Fridtjof Nansen, WWI, and the Beginning of the Modern Refugee Regime

by Jason Dzubow

This week–on November 11–marked the 100th anniversary of the Armistice that ended World War I. In terms of refugee law, the Great War is usually eclipsed by WWII, which gave rise to the Refugee Convention (in 1951). The Convention forms the basis for our international and domestic humanitarian law up until today.

But the First World War was also foundational to our current refugee regime, and so it’s too bad that WWI developments in refugee law get short shrift. Upwards of 10 million people were displaced by the War and the subsequent rise of the Soviet Union. Many would never return home and would permanently resettle in other countries. This mass movement of civilians led to political, cultural, and social changes, and predictably, to a backlash against refugees (as a security, economic, and health threat) that sounds all-too familiar today.

Fridtjof Nansen serves meals to orphans in Armenia (apparently, he was also a good cook).

Probably the most prominent figure in post-WWI refugee resettlement was a Norwegian wunderkind named Fridtjof Nansen. Mr. Nansen was born in 1861. He was a record-breaking skater and skier. He studied zoology in university, and went on to become a world famous artic explorer. In 1888, he led the first expedition to cross Greenland, and in 1895, he came within 4 degrees of the North Pole, the furthest north anyone had traveled to date. After his career in the Artic, he turned to science, where he made important contributions to the fields of neurology and oceanography. Mr. Nansen served as a diplomat and advocated for separation of Norway and Sweden (which had been united since 1814). Norway became independent in 1905.

Norway was neutral during the First World War, and during those years, Mr. Nansen was involved in organizing his nation’s defense. In 1917, he was dispatched to Washington, where he negotiated a deal to help alleviate a severe food shortage in his country.

After World War I, Mr. Nansen successfully helped advocate for Norway’s involvement in the League of Nations, and he served as a delegate to that body. He became involved in the repatriation of prisoners of war, and between 1920 and 1922, led the effort to resettle over 400,000 POWs in 30 different countries. In 1921, Mr. Nansen became the League’s High Commissioner for Refugees and helped resettle two million Russians displaced by the revolution. At the same time, he was working to relieve a massive famine in Russia, but had trouble securing international aid (due largely to suspicion of the new Marxist government). He also assisted Armenian refugees after the genocide there, and devised a controversial population exchange between Turkey and Greece, which resolved a Greek refugee crisis, but also resulted in the expulsion (with compensation) of Turks from Greece.

Mr. Nansen created the “Nansen” passports in 1922, a document that allowed stateless people to travel legally across borders. By WWII, 52 nations recognized the passport as a legal travel document. Nansen passports were originally created to help refugees from the Russian civil war, but over 20 years, they were used by more than 450,000 individuals from various countries (including a number of well-known figures, such as Marc Chagall, Aristotle Onassis, G.I. Gurdjiieff, Rabbi Menachem Mendel Schneerson, and Igor Stravinsky). The passports served as a foundation for a clearly-defined legal status for refugees, and some scholars consider the creation of the Nansen passports as the beginning of international refugee law.

In 1922, Mr. Nansen was awarded the Nobel Peace Prize. The Nobel Committee cited “his work for the repatriation of the prisoners of war, his work for the Russian refugees, his work to bring succour to the millions of Russians afflicted by famine, and finally his present work for the refugees in Asia Minor and Thrace.”

Mr. Nansen continued his involvement in the League of Nations through the 1920s, and he flirted with Norwegian politics, though he seems to have no major ambitions in that direction. In 1926, Mr. Nansen came up with a legal definition for refugees from Russia and Armenia, and his definition was adopted by several dozen nations. This marked the first time that the term “refugee” was defined in international law, and it helped set the stage for later legal developments in the area of refugee protection.

Fridtjof Nansen died on May 3, 1930. After his death, a fellow delegate from the League of Nations eulogized, “Every good cause had his support. He was a fearless peacemaker, a friend of justice, an advocate always for the weak and suffering.”

Even after his death, Mr. Nansen’s work continued. The League of Nations established the Nansen International Office for Refugees, which helped resettle tens of thousands of refugees during the inter-War years. The Nansen Office was also instrumental in establishing the Refugee Convention of 1933 (now, largely forgotten), the first international, multilateral treaty offering legal protection to refugees and granting them certain civic and economic rights. The 1933 Convention also established the principle of “non-refoulement,” the idea that nations cannot return individuals to countries where they face persecution. To this day, non-refoulement is a key concept of international (and U.S.) refugee law. For all this work, the Nansen Office was awarded the Nobel Peace Prize in 1938.

Fridtjof Nansen’s legacy lives on in many ways. There are geographic features named after him in the Artic, Antarctic, and various places around the globe. In space, there is a crater on the moon named in his honor, as well as an asteroid. The oldest ski club in the United States is named for Mr. Nansen, and there is a species of fish that bears his name (Nansenia). A museum in Armenia documents his scientific and humanitarian achievements. And each year, the United Nations bestows the Nansen Refugee Award on an individual or organization that has assisted refugees, displaced or stateless people. For me, though, Mr. Nansen’s most enduring achievement is his pioneering work to help establish international refugee law, a legal regime which protects us all.

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Whither the Syrian Christian Refugees?

by Jason Dzubow

As the Syrian city of Aleppo falls under government control, the question of Syrian refugees has become even more urgent. Forces loyal to the government are summarily murdering civilians, and even the wounded cannot be evacuated due to government (and Russian) military action. Despite heartbreaking “goodbye messages” from civilians trapped in the conflict zone, I have little expectation that the world will do much to help. We have ignored genocides again and again, so why should we expect anything different here?

Which is easier to explain: The absence of Christian refugees, or the absence of Christian charity?

Accepting Syrian refugees into the United States has also been controversial. Donald Trump called them “a great Trojan Horse.” I suppose the same could be said of the Jews fleeing Hitler on the ship St. Louis, which reached our shores but was refused permission to land. I am sure many of those men, women, and children were secret Bolsheviks plotting a Communist takeover. Lucky for us, they were rejected and returned to Europe, where over 250 of them perished in the Holocaust.

One gripe raised by those opposing the admission of Syrian refugees is that the refugees are disproportionately Muslim. In a recent concurring opinion, Judge Manion of the U.S. Court of Appeals for the Seventh Circuit, notes the mysterious absence of Christians from the pool of Syrian refugees arriving in the United States. See Heartland Alliance National Immigrant Justice Center v. DHS, 16-1840 (7th 2016). J. Manion writes:

I write separately for a… critical reason, which is [to express] my concern about the apparent lack of Syrian Christians as a part of immigrants from that country…. It is well-documented that refugees to the United States are not representative of that war-torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one-half of one percent of Syrian refugees admitted to the United States this year are Christian…. [Of] the nearly 11,000 refugees admitted by mid-September, only 56 were Christian. To date, there has not been a good explanation for this perplexing discrepancy.

