ICE Should Fire Insubordinate Agents

by Jason Dzubow

I wrote recently about the ongoing insubordination at ICE.  The most recent flare up involves a dispute over a new memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.  The memo basically prioritizes who should be deported and directs ICE to target criminals and people who pose a security threat over aliens with equities in the U.S.  I read the memo, and it is pretty non-controversial.

Where's Trump when we need him?

The ICE Union disagreed and posited that the memo was a backdoor amnesty (this despite the fact that the Obama Administration has been deporting record numbers of illegal aliens and, as these statistics show, has re-prioritized deportations to focus on criminal aliens).  Chris Crane, President of the National ICE Counsel, had this to say about the memo and the Obama Administration:

Any American concerned about immigration needs to brace themselves for what’s coming… this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.

In my prior post, I tried to give the Union the benefit of the doubt, even though their claim seemed unfounded.  Now, several immigration experts, including a former general counsel of INS under President George W. Bush, have reviewed the controversial memo.  They conclude that the memo is “perfectly consistent with existing law on the use of prosecutorial discretion and serve[s] to guide its sound exercise in immigration law enforcement decisions.”

The experts’ conclusion–and a plain reading of the controversial memo–makes it painfully obvious that the Union’s complaints are baseless.  Worse, the attacks, such as the quote from Mr. Crane above, seem blatantly partisan in nature.  

It is frankly shocking that ICE and DHS would tolerate this type of insubordination.  My guess is that the Administration is too cowed by right wing bullies to do anything about the problem (witness the Shirley Sherrod fiasco).  It’s past time for the Obama administration to stand up to this sort of nonsense.  ICE should fire the insubordinate agents immediately.

Continue reading

3 Comments

Pirates Brought to the U.S. for Prosecution Might Seek Asylum

by Jason Dzubow

During the first half of 2011, piracy attacks in the Indian Ocean increased by 36%.  But prosecution of captured pirates remains relatively rare.  In fact, four-fifths of captured pirates are released without further ado.  

A recent incident is proving an exception to the rule.  A group of Somali pirates was captured last February after they murdered four American on a sailboat off the coast of East Africa.  The men were transported to Virginia (which apparently has a long history of prosecuting pirates).  Eleven plead guilty and three others will be indicted on various charges later this month.  They could face the death penalty.     

The Virginia example notwithstanding, why are so few pirates being prosecuted?  One reason may be logistics.  It’s not easy to transport pirates from the high seas near African to a courtroom in the West (or even to Kenya, where some pirates are tried based on an international agreement).  Another reason might be a fear that the pirates would claim asylum once they reached a Western country.  A recent law review article by Yvonne M. Dutton explores this very question.

In her article, Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice, Professor Dutton argues that there is little danger of pirates gaining asylum (or Withholding of Removal  or relief under the UN Convention Against Torture).  Any danger of a pirate claiming asylum, she writes, is offset by the need to bring the pirates to justice.

Yaar! I'll be claimin' political asylum.

Professor Dutton writes that most Somali pirates would not qualify for asylum–they do not fear persecution in their country based on race, religion, nationality, membership in a particular social group or political opinion.  She also writes that many pirate-asylum seekers would automatically be disqualified from asylum due to their criminal histories.  She believes that pirates would generally not qualify for relief under the Torture Convention because they could not demonstrate a likelihood of torture if they return to their home country.  And, even if a pirate-asylum seeker demonstrates that he faces torture, the U.S. could seek diplomatic assurances that he would not be tortured if returned home.  Also, pirates could possibly be removed to a safe third country.  Finally, Professor Dutton concludes that even if some pirates do seek asylum, that is a reasonable price to pay for assuring that pirates are prosecuted: “Captured pirates should not be able to get away with murder simply because developed nations do not wish to deal with a relatively few additional asylum claims.”

