In 2012, President Obama’s Administration created the Deferred Action for Childhood Arrivals–or DACA–program, which deferred removal and granted work permits to certain aliens who came to the United States prior to their 16th birthdays, who have no serious criminal issues, and who meet certain educational or military-service requirements. As usual, the statistics from the government are hard to understand, but it seems that about 730,000 individuals have benefited from the DACA program.
Deporting her is a sure way to make America great again. As long as we don’t get sick…
But now that Mr. Obama is “out” and Donald Trump is “in”, many DACA recipients fear that they will lose their tenuous status, and possibly face deportation. This concern is understandable. Mr. Trump has promised to “immediately terminate” the program, and since DACA beneficiaries have submitted their biographic information to USCIS, the government can more easily track them down and try to deport them. Also threatened with deportation are “Dreamers” – aliens who would benefit from the DREAM Act, which would have provided relief to a broader range of non-citizens than DACA, had it become law.
So are there any defenses to deportation for DACA beneficiaries and Dreamers? What can these people do now to start protecting themselves?
Assuming the new President ends the DACA program (which can be done by executive action, without Congressional involvement), DACA recipients would have a number of defenses to deportation (though this could change if the President and Congress modify the immigration laws). My primary focus here is asylum, but before we get to that, there are other possible defenses that DACA beneficiaries might consider: Claims to U.S. citizenship, improperly issued/served Notices to Appear, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, residency applications based on being a victim of a crime or human trafficking. In short, there are many possibilities, and if you currently have DACA, it is worth thinking about whether any of them apply to you. This might entail researching the issues yourself or–if you can afford it–talking with a lawyer (if you cannot afford a lawyer, there might be free services available to you).
For many DACA recipients and Dreamers, I imagine that asylum will be the only viable option. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. This means that in order to win your case, you will need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).
Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer to further develop your case. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to DACA recipients and Dreamers.
Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.
To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of one of the protected grounds. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.
In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the U.S. or that he meets an exception to this rule. I expect that this will be a particular issue for DACA recipients and Dreamers, since they have been here for years. If you have not filed within a year of entry and you do not meet an exception, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.
There are some exceptions to the one-year rule that may apply to DACA recipients and Dreamers. If a person is lawfully present in the U.S., that is considered an exception to the rule (technically, it is considered “exceptional circumstances” that excuses the missed deadline). For example, if a person is on a student visa for four years, and then she applies for asylum while still in lawful status, she meets an exception and is eligible for asylum. People with DACA could argue that DACA status constitutes an exception to the one-year rule. Whether or not this will work, I am not sure, but it is worth exploring. Another common exception is “legal disability,” which includes being a minor. So if you file for asylum before you turn 18 years old, you will meet an exception to the one-year rule.
Another exception to the one-year rule is “changed circumstances”. Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet an exception to the one-year rule.
For DACA recipients and Dreamers, asylum may be the last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, because it is written into the law (based on a treaty signed by the United States in 1968), Mr. Trump cannot eliminate asylum without the cooperation of Congress, and such a radical step seems unlikely. So asylum should remain an option for DACA beneficiaries and Dreamers. Second, 150 days after you file for asylum, you can file for a work permit. The Trump Administration could change this provision without Congressional action, but as the law now stands, asylum applicants can get work permits. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick. The process can take years, and if Mr. Trump follows through on his promises to deport even more people, the system may further slow down.
Whether the new Administration will move to end DACA and deport Dreamers, we do not yet know. If the goal is really to deport as many “illegals” as possible, I believe that starting with DACA recipients is a strategic mistake: Such people are well-integrated into our society and starting with them will create fierce resistance. It would be easier to step up border enforcement, block refugees from entering, and broaden detention for criminal aliens. But my suspicion is that Mr. Trump is more concerned with the appearance of progress than with actual progress. If so, DACA recipients are an easy target–the government can harm them merely by taking away their status and work permits–and this will demonstrate visible progress to those who oppose immigrants. On the other hand, there are some positive signs coming from Congress. Either way, DACA beneficiaries cannot rely on hope, they should start planning now, so they are ready for whatever the new Administration has in store.