Judge Manion’s observation is supported by a recent report from the Pew Research Center, which found that in FY 2016:

[R]efugee status was given to 12,587 Syrians. Nearly all of them (99%) were Muslim and less than 1% were Christian. As a point of comparison, Pew Research Center estimated Syria’s religious composition to be 93% Muslim and 5% Christian in 2010.

The most accurate data I have found about Syrian refugees essentially lines up with the findings of Judge Manion and Pew: Of 12,541 Syrian refugees admitted into the U.S. in FY 2016, between 0.5 and 1% self-identified as Christian. It is a bit less clear how many Christians lived in Syria prior to the current war. Estimates range from 5.1% (Pew) to 10% (CIA). But no matter how you slice it, it’s clear that the Syrian refugees entering the U.S. are not representative of the country’s population–fewer Christians than expected are coming to our country as refugees. So what’s going on here?

First, here is the conclusion that I don’t accept–the one pushed by people opposed to Muslim immigration–that the Obama Administration is deliberately favoring Muslims over non-Muslims. I don’t support this conclusion because, while a disproportionate majority of Syrian refugees are Muslim, the majority of refugees overall (from all countries), are not Muslim. In FY 2016, we admitted 38,901 Muslim refugees and 37,521 Christian refugees (out of a total of 84,995 refugees). In other words, in FY 2016, about 46% of refugees admitted to the U.S. were Muslim; 44% were Christian. (This was the first year of the Obama Administration where more Muslims than Christians were admitted as refugees).

A more plausible explanation for the absence of Syrian Christians was proposed by Jonathan Witt, an Evangelical writer and activist, and an Obama critic. Basically, he believes that Muslims are more likely than Christians to end up in refugee camps, and since refugees are generally selected for resettlement from the camps, Christians are disproportionately left out. This part sounds logical, but (to me at least) Mr. Witt takes his argument a bit too far:

As bad off as the Muslim refugees are, they aren’t without politically well-connected advocates in the Middle East. Many Muslim powerbrokers are happy to see Europe and America seeded with Muslim immigrants, and would surely condemn any U.S. action that appeared to prefer Christian over Muslim refugees, even if the effort were completely justified. By and large, they support Muslim immigration to the West and have little interest in seeing Christian refugees filling up any spaces that might have been filled by Muslim refugees.

The deck, in other words, is heavily stacked against the Christian refugees. The White House has been utterly feckless before the Muslim power structure in the Middle East that is doing the stacking, and has tried to sell that fecklessness to the American people as a bold stand for a religion-blind treatment of potential refugees —religion tests are un-American! It’s a smokescreen.

Here, he’s lost me. This conspiracy-minded nonsense might be more convincing if there were some evidence for it (and remember, FY 2016 was the first year of the Obama Administration where we resettled more Muslim than Christian refugees). The prosaic arguments may be less interesting, but they have the vitue of being more likely.

I have a few of my own theories as well. For one thing–and maybe this ties in with the first part of Mr. Witt’s thesis–Syrian Christians were somewhat better off than Syrian Muslims. If they have more resources, maybe they were able to avoid the refugee camps by leaving in a more orderly way and by finding (and paying for) alternative housing. Also, Syrian Christians are generally not being targeted by the Assad regime. Indeed, in view of the threats they face from extremists, Syrian Christians are more likely to support the government–not because they have much affection for Bashar Assad, but because the alternative is even worse.

So there very well may be a reasonable explanation for the lack of Christians among Syrian refugees resettling in the U.S. But because the Administration has not explained the anomaly, we are (as usual) left with an information void. And that void is being filled by speculation from fringe writers like Mr. Witt, but also by federal court judges, like Judge Manion. The solution should be obvious: Those involved in the refugee resettlement effort should tell us what’s going on. This would help satisfy many critics and it will help protect the refugee program going forward.

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Doctors Without Borders Exhibit Gives Visitors a Personal View of the Global Refugee Crisis

by Jason Dzubow

This piece is by Samantha Hsieh, a fellow at our law firm. Samantha recently graduated from The George Washington University Law School with honors. She is interested in practicing asylum law and removal defense. Samantha’s immigration experience includes interning at a law firm and at the Department of Justice, Office of Immigration Litigation. Prior to law school, she worked as a paralegal at an immigration firm.

I recently attended the Doctors Without Borders, or Médecins Sans Frontières (“MSF”), Forced From Home exhibit on the National Mall in Washington, DC. The exhibit, which is touring five East Coast cities this year, allows participants to learn about the experiences of refugees from around the world and raises awareness for their cause.

Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula
Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula

Upon entry, visitors are given an identity as a refugee, internally displaced person, or asylum seeker from Honduras, South Sudan, Burundi, Syria, or Afghanistan. According to MSF, there are currently 65 million people in the world fleeing from conflict or persecution. Our tour guide, Jane, explained the work of MSF, which employs around 35,000 people and provides free medical care in over 60 countries. Jane is a nurse who has worked in dozens of refugee camps.

One of our first tasks was to select five items from 20 to bring on our journey. I chose a cell phone, medication, passport, water, and stove. Refugees fleeing on foot are limited to items that they can easily carry. Oftentimes, decisions about which items to bring must be made in a hurry. I noticed that the only other participants who had also chosen cell phones were two children whose eyes were glued to their iPads the entire time. We were forced to give up our items one by one in order to pay for different parts of the journey.

Jane led our group onto a small inflatable raft in order to simulate crossing the Mediterranean Sea. We sat in the raft with the men on the perimeter and the women and children in the center on the floor.

These rafts were supposed to hold seven people, but as many as 60 refugees and their belongings would squeeze into one raft. Smugglers load refugees onto the rafts and then leave them to their journey, often without enough fuel. Refugees are sometimes given cheap counterfeit life vests, filled with ineffective packaging material. Rafts that stay on course take about eight days to reach Europe. The cost of admission for a seat in one of these rafts? US$2,000.00 to US$3,000.00 per person. Since January 2016, roughly 3,600 refugees and migrants have died or gone missing attempting to cross the Mediterranean into Europe.

Refugee camp bathrooms lack privacy.
Refugee camp bathrooms lack privacy.

Next, we visited a re-creation of a refugee camp. Each person in the camp receives a daily ration of water, grains, beans, oil, and salt. The young women and girls are responsible for filling and delivering water containers holding up to six gallons. Humans need a minimum of four gallons of water a day for drinking and basic hygiene and cooking. For comparison, the average American uses 90 gallons of water each day. Jane also demonstrated how to use a typical bathroom in a refugee camp, which is essentially a box around a hole with a curtain in the front. Notably missing was toilet paper.

Standing in front of an MSF medical tent, Jane told us about several medical issues that refugees face. While relatively easy to treat, cholera–which arises from contaminated food or water–can kill within hours if left untreated. Malaria is also common. MSF staff test patients for malaria by applying a blood sample to a test card. Because of language barriers, the packaging for the malaria medication uses symbols instead of words to convey dosage instructions.