While I generally agree with her conclusions, I can’t help but think that Professor Dutton is underestimating the creativity of Somali asylum seekers (and their attorneys).  There are plenty of former gang members from Central America who seek–and sometimes obtain–asylum, Withholding of Removal or Torture Convention relief.  In some ways, their cases are not very different from the Somali pirates (though one key difference is that the pirates are being transported to the U.S. for prosecution, while the former gang members usually make their own way here).

I also disagree with Professor Dutton’s idea that pirates could be returned to Somalia after receiving diplomatic assurances that they will not be tortured.  To the extent that Somalia has a government, I doubt it can be trusted with any diplomatic assurances. 

Finally, I have real doubts that a third country would be willing to accept the pirates who we cannot return home. 

These points are all pretty minor.  Very few Somali pirates would qualify for asylum or any other relief if they are brought to the U.S. for trial.  And–given the scope of the problem–it seems well worth the risk to end the culture of impunity that allows piracy to flourish off the African coast.  

Continue reading

2 Comments

My Guest Blog Posting in the New York Times

by Jason Dzubow

Earlier this week, the New York Times had an article about fraud and asylum, Immigrants May Be Fed False Stories to Bolster Asylum Pleas.  The article was inspired by revelations about the maid who accused former-IMF chief Dominique Strauss-Kahn of sexual assault.  It turned out that the maid was an asylee, who likely gained asylum by fabricating a claim of past persecution. 

The NY Times asked several professionals in the field–including yours truly–to contribute their thoughts about how the asylum system can be improved.  Our comments appeared in a forum called Room for Debate.  I suggested that the government make a greater effort to prosecute lawyers and other people who help immigrants create fraudulent cases.  Not only is this more efficient than going after individual asylum seekers, but it ultimately would protect immigrants by reducing the number of fraudsters involved in the business.  Here are my comments (slightly modified since my essay in the Times was limited to 300 words and here I can use as many words as I want):  

Go After the Lawyers

There is an old adage in criminal law: Better that 10 guilty people go free than convict one innocent person. Our asylum law is based on the opposite philosophy: It is better to allow some asylum seekers to enter the United States fraudulently, than return one person to a country where he faces persecution or death. For this reason, the burden of proof for asylum is relatively low (as opposed to criminal law, where the burden for a conviction–beyond a reasonable doubt–is quite high). 

People reading and discussing my NY Times article.

This low burden, combined with the very valuable benefit of asylum, creates an incentive for people to make fraudulent claims. The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.

It seems to me there are three main possibilities.

One option is to devote more resources to individual cases. If asylum officers, immigration judges and government attorneys could spend more time on each case, they would probably discover more instances of fraud. But attacking fraud on a case-by-case basis seems inefficient and, given limited resources, unlikely to significantly reduce the number of fraudulent claims.

Another option is to raise the burden of proof required to obtain asylum. The problem, of course, is that such a move would exclude legitimate asylum seekers, and would degrade the high moral standard our nation set when we created our asylum system.

A final — and to me, the most effective — option is to identify attorneys and others who prepare claims deemed suspicious. Investigating and, where appropriate, prosecuting these people can dramatically reduce fraud, since each such person produces and/or facilitates large numbers of false claims. A few high-profile prosecutions would also help deter others who might engage in such practices.

I have represented many asylum seekers, including journalists, human rights workers, diplomats, rape victims, and survivors of genocide. Such people have legitimate claims and would face persecution or worse if they returned home. In responding to fraud, we should remember our ethical responsibility to protect such people.

Continue reading

2 Comments

CRS Report: Country Conditions Are the Driving Force Behind Asylum Seekers

by Jason Dzubow

A recent report from the Congressional Research Service concludes that “data analysis of six selected countries (the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source countries are likely the driving force behind asylum seekers.”  These six countries represent the majority of asylum seekers coming to the U.S., and the new report is significant for several reasons.

CRS employs some of the most logical people on Capitol Hill.

