Obama’s Muslim Refugee Army Set to Invade America… Or Is It?

by Jason Dzubow

If that series of tubes called the Internet is to be believed, President Obama is bringing 80,000 Muslim refugees into the United States to take our welfare and convert our children to Islam.  Never mind that most of the 80,000 refugees authorized to come here in FY 2011 are not from Muslim countries or that the refugee admissions numbers are consistent with those of President Bush’s administration (and lower than during President Clinton and the first President Bush’s terms).

But unfortunately, the internet is not about facts.  From his website, The Last Crusade, Paul L. Williams, Ph.D.–and he never forgets to include those three little letters after his name–screams: “Get ready for the new Muslim invasion!”  Mr.–excuse me, Dr.–Williams informs us:

President Barack Hussein Obama, in a determination letter to Congress, has announced that he will allow an additional 80,000 immigrants – – mostly from Islamic countries – – to resettle in the United States during fiscal year 2011.

OK, part of this statement is true.  Just like the presidents before him, President Obama has sent a proposal to Congress about refugee admissions for the current fiscal year.  In that proposal, the President suggests a ceiling of 80,000 refugees who can be admitted into the United States.  The number of potential refugee admissions are divided by region as follows:

Africa

15,000

East Asia

19,000

Europe and Central Asia

2,000

Latin America / Caribbean

5,500

Near East / South Asia

35,500

Undesignated

3,000

What’s false–and offensive–is Dr. Williams’s claim that the 80,000 refugees are “mostly from Islamic countries.”  This claim is false because the President’s designation does not refer to specific countries.  Rather, the designation refers to regions.  Only after needs are assessed will we know how many refugees each country will produce.  During FY 2009 (the last year I see data available), the largest groups of refugees have come from the following countries (I have listed only countries with over 1,000 refugees; for the entire list, see page 57 of the Proposed Refugee Admissions):

Country Number of Refugees Percentage of Total Refugees
Bhutan 13,452 18.02%
Burma 18,202 24.38%
Cuba 4,800 6.43%
Democratic Rep. of Congo 1,135 1.52%
Eritrea 1,571 2.10%
Former Soviet Union 1,995 2.67%
Iran 5,381 7.21%
Iraq 18,838 25.23%
Somalia 4,189 5.61%
Vietnam 1,538 2.06%

These countries account for over 90% of refugee admissions for FY 2009 and most–about 60%–of these refugees are not from “Islamic” countries.  Further, even the refugees from majority Muslim countries are not necessarily Muslim.  Many refugees from Iraq and Eritrea, for example, are Christians.  So Dr. Williams’s claim about a Muslim “invasion” is patently false. 

What is so offensive about Dr. Williams’s canard is his implication that something is wrong with Muslim refugees (and Muslims in general).  To Dr. Williams, we are at war with Muslims, and anything we do to help a Muslim only hurts “us.”  He conveniently disregards our Muslim allies in the war on terror, or our own Muslim soldiers who risk their lives defending our country.  But hatred and bigotry rarely concerns itself with truth, and to Dr. Williams, the vulnerable Muslim refugees coming to our country are an invading army.  Better we should let them die in refugee camps.  And why not leave the non-Muslim refugees to die as well, for there might be Muslims among them.  To Dr. Williams, we live in an “us” vs. “them” world, where helping refugees–an act of compassion and humanity–is viewed as an act of treason.

Unfortunately, Dr. William’s lie has made its way around the internet as truth, and has been re-posted on many blogs.  People who hate Muslims and who hate President Obama seem ready to believe anything that fits their paradigm, regardless of the facts.  It’s a shame that refugees–some of the most vulnerable people on earth–are exploited by hate mongers like Dr. Williams, Ph.D.  You’d think an educated person would know better.

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Russian Arms Merchant: U.S. Offered Me Asylum in Exchange for Information

by Jason Dzubow

The wife of alleged Russian arms smuggler Viktor Bout claims that U.S. officials offered political asylum to Mr. Bout and his family in exchange for information about international arms trafficking. 

Viktor Bout flashes a V sign while detained in Thailand: Does it stand for Victim or Villian?

According to Voice of America, Mr. Bout was extradited from Thailand to the United States after more than two-years of legal battles between Moscow and Washington.  Mr. Bout is alleged to be one of the world’s most notorious arms smugglers and is accused of fueling conflicts in Africa, the Middle East, and South America.  He was arrested in Thailand in 2008 after a sting operation in which undercover American officials claimed to be members of the FARC, the Revolutionary Armed Forces of Colombia.

