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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Evaluating the Threat Posed by Refugees

by Jason Dzubow

Last month, a Somali refugee and college student drove his car into a crowd at his university, jumped out, and started stabbing people. He was quickly shot dead by a campus police officer. The assailant, Abdul Razak Ali Artan, apparently left Somalia, lived for a time in Pakistan, and was resettled as a refugee in the United States in 2014. After the incident, Donald Trump tweeted that Mr. Artan “should not have been in our country.”

TV shows based on misunderstandings are hilarious; government policies, not so much.
TV shows based on misunderstandings are hilarious; government policies, not so much.

Incidents like this–where a refugee or asylee commits a (probable) terrorist act–are exceedingly rare. As far as I know, the only other successful attack involving “refugees” was the Boston Marathon bombing, perpetrated by two brothers who came to the U.S. as derivatives of their parents’ asylum case. Since 2001, the U.S. has admitted approximately 785,000 refugees and roughly 400,000 asylum seekers. So if all these numbers are accurate (a big “if”, as discussed below), then the odds that any given refugee or asylee is a terrorist is 1 in 395,000 or 0.0000844%.

In looking at the question of refugees/asylees and terrorism, the main problem is that the numbers listed above are not accurate. First, there is no consistent way to count people entering and leaving the United States. The refugee numbers are probably more accurate (though it’s unclear to me whether all aliens admitted for humanitarian reasons are included in the count), but asylum numbers are all over the map. Part of the problem is that different agencies (DHS and DOJ) deal with asylum applicants, and they seem to count people differently–sometimes derivative asylees are counted; other times, only the principal is counted. How do the agencies count people whose cases are pending? What about people granted other forms of relief (like Withholding of Removal or Torture Convention relief)? How are family members who “follow to join” the principal applicant counted? I have no idea about any of this, and there is no easily available data source to help. Not surprisingly, the dearth of data has opened the door to conspiracy theorists and anti-immigration advocates who claim we have an “open borders” immigration policy. But the absence of data also creates problems for fair-minded policy makers. How can we make appropriate decisions when we do not have a decent understanding of what is going on?

A second problem is that we do not have reliable information about how many non-citizens are involved in terrorist activities. Last summer, Senators Jeff Sessions (Donald Trump’s current nominee for Attorney General) and Ted Cruz sent a letter to the Obama Administration claiming that at least 380 of 580 people convicted of terrorism charges in the U.S. between September 11, 2001 and December 31, 2014 are foreign born. According to the Senators, “Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas.” The letter further claims that since early 2014, 131 individuals have been “implicated” in terrorist activities. Of those, “at least 16 were initially admitted to the United States as refugees, and at least 17… are the natural-born citizen children of immigrants.” Using these numbers and the (admittedly questionable) refugee and asylee numbers listed above, the odds that any given refugee or asylee is involved in terrorist activities is still pretty low: One refugee/asyee out of every 28,902 will be involved in terrorist activities (or about 0.0035% of refugees/asylees).

The Senators were only able to come up with their figures based on publicly-available sources (like news articles), since DHS did not release immigration information about the 580 individuals convicted of terrorist-related activities, or the 131 people “implicated” in such activities. Whether DHS’s failure to release this information is prosaic (perhaps confidentiality or technical issues pose a challenge) or nefarious, we do not know, since apparently, the agency has not responded to the Senators’ requests. The fact is, Senators Sessions and Cruz are correct: We need more data about the people who are entering our country, and we need to know whether refugees and asylees (and others) are committing crimes or becoming involved with terrorism. Not only will this better allow us to make appropriate policy decisions, but it will also help prevent the type of fake news that is currently filling—and exploiting—the information gap.

But of course, the situation is more complex than any statistics alone might show. Some people who become involved in terrorism are mentally ill individuals exploited by terrorists (or–sometimes–by over-zealous law-enforcement officers). In other cases, people providing support to a “terrorist” group overseas do not know that the group is involved in harmful activities, or they do not understand that the U.S government views the group as dangerous. Also, as I have discussed previously, the “material support” provisions of our anti-terrorism legislation are extremely broad, and so people who seem far removed from terrorit activities can get caught up by our overly-broad laws.

Nevertheless, we need to know more about foreign-born individuals–including asylum seekers and refugees–who are implicated in terrorist-related activities, and the basic starting point for any such analysis is the statistical data about who is coming here, how they are getting here, and whether they are accused or convicted of crimes or terrorist-related activities.

Assuming we do get some accurate data, the question then becomes, How do we evaluate such information? How do we balance concrete examples of non-citizens engaged in criminal or terrorist activities, on the one hand, with the benefits of our refugee program, on the other?

