Immigration, Asylum Reform and the New Terrorism

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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To the Security Officers of the World: Thank You

by Jason Dzubow

In light of the terrorist attack in Boston earlier this week, I wanted to write about security at Immigration Courts, USCIS, and the Asylum Offices.

As of this writing, we don’t know who perpetrated the attack on the Boston Marathon. But we do know that as residents of a free society, we are vulnerable. We also know that people who would harm others have all too easy access to powerful weapons: guns, explosives, you name it.

Bull
Don’t forget to thank the people who keep us safe.

In the context of immigration, there are those in our society who not only oppose immigration and immigrants, but who hate foreigners and would do them—and the Americans who work with them—harm. Behind such people are others—people who would not engage in physical violence themselves, but who encourage such behavior in others with their racism and xenophobia. For these people, their hate is matched only by their dishonesty. Because if a person is honest, and considers perspectives other than his own, it is hard to hate. I am thinking about people like Pam Geller, who says that all Muslims are terrorists and “savages,” Lou Dobbs, who claims that illegal immigrants bring bubonic plague, and Pat Buchanan who is fighting to preserve white America (ok, I admit to a soft spot for Pat Buchanan; at least he is entertaining). But I digress.

For the small number of people who might consider attacking immigrants and “the system,” Immigration Courts, USCIS, and the Asylum Offices are potential targets.

Of course, such offices are part of the federal government, protected by armed guards and metal detectors. Before this week, I hadn’t given it much thought. Mostly, I assumed that the security officers were there in case an immigrant becomes violent (or, perhaps more likely, a lawyer becomes violent and decides to clobber his client). But in the aftermath of the Boston attack, I am reminded that the officers are there to protect the immigrants, their advocates, and government employees from harm.

I suppose it is an obvious point, but for busy people (like me) who view the security checks as a nuisance, it is important to remember how essential they are. Also, lest anyone thinks security officers at the Immigration Courts (and elsewhere) don’t put their lives on the line, check out this virtual tribute to private security officers killed in the line of duty.

Today, I passed through three different security check points—at my son’s day care (he’s in a federal building), the Asylum Office, and the Immigration Court. I try to be friendly to the officers whenever I see them and to thank them, but it’s not always easy when I am rushing from one place to the next. Today, I tried to make a special effort to express my thanks, and going forward, I will try to be better about that. So, to the extent that anyone pays attention to what I write here, I’d like to say to the security officers who protect us: Thank you.

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Fox News Goes After Syrian Asylee – By Any Means Necessary

by Jason Dzubow

On Fox News, the ends always seem to justify the means. It’s acceptable to smear a perceived political opponent based on the most tenuous of evidence. For this reason, even when Fox News raises a legitimate concern, it’s hard to separate truth from half-truth (which reminds me of the old Yiddish proverb: “A halber emes iz a gantse lign” or “A half-truth is a whole lie”). So I am not exactly sure what to make of Fox’s latest campaign to “expose” Syrian asylee Daoud Chehazeh.

According to Fox News:

Daoud Chehazeh is a known associate of the 9/11 hijackers.  The government has spent more than half a million dollars trying to deport him, but has had no success.

Like a Swedish gymnast, Fox News is both fair and balanced.
Like a Swedish gymnast, Fox News is both fair and balanced.

Another (of many) reports by Fox News states:

With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time after a series of bureaucratic screw ups at the federal level….

It’s a slap in the face to Americans, especially the victims of 9/11 and the families,” said Jim Bush, who as a New Jersey state criminal investigator was part of the 9/11 investigation code-named PENTTBOMB. His partner in the investigation was Bob Bukowski, a now-retired FBI special agent.

“Three thousand people were murdered,” Bukowski said. “(Chehazeh) was definitely part of that conspiracy…. He facilitated the moves and protection up to the whole flight, basically, of Flight 77. Could we prove that in a court of law? No. But there are other remedies. Deport him. That’s what should have been done in this case.”

Before I get to Mr. Chehazeh’s case, I want to break down some of the Fox commentary. First, it’s true that “Daoud Chehazeh is a known associate of the 9/11 hijackers.” According to a published federal court decision, he met two of the hijackers at a mosque in Northern Virginia. After the September 11th attack, Mr. Chehazeh contacted the FBI and reported whatever information he had on the two men. So to claim that he was a known associate of the hijackers, without mentioning that he went to the FBI to report what he knew about the men, is kind of like calling Woodward and Bernstein “known associates” of Richard Nixon because they reported the Watergate cover-up. At best, it’s a half-truth.

