FAIR Gets It Wrong

by Jason Dzubow

The Federation for American Immigration Reform recently issued a report called Refugee and Asylum Policy Reform.  I already blogged about flaws in the report’s methodology and some points in the report I agree with.  For today, I want to discuss some points that I disagree with (i.e., where FAIR got it wrong).

The Hebrew Immigrant Aid Society (HIAS)

The FAIR report basically attacks HIAS:

I wonder if this refugee family - reunited with help from HIAS - thinks the organization has outlived its purpose.

A prime example of a refugee resettlement organization whose raison d’etre has become self-perpetuation is the Hebrew Immigrant Aid Society (HIAS). The venerable organization that has helped Jews fleeing pogroms, the Holocaust and, more recently, oppression in the Soviet Union, has been confronted with a situation that might otherwise be considered a positive development: There [are] remarkably few Jewish refugees in need of resettlement. Without a real mission, HIAS has resorted to inventing one rather than declaring its mission accomplished and closing its doors. By its own admission, only a small percentage of the people resettled by HIAS are the people whom the organization ostensibly exists to serve.

This statement is pretty ridiculous.  Today, there are over 14 million refugees in the world.  HIAS was created to help Jewish refugees.  Now that (thankfully) there are few Jewish refugees, HIAS uses its expertise to assist other people in need.  To anyone concerned about helping others, this seems like a no-brainer.  Apparently, though, FAIR doesn’t get it. 

Particular Social Group

FAIR complains that the definition of “particular social group” has been expanded too far.  Specifically, the report mentions homosexuals, and argues that most cases of persecution based on sexual orientation involve persecution by private individuals where the government cannot or will not protect the individual from harm.  FAIR objects to this in principle:

In essence, decisions of this type put the United States in the position of a safety valve whenever foreign governments fail to exercise their responsibilities to protect their own citizens. That may be a noble objective, but it is an unreasonable burden.

First, while some cases of persecution of gays involve non-state actors, a number of countries persecute homosexuals, including Iran and Saudi Arabia, where the “offense” of homosexuality is punishable by death.  Second, protecting individuals who face harm or death is not an “unreasonable burden” (when is saving someone’s life ever really an unreasonable burden?).  There are no statistics about the number of people granted asylum based on “particular social group,” but my guess is that only a small percentage of asylum seekers fear persecution on account of their particular social group.  So even if we are concerned with the number of people winning asylum based on this protected ground, that number is fairly small.  Finally, the asylum law does not require state action–people who face persecution from non-state actors are eligible for asylum if their government cannot or will not protect them.  To the person who is persecuted or killed, it may not matter much whether he is killed due to government action or government inaction.  Dead, as they say, is dead.

Asylum Should Be Temporary

FAIR also believes that a grant of asylum should generally be temporary:

Asylum protection should be temporary, maintaining the focus of the individual on the need to return to the home country to work for positive change.

By this logic, we should have sent Einstein back to Nazi Germany to work for “positive change.”  

The hope, of course, is that asylum seekers will return to their country if conditions improve, but the reality is that most will not–even if it becomes safe to go back.  For one thing, it usually takes a long time for country conditions to change.  I represent many asylum seekers from Ethiopia.  That country has had the same repressive government for almost 20 years, and it does not look to improve anytime soon.  Also, people need to feel that they are safe.  To grant someone asylum, only to deport her later, leaves her in a frightful limbo, unable to move forward with her life or to feel secure.  Finally, when helping another person, it is important to respect that person.  We should respect asylees enough to allow them to make their own decision about whether it is safe to return.

So I suppose that concludes my comments on FAIR’s report.  While I disagree with many of the recommendations, the report raises points that are worth discussing, and I hope the conversation will continue.

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The Federation for American Immigration Reform (FAIR) Gets It Right

by Jason Dzubow

Recently, the Federation for American Immigration Reform (FAIR) released a report called Refugee and Asylum Policy Reform.  Last week, I wrote about some problems with the report’s methodology.  Since it’s a new year, I wanted to do something more positive, so for today’s post, I will discuss some recommendations in the report that I agree with. 

The Cuban Adjustment Act

The report recommends that the Cuban Adjustment Act be scrapped as a Cold War anachronism:

The exemption of Cubans in the United States from being required to justify a well-founded fear of persecution if sent back to Cuba is a political rather than humanitarian provision that encourages illegal immigration from Cuba.  The Cuban Adjustment Act should be repealed and the “wet-foot-dry-foot” policy that paroles Cubans into the country should be rescinded by the president.

While I oppose the Cuban Adjustment Act, Cuba's loss has been our gain: Rapper Cuban Link

This policy has never made much sense to me, especially since the end of the Cold War.  I’ve represented Cubans who gained their residency in the U.S. through the Cuban Adjustment Act, and they have all been very nice people.  But they were not political dissidents or people who faced persecution in Cuba.  Maybe the original idea behind the Act was to score a propaganda victory against Cuba, but after 50 years of the “Revolution,” I don’t know that it’s done much good (on the other hand, all those Cubans coming to the U.S. have greatly enhanced our country).  Rather than allow any Cuban who reaches the U.S. to remain here, we would do better to require each person to prove that he has a well-founded fear of persecution in Cuba, just like asylum seekers from other countries.    