A typical MSF medical tent
A typical MSF medical tent

Malnutrition in young children can be difficult to recognize, particularly for local aid workers who lack formal medical training. MSF staff use mid upper-arm circumference (“MUAC”) bracelets to measure the arms of young children as a simple means of detecting malnutrition and determining a treatment plan. Children whose arm circumference is under 116 millimeters (roughly 4.5 inches) suffer from severe acute malnutrition and are immediately hospitalized. Malnourished children are fed Plumpy’nut, a high-calorie peanut paste mixed with vitamins, minerals, and other ingredients for weight gain. One small packet of Plumpy’nut contains 500 calories.

Finally, we viewed several tents similar to those where refugee families live. Conditions in refugee camps range from reprehensible (more common) to fairly good (rare). Regardless of their living conditions, refugees are forced to wrestle with concerns over the safety of family and friends left behind and uncertainty over their own futures.

Plumpy’nut has been called “surprisingly tasty.”
Plumpy’nut has been called “surprisingly tasty.”

The town of Dadaab, Kenya contains some of the oldest and largest refugee camps in the world. The first camps in Dadaab were constructed in 1992. The Dadaab camps are now home to over 300,000 refugees. Some refugees born in Dadaab have grown up and now have children of their own. Jane told us of one resident she spoke to who had expected to stay for only a few weeks. He has not left the camp in over 15 years.

At the end of the exhibit, Jane told us the greatest lessons she learned from serving as a nurse in refugee camps around the world. “Every day,” she said, “I was reminded of the resilience of humanity and that despite the terrible things that had happened to them there, people always miss their home.”

Follow the route of the Forced From Home exhibit, register to attend, and sign up for updates about future locations here.

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Refugee Team to Compete in Olympic Games

by Jason Dzubow

This August, 10 athletes will compete in the Olympic games not as representatives of their countries of citizenship, but as refugees. For the first time in the history of the Olympics, there will be a “Refugee Team,” composed of individuals from four countries: Democratic Republic of the Congo, Ethiopia, South Sudan, and Syria. The athletes will participate in a variety of sports, including swimming, track and field, and judo.

Refugee athletes are expected to do well in such sports as "Completing Endless Forms" (pictured) and "Waiting Forever In Line."
Refugee athletes are expected to do well in such sports as “Completing Endless Forms” (pictured) and “Waiting Forever In Line.”

Here are the stories of a few of these inspiring Olympians:

James Nyang Chiengjiek (age: 28; country of origin: South Sudan; sport: 400 meters) – James is from Bentiu, South Sudan. His father was a soldier who died in 1999 during the war. When he was a young boy he took care of cattle. He escaped from South Sudan when the war broke out, as he risked conscription into the army to participate in the war as a child soldier. James arrived in Kenya in 2002 and stayed in a UNHCR-supported refugee camp. He attended school and started running there. He was selected to train at the Tegla Loroupe Peace Foundation in 2013, and has been there ever since (four others on the Refugee Team also train at the TLPF).

Yusra Mardini (age: 18; country of origin: Syria; sport: 100 meter freestyle) – Prior to the war in Syria, Yusra was a competitive swimmer who represented her country in international competitions. As the war intensified, Yusra and her sister left Damascus in early August 2015 and reached Berlin in September 2015. To get there, they had to cross the Aegean in a small boat. When the engine died, Yusra and a few others—the only swimmers on board—jumped into the water and pushed the boat for 3½ hours to shore. Since she reached Germany, Yusra has been training at the club Wasserfreunde Spandau 04 e.V. which is a partner of the Elite Schools of Sport in Berlin.

Yolande Bukasa Mabika (age: 28; country of origin: Democratic Republic of the Congo; sport: Judo) – Yolande is originally from Bukavu, the area worst affected by the DRC civil war from 1998 to 2003. During the war, she was separated from her parents and taken to a children’s home. There, she took up Judo, which the government encouraged as a way to give structure to the lives or orphans. As a professional Judoka, she represented the Democratic Republic of the Congo in international competitions. After years of difficult training conditions, she decided to seek asylum in Brazil during the World Judo Championships in Rio in 2013. She currently trains at the Instituto Reação in Rio de Janeiro.

Popole Misenga (age 24; country of origin: Democratic Republic of the Congo; sport: Judo) – Like his Judoka teammate, Yolande Bukasa Mabika, Popole is originally from Bukavu in the DRC. His mother was murdered when he was only six years old. Afterward, he wandered in a rain forest for a week before he was rescued. As a professional Judoka, he represented the Democratic Republic of the Congo in international competitions. Along with Yolande, Popole sought asylum in Brazil during the World Judo Championships in 2013. He currently trains at the Instituto Reação in Rio de Janeiro.

Yonas Kinde (age 36; country of origin: Ethiopia; sport: Marathon) – Yonas left Ethiopia due to political problems. He has been under international protection in Luxembourg since October 2013. He has competed in many marathons and reached the qualifying standards for Rio during the Frankfurt Marathon in October 2015. He currently trains at the national school of physical education and sports in Luxembourg.

Rose Nathike Lokonyen (age 23; country of origin: South Sudan; sport: 800 meters) – After her community was burned by armed men, ten-year-old Rose and her family left South Sudan and arrived in Kakuma refugee camp in 2002. Her parents returned to South Sudan in 2008 but her siblings remained in Kakuma refugee camp. During her time at school, she participated in many barefoot running competitions and in 2015 she participated in a 10 km run in Kakuma organized by the Tegla Loroupe Foundation. She has been training with the foundation ever since.

The Refugee Team is a part of a broader effort on the part of the International Olympic Committee (“IOC”) to assist and bring attention to refugees. As IOC President Thomas Bach has said, the Refugee Team “will be a symbol of hope for all the refugees in our world, and will make the world better aware of the magnitude of this crisis. It is also a signal to the international community that refugees are our fellow human beings and are an enrichment to society.” It’s an important role for these young athletes, and we certainly wish them the best at the Olympic Games and beyond.

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African-American’s Guide to Seeking Asylum Abroad

by Jason Dzubow

The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I’ve received inquiries from several such people. They want to know whether they are eligible for asylum under international law.

Who knew that the road to safety would be this long?
Who knew that the road to safety would be this long?

To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.

Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”

If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.

For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group–for example, Tutsis in the 1994 Rwanda genocide–faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a “now we see the violence inherent in the system” sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove “pattern and practice,” but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered “pervasive,” for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered “past persecution,” and this made his case more difficult).

In the absence of a “pattern and practice,” an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it’s about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.

Although the average African American would probably not meet the standard for asylum, some African Americans–those who have received specific threats and, of course, those who were previously persecuted–might be able to prove that they face a likelihood of harm and thus meet the definition of “refugee.”

Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.

In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.

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Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

by Jason Dzubow

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

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Asylum in Canada Is Not for Everyone (Sorry Aboot That)

by Jason Dzubow

This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.
Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.