Last week when I wrote about Dream Activists and Asylum Seekers, I caused a bit of a kerfuffle. Hopefully, today, I will do better, and this post won’t be quite so kerfuffle-inducing (and yes, I plan to see how many times I can use the word “kerfuffle” in one post – according to Carl Kasell, so far that’s three).
First, a bit of housekeeping. If you have not read my post from last week, this entry will be harder to follow.
Probably the main objection to my posting last week was my insinuation that the asylum claims of the Dream 30 were not legitimate. However, based on the comments from their attorneys/advocates David Bennion and Mathew Kolken, it seems that the claims are legitimate, and so I will take that as a given for purposes of this blog post.
Explaining stuff helps us understand.
With that as background, there are two issues I want to discuss: (1) From a moral and policy point of view, is there any problem with using the Dream 30’s asylum cases to promote a political agenda (the Dream Act) when that agenda is unrelated to the substance of the asylum claim (fear of persecution in Mexico)? and (2) Will this strategy move the Dream Activists closer to their goal?
Political asylum cases are, by their nature, political (duh). This means that the claimants have a political agenda. Normally, that agenda relates to the substance of their claim. For example, I represented a Pakistani journalist who opposed the government and faced persecution because of his activities. After he received asylum, he spoke about his case in the media to try to gain attention for his cause. This seems perfectly legitimate.
The journalist’s case is different from the Dream Activists, in that the activists are not publicizing their cases to highlight the political situation in Mexico. Instead, they are highlighting the failure of the U.S. government to pass immigration reform. I worried that this use of asylum would somehow damage the asylum system. So are the Dream Activists under any obligation to justify their actions? And, if so, is there a justification for using the asylum system in this manner?
First, why should the Dream 30 be required to justify their use of the asylum system as a form of protest? They have legitimate reasons for seeking asylum, and if they want to use their cases to gain attention for the Dream Act or for any other cause, isn’t that their business? Speaking for myself, without such a justification, I find it very difficult to support their political action (though I certainly support their right to seek asylum, as per the letter from Bill Ong Hing). Although it may sound corny, having represented hundreds of asylum seekers, I believe that our system of asylum is, in some ways, sacred. It is a system that is designed to–and does–save lives. If that system is going to be used for some ulterior motive, I, for one, would like an explanation.
I can image some possible justifications: Maybe the activists think publicizing these cases will help advance immigration reform; maybe they want to demonstrate that when undocumented immigrants leave the U.S., their lives are at risk; maybe they want to alert other Dream Act-eligible people to the possibility that they might avoid removal by seeking asylum; maybe they want to inspire other undocumented people to come forward; or perhaps there is another reason for their actions that I have not thought of. My point being, it would be nice to know what the Dream Activists want.
The second big question for me is whether the strategy of publicizing the Dreamers’ asylum claims will accomplish their political goal (whatever that might be). Assuming the goal is immigration reform of some kind, I have seen no explanation for how publicizing these asylum cases will move our country towards that goal.
Certainly, it could simply be that I am ill informed. However, I am more than a casual observer, and I am not a complete idiot (at least on my better days). So if I don’t get it, probably many others don’t either. The Dream activists have done an extraordinary job of publicizing the Dream 30 (and the Dream 9 before them), but they have failed to capitalize on this initial attention to move the discussion in a positive direction. Indeed, it seems to me that they have completely lost the initiative, as the discussion has bogged down in internecine internet warfare. Maybe if the Dreamers had been more clear from the beginning about their goals and strategy, the debate over these issues would not have taken such an unproductive turn.
It is not too late for the Dream Activists to re-take the initiative and extricate themselves from the unproductive tit-for-tat with other immigrant advocates. For a start, they need to clearly explain a few things: (1) When and under what circumstances did the members of the Dream 30 leave the U.S. and why are they seeking asylum (their lawyer David Bennion did a pretty good job of this in response to my blog post from last week); (2) What is the ultimate goal of the Dream Activists; and (3) How does the action at the border help achieve that goal.
For me–and, I suspect, for others–clear answers to these questions would be a good way to begin a productive dialogue about goals and strategy, and would go a long way towards bringing us on board with the Dream Activists’ plan. But for now, without a good explanation, I am simply not convinced that the Dreamers’ actions have done anything to advance the cause of undocumented people, asylum seekers, or immigration reform.