Second, Fox News claims that the “government has spent more than half a million dollars trying to deport” Mr. Chehazeh. How they could possibly know the amount that the U.S. government spent on Mr. Chehazeh’s case is beyond me. Unless they actually know how many hours each government employee worked on the case, it seems impossible that they could know the amount. Here, I suspect that Fox News just guesstimated (which is a polite way of saying that they made it up).

Next, Fox News says that “With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time….” I am not sure who these 400,000 people are, or how Fox arrived at this figure. I also am not sure what they have to do with anyone’s asylum case. I do know that Mr. Chehazeh did not receive asylum “for a third time.” He received asylum once (in 2002). The government appealed and later filed a motion to reopen, but he was only ever granted asylum one time.

Finally, the retired FBI agent Bob Bukowski says that Mr. Chehazeh was “definitely part of [the 9/11] conspiracy…. Could we prove that in a court of law? No.” It seems to me, if Mr. Chehazeh was “definitely” part of the conspiracy, Mr. Bukowski could prove it in a court of law. In fact, claiming that someone was “definitely” responsible for murdering nearly 3,000 people when there is little or no evidence to support such a claim, would likely form a strong basis for a libel lawsuit.

Despite the problems in Fox’s reporting, Mr. Chehazeh’s case raises some serous issues.

For one thing, the IJ’s behavior during the case was–to say the least–unusual. According to the government’s brief (as set forth in the Third Circuit’s decision):

[The IJ’s] behavior in this matter… included… ordering the Service… to personally travel to Respondent’s place of detention to assist him in preparing his I-589 [application for asylum and withholding of removal]. When the Service declined, the [I]mmigration Judge advised that she would assume Respondent had a meritorious claim and grant him asylum. Ultimately, the Immigration Judge personally reviewed and completed Respondent’s I-589. At the time of the individual hearing prior to obtaining any testimony from Respondent, the Immigration Judge advised that she was ready to render a decision

The IJ’s actions are strange, and might very well have been reversed on appeal, but the government attorney failed (forgot?) to file a brief, and so the government’s appeal was dismissed.

Another odd aspect of the IJ’s decision is that she found an exception to the one-year filing requirement based on changed circumstances, to wit: the fact that Mr. Chehazeh had recently spoken to the FBI. However, she granted asylum based on Mr. Chehazeh’s particular social group–“hopeless debtors.” It’s questionable whether this is a cognizable social group. Also, if the IJ found an exception to the one year-rule based on Mr. Chehazeh’s cooperation with the FBI, she should have granted asylum on a related ground (such as imputed political opinion since anti-American extremists might view Mr. Chehazeh as pro-American). Instead, the IJ granted asylum on a totally different basis: The fact that Mr. Chehazeh owed a substantial debt to someone in Syria. Since he owed this debt at the time he arrived in the U.S., more than one year before filing for asylum, it is unclear why he would qualify for an exception to the one-year rule.

Despite the difficulties with the case, it appears that the matter is now settled, and–unless new evidence is unearthed–Mr. Chehazeh will be able to remain in the United States as an asylee.

So in the end, Fox News has a point: There are real problems with Mr. Chehazeh’s case, both procedurally and substantively. However, since Fox’s coverage of the case is so distorted and inaccurate, it leaves more questions than answers.

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Case Dismissed Against “Halva Terrorists”

by Jason Dzubow

Last August, I wrote about three Eritrean refugees who were arrested at Phoenix airport and accused of plotting a terrorist attack.  The Eritreans were caught with a package of halva (a common Mideast dessert, which is delicious AND Kosher for Passover).  The package of halva was suspicious because it had a cell phone taped to it.  TSA suspected this was a mock up of a bomb, and that the Eritreans were on a “dry run” for a terrorist attack.  Unfortunately, in this day and age, it is hard to blame TSA for being overly cautious.  Nevertheless, the charges seemed like a bit of a stretch. 

Jello shaped likes a grenade is also a bad idea for airplane travel.

Now, the government has dismissed the case against the three refugees:

“Based on the new information, further prosecution is not in the interest of justice,” wrote Assistant U.S. Attorney Joseph Koehler in his motion to dismiss the charges.

Philip Seplow, an attorney for one of the three, said he thinks the government simply realized the refugees were not guilty and the whole thing was a big misunderstanding, partially because of a significant language barrier.  Mr. Seplow reports that when he informed his client that she had been cleared of the charges, she wept with relief.

Of course it is better to be safe than sorry, and it is difficult to imagine how the government could have handled this case any better.  As for me, next time I travel, I will not be carrying any halva.