The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.

The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.

In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.

Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.

There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.

Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.

Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.

There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

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Climate Change and the End of Refugee Resettlement

by Jason Dzubow

Some observers believe that one of the root causes for the war in Syria is climate change. Starting in the first decade of the current century, drought and warmer temperatures in Syria pushed about 1.5 million people to move from their farms into cities. This more volatile atmosphere helped lead to war.

Aquapalypse Now: Rising sea levels may create millions of new refugees
Aquapalypse Now: Rising sea levels may create millions of new refugees

So one effect of climate change may be to increase competition for scarce resources. Increased competition = more wars = more refugees.

Another source of climate refugees is rising sea levels. As the water rises, certain areas and certain countries might become uninhabitable. People will have to be relocated. Many will be able to move within their own countries, but others will be forced to leave their homelands.

The potential for mass movements of people across national borders is very real, and some experts predict that the new flow of climate refugees will dwarf anything we’ve seen thus far. That’s a scary thought, and for those of us involved in refugee resettlement, it represents an existential challenge: If tens or hundreds of millions of people are on the move, how do we accommodate them?

And what about the current international legal regime? By definition, a refugee is a person who cannot return to his country owing to persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or particular social group. Many people fleeing Syria can meet this definition (some of our cases, for example, are shoe-horned in by presenting the claim as one based on imputed political opinion—even if they are not politically active, the Syrian government believes they are political opponents and that is enough for a grant). However, people who flee because their homes are flooded or because their crops have failed are not “refugees” as that term has been defined in international and U.S. domestic law. They are not being “persecuted” by anyone, except perhaps Mother Nature, but I don’t think that counts. So what do we do with them?

As we’ve seen with the exodus from the Middle East to Europe and, on a smaller scale, from Central America to the U.S., the mass movement of people creates many challenges—social, economic, political, and moral. There is also great resistance by many segments of the community to accepting large numbers of foreigners. If that is the case, what will become of the new climate refugees? Will they be confined to UN-supported camps in the countries of first arrival? Will they remain in such places indefinitely? What is the end game for people who can never return home? How will the world order be affected by millions of stateless refugees, who live without hope and who may become a destabilizing influence on the host countries?

Of course, I have no answers to any of these questions. Given the state of the problem today (over 59 million forcibly displaced persons worldwide, including about 19 million refugees) and the number of people who are annually resettled (about 626,000 were recognized as refugees or received some form of protection), I am not optimistic that we will accommodate millions more refugees in some dystopian (but probably not distant) future. One thing is true, if we see much larger numbers refugees in the world, we will have to deal with them in some way.

One solution is to close our doors and try to keep the problem as far away from home as possible. This is essentially the path favored by several main-steam restrictionists groups. Indeed, the Center for Immigration Studies (“CIS”) and the Federation for American Immigration Reform (“FAIR”) both originated from concerns about immigration and the environment. The leading founder of these groups, John Tanton, viewed the mass movement of people as a threat to the environment, and favored restricting immigration as a way to protect the environment. It also happens that he was a bit of a white supremacist, but I suppose that is not particularly relevant to the environmental argument.

As you might guess, I am not a fan of the environmental argument (or the white supremacist argument, for that matter). People who move from poor countries to rich ones probably use more resources in their new homes than if they’d stayed put, but they also have a better quality of life and they generally enrich the societies they move into (in 2014, for example, immigrants made up 12.9% of the U.S. population, but started 28.5% of new businesses). I am not sure how to balance this with the environmental impact, but when you add in the fact that many people are fleeing persecution or environmental disaster, the balance for me tips in favor of protecting people by allowing more migration.

That said, I’m also not convinced that the U.S. and Western Europe can or should absorb millions of new refugees. There is a limit to how many people we can resettle and still maintain our social cohesion. I am not sure what that limit is, though it seems clear that we can do more than we are doing now. But the West cannot do it alone–if we see mass migrations due to climate change, the task of assisting and resettling people will need to be distributed across the globe.

As a father and an uncle (and a person who is generally rooting for the human race), I hope that the world’s leaders will make genuine efforts to curb global warming. As someone concerned about refugees and migration, I hope that we will respond to climate refugees with compassion. Climate change is a great challenge to mankind. I hope that we can meet that challenge and retain our humanity.

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Asylum Seekers Gone Wild

by Jason Dzubow

Police officials in Cologne, German have received over 500 criminal complaints about attacks that occurred this past New Year’s Eve. Forty percent of the attacks involved a sexual offense, and a large majority of the victims were women. Most of the culprits “were said to have been of a North African or Middle Eastern appearance,” and so far, 22 of the 32 identified suspects are asylum seekers. Similar assaults were reported in other European countries.

Perhaps in this case, the solution is worse than the problem.
Perhaps in this case, the solution is worse than the problem.

Not surprisingly, those who oppose refugee resettlement have seized on the attacks to denounce Germany’s generous asylum policy. There were also several xenophobic assaults on refugees, supposedly in retaliation for the New Year’s Eve incidents.

The whole situation seems a bit strange to me: What exactly did these asylum seekers (and others) do? Why did this happen now? Have there been previous attacks that we have not heard about? What explains this behavior?

First, based on the reports I have seen, I am really not sure what happened. Was this Spring-Break type debauchery exaggerated by anti-refugee hysteria, or something much worse (there is at least one report of Syrian nationals raping two girls at a New Year’s Eve party, but the suspects are not asylum seekers and the incident seems unconnected to the other attacks)?

I must admit that I am of two minds about this question. On the one hand, if scores of young women are reporting sexual assaults, that is deadly serious and must be addressed forcefully. On the other hand, I am wary of the old trope where the swarthy foreigner violates the innocent white female. This same story has been used many times to justify violence against “the other.” For example, last year a young man entered an African-American church in South Carolina and murdered nine people, yelling at them: “You rape our women… You have to go!” Jews have long dealt with this issue in Europe, where for many centuries, we were “the other” (until Hitler eliminated that problem). In those days (and unfortunately still today in some places), Jews were accused of killing Christian babies in order to use their blood for ritual purposes. These “blood libels” were notorious lies, but they were used as an excuse to harm Jews. There’s a tragic/comic joke about the blood libels that I’ve always appreciated:

In a small village in the Ukraine, a terrifying rumor was spreading: A Christian girl had been found murdered. Realizing the dire consequences of such an event, and fearing a pogrom [a murderous anti-Jewish riot], the Jewish community gathered in the synagogue to plan whatever defensive actions were possible under the circumstances. Just as the emergency meeting was being called to order, in ran the president of the synagogue, out of breath and all excited. “Brothers!” he cried, “I have wonderful news! The murdered girl is Jewish!”

You get the point. Obviously, this does not mean that the attacks in Cologne did not happen the way they have been portrayed, but it does urge us to be cautious in drawing conclusions, especially since there is so little publicly-available detail about those attacks.