The following letter is from Bill Ong Hing to President Obama. Professor Hing is a well known advocate for immigrants. He is currently a professor of law at the University of San Francisco. Prof. Hing writes about the Dream 30 credible fear cases that were rejected (about eight cases have been rejected so far; one person was deported). He is concerned that the cases have been rejected based on an unfair and incorrect legal standard. He puts the Dream 30 cases into historical perspective and argues that the rejection of these credible fear applicants is reminiscent of previous failures by our government to protect refugees.
I am not fully convinced by his conclusions, as I discussed in my last blog entry (in short, I think there are–or at least, may be–legitimate reasons why the Dreamers’ credible fear applications would be denied at a higher than average rate). However, his analysis is important and deserves attention, especially since we would not want to repeat the tragic history that he recounts. His letter is kind of long (he is a law professor), but well worth a read if you are following this debate. Enjoy:
November 4, 2013
President Barack Obama
The White House
Washington, DC
Re: Dream 30 and Credible Fear
Dear President Obama:
I write to you today with grave concern for the “Dream 30”, young people who arrived at the Laredo Port of Entry on September 30th and requested both humanitarian parole and asylum. Twenty-six of these young people are currently detained at the El Paso Processing Center, and all have received credible fear interviews after expressing fear of returning to Mexico (or, in one case, Peru). However, seven have received negative determinations of credible fear and may now be subject to removal, and I am concerned that an unreasonable standard for credible fear has been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper, more generous credible fear standard be followed.
President Obama reads Professor Hing’s letter.
The immigration system allows for those who express a fear of return at our borders to receive a credible fear interview, rather than being summarily deported. This is essential to protecting those who may face danger abroad, but have little understanding of our legal system and few resources with which to prove their case. And it is essential to maintaining the United States as a safe haven for those who have been persecuted at home. The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture. For this very reason, the denial rate for credible fear interviews was less than 9 percent.
The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The apparent cursory fashion in which these negative decisions were made are reminiscent of three tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees, and Jewish refugees from Europe during World War II.
Treatment of Central American Refugees
The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9th Cir. 1990), reveals that immigration officials engaged in a strategy that foreclosed the opportunity to apply for asylum for Salvadorans during the 1980s.
Generally, after aliens were apprehended, either border patrol agents or INS officers processed them. INS processing of detained aliens consisted of an interrogation combined with the completion of various forms, including form I-213, “Record of Deportable Alien,” and the presentation of form I-274 “Request for Voluntary Departure.” Although the arrested Salvadorans were eligible to apply for political asylum and to request a deportation hearing prior to their departure from the United States, the vast majority of Salvadorans apprehended signed voluntary departure agreements that commenced a summary removal process. Once a person signed for voluntary departure in the course of INS processing, he or she was subject to removal from the United States as soon as transportation could be arranged. A person given administrative voluntary departure in this manner never had a deportation hearing, the only forum before which the detained person could seek political asylum and mandatory withholding of deportation.
The Smith court found that the widespread acceptance of voluntary departure was due in large part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity of most Salvadorans with their rights under United States immigration laws. INS agents directed, intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to procure voluntary departure, ranging from subtle persuasion to outright threats and misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure even when they had unequivocally expressed a fear of returning to El Salvador. Even when an individual refused to sign form I-214, “Waiver of Rights,” INS officers felt that they could present the person with the voluntary departure form.
The court also found that INS processing officers engaged in a pattern and practice of misrepresenting the meaning of political asylum and of giving improper and incomplete legal advice, which denied arrested Salvadorans meaningful understanding of the options presented and discouraged them from exercising available rights. INS officers and agents routinely advised Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that were available. Without informing them that voluntary departure could be requested at a deportation hearing, INS officers advised detainees that if they did not sign for voluntary departure they could be formally deported from the United States, and that such a deportation would preclude their legal re-entry without the pardon of the Attorney General.
INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they would remain in detention for a long time, without mentioning the possibility of release on bond. Similarly, without advising that an immigration judge could lower the bond amount and that there were bond agencies that could provide assistance, INS agents regularly told detainees that if they did not sign for voluntary departure they would remain detained until bond was posted. Some agents told individuals the monetary bond amount they could expect or the bond amount given to other Salvadorans, without telling them that the bond amount ultimately depended upon the circumstances of the individual.