And by the way, despite what some anti-refugee advocates might argue, our refugee and asylum programs provide concrete benefits: They establish us as a world leader in the humanitarian realm, they demonstrate our fealty to those who have stood with us and who support our values (and thus encourage others to continue standing with us), they provide our country with diverse and energetic new residents who are grateful for our generosity and who contribute to our society. These programs also represent an expression of who we are as a people. As I have frequently argued, for us to abandon these programs–and the humanitarian ideals that they represent–due to our fear of terrorism is a victory for the terrorists.

But we also need to balance our humanitarian policies and our national security. We need to better understand the issues–so that the public can be more well-informed and so policy makers have the information they need to make good decisions. I hope the new Administration will shine some light on these issues, so that any changes to our refugee and asylum policies are based on accurate information, and not on conjecture or fear.

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The Most Important Question on the I-589 Asylum Form

by Jason Dzubow

If you’re reading this blog, you’re probably already familiar with the form I-589, Application for Asylum and Withholding of Removal. Whether your case is in Immigration Court or the Asylum Office, this is the form that you use to apply for asylum, withholding of removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.

"You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?"
“You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?”

At the beginning of the asylum interview or the court case, the applicant has an opportunity to make corrections to the I-589. It’s not a problem to make corrections, and generally, correcting errors on the original form does not reduce the likelihood that the application will be granted. In the worst case, the applicant will need to explain the mistake(s), but even this is fairly rare.

You might think that the most important questions on the I-589 are the ones on page 5 related to why you need asylum. It makes sense, since that is the whole point of the form. But, au contraire, in asylum world, things that make sense are rarely the correct answer. The questions about asylum are generally easy to answer on the form, and you have ample opportunity to elaborate on your answer in an affidavit or at the interview.

So what is the most important question on the form? It’s the question that appears on page 1, near the very beginning of the form, in Part A.I., question 6: “What other names have you used (include maiden name and aliases)?” What’s so important about this question, you ask. I will endeavor to explain. But first, a bit of background.

Every asylum applicant must undergo a background check. The check is a bit of a mystery, but it involves a biometrics check and a name check. The background check also involves multiple data bases, and it can be quite time consuming–some people wait years for the completion of their checks. Theoretically–and hopefully–the background check will be completed before the interview or the court case. That way, the applicant can receive a decision shortly after being interviewed. If the check is not complete, or if new information arises at the interview and the check must be augmented, the case will be delayed–possibly for a very long time.

In my office, for example, we have dozens of clients who have been interviewed, but are still waiting for decisions in their cases. Some have been waiting for weeks or months; the longest delayed applicants have been waiting over two years! Most of these delays seem to be because the security background checks are not complete. For people who are single, or whose spouse and children are with them in the United States, the wait may be tolerable (stressful and unpleasant, but tolerable). For people who are separated from their spouse and children, the wait is horrific. How can a mother or father be apart from small children for months or years? Yet this is what many applicants are enduring today.

Which brings us back to the question about “other names used.” If you fail to include every name you have used in your life, the Asylum Office may have to start the security background check all over again for any names that you add to the form during your asylum interview or your court case. So while it is not a problem to correct this question, adding a new name to the form could cause months (or more) of delay. For this reason, it is important to include any and all names you have used when you first submit the form.

Your name on the I-589 (Part A.I., questions 3, 4, and 5) is generally your name as it appears on your passport. So what “other names” should be listed on the form? You should include the name on your U.S. visa, including the notorious “FNU” or “first name unknown,” which often appears on US visas for people who have only one name. If you have a maiden name, include that. Also, list any different spellings of your name that you (or others) have used. If you have nicknames, pseudonyms or aliases, list those too. Of course, if you have ever changed your name, list all previous names you have used. If you ever list your name as “son of” or “daughter of,” include that. Finally, different countries and cultures have different naming conventions. Sometimes, a person’s name is the given name, followed by the father and grandfather’s name, or a tribal name. You should list all iterations of your name.

It is important to answer all questions on the I-589 form as completely and as accurately as possible. But the question about “other names used” is particularly important. If you forget to include all the names you have used, it could cause additional long delays in your case. To paraphrase the immortal Dr. Seuss, “Be your name Buxbaum or Bixby or Bray, or Mordecai Ali Van Allen O’Shea, make sure to include all your names on the I-589 form. Then you’ll be off to great places. So, get on your way!”

