For example, I represented a Pakistani journalist who opposed the government and faced persecution because of his activities. After he received asylum, he spoke about his case in the media to try to gain attention for his cause. This seems perfectly legitimate.
The journalist’s case is different from the Dream Activists, in that the activists are not publicizing their cases to highlight the political situation in Mexico. Instead, they are highlighting the failure of the U.S. government to pass immigration reform. I worried that this use of asylum would somehow damage the asylum system. So are the Dream Activists under any obligation to justify their actions? And, if so, is there a justification for using the asylum system in this manner?
First, why should the Dream 30 be required to justify their use of the asylum system as a form of protest? They have legitimate reasons for seeking asylum, and if they want to use their cases to gain attention for the Dream Act or for any other cause, isn’t that their business? Speaking for myself, without such a justification, I find it very difficult to support their political action (though I certainly support their right to seek asylum, as per the letter from Bill Ong Hing). Although it may sound corny, having represented hundreds of asylum seekers, I believe that our system of asylum is, in some ways, sacred. It is a system that is designed to–and does–save lives. If that system is going to be used for some ulterior motive, I, for one, would like an explanation.
I can image some possible justifications: Maybe the activists think publicizing these cases will help advance immigration reform; maybe they want to demonstrate that when undocumented immigrants leave the U.S., their lives are at risk; maybe they want to alert other Dream Act-eligible people to the possibility that they might avoid removal by seeking asylum; maybe they want to inspire other undocumented people to come forward; or perhaps there is another reason for their actions that I have not thought of. My point being, it would be nice to know what the Dream Activists want.
The second big question for me is whether the strategy of publicizing the Dreamers’ asylum claims will accomplish their political goal (whatever that might be). Assuming the goal is immigration reform of some kind, I have seen no explanation for how publicizing these asylum cases will move our country towards that goal.
Certainly, it could simply be that I am ill informed. However, I am more than a casual observer, and I am not a complete idiot (at least on my better days). So if I don’t get it, probably many others don’t either. The Dream activists have done an extraordinary job of publicizing the Dream 30 (and the Dream 9 before them), but they have failed to capitalize on this initial attention to move the discussion in a positive direction. Indeed, it seems to me that they have completely lost the initiative, as the discussion has bogged down in internecine internet warfare. Maybe if the Dreamers had been more clear from the beginning about their goals and strategy, the debate over these issues would not have taken such an unproductive turn.
It is not too late for the Dream Activists to re-take the initiative and extricate themselves from the unproductive tit-for-tat with other immigrant advocates. For a start, they need to clearly explain a few things: (1) When and under what circumstances did the members of the Dream 30 leave the U.S. and why are they seeking asylum (their lawyer David Bennion did a pretty good job of this in response to my blog post from last week); (2) What is the ultimate goal of the Dream Activists; and (3) How does the action at the border help achieve that goal.
For me–and, I suspect, for others–clear answers to these questions would be a good way to begin a productive dialogue about goals and strategy, and would go a long way towards bringing us on board with the Dream Activists’ plan. But for now, without a good explanation, I am simply not convinced that the Dreamers’ actions have done anything to advance the cause of undocumented people, asylum seekers, or immigration reform.
The following letter is from Bill Ong Hing to President Obama. Professor Hing is a well known advocate for immigrants. He is currently a professor of law at the University of San Francisco. Prof. Hing writes about the Dream 30 credible fear cases that were rejected (about eight cases have been rejected so far; one person was deported). He is concerned that the cases have been rejected based on an unfair and incorrect legal standard. He puts the Dream 30 cases into historical perspective and argues that the rejection of these credible fear applicants is reminiscent of previous failures by our government to protect refugees.
I am not fully convinced by his conclusions, as I discussed in my last blog entry (in short, I think there are–or at least, may be–legitimate reasons why the Dreamers’ credible fear applications would be denied at a higher than average rate). However, his analysis is important and deserves attention, especially since we would not want to repeat the tragic history that he recounts. His letter is kind of long (he is a law professor), but well worth a read if you are following this debate. Enjoy:
November 4, 2013
President Barack Obama
The White House
Washington, DC
Re: Dream 30 and Credible Fear
Dear President Obama:
I write to you today with grave concern for the “Dream 30”, young people who arrived at the Laredo Port of Entry on September 30th and requested both humanitarian parole and asylum. Twenty-six of these young people are currently detained at the El Paso Processing Center, and all have received credible fear interviews after expressing fear of returning to Mexico (or, in one case, Peru). However, seven have received negative determinations of credible fear and may now be subject to removal, and I am concerned that an unreasonable standard for credible fear has been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper, more generous credible fear standard be followed.