INS officers commonly told detainees that if they applied for asylum, the application would be denied, or that Salvadorans did not get asylum. INS officers and agents represented that Salvadorans ultimately would be deported regardless of the asylum application. INS officers and agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to soldiers. INS processing agents or officers further discouraged Salvadorans from applying for asylum by telling them that the information on the application would be sent to El Salvador, and stating that asylum applicants would never be able to return to El Salvador. INS processing officers also used the threat of transfer to remote locations as a means of discouraging detained Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.
Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing the voluntary departure forms, although they acknowledged that aliens had this right. Even those Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary departure, as INS’ practice was to refuse to recognize the authority of counsel until a formal notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran detainees, it was often physically impossible for counsel to locate their clients and file Form G-28 before the client was removed from the country.
In conclusion, the Smith court noted:
The record before this Court establishes that INS engages in a pattern and practice of pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC to request voluntary departure or voluntary deportation to El Salvador. There is substantial evidence of INS detention officers urging, cajoling, and using friendly persuasion to pressure Salvadorans to recant their requests for a hearing and to return voluntarily to El Salvador. That this conduct is officially condoned, even in the face of complaints, demonstrates that it is a de facto policy. The existence of a policy of making daily announcements about the availability of voluntary departure, coupled with the acknowledgement that the policy is designed to free-up scarce detention space, supports the conclusion that INS detention officers make a practice of pressuring detained Salvadorans to return to El Salvador. This conduct is not the result of isolated transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive practice akin to a policy. . . . This pattern of misconduct flows directly from the attitudes and misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the motives of class members who flee El Salvador and enter this country.
Thus, the court entered the following order:
1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge or other forms of coercion, or in any other way attempt to persuade or dissuade class members when informing them of the availability of voluntary departure pursuant to 8 U.S.C. § 1252(b). The prohibited acts include, but are not limited to:
(a) Misrepresenting the meaning of political asylum and giving improper and incomplete legal advice to detained class members;
(b) Telling class members that if they apply for asylum they will remain in detention for a long period of time, without mentioning the possibility of release on bond or indicating that bond can be lowered by an immigration judge and that there are bond agencies which can provide assistance;
(c) Telling Salvadoran detainees the amount of bond given to other class members, without indicating that the bond amount ultimately depends upon the circumstances of the individual class member;
(d) Telling class members that their asylum applications will be denied, that Salvadorans do not get asylum, or that asylum is only available to guerillas or soldiers;
(e) Representing to class members that the information on the asylum application will be sent to El Salvador;
(f) Representing to class members that asylum applicants will never be able to return to El Salvador;
(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do not elect voluntary departure;
(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that are available;
(i) Refusing to allow class members to contact an attorney; and
(j) Making daily announcements at detention facilities of the availability of voluntary departure.
The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991). As the New York Times reported on the case:
Such applications have long presented the Government with an embarrassing choice. The United States supports the Governments of El Salvador and Guatemala, and at the same time it is asked by asylum applicants to find that they have a “well-founded fear of persecution” if they are returned home. Every approval of an application for political asylum thus amounts to an admission that the United States is aiding governments that violate the civil rights of their own citizens.
Since 1980 the Government has denied 97 percent of applications for political asylum by El Salvadorans and 99 percent of those by Guatemalans. During the same time, applications for political asylum by Eastern Europeans, Nicaraguans and residents of other countries have a high percentage of approval. For example, 76 percent of applications by residents of the Soviet Union were approved, as were 64 percent of those by residents of China.
A settlement was reached requiring the INS to readjudicate the asylum claims of certain Salvadorans and Guatemalans who were present in the United States as of 1990, and who had sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a nationwide class action on behalf of Salvadorans and Guatemalans. The plaintiffs alleged that the INS and the Executive Office of Immigration Review were biased in their asylum adjudication process for those two nationalities. Under the settlement, these Central Americans were eligible for new asylum interviews.
