In an anti-climatic end to a three-year legal battle, the Department of Homeland Security agreed that Mosab Hassan Yousef should be granted asylum in the United States, reports the San Diego Union Tribune.  Mr. Yousef is the son of a founding member of Hamas.  He converted from Islam to Christianity, spied for Israel, and wrote a book about his experience.  On his blog, Mr. Yousef desceibes what happened and thanks his supporters.  “Honestly, I am still in shock,” he writes.

In a 15-minute hearing before the San Diego Immigration Court yesterday, the DHS attorney indicated that “There has been a change in the department,” and told the Judge that DHS would no longer oppose Mr. Yousef’s application for asylum.  DHS originally opposed the application because Mr. Yousef allegedly gave “material support” to Hamas, a terrorist organization.  Mr. Yousef claimed that any “support” he gave to Hamas was solely for the purpose of determining the group’s plans and foiling attacks against Israelis and Palestinians.   

During the course of his legal ordeal, Mr. Yousef because a cause celebre for pro-Israel groups, as well as certain Israeli officials and members of Congress, all of whom claimed (quite credibly) that his actions saved many lives.  Recently, a former Israeli security agent arrived in the U.S. to testify on Mr. Yousef’s behalf, and several members of Congress wrote letters to the Immigration Judge supporting his application.  Given the evidence–at least the publicly available evidence–it seems clear that the decision yesterday was the right result.  Mr. Yousef does not appear to be a terrorist, and he would certainly face persecution or death if he returned to the Palestinian territory.

One interesting side note, many people, including some members of Congress, complained loudly about President Obama’s aunt, whose case was reopened and who was recently granted asylum.  They speculated–without any evidence–that President Obama somehow improperly influenced the asylum process to help his relative.  I wonder if these same members of Congress will complain about their fellow Congresspeople who wrote to the IJ in Mr. Yousef’s case.  These Congresspeople clearly intended to influence the Judge and the DHS attorney, and the case ended with the result they were seeking.  Personally, I don’t see any evidence of improper behavior in either case, but one would hope that if a Congressperson opposes improper outside interference with one case, he should oppose it in another.

The Need for Reform

Finally, this case illustrates the need for Congress to reform the law on “material support.”  Mr. Yousef is hardly the only person to be labeled a “terrorist” under this broad provision.  Others who have been forced on pain of death to provide food and other supplies to terrorist groups are subject to the same problems.  The members of Congress who supported Mr. Yousef should consider supporting the Refugee Protection Act, a bill that would modify the definition of “material support” to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars.  The bill would, of course, continue to bar those with legitimate ties to terrorist activity from entry into the United States.  Perhaps Mr. Yousef’s case will provide some momentum to this worthy bill.

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The son of a founder of Hamas, a designated terrorist organization, is scheduled to appear in Immigration Court in San Diego on June 30, 2010.  Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef, says that he “accepted Christ” in 2005.  He also claims to have worked as a spy for the Israeli intelligence agency Shin Bet, and says he helped foil numerous terrorists attacks.  Apparently, his father disowned him, and he fears return to the Palestinian territory.  The younger Yousef has written a book about his experience, Son of Hamas, subtitled: A Gripping Account of Terror, Betrayal, Political Intrigue, and Unthinkable Choices.

Mr. Yousef has been blogging about his life and his asylum case.  He writes that despite his questionable pedigree, he entered the U.S. without difficulty in January 2007.  Seven months later, he applied for political asylum.  His application was rejected because the Asylum Office deemed him a danger to the security of the United States and a terrorist.  The case was referred to an Immigration Judge.  Mr. Yousef seems surprised by his situation:

My concern is not about being deported. It is that I am being forced to stand and defend myself as a terrorist! This is ridiculous. And as long as this case is in the courts, I cannot leave the United States. If I do, I will never be able to return. For what? For risking my life fighting terrorism in the Middle East for ten years? For saving the lives of Israelis, Palestinians and Americans?

Maybe so, but I can understand why the Asylum Office was hesitant to grant asylum.

Mr. Yousef claims that DHS is relying on the work he did for Shin Bet–which involved “helping” members of Hamas in order to infiltrate the organization–to charge him with providing material support to terrorists.  He writes, “If Homeland Security cannot tell the difference between a terrorist and a man who spent his life fighting terrorism, how can they protect their own people?”  He continues:

Exposing terrorist secrets and warning the world in my first book cost me everything. I am a traitor to my people, disowned by my family, a man without a country. And now the country I came to for sanctuary is turning its back.