Alla Bout says her husband’s extradition was illegal because there was still a case against him pending in court in Thailand.  She says that transferring her husband to the United States before the end of legal procedures in Thailand breached legal and humanitarian norms, and demonstrates Bangkok’s complete subservience to Washington.

An open question is whether U.S. officials offered Mr. Bout and his family political asylum in exchange for information about arms trafficking.  Such a deal would not be unprecedented: During the Cold War, for example, a number of Soviet defectors were granted asylum in the United States, often in exchange for information about the U.S.S.R., or for propaganda purposes.  I do not know whether to believe Ms. Bout’s claim that U.S. officials offered her husband asylum in exchange for information about arms trafficking.  If the claim is true, it would appear that the United States has now chosen a stick over a carrot as a means of extracting information from the alleged arms dealer.  

On his website, Mr. Bout claims that the charges against him were fabricated by a “corrupt United Nations contractor… [who] became mad for vengeance when Victor [Bout] refused to continue paying him.”  Perhaps, but there seems to be some pretty strong evidence against him, including evidence documented in a book: Merchants of Death by Douglas Farah.  In any case, Mr. Bout’s guilt or innocence is now an issue for the United States justice system, where he faces charges such as conspiring to kill Americans and supporting a terrorist organization.

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Can the Mandaeans Be Saved?

by Jason Dzubow

Followers of the Mandaean religion have lived in Iraq for well over 1,000 years.  However, since the U.S. invasion in 2003, Mandaeans have faced all sorts of persecution from their fellow Iraqis, including murder, kidnapping, rape, confiscation of property and forced conversion.  Their numbers have dropped from about 60,000 in the 1990’s to less than 5,000 today.  The Mandaeans have fled to Kurdistan, Jordan, Syria, the United States, and other countries. 

A Mandaean Baptism Ceremony.

While the Iraqi Mandaeans are able to resettle in other countries, the concern is that they will be disbursed throughout the world and their religion will die out. 

The end of the Mandaean religion would be a great loss.  From a New York Times article on the Mandaeans (re-posted on Red Ice Creations):

The Mandeans are the only surviving Gnostics from antiquity, cousins of the people who produced the Nag Hammadi writings like the Gospel of Thomas, a work that sheds invaluable light on the many ways in which Jesus was perceived in the early Christian period. The Mandeans have their own language (Mandaic, a form of Aramaic close to the dialect of the Babylonian Talmud), an impressive body of literature, and a treasury of cultural and religious traditions amassed over two millennia of living in the southern marshes of present-day Iraq and Iran.

Practitioners of a religion at least as old as Christianity, the Mandeans have witnessed the rise of Islam; the Mongol invasion; the arrival of Europeans, who mistakenly identified them as “Christians of St. John,” because of their veneration of John the Baptist; and, most recently, the oppressive regime of Saddam Hussein, who drained the marshes after the first gulf war, an ecological catastrophe equivalent to destroying the Everglades. They have withstood everything — until now.

The Mandaean religion is pacifistic, and followers are not allowed to carry weapons, even for self defense.  Until the 2003 war, most of the world’s Mandaeans lived in Iraq.  Now the insular community has been divided into small groups and resettled as refugees.  Such groups are too small to create sustainable communities, and the fear is that the dispersion is the beginning of the end for the Mandaeans.

In the U.S., one of the largest refugee populations of Mandaeans is in Boston, which is home to about 450 individuals.  Mandaean activists hope to resettle enough refugees there to create a sustainable community.  According to the Boston Globe, nations don’t take in refugees from just a single ethnic or religious group, and the receiving countries face capacity issues.

In this instance, the UN and the receiving countries should make a greater effort to resettle the Mandaeans in larger number in order to create sustainable communities.  If not, this ancient religion could vanish forever.

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Burmese Artist Chaw Ei Thein Seeks Asylum in the U.S.

by Jason Dzubow
Burmese artist Chaw Ei Thein.

According to the World Policy Blog, Burmese artist Chaw Ei Thein has filed for political asylum in the United States.  Ms. Thien’s visual and performing arts have challenged the dictatorship in her country, and she faced arrest at least once for a performance art piece that her government found objectionable (the Burmese–or Myanmar–leadership is not known for its sense of humor).  Apparently, Ms. Thein has been in the United States for some time and has been receiving assistance from freeDimensional, an organization that helps exiled artists.  You can view some of Ms. Thein’s art on her blog.