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Jewish Hatemonger and Her Lies About Syrian TPS

by Jason Dzubow

Conservative blogger Debbie Schlussel has made a name for herself fighting “radical Islam,” which to her is synonymous with any form of Islam.  For instance, in response to Osama bin Laden’s death, she wrote “One down, 1.8 billion to go… many of ’em inside U.S. borders.”  Regarding the teenagers murdered in last year’s massacre in Norway, she writes:

Now these kids’ families know what it feels like to be victims of the Islamic terrorists whose Judenrein boycotts and terrorist flotillas against Israel they support.

Passover reminds us not to rejoice in the downfall of our enemies, even the really annoying ones.

She refers to the victims, who were as young as 14 years old, as “hateful, privileged brats.”  Their crime according to Ms. Schlussel–some of them expressed support for Palestinian rights and boycotting Israel.

You would think that mocking murder victims and calling for genocide against Muslim men, women, and children would put Ms. Schlussel outside the boundaries of civilized conversation.  Her work might be appropriate for a neo-Nazi website like Stormfront (though I imagine they won’t have her since she purports to be Jewish), but not for the main stream media.  Unfortunately, Ms. Schlussel appears regularly in the New York Post and the Jerusalem Post, as well as other media outlets.

The thing about her is that not only is she hateful, but she is a liar.  When the facts don’t support her miserable view of the world, she makes up facts to help fuel her hate (and her readers’ hate).  This is certainly the case with TPS for Syrians.  She writes:

Barack Obama and Janet Napolitano just gave thousands of Syrian Muslims–all of them either sympathizers with Hezbollah or the Muslim Brotherhood–permission to stay in the United States forever.

The Syrians in our midst–many of them here illegally–will now be untouchable by ICE (which isn’t arresting illegal aliens, anyway) for at least 18 months on the books.  But, as we know, in each case in which the U.S. has granted TPS for 18 months, the aliens got to stay forever.

And to add insult to injury:  these people, as with the Libyans and others who were granted TPS by Obama, will be able to work without restrictions in the U.S.–taking jobs from U.S. citizens.

Of course the first lie is that Syrians in America sympathize with Islamic terrorist groups.  There is no evidence what-so-ever to support this claim.  Indeed, the Syrians I have met in the U.S. oppose Islamic extremism and oppose the Assad regime (one of my clients–a medical doctor–was arrested and held in a torture prison on account of his opposition to the regime).

A second lie is that the Syrians, “as with the Libyans and others who were granted TPS,” will stay in the U.S. forever.  First of all, Ms. Schlussel is wrong (or more likely just made up a “fact” to suit her argument)–Libyans were never granted TPS in the United States.  Second, there is no reason to believe Syrians will stay here “forever.”  While TPS has been extended repeatedly for certain countries (mostly in Central America), that has not been the case for other countries, like Liberia, and–according to the Center for Immigration Studies (a restrictionist organization)–TPS for Sudan is winding down.

A third lie (and I simply don’t have time to address them all) is that Syrians in the U.S. are “untouchable by ICE (which isn’t arresting illegal aliens, anyway).”  In general, people with criminal convictions are not eligible for TPS.  Further, if a person with TPS commits a crime or if there is reason to believe that he is a security threat, he can–and probably will–be arrested.  Finally, contrary to Ms. Schlusser’s claim that we are not arresting illegal aliens, DHS has deported record numbers of aliens during each year of the Obama administration.

It’s too bad that Ms. Schlussel’s lies are able to distort the public dialogue on this important issue.  It’s also too bad that a person who claims to be the “granddaughter of immigrant Holocaust survivors” would perpetrate the same type of hatred and lies that led to the Holocaust.  I expect better from my fellow Jews.

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Bolivian Man Accused of Genocide Has Asylum in the U.S.

by Jason Dzubow

Late last month, Bolivia’s Supreme Court of Justice convicted seven former military and government officials of genocide, reports Indian Country Today Media Network.  The military officials received 10-15 years imprisonment and the civilians three years in prison.  However, the primary suspects in the case, former president Gonzalo Sánchez de Lozada and former defense minister Carlos Sánchez Berzain, remain in the United States.  As far as I can tell, Mr. Sanchez de Lozada is either a citizen or a permanent resident of the United States.  Mr. Sanchez Berzain was granted asylum in the U.S. in 2008 (sparking protests in Bolivia).

Carlos Sanchez Berzain: Accused mass murderer and...

The convictions and accusations stem from a 2003 incident known as the Bolivian Gas War, where protesters blocked a natural gas shipment from Bolivia to Chile.  The then-president of Bolivia used the military to open the road.  As a result of this incident, as many as 67 people died (all of them members of Bolivia’s indigenous Aymara community) and 400 were injured.  The “war” was part of a larger economic and social conflict in Bolivia, and as a result President Sanchez de Lozada resigned from office.  The current president, Evo Morales, was a leader of the protesters.