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The Muslim Immigrant’s Guide to a Donald Trump Presidency

by Jason Dzubow

Donald Trump has repeatedly promised to bar Muslim foreigners from the United States. More recently, he’s called for “extreme vetting” of such people. Given his pronouncements, it’s not surprising that Muslim immigrants and asylum seekers are worried. But fear not – there is an easy solution for people affected by the ban: Convert to Judaism.

When Trumpette first converted, we were kvelling. Now, we're verbissen.
When Trumpette first converted, we were kvelling. Now, we’re verbissen.

“What!!??! How can I change my religion? I don’t know anything about Judaism,” you say. Do not fret; I am here to help. I will explain to you how to be Jewish. It’s really not that hard. Jews and Muslims are already a lot alike. We both hate pork and love hummus. We’re both perpetuating the War on Christmas by wishing others, “Happy holidays.” And we both really want to own Jerusalem. See, we’re practically cousins.

Besides, converting to Judaism is the perfect cover. Donald Trump’s own daughter converted, and he hasn’t tried to ban her from anything.

So how do you “pass” as Jewish?

The first thing to know is that a Jewish person never answers a question. Instead, he responds with a question of his own, often followed by a complaint. So for example, if someone asks you, “How are you doing today?,” you don’t say, “I’m fine.” Instead, you say something like, “How should I be doing? What with my bad stomach. My fakakta doctor prescribed me some pills, but they do bubkis.” Get it? Let’s try an example in the immigration context. Here’s a common question that you might encounter:

Immigration Officer: “How many children do you have?”

Non-Jewish Answer: “Three.”

Jewish Answer: “How should I know? They never call, they never write. My youngest is running around with some shiksa. And my oldest! Don’t even get me started. I told her, ‘Go to medical school, like your cousin Herbie,’ but what does she do? Majors in Liberal Arts. Feh! Her father and I spend $50,000 a year on college so she can work as a barista. Oy, what tsuress. Just thinking about it, I’m verklempt already.

You see – It’s easy. Here’s another one. Let’s say that someone asks you a question that you want to avoid answering. One way to do that is by minimizing the importance of the question, and then making the questioner feel guilty about asking it. We Jews do that by taking the most important word in the question, replacing the first letter in the word with “schm” and then repeating it back. Often, this is followed by a reference to the Nazis. Here’s an example in the immigration context to help clarify what I mean:

Immigration Officer: “Hello sir, may I please see your visa?”

Non-Jewish Answer: “Here is my visa.”

Jewish Answer: “Visa, schmisa! Do you think I’ve been sitting on a plane squished up like a sardine for the last 12 hours just so some Himmler-wanna-be can ask for my papers? My family didn’t survive the Holocaust, not to mention the pogroms, just to have some shmendrick treat me like a gonif. Next thing you know, you’ll be deporting me to a camp. The whole thing makes me want to plotz.”

At that point, your interrogator will likely let you pass through customs just to get rid of you, which is another advantage of converting to Judaism.

OK, I think you’ve got it. But here’s one last example. This one’s a bit more advanced, so pay attention. If you can master it, no one will ever question your newfound Judaism. In English, most sentences are constructed with a noun, followed by a verb. We Jews often reverse that construction. So we wouldn’t say, “She is a fast driver.” Instead, we might say, “Fast, she drives.” But typically, we’d try to be a bit more colorful: “Fast, shmast. Like Marrio Andretti, she drives.” And here it is in the immigration context:

Immigration Officer: “The fee for your green card is $1,070.”

Non-Jewish Answer: “Here is $1,070.”

Jewish Answer: “Nu? One thousand and seventy?! What am I, a Rothschild? Why don’t you take my first born son while your at it. Maybe you can get some schlemiel to pony up that kind of money, but not me. Anyway, gelt like this, I don’t have. Maybe the big machers can afford your fees, but not us little pishers. Now, be a mensch and hand to me your brochures about moving to Canada?”

So that’s it. Look, it isn’t pretty to have to convert (or pretend to convert) to survive. We Jews have done it before (remember the Spanish Inquisition and the crypto-Jews?), but I suppose it beats the alternative. Anyway, in four years, when Michelle Obama becomes president, you can always convert back.

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Refugees and the Republican Party Platform

by Jason Dzubow

The Republican Party Platform is finally here (yippee!). While the document does not bind either the party or its candidate, it does tell us something about Republican thinking on a wide variety of topics. Two paragraphs in the 54-page Platform cover asylum and refugee issues, and I want to discuss those here.

The RNC Platform would block "the gays" from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.
The RNC Platform would block “the gays” from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.

Interestingly, the Platform itself does not call for a “total and complete shutdown of Muslims entering the United States.” However, it does view asylum through the prism of national security, and it does place extra scrutiny on people coming from “regions associated with Islamic terrorism.”