I’ve always felt that there is a connection between art and exile.  Some of the earliest written literature (from ancient Sumer) are lamentations for destroyed cities.  One of my favorite musicians is Enrico Macias, an Algerian Jew who was exiled from his country during the war of independence.  On the boat ride to France, he wrote the song “Adieu mon pays” (Goodbye my country).  And a recent book by Joseph Horowitz, Artists in Exile, explores how refugees from war and revolution have transformed the performing arts in American.  So it seems Ms. Thein is in good company.

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Private Asylum for Refugee Academics

by Jason Dzubow

A recent editorial in the science journal Nature calls for increased assistance to academics fleeing persecution.  In many parts of the world, the editorial notes, “academics and their families can face discrimination, prison, or worse, for speaking out about or studying issues that threaten dominant policies or ideologies.”  “They can also be persecuted for their politics, or for belonging to a particular ethnic group.”

The most famous refugee also had a great set of gams.

A number of organizations exist in the U.S. and abroad to assist threatened academics.  Probably the most venerable such group is CARA–the Counsel for Assisting Refugee Academics.  Founded in the UK in the 1930s to help scientists in continental Europe fleeing the Nazis, CARA supported some 1,500 academics in those dark years, 16 of whom went on to win Nobel prizes.  It currently aids around 200 refugee academics annually.  At a CARA event earlier this year, Rowan Williams, the Archbishop of Canterbury, summed up what is at stake: “Defending intellectual freedom is defending the possibility not only of a free academy but of a society willing to learn — and thus a society willing to see itself critically.”

In the United States, two groups that assist endangered academics are Scholars at Risk and the Scholar Rescue Fund.  Among other things, these groups protect threatened scholars by bringing them to universities in the United States and support academic freedom in countries throughout the world. 

It is interesting that these NGOs are able to circumvent the normal refugee/asylum process for the people they are assisting.  Rather than applying for refugee status abroad or seeking asylum in the United States, the academics are offered positions at host universities.  They can then travel to the U.S. (or whichever country is hosting) using a regular visa (maybe an H1-B visa or a J visa, for example) and remain in legal status while they work at the university.  Of course, once they are here, the scholars could apply for asylum if necessary.

I wonder whether this model–of private organizations bringing refugees into the country using the immigration tools at their disposal–could be applied to other groups who are ill served by our immigration laws: gay and lesbian partners of U.S. citizens, for example, or victims of domestic violence, or others who face persecution but cannot establish that the persecution is “on account of” a protected ground.  I know professors are a special category–highly educated and employable under different immigration categories.  But perhaps this type of “private political asylum” could be used to help others in need.

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KIND Helps Unaccompanied Children, but Are There Unintended Consequences?

by Jason Dzubow

Every year, about 8,000 unaccompanied children enter the United States and are placed in removal proceedings.  Many of those children are helped by KIND–Kids in Need of Defense, a non-profit organization begun in January 2009 with a $3 million grant from Microsoft (and help from refugee maven Angelina Jolie).  Pleased with the success of the organization, which has offices in eight cities, Microsoft last month committed to another $3 million over the next three years.

According to a press release:

Since KIND became operational in January 2009, almost 1,900 children have been referred to KIND for help finding a pro bono attorney; the children range in age from two to 18 years old, and come from more than 35 countries.  KIND’s model is an innovative public-private partnership in which lawyers from firms, corporations, or private practice volunteer to represent children in immigration proceedings.

According to KIND Executive Director Wendy Young:

Many of these children are escaping severe abuse or persecution; others have been abandoned or have been trafficked to the United States.  Some are hoping to reunite with their parents.  They need and deserve representation to help them make their claim for U.S. protection.  Without representation, children with viable claims are often unable to make them and can be sent back to their home countries, where their well-being, or even their lives, may be in danger.

There is an argument to be made that granting benefits to children who cross the border illegally creates an incentive for others to follow them and make the risky journey to the United States.  And it is a dangerous trip–a group that tracks border deaths, No More Deaths, reports that over 250 people have died along the Arizona border during the last year.  Hundreds more have died trying to enter through New Mexico, Texas, and California, or at other locations on the refugee route from Central America.  I knew a prominent DHS attorney who routinely (and passionately) opposed relief for children who crossed the border illegally because he did not want to create incentives for other children.