Since Messrs. Sanchez de Lozada and Sanchez Berzain have been in the U.S., the Bolivian government has filed a formal extradition request, which so far has not been acted upon.  Also, victims of the alleged genocide have filed a lawsuit under the Alien Torts Statute against the two Bolivian leaders seeking to hold them accountable for the deaths in 2003.  The lawsuit involves some heavy hitters on both sides.  For the plaintiffs: Ira Kurzban, Harvard University’s Human Rights Clinic, the Center for Constitutional Rights, and the law firm Akin Gump.  Representing the defendants are my former idol Alan Dershowitz (who seems to have repositioned himself from a defender of civil liberties to a defender of all things right-wing), and the law firms Williams and Connelly, LLP and Greenberg Traurig.  In November 2009, the District Court dismissed some counts of the complaint and allowed others to go forward.  The defendants appealed, and the case is currently before the U.S. Court of Appeals for the Eleventh Circuit.

Ned Flanders look-alike.

As there is (probably) enough evidence for the civil case to move ahead, I wonder whether the Department of Homeland Security is investigating the asylee defendant, Mr. Sanchez Berzain.  Under the law of asylum, one who engaged in genocide or persecution of others is ineligible for asylum.  Clearly, there is some evidence that Mr. Sanchez Berzain was involved in persecuting people.  Aside from the District Court ruling, a leader of the indigenous peoples of Bolivia called Mr. Sancehz Berzain the “specific intellectual author” of the 2003 massacre. 

Given the calls to deport the housekeeper in the DSK case (who seemingly lied about her asylum claim), I wonder whether there will be a similar outcry here, where the asylee is accused of much worse than lying.  My guess is–since our country has a rocky relationship (at best) with President Morales–it’s likely DHS will look the other way when it comes to Mr. Sanchez Berzain.  And that’s too bad–asylum law is supposed to be based on international principles; not politics.   

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Refugee Terror Plot or Over-Enthusiastic Airport Screeners?

by Jason Dzubow

Arizona Central reports that two Eritrean refugees and another man have been held without bond after they were arrested by the Transportation Security Administration (“TSA”) at Phoenix Sky Harbor International Airport.  According to a TSA spokesman, Luwiza Daman tried to bring a suspicious device onto an airplane: “a box containing a paste-like substance with a cell phone taped to it.”  TSA officers spotted the package and arrested the refugees.  The “paste-like substance” turned out to be halva, a common Middle Eastern dessert, which supposedly “resemble[s] explosive material on an X-ray machine, particularly when combined with a cellphone, which is frequently used as a remote detonating device.”

This is a deadly explosive.

After receiving so much criticism over its screening techniques, TSA is quite proud of having discovered this “fake bomb.”

I suppose it’s possible that this was–as TSA claims–a “dry run” for a terrorist bombing, but based on the publicly available information, the government’s evidence appears weak at best.

First of all, it seems bizarre to claim that halva resembles explosive material.  It’s a common food in many parts of the world–friends visiting from overseas have brought me halva as a gift.  I wonder if TSA would have made these arrests if the substance had been something more familiar, like peanut butter.

To be fair, the fact that a cell phone was taped to the container of halva made the TSA agents suspicious.  This reminds me of a case from last year where two men from Yemen were arrested carrying packages with cell phones taped to them.  No charges were filed in their cases, and officials determined that the men had no connection to terrorists.  In fact, it is common for people traveling back and forth from their home countries to carry packages for others.  Often mail service in these countries is unreliable (or non-existent), so people ask their countrymen to deliver packages to their families.  In this case, one of the refugees was supposedly carrying the phone and the halva to Iowa to deliver to the brother of another suspect.  Since they often carry packages for multiple individuals, it is not uncommon for them put each person’s items together in a bag or tape them together.

This is a delicious snack.

When TSA agents questioned the suspects separately, their statements were inconsistent.  However, according to Arizona Central, the agents used an Amharic interpreter.  The principle language of Eritrea is Tigrinya and the suspects’ first language is Kunama.  It’s unclear why the agents did not find an interpreter for a language the suspects spoke (interpreters for most languages are available by telephone).  Therefore, any inconsistencies, indeed, any statements made by the suspects are of little value.

In denying bond, the judge noted that the case presents the court with two possibilities:

“One, a significant injustice to individuals lawfully present in the United States as refugees because they allegedly misunderstood English,” he said. “Or a knowing and intentional attempt by someone … to attempt a dry run.”