President Obama reads Professor Hing’s letter.
The immigration system allows for those who express a fear of return at our borders to receive a credible fear interview, rather than being summarily deported. This is essential to protecting those who may face danger abroad, but have little understanding of our legal system and few resources with which to prove their case. And it is essential to maintaining the United States as a safe haven for those who have been persecuted at home. The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture. For this very reason, the denial rate for credible fear interviews was less than 9 percent.
The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The apparent cursory fashion in which these negative decisions were made are reminiscent of three tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees, and Jewish refugees from Europe during World War II.
Treatment of Central American Refugees
The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9th Cir. 1990), reveals that immigration officials engaged in a strategy that foreclosed the opportunity to apply for asylum for Salvadorans during the 1980s.
Generally, after aliens were apprehended, either border patrol agents or INS officers processed them. INS processing of detained aliens consisted of an interrogation combined with the completion of various forms, including form I-213, “Record of Deportable Alien,” and the presentation of form I-274 “Request for Voluntary Departure.” Although the arrested Salvadorans were eligible to apply for political asylum and to request a deportation hearing prior to their departure from the United States, the vast majority of Salvadorans apprehended signed voluntary departure agreements that commenced a summary removal process. Once a person signed for voluntary departure in the course of INS processing, he or she was subject to removal from the United States as soon as transportation could be arranged. A person given administrative voluntary departure in this manner never had a deportation hearing, the only forum before which the detained person could seek political asylum and mandatory withholding of deportation.
The Smith court found that the widespread acceptance of voluntary departure was due in large part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity of most Salvadorans with their rights under United States immigration laws. INS agents directed, intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to procure voluntary departure, ranging from subtle persuasion to outright threats and misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure even when they had unequivocally expressed a fear of returning to El Salvador. Even when an individual refused to sign form I-214, “Waiver of Rights,” INS officers felt that they could present the person with the voluntary departure form.
The court also found that INS processing officers engaged in a pattern and practice of misrepresenting the meaning of political asylum and of giving improper and incomplete legal advice, which denied arrested Salvadorans meaningful understanding of the options presented and discouraged them from exercising available rights. INS officers and agents routinely advised Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that were available. Without informing them that voluntary departure could be requested at a deportation hearing, INS officers advised detainees that if they did not sign for voluntary departure they could be formally deported from the United States, and that such a deportation would preclude their legal re-entry without the pardon of the Attorney General.
INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they would remain in detention for a long time, without mentioning the possibility of release on bond. Similarly, without advising that an immigration judge could lower the bond amount and that there were bond agencies that could provide assistance, INS agents regularly told detainees that if they did not sign for voluntary departure they would remain detained until bond was posted. Some agents told individuals the monetary bond amount they could expect or the bond amount given to other Salvadorans, without telling them that the bond amount ultimately depended upon the circumstances of the individual.
INS officers commonly told detainees that if they applied for asylum, the application would be denied, or that Salvadorans did not get asylum. INS officers and agents represented that Salvadorans ultimately would be deported regardless of the asylum application. INS officers and agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to soldiers. INS processing agents or officers further discouraged Salvadorans from applying for asylum by telling them that the information on the application would be sent to El Salvador, and stating that asylum applicants would never be able to return to El Salvador. INS processing officers also used the threat of transfer to remote locations as a means of discouraging detained Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.
Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing the voluntary departure forms, although they acknowledged that aliens had this right. Even those Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary departure, as INS’ practice was to refuse to recognize the authority of counsel until a formal notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran detainees, it was often physically impossible for counsel to locate their clients and file Form G-28 before the client was removed from the country.
In conclusion, the Smith court noted:
The record before this Court establishes that INS engages in a pattern and practice of pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC to request voluntary departure or voluntary deportation to El Salvador. There is substantial evidence of INS detention officers urging, cajoling, and using friendly persuasion to pressure Salvadorans to recant their requests for a hearing and to return voluntarily to El Salvador. That this conduct is officially condoned, even in the face of complaints, demonstrates that it is a de facto policy. The existence of a policy of making daily announcements about the availability of voluntary departure, coupled with the acknowledgement that the policy is designed to free-up scarce detention space, supports the conclusion that INS detention officers make a practice of pressuring detained Salvadorans to return to El Salvador. This conduct is not the result of isolated transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive practice akin to a policy. . . . This pattern of misconduct flows directly from the attitudes and misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the motives of class members who flee El Salvador and enter this country.