Assuming that the initial reports are correct and the attackers are asylum seekers, what is going on here? Maybe one explanation is that the asylum seekers in question are young men from sexually repressive countries who have been living in instability for many months. Now that they are in safe, open societies, where men and women mix freely, they cannot handle the adjustment. Not to let them off the hook—if they are guilty of assault or other crimes, they should be punished—but when refugees behave badly, there are often underlying pathologies that need to be examined. Maybe it is too late for these particular refugees (who might be deported), but at least this highlights an issue that can be addressed for other asylum seekers with similar backgrounds.

Another explanation–the one favored by opponents of refugee resettlement–is that asylum seekers are a danger to the receiving communities, and that their values are incompatible with Western society. The New Year’s Eve attacks, under this theory, are just one iteration of the problem. I think this view is incorrect. Refugees are not perfect, but the evidence suggests that they are no more likely to commit crimes than anyone else.

But of course, many refugees are damaged people who have suffered trauma. They come from societies that are much more repressive and conservative than those in the West. While these factors may help explain criminal behavior among refugees, in my opinion, they do not in any way excuse it. Nevertheless, we need to keep this in mind when considering refugee resettlement. We need to help refugees deal with their trauma. We also need to help them understand and integrate into their new communities. This is easier said than done, especially in a situation like Germany’s, where tens of thousands of people are arriving each month.

In the U.S., our refugee numbers are much lower, and we are more able to help people adjust to their new lives. As a result, the overall crime rate for non-citizens seems to be the same as, or lower than that for native-born Americans. Vetting refugees and helping them integrate is the best way to protect ourselves, while at the same time meeting our humanitarian obligations and ideals.

The doors to Europe appear to be closing, and the New Year’s Eve attacks will only make things more difficult for all refugees. My hope is that we in the West will learn from this experience. Receiving countries should step up their efforts to recognize and pro-actively address the psycho-social needs of refugees, so that they will better acculturate to their new homes. This, to me, is the best way forward for everyone.

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How Halloween Helps Save the World (or at Least Some Refugee Children)

by Jason Dzubow

World War II left approximately 75 million people dead and up to 20 million displaced. Many of these displaced persons, or DPs, could not return to their countries. Hundreds of thousands were resettled to new homes in Western Europe and the United States. Two years after the war, there were still 850,000+ people living in DP camps. And as late as 1953–eight years after the War–more than 250,000 people continued to live as refugees. Of course, many DPs during the post-War period were children.

Through Trick-or-Treat UNICEF, the undead can help the living.
Through Trick-or-Treat UNICEF, the undead can help the living.

The civilian response to the DP crisis was led by the United Nations Relief and Rehabilitation Administration, which helped resettle hundreds of thousands of refugees. Private individuals were moved by the humanitarian tragedy as well.

In the Autumn of 1949, Mary Emma Allison was in downtown Philadelphia when she bumped into a children’s Halloween parade. She followed the parade into Wanamaker’s Department Store where she met a cow (yes, a cow). She then followed the kids and the cow to a booth for UNICEF, the United Nations International Children’s Emergency Fund. It turns out, the parade was promoting a campaign to send powdered milk to needy children overseas (hence, the cow).

After her chance encounter, Ms. Allison and her husband, Clyde Allison, a Presbyterian Minister, organized Trick-or-Treat for UNICEF. The idea was that if kids were already going around the neighborhood collecting candy, they might as well do some good while they’re at it.

The venture started modestly enough during Halloween in 1950, when the Allison’s three children collected money from their community. That first year, they raised $17.00 in nickels and dimes, which they donated to UNICEF (although the acronym has remained the same, UNICEF is now the United Nations Children’s Fund). The money went to help children displaced by World War II. In those days, a dime was all it took to buy 50 glasses of milk for needy children in Europe.

The effort grew from there. In 1960, President Kennedy noted “UNICEF has captured the imagination of our people, especially our nation’s children… ” Seven years later, President Johnson signed a proclamation that designated Halloween as National UNICEF Day. By the time Ms. Allison died, a few days before Halloween in 2010, Trick-or-Treat for UNICEF had raised more than $160 million. The program has continued since then, and by last Halloween, it had raised over $175 million. The money buys food, clean water, milk, medicine, and much else for children in more than 150 countries. These days, a $5-donation to UNICEF buys five days of food for a malnourished child; $100, measles protection for 100 kids; $400, a pump to give an entire village water.

Many of the children helped by UNICEF are refugees, and they have special needs. In Syria, for example, UNICEF is trying to prevent millions of children displaced by the war from becoming a lost generation. The agency has been on the ground since the conflict began, working with other organizations to provide education, physical protection, psychological support, and clothing to Syrian refugee children in Iraq, Jordan, Turkey, Lebanon, Egypt and other countries. UNICEF also helps immunize children against disease and provides millions of people with access to safe drinking water.

Trick-or-Treat for UNICEF is a great way for kids to help kids. After 65 years, the reasons for the program remain constant: To make Halloween meaningful as well as fun, to protect the lives of the world’s youngest and most vulnerable, and to inspire kids to discover their own ability to help other children like themselves. If you’d like to learn more, please visit the UNICEF website, here.

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The Iran Deal: Thoughts by An Iranian Journalist in Exile

by Jason Dzubow

Many of my clients were activists and leaders in their home countries. For me, one of the perks of my job is to hear their perspectives on the issues of the day. In this post, my former client Ali Anisi Tehrani, who is now a political asylee from Iran, gives his opinion of the recently-signed Iran Deal:

In the summer of 1988, the Islamic Republic of Iran drank what then-Supreme Leader Ayatollah Ruhollah Khomeini referred to as a “chalice of poison” when it accepted the terms of United Nations Security Council Resolution 598, which marked the end of the Iran-Iraq War. Despite eight years of brutal fighting between the two neighbors, Khomeini vowed that an end to the war would not be possible unless Saddam Hussein was removed from power. Anyone who lived in Tehran during this time would remember this quote–the message had been plastered across Tehran’s walls–as well as the constant onslaught of Saddam’s missiles. To the Iranian people, defeat was not an option. Khomeini finally relented, but only after military commanders convinced him that victory in the next five years was impossible.

Ali Tehrani: Author, Activist, Starship Captain.
Ali Tehrani: Author, Activist, Starship Captain.

Khomeini justified signing the UN-brokered ceasefire by framing it not as a concession of defeat, but as a necessity to preserve the Islamic Republic and protect the best interests of Islam. Still, it was a stunning and humiliating failure for the regime, which had come into existence only 10 years earlier as a result of the 1979 revolution. Having spent the majority of its young life embroiled in this war, a significant portion of the Islamic Republic’s national identity had developed around the war and opposition to Saddam’s Ba’athist Iraq. Furthermore, given the active support provided to Iraq by U.S. and other Western powers, as well as the West’s long failure to condemn Iraq for its use of chemical weapons, the Islamic Republic’s anti-Western–and particularly anti-American–stance was also strengthened by its opposition to Iraq.