After pedaling for many days, a border crosser gets ready to jump the fence.

While I agree that we don’t want to create incentives for children to risk their lives by crossing illegally into the United States, I doubt that assisting children with their cases does much to create such an incentive.  For one thing, many of the children are leaving pretty awful circumstances–if they were safe and happy, they would stay home.  In this context, the border crossing may be one of the least dangerous things they have to do to survive.  Also, given the large flow of people across the border (in both directions), it seems unlikely that allowing those with meritorious cases to remain here would do much to incentivize people outside the U.S.  Finally, young people are less likely to know about or be influenced by government policies.  Even if we were deported all children who enter the U.S. without inspection, I think it would do little to dissuade others who are fleeing abuse or persecution in their homelands.

If children with legitimate claims are denied–perhaps because they are unrepresented and cannot present their cases effectively–it would mean returning them to dangerous circumstances in their home countries.  Unaccompanied children who have fled to the U.S. seeking safety need help from KIND and other similar organizations.  Without KIND’s help, many of those with legitimate claims would be sent back to their countries, where they would face abuse or worse. 

With the most recent grant from Microsoft, it seems KIND will continue its life-saving work for some time to come.

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The Unbearable Lightness of BIA-ing

by Jason Dzubow

In an average year, the  Board of Immigration Appeals decides over 35,000 cases, but publishes less than 40 decisions.  The small number of published decisions provides insufficient guidance to the nation’s Immigration Judges and results in inconsistent rulings between judges.  The lack of guidance has also contributed to the dramatic increase in immigration cases heard by the federal courts of appeals.  So instead of the law being settled by the BIA–which specializes in immigration–the various appeals courts have been interpreting the law, not always consistent with their sister circuits.

Here is how the numbers break down for the last few years: In 2009, the BIA decided 33,103 cases and published 34 decisions.  In 2008, it decided 38,369 cases and published 33 decisions.  In 2007, it decided 35,394 cases with 45 published decisions, and in 2006, it decided 41,476 cases and published 26 decisions.  So far this year, the Board has published 31 decisions.

Maybe Harry Truman could lend the BIA his famous sign.

When I was at the AILA conference last summer, we heard that published decisions require far more time and resources than unpublished decisions, but I just don’t buy it.  The BIA is authorized to have up to 15 Board Members.  It has a staff of well over 100 attorneys.  So even during their most prolific year (2007, when they published 45 decisions), each Board Member was required to write only three decisions, and each staff attorney wrote less than half of one decision.   

According to the BIA Practice Manual:

Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.

It’s hard to believe that of the 30 to 40 thousand cases the Board reviews each year, only about 0.1% (one in one thousand) contain an issue that meets the above criteria.  I’ve had several cases before the BIA that involved issues of first impression, none of which were published (though two of them were published decisions by federal circuit courts).  Why is the Board passing the buck on decisions to the federal courts of appeals?

Although it might be more work over the short term, if the Board published more frequently, IJ decisions would become more consistent–creating less work for the BIA over the long term.  It would also make life easier for the federal courts of appeals, saving government resources.  Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families. 

The BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.

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Do Immigration Lawyers Suck?

by Jason Dzubow

According to the EOIR website’s List of Currently Disciplined Practitioners, almost 400 immigration attorneys (397 by my count) have been seriously disciplined since 2000.  What I mean by “seriously disciplined” is suspended or expelled from the practice of law.  The list does not include attorneys who have been subjected to lesser punishments, such as “reprimands” or “admonishments,” whatever those are.

Last I heard, there were around 10,000 attorney-members of AILA, the American Immigration Lawyers Association, but it is unclear how many other attorneys practice immigration law.  Assuming (and it is a big assumption) that AILA represents 50% of all immigration attorneys; there are about 20,000 immigration attorneys nationwide.  If 400 of them had been suspended, that means that about 2% of all immigration attorneys have been seriously disciplined. 

Even these guys would have a hard time getting suspended.

Depending on your point of view, maybe 2% is a lot, or maybe it is a little.  Call me a pessimist, but if I hire someone to assist me with one of the most important endeavors in my life, and there is a 2% chance that that person is a crook, I would feel a bit uneasy.  If 2% of pilots were incompetent, I doubt many people would fly.