The first paragraph of interest (found on page 26 of the Platform) reconfirms America’s commitment to assisting refugees, but with a few caveats–

From its beginning, our country has been a haven of refuge and asylum. That should continue — but with major changes. Asylum should be limited to cases of political, ethnic or religious persecution. As the Director of the FBI has noted, it is not possible to vet fully all potential refugees. To ensure our national security, refugees who cannot be carefully vetted cannot be admitted to the country, especially those whose homelands have been the breeding grounds for terrorism.

I take issue with a few points here. First, the Platform seeks to limit asylum to people who face “political, ethnic or religious persecution.” Under our current law, a person can qualify for asylum if she fears persecution on account of race, religion, nationality, political opinion or particular social group. Presumably, “ethnic” persecution in the Platform refers to persecution on account of race or nationality under existing law, which means that four of the five protected categories are covered in the RNC document.

Conspicuously absent from the Platform’s language, however, is protection for people who are members of a “particular social group.” This omission is significant for a few reasons. First, it contravenes our treaty obligations (we are signatories to the 1967 Protocol Relating to the Status of Refugees, which covers all five protected categories). If we seek to modify our obligations under the treaty, other countries may follow suit. This would have an unfortunate ripple effect on refugee protection throughout the world. It would also downgrade our leadership role with regards to refugee resettlement, and may signal a withdrawal of our leadership in world affairs more generally.

Second, the change would mean that we no longer offer refuge to many people who we now protect. Those who fear persecution on account of sexual orientation, female genital mutilation, and domestic violence are some prime examples of people we protect because they are members of a particular social group (“PSG”). Indeed, those refugees most affected by this change would be women and sexual minorities. I suppose this is consistent with the rest of the RNC Platform, which–to say the least–is not all that friendly towards women or LGBT individuals.

Third, eliminating PSG as a protected category would effectively end any possibility for relief for the unaccompanied minors who have been arriving at our Southern border in large numbers since about 2012. Most of these young people are fleeing violence in Central America. They already have a difficult time obtaining protection in the U.S., but if the PSG category were eliminated, the likelihood that any of them could obtain asylum would become virtually nil.

The second paragraph in the RNC Platform related to refugees appears on page 42 of the document–

[We] cannot ignore the reality that border security is a national security issue, and that our nation’s immigration and refugee policies are placing Americans at risk. To keep our people safe, we must secure our borders, enforce our immigration laws, and properly screen refugees and other immigrants entering from any country. In particular we must apply special scrutiny to those foreign nationals seeking to enter the United States from terror-sponsoring countries or from regions associated with Islamic terrorism. This was done successfully after September 11, 2001, under the National Security Entry-Exit Registration System, which should be renewed now.

I take issue with a number of points in this paragraph, but here I will discuss only those related to refugees. First, the paragraph echos Donald Trump, who has claimed that we don’t know where these refugees come from, or who they are. This is utterly false. In truth, we know far more about the refugees who come here than we know about other categories of immigrants or non-immigrant visitors. Refugees are subject to intensive screenings and multiple background checks. Indeed, we probably know more about the refugees (and immigrants) entering our country than we know about our own citizens, and most studies show that such people are less likely to commit crimes than the native born.

I also disagree with the Platform’s plan to re-start the National Security Entry-Exit Registration System (“NSEERS”), which was suspended in 2011. Under NSEERS, men and boys from many Arab and Muslim countries were required to specially register with the U.S. government. The confusing system led to great difficulty for many of these people (and their families), but resulted in no terrorism-related convictions. In other words, there is basically no evidence that NSEERS made us any safer, but there is plenty of evidence that it harmed innocent people who happened to be from Arab or Muslim countries.

Finally, there is one point in the Platform that I agree with: We must continue to screen refugees and others who come to our country from regions that produce terrorists (and from everywhere else as well). Of course, we already do this, and I don’t think there is anyone in American who thinks we should do otherwise. The RNC’s implied accusation here is that Hillary Clinton and Barack Obama have been letting un-vetted refugees enter our country. That is a lie, and anyone who follows the painfully-slow process of refugee admissions knows it.

What little the RNC has to say in its Platform is not good for refugees, and it is especially bad for refugees who happen to be women, children, LGBT individuals or Muslims. If there is a silver lining here, I suppose it is that the Platform devotes only two paragraphs to refugee issues. These days, when it comes to Republicans and refugees, the less said, the better.

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Where Terror Victims Are Treated as Terrorists

by Jason Dzubow

Let’s say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you guessed “d”, you win. By giving a glass of water to the IS fighter, you and your daughter have provided “material support” to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child’s life. And even though it was only one glass of water (what we lawyers call “de minimis“). How can this be?