Clearly, the Islamic Republic’s acceptance of the ceasefire was a major blow to the regime’s identity as well as to the authority of Khomeini, its charismatic leader and founder.

The nuclear deal: Another “poisoned chalice”?

Since Iran and the P5+1 signed the Joint Comprehensive Plan of Action (“JCPOA”) on July 14, the nuclear deal has occupied much of the world’s attention. Politicians and pundits speculate and opine constantly about the deal. Is it a good deal or a bad deal? Who will truly benefit, Iran or the West? Does it represent the best possible diplomatic move or a huge political mistake? Will it help to stabilize the region or instead enable Iran’s increased meddling in other countries’ affairs? Instead of weighing in on these debates, which deal largely with the politics of current affairs, I would like to analyze the deal from a different perspective, one that takes into account the complex power dynamics within Iran’s totalitarian society and the indirect repercussions that the deal may have for Iranian civil society.

Many in Iran compare the current nuclear deal to the 1988 ceasefire, particularly with respect to the Islamic Republic’s capitulation on a number of its long-held positions. I believe that this comparison can be extended to the ways in which the state has and will maneuver to reclaim legitimacy and authority in the eyes of its citizens in the wake of its many international political compromises.

What to expect next?

Oops, here is the real Ali Tehrani: Author and Activist; not a Starship Captain (at least not yet).
Oops, here is the real Ali Tehrani: Author and Activist; not a Starship Captain (at least not yet).

In the months surrounding the signing of the ceasefire with Iraq in 1988, Iran executed thousands of prisoners, almost all of whom had no death sentence, nor even lifetime imprisonment, when they were lined up on death row at the Ayatollah’s order. Amnesty International recorded the names of over 4,482 disappeared prisoners during this time. The mass executions compelled some top-ranking clergy to protest. Even Ayatollah Montazeri, Khomeini’s designated successor, challenged the executions to the point that Montazeri was removed.

In what I would argue is no coincidence, the number of executions in Iran has skyrocketed this year. The growth in rate of executions in 2015 is comparable to the years following the 2009 Green Movement, which saw massive protests in response to the fraudulent election that returned incumbent president Mahmoud Ahmadinejad to power. The Green Movement itself, as well as the massive repression unleashed on protesters by the state, received widespread international attention, and served as a major blow to the Islamic Republic’s legitimacy both inside and outside the country.

There are many ways for a state to assert authority, including by exercising power over the very bodies of its citizens or “subjects.” In Iran, this manifests through the deployment of hijab police to enforce laws around women’s dress; through severe punishments for minor crimes; or, through publicly visible executions. In the eyes of the state, this level of control over the bodies of its citizenry is necessary to reestablish the authority and legitimacy that is lost following a compromise on something so critical to the regime’s identity.

For the Islamic Republic, the two dominant narratives underpinning the regime have been confronting the West–namely the United States–and the pursuit of nuclear activities. Iran has adhered to the latter so strongly as to unite much of the world against it. The nuclear deal represents a major blow to both of these narratives, which have long defined the Islamic Republic. The weakening of this dominant ideology fundamentally hurts the legitimacy and authority of the ruler, who must act to mitigate damage to his image. By exercising power over the bodies of its subjects, the totalitarian regime attempts to reclaim power.

It is important to note that such attempts to reclaim power are not necessarily the product of conscious decisions by individuals within the government. Rather they are part of a systemic approach that is inherent to any totalitarian rule, which oversees not only what is visible, but also the feelings and minds of its subjects.

By observing the actions taken by the regime in the wake of the nuclear deal and comparing them to those surrounding the 1988 ceasefire, it may be possible to assess the evolution of the Iranian state and whether it has become more or less totalitarian.

Ali Anisi Tehrani is an Iranian journalist based in Washington, DC. His research is mainly around the theme of civil resistance and political power dynamics. Ali left Iran after the controversial Presidential election in 2009 and studied Digital Media in Sweden and the U.S. He has been living in the United States since 2012.

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A Military Solution to the Migration Crisis?

by Jason Dzubow

The European Union has been struggling to cope with a surge of migrants fleeing war and poverty in the Middle East and Africa. The high season has not yet begun, and already hundreds have died trying to cross the Mediterranean. Thousands more have arrived on the Continent to seek protection. In response, the EU is planning a combined military campaign by air, sea, and possibly land against the smuggling networks. Can such a plan succeed? And could the lessons of Europe be applied to our own migration crisis along the Southern border?

Just because you have a hammer does not mean every problem is a nail.
Just because you have a hammer does not mean every problem is a nail.

According to a recent article about the EU plan:

The campaign’s aim is defined as “to disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture, and destroy vessels and assets before they are used by smugglers … The operation will need to be phased in and will be heavily dependent on intelligence.

Military operations would focus on actions “inside Libya’s internal and territorial waters and the coast,” and possibly “ashore,” as well.

The downsides of such an operation are fairly obvious. As an EU planning document admits, the campaign could result in innocent people being killed: “Boarding operations against smugglers in the presence of migrants has a high risk of collateral damage including the loss of life.” There are also difficult practical problems—smugglers frequently rent boats from fisherman and then fill the boat with migrants shortly before they sail. So there is little time to identify which boats are being used for human cargo and to neutralize them before people are aboard. Also, the Libyan coast is dangerous. Different militias control different parts of the country, and some have the capacity to target European warships and aircraft. Finally, and maybe most significantly, the migrants are desperate people fleeing for their lives, so it is unclear whether they would be dissuaded from their journey if it were marginally more difficult.

On the other hand, large numbers of people are already dying at sea (about 2,000 so far this year), and there is little doubt that the impunity the smugglers enjoy encourages them to continue their activities. There is also some evidence that the smugglers are encouraging certain people to make the journey, when they would be better off staying put. But the question is, Can military force make the situation better?

First, I suppose it depends on how we define “better.” If we mean that Europe will have to deal with fewer migrants, then military action against the smugglers may make things “better,” at least to some degree. We’ve seen this story before in the militarization of the drug war. The costs to the drug smugglers goes up, the cost of the product goes up, and—perhaps—fewer drugs get through. The key difference between smuggling humans and smuggling drugs is that each person must be able to pay for the cost of his trip. If the cost to smuggle drugs goes up, the users pay, but if the cost of human trafficking goes up, the trafficked people must pay. If action against the traffickers increases the cost of passage, maybe fewer people will be able to afford the journey. And if fewer migrants reach Europe, the situation will be “better” in that Europe will not have to deal with it.

But if “better” means actually addressing the problem, interdicting smugglers will likely not make the situation any better. If the asylum seekers were merely economic migrants, they might be dissuaded from making the trip. But most of the people crossing the Med are fleeing for their lives–they are from places like Syria and Eritrea, where return to the home country is unthinkable. Cutting off the route to Europe will–at best–force them to go somewhere else.