Given the stakes involved, it’s hard to blame the TSA for arresting the refugees, but considering the scanty evidence, this looks more like a case of the TSA getting ahead of itself than a case of terrorists on a practice run.  

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Security Concerns Should Not Derail the Iraqi Refugee Program – Here’s Why

by Jason Dzubow

In the wake of revelations that two Iraqi refugees turned out to be former insurgents, the U.S. government is re-checking more than 58,000 Iraqi refugees against newly available data bases.  The Los Angeles Times reports:

The investigation was given added urgency after U.S. intelligence agencies warned that Al Qaeda leaders in Iraq and Yemen had tried to target the U.S. refugee stream, or exploit other immigration loopholes, in an attempt to infiltrate the country with operatives.

Would you believe we have to re-check all 58,000 Iraqi refugees?

The Times article continues:

So far, immigration authorities have given the FBI about 300 names of Iraqi refugees for further investigation.  The FBI won’t say whether any have been arrested or pose a potential threat.  The individuals may have only tenuous links to known or suspected terrorists.  The names were identified when authorities rechecked phone numbers, email addresses, fingerprints, iris scans and other data in immigration files of Iraqis given asylum since the war began in 2003.  They checked the data against military, law enforcement and intelligence databases that were not available or were not utilized during the initial screening process, or were not searched using sufficient Arabic spelling and name variations.

It addition to the Iraqis, authorities have re-screened a smaller number of refugees from Yemen, Somalia and other countries where terrorist groups are active.

Of course, this begs the question: Why are we admitting refugees from these countries in the first place?  Some commentators, including Mark Krikorian from the Center for Immigration Studies, argue that we should reduce or completely stop resettling refugees from Iraq.  It’s a fair point, but let me give my reasons why I believe we should continue to bring such refugees to our country.

First, I think there is an important foreign policy benefit that accrues to us by demonstrating our loyalty to people who risked their lives to help our cause.  It certainly would not serve our interest to be known as a country that uses people and then abandons them.  A few months ago, Esquire magazine did an article about one of my clients who captured or killed dozens of terrorists in Iraq.  Now, despite our best efforts (and an approved immigration petition), he and his family are stuck in Iraq, where they face a very real possibility of being killed.  Such stories do not inspire others to stick their necks out for us.

Second, I think we have a moral obligation to assist people who face danger on account of our actions.  The right thing to do is to take responsibility for our actions, and to correct problems we helped to create.  As the leader of the free world, we need to set an example and do the right thing.

Third, millions of foreigners come to the U.S. every year (for example, in 2009, according to DHS, over 160 million foreigners came to the U.S. for one reason or another).  If a terrorist or a criminal wants to come to the United States, entering as a refugee is probably one of the least effective ways to get here.  The security screenings and other hurdles to entry are more difficult for a refugee than for almost any other category of entrant.  If we close the door to refugees because we fear they might harm us, we should close the door to all other non-citizens (and the billions of dollars they contribute to our economy).   Such an isolationist path seems impractical and undesirable.

Finally, to give up on our humanitarian ideals because we fear terrorism seems to me a response unworthy of our nation.  Sometimes, compromise is necessary.  And sometimes, discretion is the better part of valor.  However, to give up on our refugee program because we fear terrorism would be a victory for the terrorists.  

We certainly need to be vigilant, and we need to do a better job of screening refugees.  We also need to re-check anyone who might be a security risk.  But we should not end our assistance to refugees because we fear terrorism.  We should not let the terrorists win.  

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Asylum for Mexican HR Activist Spotlights Problems in Mexico and the US

by Jason Dzubow
Last week, the U.S. government granted asylum to Cipriana Jurado, a Mexican human rights activist who feared persecution by the Mexican army.  According to the Associated Press, Ms. Jurado’s “friend and long-time human rights colleague Josefina Reyes was gunned down in Juarez in January.”  Like Ms. Jurado, Ms. Reyes had campaigned against government and gang violence.  Not only was Ms. Reyes murdered–killed by unidentified gunmen–several members of her family were abducted.  Given the danger, it is not surprising that Ms. Jurado received asylum (not to minimize this accomplishment–only about 2% of asylum cases from Mexico are granted).  Ms. Jurado’s case, I think, highlights problems in the United States and Mexico caused by the escalating violence across our border. 
                                                                                                                                                                                                                 