Thus, the court entered the following order:
1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge or other forms of coercion, or in any other way attempt to persuade or dissuade class members when informing them of the availability of voluntary departure pursuant to 8 U.S.C. § 1252(b). The prohibited acts include, but are not limited to:
(a) Misrepresenting the meaning of political asylum and giving improper and incomplete legal advice to detained class members;
(b) Telling class members that if they apply for asylum they will remain in detention for a long period of time, without mentioning the possibility of release on bond or indicating that bond can be lowered by an immigration judge and that there are bond agencies which can provide assistance;
(c) Telling Salvadoran detainees the amount of bond given to other class members, without indicating that the bond amount ultimately depends upon the circumstances of the individual class member;
(d) Telling class members that their asylum applications will be denied, that Salvadorans do not get asylum, or that asylum is only available to guerillas or soldiers;
(e) Representing to class members that the information on the asylum application will be sent to El Salvador;
(f) Representing to class members that asylum applicants will never be able to return to El Salvador;
(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do not elect voluntary departure;
(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that are available;
(i) Refusing to allow class members to contact an attorney; and
(j) Making daily announcements at detention facilities of the availability of voluntary departure.
The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991). As the New York Times reported on the case:
Such applications have long presented the Government with an embarrassing choice. The United States supports the Governments of El Salvador and Guatemala, and at the same time it is asked by asylum applicants to find that they have a “well-founded fear of persecution” if they are returned home. Every approval of an application for political asylum thus amounts to an admission that the United States is aiding governments that violate the civil rights of their own citizens.
Since 1980 the Government has denied 97 percent of applications for political asylum by El Salvadorans and 99 percent of those by Guatemalans. During the same time, applications for political asylum by Eastern Europeans, Nicaraguans and residents of other countries have a high percentage of approval. For example, 76 percent of applications by residents of the Soviet Union were approved, as were 64 percent of those by residents of China.
A settlement was reached requiring the INS to readjudicate the asylum claims of certain Salvadorans and Guatemalans who were present in the United States as of 1990, and who had sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a nationwide class action on behalf of Salvadorans and Guatemalans. The plaintiffs alleged that the INS and the Executive Office of Immigration Review were biased in their asylum adjudication process for those two nationalities. Under the settlement, these Central Americans were eligible for new asylum interviews.
Unfair Treatment of Haitian Asylum Applicants
In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982), the Fifth Circuit chastised the federal government for unfair processes that were imposed on Haitian asylum applicants. In response to the repressive Duvalier regime that caused political and economic havoc in Haiti in the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum once they reached the shores of Florida. A backlog developed, so INS officials implemented an accelerated program to deal with the situation. The program of accelerated processing to which the Haitians were subjected by the INS-termed the “Haitian Program”- embodied the government’s response to the tremendous backlog of Haitian deportation cases that had accumulated in the INS Miami district office by the summer of 1978. By June of that year between six and seven thousand unprocessed Haitian deportation cases were pending in the Miami office. These staggering numbers were not the result of a massive influx of Haitians to south Florida over a short period. Although significant numbers of Haitians had entered the United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of the INS in dealing with these aliens.
Many officials provided input in the planning process of the Haitian project. Assigned by the Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that processing could be expedited by ceasing the practice of suspending deportation hearings upon the making of an asylum claim. Salturelli acknowledged that this would contravene internal operations procedures, but suggested that those procedures should be cancelled or “at least be suspended insofar as Haitians are concerned.” One July 1978 report from the Intelligence Division of INS to the Associate Director of Enforcement advised in absolute terms that the Haitians were “economic” and not political refugees and, in belated recognition of the obvious, warned the Enforcement Division that favorable treatment of these Haitians would encourage further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find space for holding an increased number of deportation hearings and to discuss with Miami personnel the processing of Haitians. Out of those discussions arose recommended deterrence measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians, swift expulsion of Haitians from the United States, and enforcement actions against smugglers.
Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the basic mechanics of the accelerated processing already being implemented in the Miami district office. Among the specifics set forth were the assignment of additional immigration judges to Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.