Unfair Treatment of Haitian Asylum Applicants
In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982), the Fifth Circuit chastised the federal government for unfair processes that were imposed on Haitian asylum applicants. In response to the repressive Duvalier regime that caused political and economic havoc in Haiti in the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum once they reached the shores of Florida. A backlog developed, so INS officials implemented an accelerated program to deal with the situation. The program of accelerated processing to which the Haitians were subjected by the INS-termed the “Haitian Program”- embodied the government’s response to the tremendous backlog of Haitian deportation cases that had accumulated in the INS Miami district office by the summer of 1978. By June of that year between six and seven thousand unprocessed Haitian deportation cases were pending in the Miami office. These staggering numbers were not the result of a massive influx of Haitians to south Florida over a short period. Although significant numbers of Haitians had entered the United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of the INS in dealing with these aliens.
Many officials provided input in the planning process of the Haitian project. Assigned by the Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that processing could be expedited by ceasing the practice of suspending deportation hearings upon the making of an asylum claim. Salturelli acknowledged that this would contravene internal operations procedures, but suggested that those procedures should be cancelled or “at least be suspended insofar as Haitians are concerned.” One July 1978 report from the Intelligence Division of INS to the Associate Director of Enforcement advised in absolute terms that the Haitians were “economic” and not political refugees and, in belated recognition of the obvious, warned the Enforcement Division that favorable treatment of these Haitians would encourage further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find space for holding an increased number of deportation hearings and to discuss with Miami personnel the processing of Haitians. Out of those discussions arose recommended deterrence measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians, swift expulsion of Haitians from the United States, and enforcement actions against smugglers.
Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the basic mechanics of the accelerated processing already being implemented in the Miami district office. Among the specifics set forth were the assignment of additional immigration judges to Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.
In accordance with the goal of high productivity demanded of the Miami office, Acting District Director Gullage issued a memorandum to all personnel in the office, stating “processing of these cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby ordered to take whatever action they deem necessary to keep these cases moving through the system.” The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program only between one and ten deportation hearings were conducted each day. During the program, immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the program’s peak the schedule of deportation hearings increased to as many as eighty per day.
At the show cause or deportation hearing, the immigration judges refused to suspend the hearing when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in the show cause order and proceed to a finding of deportability. The order entered by the judge allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to request withholding of deportation from the immigration judge if the asylum deadline was not met. Failure to seek withholding in a timely manner effected automatic entry of a deportation order.
Deportation hearings were not the only matter handled during the Haitian program. Asylum interviews also were scheduled at the rate of forty per day. Immigration officers who formerly had worked at the airport were enlisted as hearing officers for these interviews. Prior to the program such interviews had lasted an hour and a half; during the program the officer devoted approximately one-half hour to each Haitian. In light of the time-consuming process of communication through interpreters, the court concluded that only fifteen minutes of substantive dialogue took place. Consistent with the result-oriented program designed to achieve numerical goals in processing, the Travel Control section in the Miami office recorded the daily totals of asylum applications processed. The tally sheet contained space only for the total number of denials; there was no column for recording grants of asylum.
Hearings on requests for withholding deportation also were being conducted simultaneously with asylum and deportation hearings, at several different locations. It was not unusual for an attorney representing Haitians to have three hearings at the same hour in different buildings; this kind of scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS was fully aware that only approximately twelve attorneys were available to represent the thousands of Haitians being processed, and that scheduling made it impossible for counsel to attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the INS decided that resolving the conflicts was “too cumbersome for us to handle” and adopted the attitude that everything would simply work out.
Under these circumstances, the court concluded that the INS had knowingly made it impossible for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The court found that adequate preparation of an asylum application required between ten and forty hours of an attorney’s time. The court further estimated that if each of the attorneys available to represent the Haitians “did nothing during a 40 hour week except prepare [asylum applications], they would have been able to devote only about 2 hours to each client.”
The results of the accelerated program adopted by INS are revealing. None of the over 4,000 Haitians processed during this program were granted asylum.
In the end, the federal court of appeals struck down the accelerated program as a violation of procedural due process. The government was forced to submit a procedurally fair plan for the orderly reprocessing of the asylum applications of the Haitian applicants who had not been deported.
Turning Away Jewish Refugees During World War II
In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of limitations on quotas.
