I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.
Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.
The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.
Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:
– Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.
– Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.
With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.
One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.
– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.
There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.
– Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.
– e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.
OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…
Apparently, there was some Big News recently about immigration. I am not sure about that, but there was some other news this week, a bit under the radar, also about immigration: The United States has offered Temporary Protected Status (“TPS”) to people from Liberia, Guinea, and Sierra Leone who are currently present in the United States. The reason: Ebola.
“I’m 25% more dangerous than Ebola.”
This means that people from those countries will not be removed from the United States, and they are eligible for a work permit. The TPS is designated to last for 18 months, and then could be renewed or ended, depending on conditions in West Africa (and political considerations in North America). Applications for TPS must be submitted before May 20, 2015.
How does this contrast with our current policy towards Central America and Mexico? People in that part of the world do not face a threat from Ebola, but they do face a threat from cartel and gang violence, domestic violence, and–increasingly–government-sponsored violence related to the drug trade. So here’s a question: Which of these two scenarios is more likely: A person from Liberia dying from Ebola, or a person from Honduras dying by violence? Let’s take a look at some numbers.
According to the Center for Disease Control, 2,964 people in Liberia have died due to Ebola. The total population of Liberia is 4,092,310. This means that approximately 72 out of 100,000 Liberians have died from Ebola. Compare this to Honduras, where the murder rate is about 90 per 100,000. For those of you who like numbers, this means that a Honduran person is about 25% more likely to die from violence than a Liberian person is to die from Ebola.
The story is similar for the other TPS countries. Sierra Leone has had 1,250 Ebola deaths, with a population of 6,190,280, or about 20 deaths per 100,000 people. And Guinea has had 1,192 deaths with a population of 10,628,972, or about 11 deaths per 100,000 people.
Other Central American countries are less violent than Honduras, but still very dangerous. The homicide rate in El Salvador is about 41 per 100,000 and Guatemala is 39 per 100,000. The rate in Mexico is about 21 per 100,000, but I suspect that that figure is out-dated, as violence there has been escalating.
In other words, generally speaking, a person in Mexico or Central America is more likely to die from violence than a person from Liberia, Guinea or Sierra Leone is to die from Ebola. And yet we have offered TPS to West Africans and nothing to Central Americans. Why?
I suppose one reason is the nature of the problem. Ebola is a new threat and it is likely to be short-lived. Also, it is very frightening and its potential victims are completely innocent. Finally, there probably aren’t a whole lot of people currently in the U.S. who will qualify or apply for TPS; maybe a few thousand. Gang and cartel violence, on the other hand, is more complicated. The problem is endemic and it does not look to go away anytime soon. Victims of this type of violence might also be perpetrators, and so offering them protection can seem dangerous (though I would argue that we can effectively weed out the bad guys). Last, there are a lot of people from Mexico and Central America currently in the United States. To offer them TPS would be a long-term, large scale commitment.
Which all brings us back to the Big Announcement of the week: Deferred Action for many people who have been in the U.S. for 5+ years. This certainly is a humanitarian benefit, in that it will keep many families together. But it is not a humanitarian benefit in the sense that it was created to protect people from harm. People in Central America and Mexico are facing a crisis. Violence there is out of control. While I am glad that we are not requiring people to return to places with Ebola, I think we should recognize that there is a certain hypocrisy in offering TPS to such people while offering nothing to our Southern neighbors.
The danger faced by Mexicans and Central Americans is equal to–or worse than–the danger faced by West Africans. It’s just that the source of the danger is different. And so in the wake of the TPS and Deferred Action announcements, I am wondering whether we should be doing more to help people fleeing the gang and drug violence that is killing so many.
Earlier this week, Rasmea Odeh, the associate director of the Arab American Action Network in Chicago, was convicted of one count of Unlawful Procurement of Naturalization. She faces up to 10 years in prison, a fine, and possible deportation from the United States.
Convincing Ms. Odeh’s supporters proved easier than convincing a jury.
Ms. Odeh is a Palestinian who was convicted in Israel in 1970 for involvement in two bombings, one of which killed two university students in a supermarket. She was sentenced to life in prison, but she was freed in 1979 as part of a prisoner exchange between Israel and the Popular Front for the Liberation of Palestine. Ms. Odeh maintains that she is innocent of the crime, and that she was coerced into confessing under torture by the Israeli authorities.