First, critics of the asylum system claim that it is a backdoor for economic migrants and that many asylum cases are fraudulent.  While fraud is a problem and economic conditions certainly affect the flow of migrants (including asylum seekers), the CRS report lends support to pro-asylum types (such as myself), who believe that most asylum seekers are fleeing persecution and repression in their homelands.

Second, since CRS is the organization tasked with supporting “the Members, committees, and leaders of the House and Senate at all stages of the legislative process,” its policy papers are influential in shaping legislation.  Maybe it is naive to believe that ideologues in Congress will consider the new report when making policy, but at least those in the pro-asylum camp will have some new data to help make their arguments.

Finally, there are a couple of asylum-related issues pending in the current Congress.  One is the Refugee Protection Act, which offers some new protections to asylum seekers.  The CRS report mentions the RFA, and seems to have been written with that bill in mind.  The RFA has been floating around the Senate for over a year, and no progress seems forthcoming.  However, Zoe Lofgren–a great advocate for protecting immigrants–introduced a companion bill in the House last month.  So perhaps we will see some action on this front.     

The other piece of asylum-related news in Congress is Senator Rand Paul’s hearing on terrorism and asylum.  Senator Paul called for hearings after two Iraqi refugees were arrested on terrorism charges (I wrote about this here).   The hearing is scheduled for July 13, 2011.  The CRS report is relevant to this hearing as well.  Although there are legitimate concerns related to national security and asylum, the instances of asylum seekers or refugees committing (or being accused of) terrorist acts are extremely rare.  The report shows that many asylum seekers are genuine refugees who face persecution in their home countries.  The Senate should keep this in mind when balancing national security with our humanitarian and moral responsibilities.

Continue reading

1 Comment

Insubordination at ICE

by Jason Dzubow

In a unanimous vote in June 2010, leaders of the Immigration and Customs Enforcement (ICE) Agents’ Union accused ICE Director John Morton of “gross mismanagement within the Agency as well as efforts within ICE to create backdoor amnesty through agency policy.”  Now, the union is again attacking its leadership. 

In a recent press release, available here, the Union refers to new policies that were crafted based on the “desires of foreign nationals illegally in the United States.”  The result of these policies, according to Union leader Chris Crane, is that “every person here illegally [can] avoid arrest or detention, as officers we will never know who we can or cannot arrest.”  It seems the focus of the agents’ complaint is a memo issued last month by the ICE Director entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.”  A link to the memo is available here.  

Deport gang members, not grannies.

After reviewing the memo, it is difficult to understand the ICE agents’ concern.  Essentially, the memo states the obvious: ICE has limited resources for removing illegal aliens from the U.S.  Therefore, ICE should prioritize the removal of criminal aliens and people who endanger our national security.  The memo lists positive and negative factors that officers should consider when deciding how to prioritize cases.  In other words, the memo basically orders ICE agents to prioritize the removal of gang members over grandmas.  How this equates to a “backdoor amnesty” is a mystery. 

Another complaint mentioned in the Union press release is the way policies are implemented at ICE:

Agents claim that under Director John Morton the agency always presents written policies for public consumption, but then makes “secret changes” to the policies which ICE refuses to put in writing.

It is unclear how these “secret changes” are implemented in an organization with thousands of employees.  The press release continues:

The Union also alleges that ICE Field Office Directors (FODs) have confided in the Union that when the FODs raised questions about the effectiveness of the new policies, ICE Headquarters responded by telling the FODs to turn in their badges and file for retirement.

The press release ends with a plea for help from the public:

[We] are asking everyone to please email or call your Congressman and Senators immediately and ask them to help stop what’s happening at ICE, we desperately need your help.

I am an outsider and I have no idea about any “secret policies” at ICE.  However, I represent many foreigners in the U.S., and I am very well aware of the rates of detention and removal of illegal aliens.  In FY 2010 (the only year of the Obama Administration where statistics are available), we removed a record number of illegal aliens from the United States.  And it seems we will remove even more illegal aliens in FY 2011.  This hardly seems like a “backdoor amnesty.”  Given the number of aliens deported from the U.S., the ICE agents’ complaints seems unfounded and–frankly–out of touch with reality.  