In accordance with the goal of high productivity demanded of the Miami office, Acting District Director Gullage issued a memorandum to all personnel in the office, stating “processing of these cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby ordered to take whatever action they deem necessary to keep these cases moving through the system.” The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program only between one and ten deportation hearings were conducted each day. During the program, immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the program’s peak the schedule of deportation hearings increased to as many as eighty per day.
At the show cause or deportation hearing, the immigration judges refused to suspend the hearing when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in the show cause order and proceed to a finding of deportability. The order entered by the judge allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to request withholding of deportation from the immigration judge if the asylum deadline was not met. Failure to seek withholding in a timely manner effected automatic entry of a deportation order.
Deportation hearings were not the only matter handled during the Haitian program. Asylum interviews also were scheduled at the rate of forty per day. Immigration officers who formerly had worked at the airport were enlisted as hearing officers for these interviews. Prior to the program such interviews had lasted an hour and a half; during the program the officer devoted approximately one-half hour to each Haitian. In light of the time-consuming process of communication through interpreters, the court concluded that only fifteen minutes of substantive dialogue took place. Consistent with the result-oriented program designed to achieve numerical goals in processing, the Travel Control section in the Miami office recorded the daily totals of asylum applications processed. The tally sheet contained space only for the total number of denials; there was no column for recording grants of asylum.
Hearings on requests for withholding deportation also were being conducted simultaneously with asylum and deportation hearings, at several different locations. It was not unusual for an attorney representing Haitians to have three hearings at the same hour in different buildings; this kind of scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS was fully aware that only approximately twelve attorneys were available to represent the thousands of Haitians being processed, and that scheduling made it impossible for counsel to attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the INS decided that resolving the conflicts was “too cumbersome for us to handle” and adopted the attitude that everything would simply work out.
Under these circumstances, the court concluded that the INS had knowingly made it impossible for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The court found that adequate preparation of an asylum application required between ten and forty hours of an attorney’s time. The court further estimated that if each of the attorneys available to represent the Haitians “did nothing during a 40 hour week except prepare [asylum applications], they would have been able to devote only about 2 hours to each client.”
The results of the accelerated program adopted by INS are revealing. None of the over 4,000 Haitians processed during this program were granted asylum.
In the end, the federal court of appeals struck down the accelerated program as a violation of procedural due process. The government was forced to submit a procedurally fair plan for the orderly reprocessing of the asylum applications of the Haitian applicants who had not been deported.
Turning Away Jewish Refugees During World War II
In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of limitations on quotas.
The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a horrific example of how restrictionist views were manifested toward refugees at the time. In a diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for corrupt Cuban officials to deny them entry even after they had been granted visas. It was the objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews. The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor. As it sailed North, it neared United States territorial waters. The U.S. Coast Guard warned it away. President Franklin D. Roosevelt had said that the United States could not accept any more European refugees because of immigration quotas, as untold thousands had already fled Nazi terror in Central Europe and many had come to the depression-racked United States.
Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee assistance groups, the ship was allowed to land in Holland. Four nations agreed to accept the refugees—Great Britain, Holland, Belgium and France. Two months later, the Nazis invaded Poland and the Second World War began. Over 600 of the 937 passengers on the St. Louis were killed by the Nazis before the war was over. When the United States refused the St. Louis permission to land, many Americans were embarrassed; when the country found out after the war what happened to the refugees, they were ashamed.
Closing
Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown a significant possibility that that the applicant can meet the standard for asylum before an immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.
The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear” standard for asylum can be met even when a 10 percent chance of persecution is established. And the credible fear standard is meant to be an even lower burden than well-founded fear.
The Dream 30 are young people that deserve fair treatment. Your administration should not be associated with the tragic asylum eras of the past that I have outlined above. Politics should not get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give their cases due consideration. If they have a credible fear, they should be allowed to make a case for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge you to protect the integrity of the asylum system that has been designed to be symbol of hope and freedom throughout the world.
Sincerely,
Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, University of California, Davis
This letter was published with permission from Prof. Hing. The footnote has been omitted.
By now, you’re probably familiar with the Dream 30, a group of 30 young Dreamers: 29 Mexicans and one Peruvian who grew up in the U.S. and who would likely benefit from the Dream Act. The group voluntarily left the United States, returned to Mexico, and then presented themselves at the U.S. border and requested asylum. The point is to call attention to the plight of all young people in their position, stop deportations of such people, and push immigration reform.