In the mid-1990s, she immigrated from Jordan to the United States, and in 2004, she became a U.S. citizen. By all accounts, she did well in her adopted country:
Rasmea Odeh has been with the Arab American Action Network (AAAN) since 2004 and is the Associate Director and Community Adult Women Organizer…. She has worked as a teacher and then a lawyer after she completed her law degree. She gained valuable community experience through her work and service in various associations including women’s and workers’ unions, family and domestic violence groups, human right centers and the Red Cross. She created a successful community writing group at the AAAN to encourage women to tell their colorful stories and experiences while living in the United States in a creative and exciting way.
Ms. Odeh’s current troubles stem from her failure to report her conviction and sentence on her immigration and naturalization forms. Those forms ask such questions as “Have you ever been arrested, cited, or detained by any law enforcement officer… for any reason?” and “Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense?” (emphasis in original). In response to these questions, Ms. Odeh answered “no.”
In a sense, this is an open-and-shut case. Whether or not Ms. Odeh is guilty of the underlying crime (the bombing), she certainly provided false information on the immigration forms. But of course, nothing connected to the Israeli-Palestinian conflict can ever be simple, and Ms. Odeh’s case is no exception.
The first complicating factor is Ms. Odeh’s alleged torture by Israel. This became relevant because the defense hoped to prove that Ms. Odeh did not “knowingly” lie on the immigration forms; rather, her “post-traumatic stress disorder” somehow caused her to answer the questions incorrectly. The judge disallowed this defense in a pre-trial order, and it will no doubt be one of the claims raised on appeal. To me, the PTSD defense is simply not believable. Many of my clients are torture victims and possibly suffer from PTSD, but I’ve never seen a case where the client isn’t able to answer a yes-or-no question about whether she was arrested. Maybe she does not want to talk about the arrest, but she knows it happened and can complete the form properly. Even if the judge had allowed this defense, I doubt that the jury would have accepted it.
Deprived of her PTSD defense, Ms. Odeh argued that she misunderstood the questions related to her criminal convictions. She said that she thought the questions were about her time in the U.S., and that she had nothing to hide and did not need to lie. She apparently testified about her alleged torture at the United Nations in 1979, and as her lead attorney said, “It was well known that she was convicted, and traded [in a prisoner exchange]. The U.S. Embassy knew it, the State Department knew it, and Immigration should have known it.” Neither of these points is very convincing. First, Ms. Odeh clearly had a very good reason to lie–if the U.S. government knew about her conviction on terrorism charges, she would likely have been denied a visa and citizenship. Second, her attorney’s claim that she did not have to answer the questions truthfully since the U.S. government was already aware of her conviction is simply bizarre (as if some USCIS bureaucrat in 2004 would magically be aware of Ms. Odeh’s testimony before the UN in 1979).
The most (and to me, only) convincing argument made by Ms. Odeh is that her prosecution stems from an improper government investigation that targeted Palestinian activists and others who were exercising their First Amendment rights. Ms. Odeh filed an unsuccessful motion to dismiss relying on this theory. The investigation in question was brought against 23 anti-war and Palestinian activists, and after 3+ years, has not resulted in any indictments. During the course of the investigation, the government of Israel turned over documents to the United States. It is these documents that purportedly led to the discovery of Ms. Odeh’s imprisonment (and hence the discovery that she lied on her immigration forms). The failure of the underlying investigation to reach any conclusion suggests that it might have been improper and, if so, perhaps the discovery related to Ms. Odeh was unlawful (fruit of the poison tree and all that). I suppose we will see what comes of this argument on appeal. But of course, even if Ms. Odeh is correct about the improper investigation, and even if she ultimately wins with this issue on appeal, that does not change the fact that she lied on her forms.
Finally, it is interesting to see how people’s views of the Israeli-Palestinian conflict affect their views of Ms. Odeh’s case. To her supporters, this case is about Israeli torture of Palestinians. They seem to accept Ms. Odeh’s explanation that she is innocent, that she was tortured into confessing, that any mistakes on the form were either a misunderstanding or a result of her PTSD, and that the whole case is an effort by the U.S. government to undermine the Palestinian cause.
While I largely sympathize with the Palestinian side, I find Ms. Odeh’s explanations hard to accept. To me—and apparently to the jury—the case is much simpler than all that. The question is, Did Ms. Odeh knowingly lie on her immigration and naturalization forms? The jury found that she did. Despite all the craziness surrounding her case, and whether she is a victim or a villain, the simplest and most likely explanation here is that Ms. Odeh lied about her imprisonment in order to obtain an immigration benefit from the United States. If so, she received the conviction she deserved.