We’ll see.  I imagine Mr. Yousef knows that the judge will review his asylum claim de novo, so the Asylum Office’s conclusion should not be much of a factor.  He seems to have a strong asylum case, and his story about working for Shin Bet appears credible.  Maybe DHS believes that he is a double agent, or maybe they have evidence that we (and Mr. Yousef) does not know about.  Or maybe, as Mr. Yousef suggests, DHS is simply incapable of distinguishing between a terrorist and an anti-terrorist.  I don’t know, but I wonder, if DHS is really so concerned about Mr. Yousef, why he is not currently detained pursuant to INA § 236A (Mandatory detention of suspected terrorists)?

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Pir Khan, a 43-year-old taxi driver from Watertown, Massachusetts was arrested May 13, along with his cousin, Aftab Khan, 27, on immigration charges as part of the investigation into the May 1 car bombing attempt in Times Square.  Pir Khan allegedly gave money to the failed Times Square bomber, though Mr. Khan and his cousin deny any connection with the would-be bomber.

Pir Khan came to the U.S. from Pakistan and applied for asylum in 1994.  Apparently, his case was not denied until 2007 (13 years later!), by which time he had married a U.S. citizen.  Apparently, he is now pursuing alternative relief based on the marriage (depending on the posture of the case, this may or may not be possible). 

Mr. Khan’s case raises some important points.  First, why did the asylum case take so long?  In the 1990s there were large numbers of asylum and NACARA claims from Central America (NACARA was an act that allowed certain Central Americans and others to remain in the U.S.; such cases are processed by the Asylum Office).  That, combined with a less efficient adjudication system led to long delays, and many cases lingered for a decade or more.  Today, asylum cases are resolved more quickly, though between the Asylum Office, the Immigration Court, and the appeals process, a case could easily take three or four years.     

This raises a second, more important point.  Could a potential terrorist use the asylum system to gain entry into the U.S. to commit a crime?  The answer is a qualified yes.  Qualified, because asylum is probably one of the worst ways for a criminal to gain access to our country.  Asylum applicants are repeatedly fingerprinted, photographed, and interviewed.  They probably have more contact with “the system” than any other category of alien save those that have committed a crime.  None of the September 11th terrorists were asylum seekers–they all entered the country through other means.  This does not mean that a terrorist could not make a false claim for asylum, or that he could not delay his removal by appealing a denied asylum claim.  However, by subjecting himself to the biometric background check, any potential terrorist could have his cover blown and his plot foiled.  This does not mean that the system is perfect, but it may be less vulnerable to such breaches than other applications.  (In an aside, a UK report from some years ago found that one in four terrorist suspects was an asylum seeker.   The term “asylum seeker” has a broader meaning in the UK than here, but nevertheless, the report reminds us to be vigilant for this type of threat.)

A related problem is the high rate of denied asylum seekers (and other aliens denied relief) who fail to depart the United States.  That was Mr. Khan–he was denied asylum, but he remained in the U.S. anyway.  One solution is to simply detain all asylum seekers (and all illegal immigrants) until their cases are decided.  Not only would this be inhumane, it would be prohibitively expensive.  Moreover, it is unclear whether the increased security gained from such an approach would be cost effective.  Couldn’t the money be better spent on more targeted methods of protecting us?  Another solution might be to detain aliens at the end of their cases if relief is denied.  This would have many of the same problems as detaining all illegal immigrants, but at a slightly lower cost.  To me, the better approach involves alternatives to detention–bond, ankle bracelets, monitoring and reporting.  Such an approach is more humane (though it can still be coercive and scary for the alien) and less expensive.  In addition, Asylum Officers and DHS attorneys should be trained to ask questions that could help reveal whether a person has any terrorist connection (aside from the very lame and very useless–but also very common–“Have you ever supported any terrorist organization?”).  Such (admittedly controversial) techniques are employed by some airlines like El Al. 

As usual, we walk a fine line between living up to our ideals and fulfilling our humanitarian obligations on the one hand, and defending against terrorism on the other.  Those who care about the asylum system should be concerned with this dilemma: If one terrorist gains entry via the asylum process, all future asylum seekers will pay the price.

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