After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to “material support,” which one jurist has called “breathtaking in… scope,” see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

Id. And anyone who provides any type of support to these “terrorists” is subject to the material support bar.

The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it’s not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.

Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds (“TRIG”). In that vein, DHS has issued group-based exemptions that allow people involved with certain “terrorist” groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at TRIGQuery@uscis.dhs.gov.

One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice (“DOJ”). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn’t for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

Blocking terrorists and their supporters from the U.S. is obviously an important goal–it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

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The Great S-Visa Hoax

by Jason Dzubow

The S visa–colloquially known as the “snitch” visa–is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once “the individual has completed the terms and conditions of his or her S classification.” “Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant.”

The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).
The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).

In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien’s lawful permanent residency–the alien himself cannot independently apply for the green card.

The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for “aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State’s rewards program.”

While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I’ve recently witnessed this phenomena in a few of my own cases.

In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client’s cooperation led directly to her fear of harm, but the U.S. government didn’t care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday’s news.

In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time – sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly–and in writing–promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government’s promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government’s promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.

In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government’s need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm–including possible persecution or death in the home country–when the government breaks its promise.

So what can be done?

It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough–cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.

Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes “exceptional circumstances” excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.

In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.

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Did Immigration Advocates Help Create Donald Trump?

by Jason Dzubow

As Donald Trump marches (goose steps?) toward the Republican nomination, there’s been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.

Mr. Trump's real estate empire and his political campaign were both built using immigrants.
Mr. Trump’s real estate empire and his political campaign were both built using immigrants.

One big issue is immigration. Last June, Mr. Trump called Mexican immigrants “rapists” and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).

There are many explanations for why Mr. Trump’s xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country’s history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.

Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.

Now wait just one gosh-darned second here, you say. Isn’t this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there’s a difference. Allow me to explain–

Over the last 20 or so years, we’ve seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned–protecting victims of forced abortion, for example–but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.

Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.

Between 2009 and 2012, increasing numbers of people–mostly Central American–began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.

Most of the Central American applicants don’t easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.

As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.

It seems likely that these two events–changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border–helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries–they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that “something else” includes an improved legal climate and publicity about asylum.

Added to all this is the Obama Administration’s decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.

We now return to Donald Trump.

The idea that “liberal elites” are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump’s narrative. This world view is not unrelated to reality. Indeed, as we’ve seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action–all methods of choice for the “liberal elite.”

Should we–the liberal elite–have done things differently? I’m not sure, but I certainly won’t apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President’s decision to bring more Syrian refugees here was also the right choice, and–to me at least–represents a fairly tepid response to a massive crisis.

But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans–all Americans–have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we “elites” have, to a certain extent, trampled over the democratic process.

Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren’t likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I’d like to see a little more of it in our national conversation about immigration.

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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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Jesus Christ, Refugee

by Jason Dzubow

Refugees–especially Muslim refugees–are big news these days. Are they a threat? Should we ban them from our country? Can they ever integrate into American society?

"A refugee from Palestine with his wife and child? They must be terrorists!"
“A refugee from Palestine with his wife and child? They must be terrorists!”

Despite our collective amnesia on this point, the fact is, we’ve been asking these same questions about refugees for at least a hundred years. And I suspect that people around the world have been asking such questions ever since the first stranger arrived at a door seeking shelter. Since it’s almost Christmas, I thought it might be a good time to look back at one of the world’s oldest refugee stories–of Joseph, Mary, and Jesus, who fled from Palestine to Egypt.

Mathew tells us that around the time of Jesus’s birth, three wise men came from the East. They went to King Herod and asked, “Where is he that is born King of the Jews?” Herod was “troubled” by the question. Who was this child who was king of the Jews, and thus a threat to Herod’s throne?

Herod consulted his prophets, who predicted that the baby would be found in Bethlehem. The wily king told the three wise men. He also ordered the men to tell him when they found Jesus, so he (Herod) could “worship” the new king. Of course, this was a ploy–Herod wanted to find Jesus in order to kill him and eliminate the threat to his throne. The wise men (being wise) understood Herod’s plan. They found Jesus, but never told the king.

Because the wise men foiled his plan, Herod was unable to locate the newborn Jesus. He still wanted to protect himself from the perceived threat, so he ordered all the babies born in Bethlehem murdered. This event became known as the Massacre of the Innocents.