A recent article by Mark Krikorian of the Center for Immigration Studies posits that even if the unaccompanied minors arriving at our Southern border are refugees, they should be sent back.
Mr. Krikorian’s view of Mexico.
I find that CIS in general and Mr. Krikorian in particular are usually fairly reasonable in their arguments (though there are exceptions; and more exceptions). However, Mr. Krikorian’s recent article is long on insults and short on insights.
First, the insults (they’re more fun to deal with, no?). He refers to the “anti-borders Left,” which I suppose means that to him, anyone who advocates for immigrants opposes all borders. This is kind of like saying that anyone who advocates for a speed limit opposes driving. He also refuses to acknowledge that children arriving at the border are unaccompanied (he refers to them as “unaccompanied” – damning them with quotation marks). What he means by “unaccompanied” is that the children are brought here by smugglers who (and this is a real quote from CIS – check the link if you don’t believe me) “watch over the children until they are taken into custody by U.S. authorities as part of a process that turns the children over to relatives in the United States.” I guess technically, the children are accompanied, though having a smuggler “watch over” my kids is about as desirable as having them spend a night at Neverland Ranch. Finally, here’s a good one:
Asylum is for people willing to go anywhere to get out of where they are; just as a drowning man doesn’t pick and choose among life preservers he sees in the water, a genuine asylum-seeker doesn’t pick and choose among countries.
Au contraire, mon Krikorian: Drowning men who hope to survive are actually quite picky about their life preservers. Think about Leonardo DiCaprio in that movie with the boat. Had he been a bit more choosy, maybe he and Kate Winslet would have floated off together into the happily ever after. In the same way, asylum seekers must be very choosy about where they plan to spend the rest of their lives. Just ask all those poor Eritrean refugees in Sudan, who are subject to exploitation, attacks, and expulsions. Probably they are wishing that they had found a better life preserver.
A Central American refugee’s view of Mexico.
OK, enough of that. Now to Mr. Krikorian’s “insights” (sorry for the quotes, I was feeling snarky).
Mr. Krikorian’s main point is that even if the children from Central America are refugees, a point that he does not concede, they can be turned away under international law. Why? Because the 1951 Refugee Convention provides:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
According to Mr. Krikorian, the underlined language means that an alien who flees persecution and passes through one country should not be allowed to apply for asylum in another country because the alien is not “coming directly” from the territory of feared harm. In other words, Central Americans who pass through Mexico cannot seek asylum in the U.S. because they are obliged to seek asylum in Mexico.
There is one teeny tiny problem with Mr. Krikorian’s idea. As he himself notes, United States law “unfortunately” only allows asylum seekers to be turned away if they come from a “safe third country.” U.S. law recognizes only one “safe third country,” Canada. He thus suggest that the statutory fix to the border surge is to “bar outright any asylum claim from someone who passed through a third country where he should have made that claim first.”
While I think this is an idea worth discussing, I don’t see it as the simple solution that Mr. Krikorian does. For one thing, while Mr. Krikorian wants to convince us that Mexico is a “safe” country, there is a lot of evidence that it is not safe. So if such a law were implemented, I would expect the battle would shift from the applicant’s fear of return to her country to why she would not be safe in Mexico (much as the battle in many asylum cases is about the one-year filing deadline, not the fear of return). All this would make Central American cases more–not less–difficult (and time consuming) to adjudicate.
Also, there is the more philosophical question about how we, as a country, want to treat people coming to us for help. While we cannot solve all the worlds problems, we also cannot ignore those problems. Especially when they are in our backyard (remember the Monroe Doctrine). And especially when our policies contributed to those problems (remember the Monroe Doctrine).
Mr. Krikorian and I do, I think, agree on one thing: The influx of asylum seekers at our border needs to be addressed. We need to have a rational policy debate about how to treat such people. In my opinion, that debate should protect the integrity of our asylum system (it should not be used as a way to get around normal immigration procedures) and it should also respect the people coming to us for help and protect bona fide refugees. Even though I generally disagree with them, I believe that groups like CIS–groups that advocate for more restrictive immigration policies–have an important role to play in the debate. That role would be more constructive if they focused more on policy and less on polemics.