Nevertheless, the allegations in the Union’s press release are serious and–considering the source–they must be taken seriously.  If the claims in the union’s press release are true, it would raise serious concerns about operations at ICE, and Director Morton should probably be removed.  On the other hand, if these allegations are exaggerations made for partisan political purposes, it is a clear case of insubordination and those responsible should be fired.

Continue reading

1 Comment

Strauss-Kahn’s Accuser May Have Lied to Gain Asylum in the US

by Jason Dzubow

As the sexual assault case against former International Monetary Fund head and potential French president Dominique Strauss-Kahn appears to be falling apart, attention has turned to the woman who accused him of attacking her. 

NY City Maids may have judged Mr. Strauss-Kahn too quickly.

Mr. Strauss-Kahn was initially arrested in May and charged with attempting to rape a maid in his New York hotel room.  He was released under very strict supervision and resigned his job at the IMF.  Now, the conditions of his release have been dramatically eased, and the case against him appears on the verge of collapse.  The reversal came about because the NY Police Department uncovered evidence that the purported victim lied about the incident and has committed various acts of fraud, including filing a phony claim for asylum.

The alleged victim is a Guinean woman who obtained her status in the U.S. in 2004 by claiming political asylum.  The Daily Mail reports that the victim admitted to the NYPD that much of her asylum claim had been fabricated:

In her application for asylum to the U.S. for herself and her daughter in 2004 she said that the home she shared with her husband in Guinea was burned by soldiers for the country’s regime. Her husband was then supposedly tortured in jail where he died of his injuries.  According to prosecutors, she later admitted this was a lie.  Prosecutors also said that she cried when she recounted to them the story from her asylum application of how she had been gang-raped in Guinea, but later admitted that this was also a lie.

The (probably) false asylum application, combined with other evidence of fraud (including a taped phone conversation where the victim indicated she hoped to make money by pursuing charges against Mr. Strauss-Kahn) have led the prosecution to radically re-assess the credibility of the victim and the strength of their case. 

If it turns out that the victim did lie on her asylum application, she faces deportation and potential jail time.  But in evaluating what happened in her asylum case (and in the Strauss-Kahn affair), there are a few points to keep in mind.  First, many asylum seekers with legitimate claims augment their stories with the encouragement of unscrupulous lawyers or notarios.  Such asylum seekers do not understand the law and they merely follow the instructions of their lawyers.  In this way, legitimate asylum seekers are sometimes denied asylum and (rightly) accused of fraud.  Of course, even though such people are naive and are victims of dishonest attorneys, they are responsible for their own actions and they need to be held accountable.  As the authorities investigate the Guinean woman and her asylum claim, they should determine who helped prepare the asylum case and–if that person was involved in the fraud–they should prosecute the person responsible.  While asylum fraud is a problem, the best way to reduce fraud is to prosecute the attorneys or notarios who prepare fraudulent claims.

In addition, we should keep in mind that the Guinean woman is innocent until proven guilty.  After Mr. Strauss-Kahn’s arrest, the press and the District Attorney essentially convicted him before evaluating the evidence.  We should not make the same mistake again.  Rather than rush to judgment, we should wait for the case to develop and see where the evidence leads.  Asylum seekers are often people who have suffered severe traumas.  Such people are particularly susceptible to manipulation and intimidation, and might sometimes change their stories under pressure.  Maybe that is what happened here, and maybe not.  Since we don’t yet know, we should take a lesson from the case of Mr. Strauss-Kahn, and avoid reaching a conclusion until we know more.

Continue reading

4 Comments

UK Scraps DNA Testing for Asylum Seekers

by Jason Dzubow

A short-lived attempt by Great Britain to determine the nationality of asylum seekers was unceremoniously dumped after it became clear that the testing was of no scientific value. 