Luckily for Jesus and his family, an angel came to his father Joseph and warned him about the danger. Joseph took the family and fled to Egypt, where they received asylum. The family remained in Egypt until Herod died a few years later. They then moved to a different part of Palestine (Nazareth), to avoid living under the rule of Herod’s son, who was no better than his father. 

The Book of Mathew contains nothing about Jesus’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt). In many parts of Egypt, it is possible to visit places where Jesus and his family sojourned. There are churches and other holy sites, like healing springs, caves, and sacred trees. One tree was possessed by an evil spirit, but when Jesus approached, the spirit fled.  The tree then bent down to worship him.  

Another ancient story says that as Jesus and his family entered Heliopolis, “the noise of a rushing mighty wind was heard, the earth trembled [and] the idols crashed from their pedestals.”

There is also a legend about how the Holy Family was traveling down the Nile River in a boat. At one point, they were sailing past a mountain when a large boulder appeared ready to fall on their boat. Jesus extended his hand and prevented the boulder from falling. The imprint of his hand appeared on the rock.

Another story tells of two robbers who surprised Jesus’s family on the road and tried to steal Joseph’s donkey. One of the robbers saw the baby Jesus and was astonished by his unusual beauty. He said, “If God were to take upon Himself the flesh of man, He would not be more beautiful than this child!” The robber then ordered his companions to take nothing from the travelers. Filled with gratitude toward this generous robber, Mary told him, “Know that this child will repay you because you protected him today.” Thirty-three years later, this same thief hung on the cross for his crimes, crucified on the right side of Jesus’s cross. His name was Dismas. On the cross, he repented for all the evil of his life and declared that Jesus was innocent and wrongly crucified. The Gospel of Luke records that Dismas was the wise thief. The man who spared Jesus in his childhood was granted entry into paradise.

Coptic tradition holds that “Egyptian conversion to Christianity two thousand years ago can be attributed to the historic visit of the Christ Child” and that “Egypt was chosen by God as a place of refuge; truly the people abiding there were richly blessed.” The people of Egypt were blessed because they offered refuge to Jesus and his family when they fled persecution. Perhaps this should remind us of our moral responsibility to help one another, and that the helper often receives as much (or more) of a benefit than the person who is helped.

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Fighting Syrian Refugees… With Lies

by Jason Dzubow

The recent attacks in Paris have opened the floodgates of anti-Muslim and anti-refugee sentiment in the U.S. Language that was once the province of white-supremacist screeds has become part of our mainstream dialogue. For me, however, what’s worse than the xenophobia and the hate, are the lies.

The New York Times recently editorialized about Donald Trump’s repeated and vile mendacity: “it’s become a full-time job just running down [his] falsehoods…. It’s no easy task for journalists to interrupt Mr. Trump with the facts, but it’s an important one.”

What if cheating at politics was as dangerous as cheating at poker?
What if cheating at politics was as dangerous as cheating at poker?

Mr. Trump is a presidential contender, and thus subject to some scrutiny. But the internet abounds with lies, and given the atomized nature of social media, it’s easy to immerse yourself in this fictitious and paranoid world. It’s also easy and, in a way, comforting to have your own world view go unchallenged, and to believe that you are among the privileged few who knows The Truth. The Lame-stream media be damned!

There are, of course, websites devoted to correcting inaccurate internet rumors, but how can they possibly keep up with the torrent of falsehoods that daily flood our in-boxes? And even if they could respond to each phony news story, the people who accept such stories are unlikely to read—or believe—the fact-checkers.

Given the futility of the task, there’s probably little point in posting a few internet rumors here and then debunking them. But one of my two favorite fictional heroes is Don Quixote, and so I thought I might tilt at a couple of wind mills (if you must know, my other favorite fictional hero is Rocky Balboa – Yo). Anyway, here are a few “news” stories that arrived in my in-box post-Paris, and some thoughts on their veracity:

– From Brian Hayes at Right Side News: “BREAKING: They’re Here! First Load of 10,000 Syrian Refugees Has Arrived in New Orleans…” Accompanying the article is a photo showing dozens of swarthy young men, looking vaguely dangerous. Have these young jihadists landed in New Orleans? Are 10,000 Muslims invading the Big Easy? No, in fact, the photo of the young men was taken in Hungary in September 2015 and has nothing to do with refugees in New Orleans. Also, while President Obama has committed to accept 10,000 Syrian refugees, very few have arrived in the U.S. What we know is that over the last four years, the U.S. has resettled a total of 2,070 Syrian refugees as part of the regular refugee admissions process. As for New Orleans, it appears that two Syrian families have arrived and one more family is expected. So much for the 10,000 young jihadists.