But my guess is that the problems are worse than the numbers reveal.  For one thing, it’s not easy to get suspended or expelled from the practice of law.  I once filed a bar complaint against an attorney for lying to my client, stealing his money, and getting him ordered deported (the complaint was a required part of the process to get the case reopened).  We had all sorts of documentation proving this attorney’s incompetence and maliciousness.  The Bar Association found that she had violated the Rules of Professional Conduct, but declined to punish her because there were “special circumstances.”  Ironically, the “special circumstances” were that she had already been punished for destroying the cases of two other people.  So, in other words, she was saved from punishment by her own prior bad acts.  It’s ridiculous, but it helps illustrate how difficult it is to get suspended.  Nevertheless, 400 of my fellow immigration attorneys have managed to do so.

Another problem is that immigrants–particularly illegal immigrants–are unlikely to report bad attorneys.  Many immigrants do not speak English and are not familiar with their rights.  They do not know how to report attorneys.  Also, they might be afraid to report attorneys. 

For these reasons, my guess is that the 400 attorneys on the EOIR list represents only a fraction of the incompetent and/or dishonest immigration attorneys who are practicing law today. 

Of course, the vast majority of immigration attorneys are caring, competent, and honest.  Most (if not all) attorneys I know have worked long hours for little or no pay to help clients in need.  Immigration law is usually not the most lucrative field, and most attorneys practice in this area because we want to help people fleeing persecution or reuniting with family or making a better life.  I do think we have a responsibility to report bad conduct when we see it, and to encourage people who have been harmed to file complaints where appropriate.  Bar associations should also be more aggressive in enforcing the rules.  In this way, we can protect our clients and improve the profession. 

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Amicus Brief on Sexual Violence as Torture in Argentine Case

by Jason Dzubow

Earlier this month, the European Center for Constitutional and Human Rights submitted an Amicus Brief titled Sexual Violence as Torture in several cases stemming from the military dictatorship in Argentina.

In a 1976 coup, the Argentine military seized power and ruled until 1983.  During those years, the government violently suppressed dissent.  As part of the repression, government officers committed sexual violence against women (and men).  These crimes were generally committed in clandestine detention centers as part of a systematic and deliberate plan, orchestrated within the highest government levels.  The Amicus Brief argues that these actions are crimes against humanity.  From the brief:

This amicus curiae brief is submitted in order to call the Court’s attention to the universal acceptance of sexual violence and rape – as a special form of it – as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression.  It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and international human rights law.

The brief states that in the present case, Argentina has the opportunity to “develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.”

The brief notes that international law concerning sexual violence is a relatively recent development: “When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.”

The following principles have emerged from international humanitarian law: (1) Sexual violence is not limited to the sexual act of penetration, but could include other behaviors; (2) Rape may be understood as a serious crime of sexual violence; (3) Women as well as men can be victim of these crimes given that the established elements are gender neutral; (4) Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength; and (5) Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.

While the ECCHR Amicus Brief has been filed in a criminal case, the principles could be applied to asylum and Convention Against Torture claims, and help to establish that sexual violence is a form of torture.

I have a copy of the brief (English version), but it is not available on-line.  Feel free to contact me if you would like a copy.

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Actor Randy Quaid Seeks Asylum in Canada

by Jason Dzubow

Carl Jung said, “There are no coincidences.” 

Yesterday, I wrote about American citizens who seek asylum overseas (American Citizens Seek Asylum in Great Britain).  Now, we learn that Randy Quaid and his wife Evi are seeking asylum in Canada. 

Randy Quaid in Independence Day - Just because you're paranoid doesn't mean they're not out to get you.

It seems that the couple had legal trouble in the U.S., stemming from a property dispute.  As a result of the dispute, the couple was arrested in California and released on $50,000.00 bond each.  They then traveled to Canada where Mr. Quaid was scheduled to receive an award from a Canadian film critics group.  When they failed to appear at a hearing in California, they were arrested in Canada.  Rather than quietly returning to the U.S., the couple has sought refugee status in Canada.

The basis for the claim is not entirely clear.  Mrs. Quaid says that eight of their friends, including actors David Carradine and Heath Ledger, have been “murdered” under mysterious circumstances and she’s worried something will happen to her husband next.  “We feel our lives are in danger,” she said.

According to my favorite website, TMZ, the Quaids have had a troubled history and have made some pretty outrageous claims involving different conspiracies against them.  Although the Immigration and Refugee Board of Canada has released them, they are being kept on a pretty tight leash, and will have to appear again for a hearing later this week.  Whether they follow through with their asylum claim, we will have to wait to see.  If they succeed on the claim, they will become two of the handful of U.S. citizens who have successfully claimed asylum in another country. 