While Europe does bear some of the blame for the current mess in the Middle East and Africa (due to colonialism and economic exploitation), I don’t believe that the Europeans can be expected to accept every migrant who come their way. However, I do think Europe–and the rest of the world–has a moral obligation to help legitimate refugees fleeing violence and persecution. Perhaps European interests would be better served by using its military and logistical power to establish better safe havens for refugees, and to create an orderly resettlement process for those who will likely never return home.

And what of America? Is there a military solution to our own migrant crisis? Much of the migration to our country is driven by gang and cartel violence in Central America and Mexico. Last year, the Congressional Research Service published a report about the U.S. government’s role in combating Central American gangs. The report details our efforts on the law enforcement and preventative sides of the gang problem. In short, it seems that a law enforcement-only approach (such as Mano Duro in El Salvador) is not as effective as a more holistic approach, and so the effectiveness of throwing additional military forces against the gangs seems doubtful.

Perhaps the border itself could be further militarized, but it is difficult to see how this would make much difference either. The number of agents at the border is at an all time high, and the number of apprehensions has dropped to 1970s levels (indicating fewer people attempting to enter illegally). The bigger problem these days is the large number of people surrendering at the border and requesting asylum, and of course this is not a problem amenable to a military solution.

For us and for the Europeans, the influx of asylum seekers presents a serious challenge. Rather than using military force to attack smugglers and deflect the problem, we would be better off addressing root causes and protecting vulnerable people from harm.

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Is the Asylum System to Blame for Migrant Deaths?

by Jason Dzubow

We think of spring in the Northern hemisphere as a time of rebirth and renewal. But in the Mediterranean, for refugees attempting to reach Europe by sea, it is a time of dying.

Deporting children protects them. Vaccines cause Autism. Ketchup is a vegetable.
Deporting children protects them. Vaccines cause Autism. Ketchup is a vegetable.

Last month, over 800 people died when an overcrowded boat sank en router from Libya to Southern Europe. That brings the number of migrant deaths at sea during this season to 1,780 people, as compared to 96 people during the same period last year.

By contrast, deaths at the U.S. border are down from previous years. The Associated Press reports that, “The number of people who died trying to cross the U.S.-Mexico border has dropped to the lowest level in 15 years as more immigrants turned themselves in to authorities in Texas and fewer took their chances with the dangerous trek across the Arizona desert.” In FY 2014, the government recorded 307 deaths at the border. Although this is significantly lower than what we are seeing in Europe, hundreds of people are still dying each year on their journeys to the United States (and of course this figure does not include people who die on the route to the U.S. before they reach our border).

In many cases, the migrants coming to Europe and the United States are fleeing severe violence in their home countries. They are desperate people seeking safety and a better life in the West. And although in many ways the U.S. and Europe are hostile to asylum seekers, we do provide strong “pull factors” that encourage people to make the journey. We offer such people asylum.

So it’s fair to ask: Does the very fact that we offer asylum provide an incentive for people to risk their lives–and sometimes die–to reach our country?

A recent bill proposed in Congress and passed by the House Judiciary Committee seems to answer this question in the affirmative. The bill, called the Protection of Children Act of 2015, would “protect” unaccompanied minors who come to the U.S. by sending them home more expeditiously. One of the bill’s sponsors, Congressman Bob Goodlatte (R-VA) explained the rationale for this new legislation:

The Obama Administration’s immigration policies have given confidence to parents who are in the U.S. illegally that they can stay and have encouraged them to bring their children, who are still in Central America and beyond, to the United States unlawfully. These children, often assisted by smugglers, face many dangerous situations as they travel through Mexico and then walk miles across a hostile border environment. We need to take action to stop these children from risking their lives to come to the United States unaccompanied and unlawfully. The Protection of Children Act makes common sense changes to our laws to ensure minors who travel to the U.S. alone are returned home safely and quickly.

While the bill will not, in fact, protect any children (rather, it will harm them), the Protection of Children Act is–at least in part–an effort to reduce the incentive for people to come to the U.S. for asylum and thus an effort to reduce the number of people who die attempting to reach our country.

But still, the question remains: Do our asylum laws encourage people to come illegally to the United States and risk their lives in the process? Is our generosity killing people?

One way to look at the question is to explore the motivation for asylum seekers’ coming to the U.S. Which is more important, the “push” of danger in the home country or the “pull” of asylum in the United States? If the “pull” is more important, we would expect that people from similar countries would come to the U.S. in similar numbers, regardless of violence levels in those countries. So for example, we would expect to see people coming to the U.S. in similar numbers from El Salvador, Guatemala, Honduras, and Nicaragua (all poor Central American countries). A review of the data, however, indicates that this is not the case. Many more people come to the U.S. from the more violent countries (El Salvador, Guatemala, and Honduras) than from the less violent one (Nicaragua) (I have written more about this here). 

Some of the disparity may be because there are more people from El Salvador, Guatemala, and Honduras in the U.S. than there are people from Nicaragua, and so perhaps migrants are not fleeing violence, but instead are coming here for family unity. There is no doubt that this is part of the equation. However, according to the Pew Foundation, there are roughly 408,261 Nicaraguans in the U.S. By comparison, there are 774,866 Hondurans, 1,265,400 Guatemalans, and 1,969,495 Salvadorans in the United States. I could not find recent data on the number of Nicaraguans coming to the U.S., but for December 2014, Nicaragua was not even in the top 10 sending countries for asylum seekers. In that month, 333 people filed for asylum from Honduras, 495 from El Salvador, and 546 from Guatemala. One hundred and fifty four people filed for asylum from India, which is # 10 on the list, so we know that even fewer people sought asylum from Nicaragua. Given the significant number of Nicaraguans living in the U.S., if family unity was the main “pull” factor, we would expect greater numbers of migrants from Nicaragua.

All this leads to the conclusion that violent conditions in Guatemala, El Salvador, and Honduras are “pushing” people to come to the United States. And, by the way, this squares with anecdotal evidence from the asylum seekers themselves and the lawyers (like me) who represent them.

So what does it all mean? If people are coming here mainly due to “push” factors (violence) and not “pull” factors (asylum), then making it more difficult for them to claim asylum in the U.S. (or Europe) is unlikely to dissuade them from making the journey.

Most asylum seekers, like most people, are rational and respond to their environment in rationale ways. If conditions are violent and they fear for their lives, people will flee. If there is somewhere safe for them to go, they will go. The Protection of Children Act does nothing to protect such people. It merely shifts the problem somewhere else. To help reduce the number of asylum seeker deaths, the United States and Europe need to do more to address the root causes of violence. Making life even more difficult for those fleeing harm will only make a bad situation worse.