She got us. A recent article by anti-immigrant activist and daughter of immigrant parents, Michelle Malkin lays bare President Obama’s nefarious scheme to enrich immigration lawyers while filing our country with criminals, Muslims, and “Typhoid Marias.” Ms. Malkin states:
Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.
[L]eft-wing immigration lawyers and ethnic activists operate a lucrative industry whose sole objective is to help illegal aliens and convicted criminal visa holders evade deportation for as long as possible. Groups such as the American Immigration Lawyers Association, the Immigrant Legal Resource Center, and the American Friends Service Committee make their livelihoods off administrative bottlenecks.
How does she know about this? It’s almost as if she were a fly on the wall at my country club where she overheard me talking with my friends at AILA, ILRC, and AFSC about all the money we’ve been making since thousands of wealthy Central American children started arriving at the Southern border. Perhaps my friends and I were all speaking a bit too freely after having consumed a few bottles of Vosne-Romanee Permier Cru (1983). We will have to be more guarded in the future.
Frankly, though, as the father of two future Andover academicians with a yacht that won’t pay for itself, I’d like to know who let out our little money-making secret? Ms. Malkin gives us a clue. She writes, “Insiders have told me again and again over the years: ‘It ain’t over ‘til the alien wins.’” Who are these colloquialism-spouting “insiders” that tattled on us? One source seems to be a former law clerk from the Fifth Circuit (hence, ain’t) who, Ms. Malkin tells us, believes that Ms. Malkin is “absolutely correct” in her analysis: “immigration lawyers use the current system of endless appeals to make illegals essentially undeportable.” This clerk was also amazed that “illegal aliens, unlike American citizens, get TWO appeals as of right – one to the BIA and then another to the Circuit Court of Appeals.” I am not sure whether Ms. Malkin or the unnamed clerk emphasized TWO to show how amazed she/he was, but the emphasis was in the original article. I am also not sure how Ms. Malkin (or the clerk) got from “TWO appeals” to “endless appeals” in the same paragraph. Probably I was too busy counting my endless money to follow the logic (I made $2.00 today). Finally, I wonder who these poor Americans are who receive only ONE paltry appeal. My guess is that they are not before an administrative court (immigrants appear before administrative courts—the Immigration Court and the Board of Immigration Appeals or BIA), which usually allow for an administrative or inter-agency appeal and an appeal to a federal court (TWO appeals! Even for U.S. citizens! Ain’t that sumpin’?).
Ah, but it only gets worse from there. Ms. Malkin even knows how we lawyers operate. She writes that the “legal tricks” for avoiding deportation include scams that would make Professor Harold Hill blush. Scams such as asylum (trouble!), cancellation of removal (Trouble!), and adjustment of status (TROUBLE! TROUBLE! TROUBLE!). Yes, we surely got trouble. I myself am a purveyor of that legal sleight of hand known as “asylum,” where we gather a type of snake oil known as evidence (which of late for my cases has included such gems as death certificates for close family members, medical reports about serious injuries, and letters from U.S. military commanders) and submit it to the Immigration Judge in the hope that our client won’t be deported to his death.
Ms. Malkin even knows about the “fraud-friendly U visa,” which provides a path to citizenship for “virtually anyone who applies.” All you need is to be the victim of a serious crime, the cooperation of law enforcement—who must submit signed documents on your behalf—and about three years of waiting. Then you too will gain residency based on a U visa. Easy peasey.
And then, of course, there are the “young illegal border surgers” who have been arriving along our Southern border like so many crazed teenage Beliebers. They too have a “plethora of litigation bites at the apple that will keep them in our country in perpetuity.” Lucky for them that they have such a plethora of options given that, historically, something like 97% of asylum claims from Central America and Mexico are denied. And lucky for us too—I can almost hear the coins clinking into my cup as these young Rockefellers pay my fellow attorneys and me for each delicious bite at that apple. Ka-ching!
Of course, none of this would be possibly without the complicity of the BIA, a bunch of “meddling activists” who Ms. Malkin tells us, “have the power to overturn deportation orders nationwide.” Never mind that less than 10% of Immigration Court cases are appealed and only about 11% of those are successful, or that—depending on the circuit court—between 5% and 30% of BIA decisions are overturned in federal court. It’s clear that the Mexican-loving hippies on the Board will stop at nothing to keep illegals in our country. And by the way, these endless appeals (ONE!) to the Board are earning big money for us lawyers. Why, my last BIA appeal alone paid for my oldest child’s college (in 15 years, assuming I can find a money market account that earns 88% per year; I’ll let you know).