To paraphrase Mr. Franklin: "An ounce of prevention is worth a pound of cocaine."
First in Mexico: The blatant attacks against human rights workers points to a general disregard for the rule of law.  Has the army become just another gang in the on-going turf war?  Tens of thousands of people have died as a result of drug and gang violence.  The U.S. certainly bears some of the blame, since we are the main consumers of the drugs passing through Mexico and we are the source of most of the guns used in the violence across our Southern border.  Mexico needs to get control of the situation and we need to help.  We need to do more to prevent weapons from crossing the border.  Also, it wouldn’t hurt to try something new in the “war on drugs.”  Perhaps legalizing certain drugs would help reduce the involvement of criminal gangs, and consequently reduce violence.  The website Law Enforcement Against Prohibition has some good information on the potential benefits of legalizing some controlled substances.
                                                                                                              
As for the U.S., if Northern Mexico becomes a failed state, the implications for us are pretty severe.  One fear is that increasing numbers of people will seek asylum in the United States.  The low grant rate for Mexican cases might change if–as in Ms. Jurado’s case–the persecutor is the Mexican government (as opposed to criminal gangs, who currently do most of the persecuting across the border).  This fear may be mitigated by the fact that–unlike Ms. Jurado–most people persecuted by the Mexican government will likely be involved in criminal activities and thus ineligible for asylum (though still eligible for relief under the UN Convention Against Torture). 
                                                                                                                                                                                                                                                                           
It seems to me that a border enforcement-only policy would betray our ideals of protecting bona fide refugees like Ms. Jurado.  We can’t live up to our ideals simply by trying to keep people out who are fleeing persecution.  We need to work more on the prevention side of the equation.  If we succeed, we can help reduce the flow of refugees and improve the situation for our Southern neighbor. 

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Senator Paul Seeks Hearing on Refugees Accused in Terror Plot

by Jason Dzubow

Last week, two Iraqi men were arrested in Kentucky and charged with (among other things) “conspiring to kill U.S. nationals abroad, conspiring to use explosives against U.S. nationals abroad, distributing information on the manufacture and use of IEDs, attempting to provide material support to terrorists and to al-Qaida in Iraq, and conspiring to transfer, possess and export Stinger missiles.”  According to the criminal complaints (available here and here), both men entered the United States as refugees in 2009, and have been living here ever since. 

Most refugees are not all that scary.

Given the obvious breach of security, Senator Rand Paul of Kentucky has called for hearings to determine “how the heck” these alleged terrorists got into our country.  Senator Paul also asked, “How do you get asylum when you come from a friendly government?”  The Center for Immigration Studies echoes this sentiment:

The bigger question is why are we taking refugees from Iraq at all? Resettlement to the United States should be used only as the absolute last resort for people who will surely be killed if they stay where they are and who have nowhere else — nowhere whatsoever — to go.

CIS complains that as conditions in Iraq have improved, the number of Iraqi refugees coming to the U.S. has ballooned–from 200 in the early years of our “Mesopotamian adventure” (as CIS calls it) to 18,000/year in recent years.

As to the first point, I agree that refugees coming to the U.S. pose a security challenge.  It’s possible to search a person’s criminal background in the United States and in most developed countries.  But refugees rarely come from developed countries.  DHS supposedly has ways to check a person’s background against certain databases, but again, it is not clear how these databases are created or how accurate they are.  Of course, we face these same challenges for anyone coming to the United States.  The question is, what do we do about it?

Some commentators, like Mark Krikorian at CIS, believe we should simply stop admitting refugees from Iraq (and possibly from everywhere else as well).   I suppose that would close the door to terrorists who might take advantage of our generous refugee program, but it seems like throwing out the baby with the bath water.  The fact is, there are very few examples of refugees who have committed (or been accused) of terrorism.  The idea that we should forsake all refugees (and our humanitarian obligations/ideals) because of a few bad actors is a short-sighted and cowardly response to the problem.  As a nation, we are a world leader in many areas, including the humanitarian area.  We have greatly benefited from our leadership role, and from the many refugees, asylees, and immigrants who have made our country their new home.  We should not give up our leadership or the benefits that accrue to us because we fear terrorism.  We should not let the terrorists win.

I also want to briefly address Senator Paul’s second point–that people should not receive asylum when they come from a country with a “friendly government,” like Iraq.  The law of asylum states that a person may receive asylum if he has a well-founded fear of persecution in his country.  Whether that country is friend or foe is not relevant to the law.  The law also states that a person may receive asylum if he fears persecution by a non-governmental actor, and the government is unable or unwilling to protect him.  Sometimes, governments friendly to us persecute their citizens (for example, we had a good relationship with General Pinochet, but he killed thousands of his people).  Other times, friendly governments are unable to protect their citizens, as is the case for many people fleeing the Taliban in Afghanistan or insurgents in Iraq.  Since asylum is a humanitarian relief, it should not be contingent on political alliances.  If a person meets the standards for relief, that should be enough.  