In 2009, the Brits started a (supposedly) voluntary program to test the DNA of asylum seekers from certain African countries.  The idea was to reduce fraudulent applications where the asylum seeker claimed to be from a country other than his own (for example, a Kenyan might claim to be from Somalia in order to increase the likelihood that he would receive asylum).  From the beginning, scientists such as University of Leicester’s Alec Jeffreys expressed serious doubts about whether DNA could really determine a person’s country of origin.  Said Mr. Jeffreys:

The [British] Borders Agency is clearly making huge and unwarranted assumptions about population structure in Africa; the extensive research needed to determine population structure and the ability or otherwise of DNA to pinpoint ethnic origin in this region simply has not been done. Even if it did work (which I doubt), assigning a person to a population does not establish nationality – people move! The whole proposal is naive and scientifically flawed.

Now it seems the government has ended the program and even shelved its plans to complete an internal review of the program’s efficacy. 

A second aspect of the program–isotope analysis–has also been canned.  Under this program, the government would analyze hair and nail samples to determine what chemical isotopes they contained.  The government could then (supposedly) determine where the person had recently been.  So for example, if a Somali woman had been living in Italy for the last five years, and then traveled to England to claim asylum, the government could use isotope analysis to show that the woman had not recently been to Somalia.  It is unclear how accurate this analysis is, or how many asylum seekers lie about their country of origin. 

While isotope analysis might provide limited assistance in this regard, it seems to me an easier and cheaper approach is to determine whether the person is fluent in a language from the claimed country of origin.  Of course, like isotopes and DNA, language fluency does not necessarily conform to national borders, but it is probably about as reliable–and much less expensive.

So what, then, is the lesson for us on this side of the Atlantic?  I have not heard about proposals here to use DNA testing or isotope analysis.  Given the lack of success in Great Britain, I imagine that we will not be adopting these methods anytime soon.

Continue reading

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. 

Continue reading

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. 

Continue reading

2 Comments

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.

Continue reading

2 Comments

Refugee Admissions Down as a Result of New Security Checks

by Jason Dzubow

The Catholic News Service (“CNS”) reports that refugee admissions for FY 2011 have slowed dramatically due to new security measures put into place by the Department of Homeland Security.  The slow down effects not just the refugees–often times waiting in camps where they face disease and other dangers–but also the capacity of the resettlement agencies, which receive funding based on the number of people resettled.

Each refugee will receive a free copy of Andy Warhol's famous poster.

For Fiscal Year 2011, President Obama has authorized the admission of up to 80,000 refugees.  However, according to CNS, as of mid-May (7 1/2 months into the fiscal year), only 38% of the 80,000 have been admitted.  This puts us on track to admit only about 49,000 refugees for the current fiscal year.  CNS reports:

Delays in the refugee resettlement process are being caused by a backlog of security clearances and additional security “holds,” according to Larry Bartlett, acting director of the Office of Refugee Admissions for the State Department. The additional security measures are part of a larger series of security enhancements by the Homeland Security Department.

These delays have several effects.  For one, refugees are forced to endure longer waits in camps, and families remain separated for longer periods.  Further, some refugees who have already been screened and cleared are now stuck waiting for the new security checks.  During this waiting period, certain of the clearances may expire, and the refugees will need to be cleared again–resulting in even more delays.  

In addition, the receiving agencies in the U.S. receive $700.00 for each refugee resettled.  The agencies are paid only when they actually receive the refugee.  This means that agencies’ revenues are down, and this could affect their capacity (for example, if an agency is forced to lay off workers, it may not be prepared if additional refugees arrive).   

A State Department spokesman stated that refugee admissions would increase during the remainder of the fiscal year, and that DOS expected to resettle between 63,000 and 74,000 refugees in FY 2011.