In the end, I have no regrets. I suppose I could have taken the more honorable, but less lucrative path and worked as a political pundit, serving my country by courageously standing up to powerless immigrants and refugee children. Instead, I have chosen to make the big money by representing those immigrants and refugees. Believe you me, I am laughing all the way to the bank…
We’ve been hearing a lot lately about the dramatic increase of asylum seekers and unaccompanied minors at our Southern border. There is debate about what is causing the increase–violence and poverty in the home countries vs. lax enforcement and the relative ease of obtaining lawful status in the U.S.–and no one really knows for sure. Because we receive more migrants from the more violent Central American countries and less from the more peaceful countries, I think that dangerous country conditions are a significant “push” factor. This hypothesis is supported by a new UN report that found a 435% increase in the number of Guatemalans, Hondurans, and Salvadorans requesting asylum in other, more peaceful, Central American countries. The report also surveyed several hundred child arrivals and found that, for the majority, violence in the home country was a factor in their migration. On the other hand, because the uptick in arrivals in the U.S. is generally not correlated with an uptick in violence at home, I suspect that “pull” factors also play a significant role. The fact is, if you live in a violent, poor country, and you want to find a place where you can resettle, live safely, and build a life, the U.S. is probably your best bet (yes, Canada is nice too, but it’s a bit far).
For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.
Regardless of the reasons behind it, the surge of people arriving at our Southern border has created real problems for the asylum system and for all applicants, many of whom are facing long, seemingly indefinite, delays. The influx is also problematic because large numbers of young people are making the dangerous journey North to the United States. This journey puts them at risk of physical and sexual harm, it separates families, and it provides income to the criminal organizations that smuggle people to the U.S. (often the same organizations involved in the drug trade). Indeed, the criminal/smuggling organizations apparently contribute to the influx (and their own bottom line) by encouraging people to make the journey.
So what can be done about the situation? And–more specifically–what can be done that discourages primarily economic migrants, but that also protects legitimate refugees and preserves our asylum system for those who need it? Also, can anything be done to make the journey safer and to cut criminal/smuggling organizations out of the process?
The UN report provides some recommendations: International actors should pay more attention to the protection needs of child migrants, we should increase our capacity to deal with child arrivals and work together with other nations to address the needs of these children, and we should work to reduce or eliminate the factors leading to forced migration. While the report’s findings are very valuable (this seems to be the first time any large scale study bothered to ask the migrants themselves why they are coming here), I don’t find the recommendations particularly satisfying. It is always easy to say we need more attention and more resources to reduce a problem, but who will pay for this? And how do we build a public consensus to bring more immigrants here and pay for them? Also, to say that we should address root causes seems obvious, but how?
Perhaps a better solution would be to create Refugee Processing Centers in Mexico and Central America. Not only would this cut the smugglers out of the picture, deprive criminal/smuggling organizations of income, and greatly reduce the financial incentive for these organizations to encourage more migration, it would also curtail the need for young people to make the perilous journey North.
For this to work, we would have to end all refugee processing at the border. Anyone who arrives at the border (or who enters unlawfully and then seeks asylum) would be sent to a refugee processing center in, say, Mexico. In order to encourage people to go directly to the processing centers (instead of the border), people who go to the border first would be given a lower processing priority than people who arrive directly at the centers. A side benefit would be that legitimate refugees would no longer be arriving at the border; this would allow the Border Patrol to focus on illegal entrants.
There are obviously logistical issues to work out, for example: Where do we house people–including children–who are waiting? How do we share the burden with other countries in the region? Would other countries be willing to resettle some refugees (according to the UN report, they already are). Despite the obstacles, it seems to me that this would work better than the non-system that we currently have.
The estimated budget for resettling unaccompanied minors in 2015 is over $2 billion, and this does not even count the cost of dealing with adults who arrive without permission. If trends continue (which hopefully they won’t), our current system will fall apart. We need creative solutions; solutions which–hopefully–will reflect our humanitarian obligations and ideals, protect children, put smugglers out of business, and keep our border secure. De-coupling refugee processing and border enforcement may be one way to accomplish these goals.