All that said, Senate hearings on security and refugees is a worthy topic.  In examining security, I hope Senator Paul keeps in mind the humanitarian nature of the refugee program, the benefits that program brings us, and the ideals that the program represents. 

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Afghan Asylum Seekers in Limbo

by Jason Dzubow
"I'm still waiting for a decision in my asylum case."

As conditions in Afghanistan have deteriorated, I find myself representing increasing numbers of Afghan asylum seekers. Many are young men who have worked with the United States military. Others are journalists or other media types who have appeared on television in Afghanistan. Still others worked for human rights groups and women’s rights groups.

One thing that my clients have in common is that they are all trying to bring about peaceful, democratic changes to their country.  As a result of their activities, my clients faced threats from the Taliban.  A number of my clients were attacked, and some had close relatives killed by the Taliban.  Because the Afghan government cannot (and in some cases will not) protect them, my clients are seeking asylum in the U.S.

Another thing my Afghan clients have in common is that their cases are being held up for “security” checks.  I’ll explain below why I put the word security in quotation marks.

But first, a bit of background: The majority of aliens who file affirmative asylum cases receive a decision two weeks after their interview.  Apparently, cases with Afghan asylum seekers are reviewed by headquarters.  This takes a lot longer than two weeks.  So far this year, I have been to 11 asylum interviews: five from Afghanistan, six from other countries (five from Ethiopia and one from Iran).  All five of the Afghan cases are still pending.  Of the other six, we have decisions in all cases except one (the Iranian case).  In my longest-pending Afghan asylum case, the applicant was interviewed more than seven months ago; we are still waiting for a decision.

According to an Asylum Officer I spoke to, the reason for the delay has to do with “security.”  Obviously, there are legitimate concerns about people coming from Afghanistan and seeking asylum in the U.S.  But there are several reasons why I am skeptical about these “security” checks.  For one, many of my Afghan clients worked closely with the U.S. military, and they have letters, certificates, and photos (often with high-ranking military and civilian officials, including some who were photographed with President Bush) to prove it.  Such individuals have already been subject to some pretty serious scrutiny, so it is not clear what additional checks are necessary.  Second, all the Afghan asylum seekers were screened for security issues in Afghanistan before they received their U.S. visas.  Since nothing suspicious was found in Afghanistan, it seems unlikely (at best) that anything would turn up during an additional security background check in the United States.  Finally, my clients are currently in the United States.  If they are dangerous, they should not be walking freely around our country for six months (or more) while USCIS checks to see whether they pose a security risk.  If USCIS believed that a particular asylum seeker presented a threat, I image (and I hope) that they would detain the person immediately.

A number of my clients have family members in Afghanistan who are hoping to join their relative in the United States if asylum is approved.  Some of these people are living in precarious circumstances and face threats from the Taliban.  It is frustrating and frightening for my clients and their family members when they have no idea how long until they will receive a decision.  It is not fair to keep people waiting in limbo.  I hope that USCIS will consider improving the processing time for Afghan cases.  If they cannot do that, I hope they will at least provide an estimate to the asylum seekers about how long a decision will take.  Treating asylum seekers with respect and dignity means processing cases as quickly as possible and being as open about the waiting time as circumstances allow.

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DHS Plans Crackdown Against Smugglers in Central American

by Jason Dzubow

Many African asylum seekers enter the United States at the Mexican border.  Their journey to the U.S. is long and circuitous.  In East Africa (where some of my clients come from), people travel from Ethiopia, Eritrea or Somalia to Kenya.  From there, they go to South Africa and Brazil using false passports, and then through South America (sometimes by boat up the Amazon River!), to Central America, and then Mexico and the U.S.  Along the route, they are passed from one smuggler to the next.  Its big business for the smugglers: I’ve heard the trip costs between $10,000.00 and $15,000.00, and sometimes more.

A smuggler guides a couple illegal aliens across the border.

Last year, Abrahaley Fessahazion, an Eritrean based in Guatemala pleaded guilty to helping smuggle illegal aliens to the United States for financial gain.  Mr. Fessahazion was caught after he came to the U.S. and filed a false claim for political asylum.  He faces up to 10 years in prison.

Now, if the rumor mill is to be believed, DHS and at least one Latin American government are planning to arrest some additional smugglers in Central America.  DHS investigators have been interviewing smuggled aliens in the United States.  They have asked the aliens to identify photos of several smugglers based in Central American.  While most of the smugglers are from Latin America, at least one is African.  

It seems that DHS’s central concern involves the Somalis, who have long been viewed as a potential threat to national security (I’ve blogged about this issue here), and apparently DHS’s interrogation of the smuggled aliens has focused on Somali migrants.   