Of course, it is difficult to argue against additional security background checks, especially when it is unclear what those checks entail or why they have been put into place.  Further, for agencies in the business of resettlement, it seems only fair that they must adjust to the policy changes of the U.S. government.  That said, it is difficult for me not to be a bit skeptical about the new background checks.  Hopefully, though, once the new system is up and running, refugee admissions will return to normal levels, so we can fulfill our commitment to assisting people in dire need and keep our country safe. 

Continue reading

1 Comment

Battle Hymn of the Tiger Lawyer

by Jason Dzubow

In her memoir, Battle Hymn of the Tiger Mother, law professor Amy Chua compares the strict “Chinese” parenting style with the more permissive parenting style popular in the West.  The book (or at least the out-of-context ideas in the book) shook the parenting word: Are Western parents focused so much on building their children’s self esteem that they’re raising self-indulgent, spoiled kids?  Are traditional Chinese parents raising children who will be smarter and more successful than their peers in the West?

Tiger Lawyers win more cases.

I am not sure which parenting style works better, but in the context of immigration law, it makes sense that the “Chinese” style will result in better outcomes for our clients. 

It might seem like a no brainer to treat our clients strictly–if we need a document in time to meet a deadline, the client better get us that document on time.  The problem is, immigration lawyers, and more particularly asylum lawyers, are generally big softies.  We may talk tough, but our sympathies are with the little guy.  For the most part, we are nice people trying to help out those in need.  We’re not really the type to crack the whip.    

I can think of plenty of occasions where clients brought me documents on deadline day, after I finished preparing their cases.  I may have grumbled (a lot), but I dutifully pulled apart the documents, re-did the index of exhibits, and submitted a complete package with the new evidence.  Other times, I receive documents after the deadline.  I submit them late and make some excuse to the judge, often times taking the blame myself.  A Tiger Lawyer would not do these things.  He would tell the client that it was too late, and let the chips fall where they may–if the client loses her case, she has only herself to blame.

Of course, clients don’t care much about deadlines or documents; they just want to win their cases.  If lawyers didn’t submit the documents late or take the blame for our clients’ failures, we would lose more cases.  Perhaps it would be better if our clients suffered the consequences of their shortcomings.  But I suspect a lawyer who follows that approach won’t be in business for very long.   

To be successful, we have to be tough on our clients so that they gather the evidence and do what is needed to win their cases.  But in the end, we have to put our clients’ interests first, and when they fail to do their part, we have to make up for it.  So maybe the best approach is to be a nice guy in a Tiger Lawyer’s clothing.

Continue reading

1 Comment

Ecuador Cracks Down on Alien Smuggling to the U.S.

by Jason Dzubow

Not long ago, the Washington Post reported on one of my clients from Eritrea, who was smuggled through a dozen countries before entering the U.S. and gaining asylum.  The article states that my client’s “epic trip underscores the challenge of protecting U.S. borders in the face of agile networks of smugglers, corrupt officials who arrange travel documents and desperate immigrants willing to pay thousands of dollars for the journey.”  These networks worry U.S. officials:

“While the majority of aliens smuggled into the U.S. probably do not pose a risk to national security, the problem is terrorists could exploit these smuggling travel networks,” said James C. Spero, deputy assistant director of the Immigration and Customs Enforcement agency, which enforces immigration laws. “It is a major concern for us.”

Recently, there seems to have been some progress in combating the smuggling networks.  The Ecuadoran newspaper El Universo reports that on March 10, a joint Ecuadoran and Columbian raid captured Yaee Dawit Tadese, a/k/a Jack Flora, an Eritrean smuggler, and 66 other individuals from Asia, Africa, and the Middle East.  Mr. Tadese managed a network that trafficked migrants from Africa to the United States, using two routes running through either Ecuador or Venezuela.  According to the website InSightCrime.org, Mr. Tadese was deported to the U.S. on March 12, where he faces terrorism, and drug and human trafficking charges (the article also reports on a rumor that Mr. Tadese is Osama bin Laden’s cousin, but that seems a bit far fetched).