The number of unaccompanied children arriving at the Southern border has increased 92% from the same period last year, reports the New York Times—
Administration officials said 47,017 children traveling without parents had been caught crossing the southwest border since [October 1, 2013]. Most are coming from three Central American countries: El Salvador, Guatemala and Honduras…. [There has also been] a spike in the numbers of girls and of children under 13 years old — including some barely old enough to walk.
DHS’s new border drone, designed specifically to intercept unaccompanied minors.
President Obama called the situation a “humanitarian crisis,” which it clearly is, and on Monday ordered FEMA to coordinate a response among several government agencies. The response will include providing food and shelter for the children, searching for relatives in the U.S., and adjudicating cases in Immigration Court. In addition, immigration enforcement agents are working to disrupt criminal smuggling networks and to dissuade potential migrants by broadcasting public service messages warning of the dangers of the journey. All this comes with a hefty price tag, of course, and the President has requested an additional $1.4 billion to deal with the crisis.
The response from advocates on both sides of the issue has been predictably predictable.
“This is a humanitarian crisis born out of the growing violence in Central America,” said Bishop Eusebio Elizondo of Seattle, chairman of the migration committee of the United States Conference of Catholic Bishops. “These children are refugees who deserve the protection of our nation. They should not be viewed as lawbreakers.” Similarly, an Obama Administration official stated that the surge was driven primarily by conditions in Central America, including deepening poverty, an increase in sustained violence, and by many youths’ desires to reunite with parents in the U.S.
On the other side, the indefatigable Republican chair of the House Judiciary Committee Robert W. Goodlatte opined, “Word has gotten out around the world about President Obama’s lax immigration enforcement policies, and it has encouraged more individuals to come to the United States illegally, many of whom are children from Central America.”
As to the argument that the surge is a result of increased violence in Central America, the (admittedly limited) data does not exactly bear that out. According to the latest information from the UN, between 2008 and 2012, homicide rates increased dramatically in Honduras, but actually fell in El Salvador and Guatemala. More recent data for El Salvador suggests that murder rates continued to decline in 2013, but by the end of the year–when a truce between two large gangs fell apart–began to increase. On the other hand, a recent report that attempted to parse out the effect of violence and corruption on migration found some correlation between increased violence and increased migration (other major factors affecting migration include the age of the migrant and her connection to friends and family who have already immigrated). At least for people coming from Guatemala and El Salvador, there does not seem to be an obvious correlation between increased violence and increased migration.
On the other side of the debate, Rep. Goodlatte argues that lax immigration enforcement is serving as a “pull,” which incentivizes young people to come to the U.S. Given that President Obama has deported more people than any other president, Rep. Goodlatte’s claim is, well, ridiculous.
So if it is not increased violence or lax enforcement, what is causing the surge in unaccompanied minors?
The short answer is, I don’t know and neither does anyone else. However, if I had to guess, I’d say that the main reason is that undocumented young people who reach the U.S. have a good chance of obtaining lawful status (through the Special Immigrant Juvenile program, asylum, T visas, etc.). As word of this has gotten out, more people come here. In other words, there is a strong “pull” factor at play for many migrants. Now don’t get me wrong, there are also very powerful push factors, with gang and cartel violence at the top of the list. Also, the fact that the journey here–especially for unaccompanied minors–is very dangerous, reduces the “pull” factor to some degree. The bottom line is, we don’t really know and we need more data about why young people are coming here.
One way to obtain this data–and I suppose this is a radical solution–is to ask the people who have come here. I imagine they know why they made the journey, and if asked, most of them will tell us. Another method is to make public and accessible statistical data about the number of people coming here, where they are coming from, what types of relief they are seeking, and the outcomes of their cases. Such data can be correlated with information about crime and violence in the sending countries, and this might give us some insight into the reasons behind the migration. With such information, we will be better able to make more appropriate policy choices and hopefully reduce the number of children coming here.
Obtaining better data should (I think) be pretty easy, and either Congress or the President could make it happen. The Executive Branch publishes some immigration data, but it is difficult to access and very incomplete. I really do not understand why DHS and DOJ don’t do a better job of organizing and presenting statistical information about immigrants. And if they won’t act, Congress could. But for all his huffing and puffing, Rep. Goodlatte has thus far shown little desire to improve the situation, and seems interested only in political hyperbole. Perhaps if he could muster some maturity and actually take some concrete steps, we might move closer to understanding what is going on. And, as they say, knowing is half the battle.
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.