If the rumors are true, and certain Latin American governments are cooperating in the crackdown, life might be about to become difficult for the smugglers. 

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Are Terrorists Taking Advantage of the Asylum System?

by Jason Dzubow

In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States.  This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.” 

The asylum seekers leave Somalia for Kenya, where they obtain false passports.  From there, they travel to Cuba and then Central America, where they make their way to Mexico.  In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico.  The Somalis then enter the U.S. illegally and file for asylum.

According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum.  The fear, of course, is that these Somalis are terrorists coming here to attack our country.  Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”

I have represented many Africans who have traveled to the U.S. in a similar fashion.  The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States.  They use one or more false passports and meet several different smugglers along the way.  The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).

Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued).  In my experience, the Mexican document does not–as the article states–prove the alien’s identity.  To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.

Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them.  This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally.  Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum.  Why initiiate contact with government authorities if you plan to engage in criminal activity? 

I can imagine scenerios where a terrorist would come here and falsely claim asylum.  However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country. 

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Venezuelan Accused of Embassy Bombings Seeks Asylum

by Jason Dzubow

A Venezuelan man accused in the 2003 bombing of Spanish and Colombian diplomatic missions in Venezuela has fled his country and is seeking asylum in the United States.  The Miami Herald reports that Raul Diaz escaped from prison while on a daytime furlough.  He traveled by boat to Trinidad and then flew to Miami. 

 Mr. Diaz denies involvement in the embassy bombings, which injured four people.   He claims that there were irregularities in his criminal proceedings and that he was detained in inhumane conditions.

Memorial to Victims of Cuban Flight 455

Since arriving in the U.S., Mr. Diaz has garnered support from the Venezuela Awareness Foundation, a human rights organization that opposes the Hugo Chavez regime.  He has also met with U.S. representative Ileana Ros-Lehtinen, who is supporting his bid for asylum and who issued a press release stating that Diaz’s case was an example of the human rights violations carried out by Chavez.

While there is good reason to oppose Hugo Chavez and his dictatorial tendencies, it seems premature to embrace Mr. Diaz as deserving asylum in our country.  He has been accused of a serious crime–planting bombs that injured four people, including the wife and young daughter of a security guard.  This reminds me of the bombing of Cuban flight 455 in 1976, a terrorist attack that killed 73 people.  At least two of the men responsible for the attack are now living freely in the U.S., supported by various politicians, including Rep. Ros-Lehtinen, who is originally from Cuba and who is strongly opposed to the Castro government.  I guess I do not understand the logic of supporting terrorists who kill innocent people, just because we oppose the governments of the countries they attack. 

Perhaps Mr. Diaz is innocent, as he claims, but perhaps not.  An Asylum Officer or an Immigration Judge needs to scrutinize the case to determine whether he is eligible for asylum or whether he is barred as a terrorist.

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How Safe Are Immigration Judges?

by Jason Dzubow


Government Executive reports on a recent event at the National Press Club featuring Judge Randall Frye from the Social Security Administration and president of the Association of Administrative Law Judges, and Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges.  The pair described threats to judges involving guns, baseball bats, cut brake lines, and broken legs.

A safe judge is a happy judge.

“Between March 2009 and February 2010, SSA offices that handle disability claims received 49 threats; individual Social Security judges received 20 threats,” reported Government Executive.   “At a Las Vegas federal courthouse in January, a man believed to have been irate over a reduction in his Social Security benefits gunned down a courthouse official and injured a U.S. deputy marshal.”  There are no statistics available from the Department of Justice concerning threats to immigration judges or court personnel, but given the high-stakes nature of proceedings, it would not be surprising if threats have been made. 

The main concern is lack of security at certain immigration and SSA courts.  Many such courts are not housed in government buildings and do not have rigorous screening procedures.  Immigration courts also often lack secure parking lots, elevators, and entryways.  At the Press Club event, Immigration Judge Marks pointed out that “she could ride the elevator with someone whom she decided to deport.”  That is certainly the case in the courts where I litigate. 

Suggestions for improvements included increasing the number of security guards in the reception area, stationing a bailiff in every active courtroom, higher railings in front of judges’ benches, and creating secure entrances, exits, and parking lots for judges.  At the minimum, the Justice Department should make available data on threats to immigration courts.  Then, at least, we could have a sense of the problem.

Of course, improvements to security cost money, which seems to be in short supply.  As the number of cases (and level of frustration) in immigration courts increase, we should not forget to ensure the safety of those who enforce and adjudicate our immigration law.  Let’s hope we don’t have to wait for a tragedy to realize the importance of protecting our public servants.

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