The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a horrific example of how restrictionist views were manifested toward refugees at the time. In a diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for corrupt Cuban officials to deny them entry even after they had been granted visas. It was the objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews. The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor. As it sailed North, it neared United States territorial waters. The U.S. Coast Guard warned it away. President Franklin D. Roosevelt had said that the United States could not accept any more European refugees because of immigration quotas, as untold thousands had already fled Nazi terror in Central Europe and many had come to the depression-racked United States.
Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee assistance groups, the ship was allowed to land in Holland. Four nations agreed to accept the refugees—Great Britain, Holland, Belgium and France. Two months later, the Nazis invaded Poland and the Second World War began. Over 600 of the 937 passengers on the St. Louis were killed by the Nazis before the war was over. When the United States refused the St. Louis permission to land, many Americans were embarrassed; when the country found out after the war what happened to the refugees, they were ashamed.
Closing
Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown a significant possibility that that the applicant can meet the standard for asylum before an immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.
The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear” standard for asylum can be met even when a 10 percent chance of persecution is established. And the credible fear standard is meant to be an even lower burden than well-founded fear.
The Dream 30 are young people that deserve fair treatment. Your administration should not be associated with the tragic asylum eras of the past that I have outlined above. Politics should not get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give their cases due consideration. If they have a credible fear, they should be allowed to make a case for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge you to protect the integrity of the asylum system that has been designed to be symbol of hope and freedom throughout the world.
Sincerely,
Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, University of California, Davis
This letter was published with permission from Prof. Hing. The footnote has been omitted.
By now, you’re probably familiar with the Dream 30, a group of 30 young Dreamers: 29 Mexicans and one Peruvian who grew up in the U.S. and who would likely benefit from the Dream Act. The group voluntarily left the United States, returned to Mexico, and then presented themselves at the U.S. border and requested asylum. The point is to call attention to the plight of all young people in their position, stop deportations of such people, and push immigration reform.
The 30 activists were detained and interviewed about whether they had a credible fear of return to Mexico. According to their attorney David Bennion, 9 of 25 interviewed Dreamers were found not to have a credible fear of return. This is significantly above the average denial rate, which was about 8.3% for FY2013. Mr. Bennion points out that the Dreamers should have done better–not worse–than average, given that they are generally well educated and speak English. Based on this, attorney and Dream 30 supporter Mathew Kolken smells a rat. He writes, “Looks like the [Obama] administration is making an example out of the DREAM 30 in order to make a political point.”
I don’t remember the Freedom Riders running over other poor people to reach their goal.
Of the original group, eight were released and the remainder have been detained since September 30, 2013 (even some who have demonstrated a credible fear). The detained Dreamers are currently on a hunger strike to call attention to their cause.
The most recent news is that one of the Dreamers was deported to Mexico.
As an asylum attorney, I must admit that I have mixed feelings about the strategy of these activists. But before I get to that, I want to raise an objection to Mr. Kolken’s conclusion that the high denial rate for the Dream 30’s credible fear interviews is evidence that the Obama Administration is somehow punishing these activists.
It is true that the Dreamer’s denial rate (36%) is much higher than the over-all denial rate (8.3%) for credible fear interviews. However, there are several (legitimate) factors working against the Dreamers. For one, they are mostly from Mexico, which has a very low asylum grant rate. Since something like 98% of Mexican asylum claims are denied, it stands to reason that credible fear cases from Mexico will be less likely to succeed than average. Since Mr. Kolken is comparing the 36% denial rate of the (Mexican) Dreamers to the 8.3% denial rate for all countries, many of which have very high asylum grant rates, it really is not a fair comparison. In addition, the Dreamers were in the United States, and then they voluntarily departed (though one could argue that they were forced to leave due to their lack of papers). Asylum claimants who voluntarily return to their home countries are much less likely to succeed when compared to asylum applicants who did not return to the country of feared persecution. I am not sure how much of a factor this is, as some aspects of the asylum claims may have arisen since the Dreamers returned to Mexico, but my guess is that the voluntary return weakens the Dreamers’ asylum and credible fear claims. For these reasons, I am not convinced that the 36% denial rate is all that unusual (though the fact that several Dreamers have passed their credible fear interviews and yet remain detained is somewhat unusual). So for me, at least, the jury is still out as to whether the Obama Administration (or ICE/Enforcement and Removal Operations, which often defies the Obama Administration) is retaliating against the Dreamers.