Yaee Dawit Tadese: Osama bin Laden's long lost cousin?

It remains to be seen how much these arrests will impact the flow of illegal migrants to the U.S., but I imagine it will have an effect–at least for a while.

In related news, a change in the visa requirements in Ecuador might also reduce the number of migrants passing through that country en route to the United States.  In 2008, Ecuador eliminated visa requirements for most countries.  Since that time, according to InSightCrime.org, the country has “seen the growth of Colombian, Russian, and Chinese organized crime groups operating within its borders.”  Ecuador’s “lax visa policies may have also increased the smuggling of Asian and African migrants from the Andean nation to the U.S.”

Late last year, “Ecuador created visa requirements for nine countries: Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia.”  This change may also reduce the number of migrants passing through Ecuador on their way to the U.S. 

Given that it takes several months for people to travel from Ecuador through Central America and Mexico to the U.S., I suspect we will begin to see the effects of Mr. Tadese’s arrest and the new visa requirements in the near future.  Will these developments reduce the number of people arriving illegally at the U.S.-Mexican border, or will they simply cause the migrants to seek out alternative routes?  We will know soon enough.

Continue reading

Negative Judicial Metaphors Harm Immigrants

by Jason Dzubow

A recent article in the Fordham Law Review posits that negative metaphors used by judges to describe immigrants contribute to negative public perceptions of immigrants and lead to adverse judicial decisions. 

Before now, I never metaphor that I didn't like.

In Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, Keith Cunningham-Parmeter discusses different metaphors used in judicial decisions related to immigration.  The most common metaphors can be classified into three categories: (1) Immigrants are aliens; (2) Immigrants are a flood; and (3) Immigrants are invaders.  Each of these metaphors carries negative associations–for example, floods cause us to drown; invaders try to kill us.  Employing these metaphors, writes Mr. Cunningham-Parmeter, affects how we think about immigrants, which in turn affects judicial decisions.

One set of figures cited in the article struck me as particularly noteworthy—In examining 4,200 federal cases related to immigration, Mr. Cunningham-Parmeter found that the phrase most commonly used to describe immigrants was “illegal alien:”

“[I]llegal alien” was “by far the most common term, appearing in 69% of opinions (2905 cases).  No other term appeared in more than 10% of opinions, except “undocumented alien,” which accounted for 16% of the results in 670 cases.  

It seems likely that the overwhelming use of negative metaphors for immigrants would impact how judges think about people who are in the U.S. illegally.  This, of course, could result in more adverse decisions.  

To counter these negative metaphors, Mr. Cunningham-Parmeter proposes some positive metaphors; words that connote entrepreneurial economic migrants (i.e., people with the get-up-and-go necessary to cross borders and start new, productive lives):

[M]igrants are neither criminals nor invaders, but instead people who cross international borders in order to survive.  As such, the economic sanctuary metaphor brings focus to the human consequence of globalization.

I certainly appreciate the effort to de-stigmatize immigrants (and in writing this blog post, I find myself avoiding the term “alien,” a term of art defined in the INA, but also a metaphor with negative connotations).  In the end, though, I am skeptical that we can replace existing metaphors with something more benign.  There is a tribal aspect to these metaphors that is deeply ingrained.  We do tend to view outsiders as “invaders” and as a threat.  Maybe that is just the way of human nature.  Or, hopefully, I am wrong, and Mr. Cunningham-Parmeter’s article will help plant a seed that will lead to a more positive—and constructive—view of people who immigrate to the United States.

Continue reading

The BIA on Firm Resettlement

by Jason Dzubow

Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.

If Angelina Jolie shows up, it probably means you are not firmly resettled.

It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S.  In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.

The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country.  When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.  An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement.  Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.

It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country.  In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years.  He married a Senegalese citizen.  The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal.  A-G-G- then had an opportunity to rebut that evidence.  The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar.  However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.

Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.



Continue reading