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American Citizens Seek Asylum in Great Britain

by Jason Dzubow

We usually think of the United States as a country where people fleeing persecution come to seek asylum.  But sometimes, American citizens flee their country in search of safety elsewhere. 

The British Daily Mail reports that five Americans currently have asylum cases pending in the UK.  The cases came to light earlier this month when a whistleblower, Rory Clarke of the National Asylum Support Service, made the information public.  According to Mr. Clark, the Americans are in Great Britain to take advantage of the posh benefits available to asylum seekers.  These benefits include free housing and healthcare, and £35 per week.  In some cases, asylum seekers can receive benefits for years before their claims are rejected.  Mr. Clarke says that he was so shocked by this abuse of the system that he resigned his job.

Asylum Seekers in the UK enjoy government-sponsored meals and accommodation.

The five Americans are not the only U.S. citizens to seek asylum abroad.  The Guardian reports that between 2004 and 2008, 45 Americans (and 15 Canadians) filed for asylum in the UK.  All 60 cases were rejected.

The basis for most claims was not revealed.  However, a US government source said the American applications pokies online were most likely submitted by self-declared “political refugees” claiming they faced discrimination under the administration of President Bush.  An on-line posting by an alleged American refugee claimed that he was seeking sanctuary in Scotland because he had been “persecuted as a political dissident against US government war-mongering.”

According to the Guardian:

A small number of Americans have successfully claimed asylum abroad over the past few decades. In 1997 the Netherlands granted asylum to Holly Ann Collins, together with her three children, when they claimed to be fleeing domestic abuse. The family had spent three years living in four different Dutch refugee camps before their application was approved [she returned to the U.S. in 2008 where she pled guilty to contempt of court].  In June 2008 Texan mother Chere Tomayko and her two daughters were granted asylum in Costa Rica, also on the grounds of abuse.

There also have been cases recently of Americans seeking asylum in Canada in order to avoid service in Iraq and Afghanistan.  In fact, there is a website devoted to war resisters in Canada.

While the idea of U.S. citizens seeking asylum abroad seems a bit suspect, I suppose I agree with Donna Covey, the chief executive of the Refugee Council in the UK, who says: “No country is safe for every person all of the time. Those with a genuine need for protection, whatever country they are from, should have the right to claim asylum in a place of safety.”

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Missouri Senate Candidates Vie for Who Hates Asylum Seekers More

by Jason Dzubow

Asylum tends to be one of the less controversial areas of immigration law, and rarely attracts the kind of anger associated with the broader immigration debate.  However, a 20-year old asylum case has become an issue in the Missouri Senate race. 

The Kansas City Star reports that Democrats have accused the Republican candidate, Roy Blunt, of “hypocricy” because he employed and tried to assist an “illegal worker” named Dora Narvaez, a Nicaraguan asylum seeker.  Apparently, Mr. Blunt employed Ms. Narvaez as a housekeeper for six months in 1990 and then contacted the head of INS to help her with her asylum case.  At the time, Mr. Blunt was Missouri’s Secretary of State.  Mr. Blunt’s campaign denies the allegations, and states that he forwarded Ms. Narvaez’s request for assistance, just as he did for anyone else from Missouri. 

It’s unclear to me how the Democrats have determined that Ms. Narvaez was an “illegal worker.”  Aliens who filed for asylum prior to 1996 received a work permit quickly and were permitted to remain in the U.S. until their cases were adjudicated.  Thus, if Ms. Narvaez was indeed an asylum seeker, she was most likely legally eligible to work and live in the United States, and so Mr. Blunt could have lawfully employed her.  Whether or not he used his influence and connections to assist her remains an open question, but based on the evidence available, the Democrat’s charge that Ms. Narvaez was an “illegal worker” seems unfounded. 

Not that the Republicans are much better on this issue.  Mr. Blunt currently represents Southwest Missouri in the House of Representatives.  According to his Congressional website, he has opposed “amnesty” and supported an enforcement-only approach to the immigration problem.  Thus, it seems that neither candidate is much of a friend to immigrants.

Mr. Blunt currently leads his opponent, Democrat Robin Carnahan, in the polls. 

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Remembering Louis Henkin – Architect of the 1951 Refugee Convention

by Jason Dzubow

Louis Henkin, a leading scholar in international law and foreign policy, professor emeritus at Columbia Law School, and one of the principal architects of the 1951 Convention Relating to the Status of Refugees, died last week at age 92.