– From Jeffrey T. Kuhner of the World Tribune: “Obama welcomes an Islamist Trojan horse: Consider who is selecting our refugees.” This article claims that under the President’s plan “millions [of refugees] could be allowed to flood our country” and that “the United Nations High Commissioner for Refugees… in coordination with the Organization of Islamic Cooperation… selects which refugees can be settled within our country.” It also states that “Mr. Obama now poses a clear and present danger to America [because of his] stubborn insistence on resettling so-called ‘refugees’ from Syria.” Where to even begin with this nonsense? First, 10,000 ≠ 1,000,000. Mr. Obama has been president for almost seven years. Until the recent announcement about the 10,000 Syrian refugees, he has continued the same refugee policy as President Bush. So don’t try to tell me that all of sudden, in his final year in office, somehow “millions” of refugees will arrive on our shores. Second, while refugees are often referred to the U.S. by UNHCR, the United States (through the State Department, DHS, and the Office of Refugee Resettlement) conducts the background checks and decides which refugees to accept. Neither the Organization of Islamic Cooperation nor the UN decides which refugees will be allowed to resettle in our country. Finally, what the hell is a “so-called” refugee? I suppose the implication is that the people fleeing the Syrian civil war are not really refugees. Maybe the whole “so-called” civil war in Syria is just a farce to send jihadists to the West. They sure put on a good show, those Syrians.

– From Andrew C. McCarthy in the National Review: “Refugee ‘Religious Test’ Is ‘Shameful’ and ‘Not American’ … Except that Federal Law Requires It.” Mr. McCarthy writes–

Under federal law, the executive branch is expressly required to take religion into account in determining who is granted asylum. Under the provision governing asylum (section 1158 of Title 8, U.S. Code), an alien applying for admission must establish that … religion [among other things] … was or will be at least one central reason for persecuting the applicant.

In reality, 8 U.S.C. § 1158 states that, in order to qualify as a refugee, a person must establish that she faces persecution on account of race, religion, nationality, particular social group or political opinion. It is not a religious test at all. If you fear persecution on account of religion (any religion-including Islam), or any other protected ground, you can qualify for asylum. Either Mr. McCarthy has no understanding of the Immigration law or–more likely–he is twisting the language of the law into something it is not. Either way, he has no business writing about this subject.

Professional liars like Mr.Hayes, Mr. Kuhner, and Mr. McCarthy clearly have an agenda–to inflame passions against Muslim refugees. They create an alternate reality where President Obama is “willing to potentially sacrifice countless Americans on the altar of liberal multiculturalism [and] is gambling with our lives.” Well then, it sounds like he must be stopped–by any means necessary.

But of course the “alternate reality” described above is not reality. It is a false story, planted to paint Mr. Obama as a “clear and present danger” to our republic. Had Mssrs. Hayes, Kuhner, and McCarthy bothered with the facts, they would have found a much more nuanced situation, where reasonable people can disagree on policy, and where no one is evil.

The danger of all this should be obvious. When we falsely label other Americans as the enemy, when we use inflammatory and divisive language, and when we forgo efforts at understanding those who disagree with us, we damage our democracy and impoverish our national debate. In the black-and-white world of the fear-mongers, it makes sense to open fire on a Planned Parenthood Clinic. And if “so-called refugees” are actually disguised jihadists, wouldn’t it make sense to subject them to the same treatment?

Reality is complicated and messy. The straw men we create to comfort and enrage ourselves rarely comport with reality. There are legitimate grounds to oppose refugee resettlement, and the more rationale opponents of refugees rely on such arguments. But that is not what we are talking about here. There are far too many liars and charlatans involved in the refugee debate. Their false alarms are designed to turn Americans against each other. And that is a real threat.

 

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In Defense of Muslim Refugees

by Jason Dzubow

Since the vicious attack last week by Muslim extremists in Paris, attention in the U.S. has focused on our country’s refugee policy and President Obama’s decision earlier this year to admit an additional 10,000 Syrian refugees (above the normal refugee ceiling of 70,000). More than half of the nation’s governors have indicated that Syria refugees are unwelcome in their states. Paul Ryan, the new Speaker of the House, is pushing legislation to hinder the admission of Syrian and Iraqi refugees. And most Republican presidential candidates have expressed their opposition to resettling Syrian or Muslim refugees in our country. Senator Ted Cruz has called the plan “absolute lunacy.”

When we say "no" to a refugee, what does it say about us?
When we say “no” to a refugee, what does it say about us?