Now to the mixed feelings.
On the one hand, I can appreciate creative acts of civil disobedience as much as the next middle-age, father-of-two, with-a-mortgage-to-pay guy. It’s also quite clear that the Dream Activists are earnest and passionate, and that they are gaining attention for the cause (hopefully more positive than negative).
On the other hand, as an attorney who represents asylum seekers, I am concerned about their tactical decision to use the asylum system as the vehicle for their civil disobedience. While it appears that at least some of the Dreamers returned to Mexico and then found that the situation was unsafe, the fact remains that they left the U.S. without seeking asylum and returned to Mexico. They then presented themselves at the border and requested asylum. If the Dreamers actually had a fear of returning to Mexico, they should have requested asylum before they left. Indeed, a major factor in any asylum case where the applicant returns to her country is the return trip itself. Without a good explanation or evidence of changed circumstances since the date of return, a return trip to the home country will doom most asylum applications.
Also, to some extent, the asylum system is already under siege, and I fear that using that system to make a political point will do further damage. I don’t want to overstate the case here. There are those who blame the Dreamers for the current mess at the border (asylum offices across the country have ground to a halt as resources have been shifted to deal with a dramatic increase in credible fear interviews at the border), but that problem started long before the Dream 30 (or their predecessors, the Dream 9). Nevertheless, the actions of the Dream 9 and the Dream 30 are certainly the most high profile credible fear cases at the border, and their leadership may encourage others to try to exploit the credible fear system.
Finally, I can’t help but view this tension–Dreamers vs. Asylum Seekers–as a case of the poor eating the poor: Desperate people trying to regularize their status are using a tactic that harms other desperate people fleeing persecution. While I hope (against the odds) that we will have a DREAM Act and Comprehensive Immigration Reform, I am not convinced that using the asylum system to make a political point in support of those goals is the best strategy. I fear that the collateral damage to legitimate asylum seekers will be too great.
It seems that advocates for “Dreamers”–young foreigners who would benefit from the Dream Act–are trying a new tactic: Leaving the country and then returning to seek asylum. Not long ago, I wrote about the Dream 9, who presented themselves at the U.S./Mexico border and requested asylum. They were released and will have to appear before Immigration Judges, who will decide their cases. Now, we have the Dream 30, who have done pretty much the same thing. This new tactic holds promise and risk, both for themselves and for other asylum seekers.
“Dreamers” might be a particular social group, but I am not so sure about “dreamboats.”
Asylum, of course, is a legal tool that has been used and expanded by creative lawyers. When the modern asylum system was created by the Refugee Act of 1980, many people who routinely receive protection today–victims of female genital mutilation, LGBT individuals, victims of domestic violence–would likely have been ineligible for asylum. To the extent that their actions are not simply a type of civil disobedience, the Dreamers seem to be seeking to expand the category of protected individuals to include people who grew up in the U.S., and who face threats in their home countries because they are viewed as “American.” This strategy raises two basic questions: (1) Will it work? and (2) How will it affect other asylum seekers?
First, will it work? I think it might, at least in some cases. I’ve represented several asylum seekers who made claims similar to the Dreamers: A lesbian who had not been to her home country of Sudan since she was young, Afghan women (and a few men) who studied in the U.S. and who are viewed by extremists as “Westernized,” an Iraqi woman whose family was associated with the U.S. These applicants were successful (or their cases are still pending), but my guess is that their claims are stronger than most of the Dreamers’ claims. Nonetheless, the principle is the same.
A broader–and more radical–solution for the Dreamers might be if the Obama Administration defined them as a particular social group for asylum purposes. There is precedent for such a move: In 2009, DHS issued a brief in Matter of LR where it stated, “DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group…. This does not mean, however, that every victim of domestic violence would be eligible for asylum.” Prior to the end of DOMA, I (clumsily) advocated a similar approach to help LGBT couples.