Louis Henkin (November 11, 1917 - October 14, 2010)

Prof. Henkin led a long and eventful life.  He was born Eliezer Henkin in 1917 in Belarus, the son of a prominent rabbi.  He and his family immigrated to the United States in 1923, and he eventually attended Harvard Law School. 

After law school, Prof. Henkin clerked for Judge Learned Hand before enlisting in the United States Army during World War II.  He served in the European Theater and was awarded a Silver Star for his efforts. 

After completing his military service, he clerked for Supreme Court Justice Felix Frankfurter.

Beginning in 1948, Prof. Henkin worked for the U.S. State Department in the United Nations Bureau.  There, he helped author the 1951 Refugee Convention, the key legal document defining who is a refugee, their rights, and the legal obligations of states.

Prof. Henkin left the State Department in 1956 and began a long academic career, mostly at Columbia University where he founded the university’s Center for the Study of Human Rights in 1978 and created the Human Rights Institute in 1998.  Prof. Henkin was considered by many one of the “founding fathers” of human rights law. 

Volker Türk, director of UNHCR‘s Division of International Protection, saluted Professor Henkin for his “fundamental contribution to the early development of international refugee law and his unwavering commitment to the protection of human and refugees’ rights.”  “It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou,” said Elisa Massimino, the president and chief executive officer of Human Rights First, an organization Professor Henkin helped found in 1978 under the name Lawyers’ Committee for Human Rights.  “He literally and figuratively wrote the book on human rights,” she said.

According to the New York Times, Prof. Henkin took a lofty view of his own government’s international responsibilities, but he often felt let down: “In the cathedral of human rights,” he wrote, “the United States is more like a flying buttress than a pillar — choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.”

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Amicus Brief on Protecting Mentally Disabled Respondents

by Jason Dzubow

Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

Our view of the mentally ill continues to evlove, but we've still got a way to go.

In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 

“‘The [incompetency] doctrine [where a defendant can not stand trial if he can’t comprehend the charges against him, can’t effectively consult with counsel, and can’t assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'”  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person’s rights and is the hallmark of a functioning justice system. 

To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent’s right to counsel, (2) the Immigration Judge’s (“IJ”) ability to terminate proceedings, (3) the IJ’s power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 

In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 

U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 

If this case is anything like the cases I’ve litigated in the BIA, we won’t have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA. 

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Wonderful State Department Publication on Refugees

by Jason Dzubow
Eric P. Schwartz, U.S. Assistant Secretary of State for Population, Refugees and Migration

Since 1975, the United States has resettled almost 3 million refugees and asylum seekers, more than all other resettlement countries combined.  The most recent edition of the U.S. State Department’s eJournalUSA is entitled, Refugees: Building New Lives in the USA.  It presents a number of moving stories about refugees and the Americans who assist them.  From the introduction:

This eJournal USA chronicles lives of desperation and struggle but also offers examples of friendship and hope. In this issue:

• a boy is separated from his family and spends his childhood trying to elude the carnage of the Second Sudanese Civil War;

• a Cuban family of 10 faces persecution for their political beliefs in their home country;

• a young girl flees war and takes an uncertain journey across the Pacific;

• a man escapes ethnic violence in Rwanda and subsists on the street and in a refugee camp for 10 years.

All these people left their homelands and came to the United States as refugees, and all were met by American sponsors who helped them build new lives in the U.S. Through interviews and first-person accounts, our journal tells the stories of refugees who are building new homes and lives in the United States — and of those Americans who guide and help them.

Diversity and plurality are among the United States’ defining national characteristics. These national values inspire individual Americans to strengthen the country’s social fabric by welcoming and helping integrate refugees into U.S. communities. The resettled refugees in turn enrich American culture as well as the nation’s social, economic and legal framework.

The stories and articles in these pages explain the U.S. government’s commitment to help refugees and illustrate how that commitment is embodied by thousands of Americans who extend a hand to aid and befriend some of the nation’s newest — and bravest — residents.

The articles in the State Department journal highlight America at its best and remind us that our country has been greatly enriched by the refugees we have helped.  I also learned that Gloria Estefan came to the U.S. as a refugee (p. 18) and that a church in my old neighborhood helped welcome Turkish refugees from Georgia and Uzbekistan (p. 21).

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