As an immigration attorney who specializes in political asylum, I represent clients whose lives have been profoundly disrupted by war and terrorism, who have been threatened or harmed by extremists, and who have lost loved ones to terrorist attacks. Many of my clients come from Muslim countries, such as Syria, Iraq, Afghanistan, and Egypt. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. Indeed, I suspect that many of my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of U.S. policy than the American commentators who routinely disparage them.

In the face of barbarism from ISIS and other extremists, we as Americans should not abandon our friends or shrink from our humanitarian commitments. As the leader of the Free World, we must lead not only with the sword. We must also lead by demonstrating our values, and by showing the world that we do not abandon those values in difficult times.

During the refugee crisis that followed World War II, the U.S. committed itself to assisting displaced persons. Since then, we’ve absorbed—and been enriched by—tens of thousands of refugees from Western Europe, the Soviet Union, Indochina, Africa, the Middle East, and the Americas. We are, to a great extent, defined by our generosity towards the dispossessed: “Give me your tired, your poor, your huddled masses yearning to breathe free.”

Allowing ourselves to be intimidated into compromising these humanitarian values would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. Indeed, our asylum and refugee programs are probably more secure than any other aspect of our immigration system.

Also, many of the Muslims who have sought sanctuary in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, no one will cooperate with us going forward.

Finally, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

In the aftermath of the Paris attack and the claim by ISIS that it will send infiltrators to the West disguised as asylum seekers, the desire to re-examine security procedures is understandable. But as we evaluate our humanitarian policies, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

We should not allow the evil deeds in France to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. When considering Muslim refugees and asylum seekers, we should be guided by our highest ideals, not by the dark vision of our enemies.

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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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Terrorism, Trump, and the Moral Cowardice of Our Time

by Jason Dzubow
History is filled with people who think that their ignorance should trump your life.
History is filled with people who think that their ignorance should trump your life.

It’s September, and for most of us, it’s a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

Since then, we’ve witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.

Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.

But one word that I have often heard used to describe terrorists is “cowardly.” I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but–at least to me–not cowardly.

There is another, perhaps more profound, application of the label “coward” when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person’s humanity. It takes courage–sometimes great courage–to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed “us;” therefore we are justified to harm “them.” But this fails to account for the fact that there is no “them”–there are only people, living their lives day to day.

Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country’s systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I’d wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn’t. To meet and come to know your “enemy” destroys the very notion of us-versus-them. While it’s easy to project your hate and anger and fear onto “the other,” it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).

For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.

Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.

Mr. Trump–and the bevvy of Republican contenders racing to keep up with him–want to detain, deport, and deter many potential immigrants, including “illegals,” refugees, asylum seekers, and H1B workers. Of course it’s a whole lot easier to deport people you’ve labeled illegals, “rapists” and “killers.” It’s harder when you have to contend with actual human beings and their stories.

Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project–where we screen unrepresented cases and refer them to pro bono attorneys–and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).

Now maybe you believe that all “illegals” like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It’s a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported–our country has limited resources, we have to help “our own” before we help others, etc. But to create a straw man–an “illegal”–without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, “Deport them all,” you better know who it is that you are deporting and exactly what that means.

The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend’s friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: “You did the most important thing a person can do–you made me look good for recommending you.” I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of “illegals” is one thing. To know the individual is quite another.

Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, “You convinced me.” In the face of hearing their stories, even The Donald wanted to help.

To some degree, all of us are guilty of dehumanizing “the other.” It’s impossible not to. But when we advocate for positions that harm others without understanding–or even trying to understand–the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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Congress: Asylum System Letting in Terrorists

by Jason Dzubow

According to a letter from four members of Congress to DHS Secretary Jeh Johnson,  a “recent disclosure [by USCIS] regarding the number of aliens found to have a ‘credible fear’ in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system.”

Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.
Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.

The “recent disclosure” from USCIS to the House Committee on Oversight and Government Reform revealed that “the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014.” The four Congressman–Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)–requested more information about the 638 aliens in question, including each aliens’ confidential A-file and whether and by what authority each alien was released from detention.

First, what’s this all about?

When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a “credible fear” interview–a preliminary evaluation of eligibility for asylum. The large majority of aliens “pass” the credible fear interview. Their cases are then transferred to an Immigration Judge and–in most, but not all, cases–they are released from detention. Aliens who do not pass the credible fear interview are deported.

In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground (“TRIG”). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden’s best friend). We don’t know–the TRIGs are very broad (as I’ve discussed here).

One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don’t know.

So what’s the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.

I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data–no matter how benign–to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).

Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.

Finally, the letter demands that the files be turned over before COB on June 3, 2015–two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time–while ensuring confidentiality–is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.

I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done. 

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