The 30 activists were detained and interviewed about whether they had a credible fear of return to Mexico. According to their attorney David Bennion, 9 of 25 interviewed Dreamers were found not to have a credible fear of return. This is significantly above the average denial rate, which was about 8.3% for FY2013. Mr. Bennion points out that the Dreamers should have done better–not worse–than average, given that they are generally well educated and speak English. Based on this, attorney and Dream 30 supporter Mathew Kolken smells a rat. He writes, “Looks like the [Obama] administration is making an example out of the DREAM 30 in order to make a political point.”
I don’t remember the Freedom Riders running over other poor people to reach their goal.
Of the original group, eight were released and the remainder have been detained since September 30, 2013 (even some who have demonstrated a credible fear). The detained Dreamers are currently on a hunger strike to call attention to their cause.
The most recent news is that one of the Dreamers was deported to Mexico.
As an asylum attorney, I must admit that I have mixed feelings about the strategy of these activists. But before I get to that, I want to raise an objection to Mr. Kolken’s conclusion that the high denial rate for the Dream 30’s credible fear interviews is evidence that the Obama Administration is somehow punishing these activists.
It is true that the Dreamer’s denial rate (36%) is much higher than the over-all denial rate (8.3%) for credible fear interviews. However, there are several (legitimate) factors working against the Dreamers. For one, they are mostly from Mexico, which has a very low asylum grant rate. Since something like 98% of Mexican asylum claims are denied, it stands to reason that credible fear cases from Mexico will be less likely to succeed than average. Since Mr. Kolken is comparing the 36% denial rate of the (Mexican) Dreamers to the 8.3% denial rate for all countries, many of which have very high asylum grant rates, it really is not a fair comparison. In addition, the Dreamers were in the United States, and then they voluntarily departed (though one could argue that they were forced to leave due to their lack of papers). Asylum claimants who voluntarily return to their home countries are much less likely to succeed when compared to asylum applicants who did not return to the country of feared persecution. I am not sure how much of a factor this is, as some aspects of the asylum claims may have arisen since the Dreamers returned to Mexico, but my guess is that the voluntary return weakens the Dreamers’ asylum and credible fear claims. For these reasons, I am not convinced that the 36% denial rate is all that unusual (though the fact that several Dreamers have passed their credible fear interviews and yet remain detained is somewhat unusual). So for me, at least, the jury is still out as to whether the Obama Administration (or ICE/Enforcement and Removal Operations, which often defies the Obama Administration) is retaliating against the Dreamers.
Now to the mixed feelings.
On the one hand, I can appreciate creative acts of civil disobedience as much as the next middle-age, father-of-two, with-a-mortgage-to-pay guy. It’s also quite clear that the Dream Activists are earnest and passionate, and that they are gaining attention for the cause (hopefully more positive than negative).
On the other hand, as an attorney who represents asylum seekers, I am concerned about their tactical decision to use the asylum system as the vehicle for their civil disobedience. While it appears that at least some of the Dreamers returned to Mexico and then found that the situation was unsafe, the fact remains that they left the U.S. without seeking asylum and returned to Mexico. They then presented themselves at the border and requested asylum. If the Dreamers actually had a fear of returning to Mexico, they should have requested asylum before they left. Indeed, a major factor in any asylum case where the applicant returns to her country is the return trip itself. Without a good explanation or evidence of changed circumstances since the date of return, a return trip to the home country will doom most asylum applications.
Also, to some extent, the asylum system is already under siege, and I fear that using that system to make a political point will do further damage. I don’t want to overstate the case here. There are those who blame the Dreamers for the current mess at the border (asylum offices across the country have ground to a halt as resources have been shifted to deal with a dramatic increase in credible fear interviews at the border), but that problem started long before the Dream 30 (or their predecessors, the Dream 9). Nevertheless, the actions of the Dream 9 and the Dream 30 are certainly the most high profile credible fear cases at the border, and their leadership may encourage others to try to exploit the credible fear system.
Finally, I can’t help but view this tension–Dreamers vs. Asylum Seekers–as a case of the poor eating the poor: Desperate people trying to regularize their status are using a tactic that harms other desperate people fleeing persecution. While I hope (against the odds) that we will have a DREAM Act and Comprehensive Immigration Reform, I am not convinced that using the asylum system to make a political point in support of those goals is the best strategy. I fear that the collateral damage to legitimate asylum seekers will be too great.
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.”
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.
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.
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.
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.”
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.
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.
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.
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?
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.
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
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
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.
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.
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.
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).
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.