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Refugees Come to America–To Sing!

by Jason Dzubow

One of my more memorable cases involved testimony from my client’s uncle, a well-known singer from Ethiopia who had been living in exile in Sweden and the U.S. since 1974. He was testifying about conditions in Ethiopia and whether it was safe for his nephew (my client) to return home. He mentioned that even after 40 years away, many of his songs were about Ethiopia. I asked him about his feeling towards his homeland. “I love my country,” he responded. Did he want to return? “If I could, I would return tomorrow.” It’s a beautiful and sad testament to a life lived in exile, and it is not an uncommon story.

The Refugee All Stars embody the old proverb, "It ain't about how hard you hit. It's about how hard you can get hit and keep moving forward. How much you can take and keep moving forward." (Balboa 3:16).
The Refugee All Stars embody the old proverb, “It ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. How much you can take and keep moving forward.” (Balboa 3:16).

It seems there is a natural connection between exile and art. Some artists are forced into exile after their art offends the powers that be. Others create art to remember their previous lives or to help heal themselves and their loved ones. I suppose there are as many motivations for art as there are artists, but memories of a homeland lost are a particularly powerful muse. 

In that vein, one of my favorite musicians is Enrico Macias, an Algerian Jew who had to leave his country during the war of independence in 1961. He has not returned to Algeria since, but many of his songs reference his homeland and the loss he experienced by leaving. 

Recently, I’ve learned about a band called the Refugee All Stars, which is currently touring American (their schedule is here). Members of the band are from Sierra Leone, and their story is inspiring: 

Throughout the 1990s, the West African country of Sierra Leone was wracked with a bloody, horrifying war that forced millions to flee their homes. The musicians that would eventually form Sierra Leone’s Refugee All Stars are all originally from Freetown, and they were forced to leave the capital city at various times after violent rebel attacks. Most of those that left the country made their way into neighboring Guinea, some ending up in refugee camps and others struggling to fend for themselves in the capital city of Conakry.

Ruben Koroma and his wife Grace had left Sierra Leone in 1997 and found themselves in the Kalia refugee camp near the border with Sierra Leone. When it became clear they would not be heading back to their homeland anytime soon, they joined up with guitarist Francis John Langba (aka Franco), and bassist Idrissa Bangura (aka Mallam), other musicians in the camp whom they had known before the war, to entertain their fellow refugees. After a Canadian relief agency donated two beat up electric guitars, a single microphone and a meager sound system, Sierra Leone’s Refugee All Stars were born.

Now, the band tours worldwide and works with many well-known musicians and producers. They have also performed benefits for Amnesty International and the World Food Program, among others.

Like many people who have experienced war and exile–including many of my clients–it seems that the band members’ desire to carry on with their lives and work to improve the world has not been dimmed:

The senseless deaths and illnesses of friends and family, including some of the band’s original members, and the slimming hope for great change in their country as a result of peace, has only strengthened the resolve of Sierra Leone’s Refugee All Stars to do what they can to turn their country around. Their weapon in this struggle is music, and their message, while offering critique and condemnation of wrongdoing, remains positive and hopeful. Optimism in the face of obstacles, and the eternal hope for a better future motivates their lives and music.

Given the world’s current refugee situation and all the problems in the U.S. asylum system, optimism is in short supply. But it’s needed now more than ever.

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Asylum for the Jews of France?

by Jason Dzubow

Over the past few years, there have been a number of deadly and horrific attacks against Jewish people in Europe. Targeted by radical Muslims, Jews have been murdered in a Kosher market, outside a synagogue, and at a Jewish daycare facility. They have been targeted for attack at a Jewish Community Center, and there have been hundreds of lesser (but still frightening) instances of anti-Semitism.

The Jews of France are not alone. But is that enough?
The Jews of France are not alone. But is that enough?

In response, some (non-French) Jews have suggested that there is no future for Jews in Europe and that they should leave. On one level, this suggestion is based on genuine concern. But on another level, it is quite insulting. It’s as if an African leader came to the U.S. and told American blacks that—in light of Ferguson, Treyvon Martin, and Eric Garner—they should abandon their homeland. My feeling is that a French Jew, an African American, or any other put-upon individual should have the right to make his own decision about whether to leave his country. Unless and until he decides to go, we should do everything possible to help him stay.

Here, however, I am concerned not with the existential issue of European Jewry. Rather, I want to discuss a more narrow question: Whether a French Jew–and I am choosing France because that country has seen the most instances of anti-Semitism–could qualify for asylum under U.S. immigration law.

Asylum decisions are highly dependent on the specific facts of each case; so it is difficult to answer this question in the abstract. However, we can look at general country conditions to get an idea for whether an individual might qualify. Also, where there is a “pattern and practice” of persecution against a specific group, and the asylum applicant demonstrates that she is a member of that group, she can receive asylum (for example, during the 1994 genocide in Rwanda, if an asylum applicant demonstrated that she was Tutsi, she could receive asylum).

To demonstrate a “pattern and practice,” the applicant would have to show that the persecution is systemic, pervasive or organized. Although radical Muslims have attacked Jews in France on several occasions, and the unpredictable nature of the attacks makes everyone feel vulnerable, I think the problem is not systematic, pervasive or organized enough to qualify as a “pattern and practice” of persecution under U.S. asylum law. The recent attacks have been by individuals or small groups; not (as far as we know) the systematic work of an organization. There is a much more widespread problem with harassment, threats, and vandalism. These problems–while frightening–probably would not constitute “persecution” as that term is generally understood. For all these reasons, I believe that a French-Jewish asylum seeker would have a hard time proving that Jews in France suffer from a pattern and practice of persecution.    

In the absence of such a pattern and practice, our theoretical French Jew would need to show that he faces a reasonable fear of persecution based on his religion (or other protected ground). If the persecutor is not the government—and here, it is not—he also must demonstrate that the government is unable or unwilling to protect him.

First, it seems clear that the Jews who have been targeted were targeted because they were Jews. Persecution on account of religion is a basis for asylum. So the real question is whether there is a reasonable likelihood of persecution.

Courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average French Jew would be able to show that he faces a 10% chance of persecution. There are nearly half-a-million Jews in France, and only a small number have been harmed. And even in countries with much higher instances of violence–Iraq and Syria, for example–a person can generally not qualify for asylum without an individualized threat. Although the average French Jew would probably not meet this standard, some Jews–those who have received specific threats or who hold high-profile positions, for example–might be able to prove that they face a likelihood of harm.

If our theoretical French Jew demonstrates a likelihood of harm, the next question is whether the government of France is able and willing to protect him. While there are surely people within the French government who do not like Jews, the French government as a whole clearly wants to protect Jewish people. After the Kosher supermarket and Charlie Hebdo attacks, the government deployed thousands of troops to protect Jewish sites. But given the nature of the attacks (random and against soft targets), there is a good argument that the government of France is unable to stop the terrorists.

In the end, it seems that most French (or European) Jews would not qualify for asylum, but some might: Those who have received threats or who are high profile, and who their governments–unfortunately–cannot protect. 

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