If DHS agrees that deported Dreamers are a particular social group (defined as “young, Americanized Mexicans,” for example), they would then need to demonstrate that they face persecution in their home country based on their social group. DHS could potentially make a blanket determination that members of this social group would face persecution in Mexico, El Salvador or wherever, and – Voila! – Dreamers get asylum, and you effectively pass the Dream Act without Congressional action (and they could apply for asylum without leaving the U.S.).
Of course, there would be consequences to such an approach, which brings us to the second question: How will it affect other asylum seekers?
For one thing, unless significant resources were re-allocated, giving asylum to the Dreamers would completely overwhelm the asylum system. That system has already been ground to a halt by a few extra thousands arrivals at our border, so it certainly could not handle millions of new cases.
In addition, it would be very expensive. There are no government fees for asylum applications. Presumably, if the Dream Act becomes law, Dreamers will pay a fee to regularize their status. In general, USCIS is operated based on filing fees (that is why it has not been closed by the government shutdown), so these fees would be needed to adjudicate the Dreamers’ cases.
Third–and this for me is the real problem–it will harm (or destroy) the integrity of the asylum system. Asylum, by definition, is an individualized form of relief. While one person from a particular country may have a strong asylum case, another may have no case at all. To view these cases collectively sets a very bad precedent. Worse, to grant asylum to an entire group (i.e., Dreamers), many of whom probably would not otherwise qualify, turns the asylum system into a political tool for avoiding the normal legislative process (i.e., passing the Dream Act). Such a move would do great damage to the asylum system, a system that is supposed to be free from political influence.
Asylum as a blanket solution to the Dreamers’ dilemma is certainly not the best way to solve the problem. It would obviously be much better for Congress (specifically the House of Representatives) to pass the Dream Act and Comprehensive Immigration Reform. But as a strategic approach, perhaps the “threat” of giving asylum to all Dreamers might provide an incentive for the House to take up immigration reform. After all, the language of nihilism, self destruction, and ends-justifies-the-means is the only language that the House of Representatives seems to understand.
I just completed the book, and I fully agree that it deserves this high praise. Mr. Beckerman eloquently explores the breadth and depth of the effort to free Soviet Jews, and makes a convincing argument that the movement launched the modern human rights era. It’s a fascinating story, which alternates between Soviet Jewish activists, American Jews, who until now have received little recognition, and national figures, such as Senator Henry Jackson, co-author of the Jackson-Vanik Amendment, which linked human rights and American foreign policy (over the objection of President Nixon and Henry Kissinger).
But more than this–and like any great book–it taught me something about myself. I had not really thought about it before, but the effort to help Soviet Jews is what initially sparked my own interest in human rights and social justice. The book also reminded me of another struggle taking place as we speak–the effort to pass the DREAM Act.
First (since blogs are for navel gazing), a bit about me. Like Mr. Beckerman, I had a “twin” Bar Mitzvah–In 1982, I was matched with a Jewish boy from the Soviet Union who was not permitted to have a Bar Mitzvah himself. As my “twin,” he was mentioned several times during the ceremony, and was symbolically Bar Mitzvahed with me. Whether he ever learned of this, I don’t know, and I basically forgot about him until I read Mr. Beckerman’s book.
Years later, during my first job after college, I helped find jobs for refugees who had settled in Philadelphia. About half of them were from the Soviet Union, the product of the struggle to save the Soviet Jews. While it was an interesting and rewarding position, the job was fairly prosaic, and I did not know much about the context of what I was doing. Again, Mr. Beckerman’s book illuminated this chapter of my life.
Finally, while reading the book, I kept thinking about parallels between the Jews of the U.S.S.R. and DREAM Act students in the United States. While Russian Jews wanted to leave and DREAM Act students want to stay, both groups faced (or face) arbitrary arrest at any moment, both lived (or currently live) in fear, both were viewed as dangerous outsiders, and both suffered these difficulties not because of something they did, but because of who they are.
I’m proud to say that the organized Jewish community–led by HIAS–has worked hard to help DREAM Act students. It is a fitting continuation of the struggle to save Soviet Jews. I hope Gal Beckerman’s superb book will remind us of the power of an organized community to work for social justice, and of the ethical imperative that all of us have to continue the struggle.
The best place to purchase the book (and read an interview with the author) is here.