Coercive Family Planning

Congress has defined the term “refugee” to include victims of China’s coercive family planning policies.  The FAIR report recommends that the “expansion of the definition of a refugee to include coercive family planning policies should be reversed.”  “It deviates from international practice and encourages illegal immigration from China.”  

I have always felt that it is unfair to condemn China for its one-child policy.  That country faces a very real and very dangerous population crisis, and the government instituted a policy (however unpalatable) to avoid disaster.  The law that FAIR opposes is more narrowly written than the report indicates, but it is still over-broad.   INA § 101(a)(42)(B) defines “refugee” as follows:

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

The law appropriately defines “refugees” to include past victims and possible future victims of forced abortion and forced sterilization.  However, those who “resist” the family planning policy are also covered.  I would limit the definition of “refugee” to include only those who suffer from the coercive policies, not those who merely oppose such policies (though in my understanding, asylum is not given willy-nilly to anyone who expresses opposition to the one-child policy, and in this respect, I think FAIR’s concern is a bit over-blown). 

Asylum Fraud

The FAIR report is concerned with “combating the documented fraud in the asylum system.”  Fraud is a problem in the asylum system, and it is one I have written about before in a post creatively titled Fraud and Asylum.  I believe the most effective method to combat fraud–and I did not see this mentioned in the FAIR report–is to aggressively go after attorneys and notarios who engage in fraudulent practices.  To quote my own blog on this point:

Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the “client” engage in fraud, the attorney could be charged with a crime….  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.

So, I am pleased to have found a few points of agreement with the FAIR report.  In a future post, I will discuss some areas of disagreement.  Happy New Year.  

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FAIR’s Report on Asylees and Refugees Offers a Distorted Picture

by Jason Dzubow

The Federation for American Immigration Reform (FAIR) recently released a report calling for reform of our country’s refugee and asylum policies.  The report, titled Refugee and Asylum Policy Reform, was authored by FAIR’s Director of Special Projects, Jack Martin.  The report covers a wide range of topics, from refugee admissions, to Temporary Protected States (TPS), to Chinese family planning asylum.  In general–and as expected–it calls for restricting humanitarian benefits for people seeking protection in the United States.  Concerning asylum, the report states:

Our country’s asylum law has been expanded by legislation and by court decisions to the extent that it has grown from a small program intended for unusual situations, where the return to a home country would constitute exposure to persecution, to become a major component of immigrant admissions. It too, by the absence of evidentiary standards, is open to fraud by persons who have no other basis for entry as immigrants.   

Having reviewed the report, there are some points I agree with, more points that I disagree with, and a few questions I have about the report’s methodology.  The report is fairly long (36 pages), and there are a number of points worth discussing, so I will devote a couple blog posts to my response.  For today’s post, I want to raise a few questions about the report’s methodology. 

The report, p. 5, states that “combined refugee and asylee admissions have hit new levels in recent years, exceeding 200,000 in 2006,” but it is not clear where FAIR gets its numbers.  According to the Department of Homeland Security, in 2006, 41,150 people were admitted into the United States as refugees, 12,873 were granted asylum affirmatively, and 13,240 were granted asylum defensively.  By my calculation, the total number of refugee and asylee admissions for 2006 was 67,263 people.  The figure of 200,000 likely refers to the number of asylees and refugees who adjusted status to lawful permanent residents in 2006.  These are not new admissions.  Rather, these are people who have been in the United States–in some cases for many years–who were able to adjust status after the cap on refugee adjustments was lifted in 2005. 

Does anyone really trust statistics?

Also on page 5 of the report, there is a chart showing how many refugees and asylees were admitted into the U.S. from 1990 to 2009.  The data on the chart purportedly comes from the Yearbook of Immigration Statistics.  But even a casual comparison of the Yearbook to FAIR’s chart reveals major discrepancies.  For example, FAIR’s chart shows that over 100,000 refugees were admitted into the United States in 2009.  However, the Yearbook of Immigration Statistics (Table 13) states that 74,602 refugees were admitted in 2009.  The chart also shows over 100,000 refugee admissions in 2002, but the Yearbook (Table 13) indicates that only 26,765 refugees were admitted in 2002.  Again, FAIR’s numbers appear to be the number of refugees who adjusted status (i.e., obtained their green card) in a given year, not the number of refugees who actually entered the United States in the specified year.

Page 6 of the report refers to refugees from the Soviet Block.  The report notes that the number of refugees has “nosedived” since the collapse of the Soviet Union, but states: “It is significant, however, that the admission of refugees from Russia and the Ukraine has not ended.”  Next to this statement is a chart, purportedly showing the number of refugees from the “Soviet Union/Ukraine.”  The chart shows that about 4,000 refugees came from the “Soviet Union/Ukraine” in 2009.  A review of the Yearbook of Immigration Statistics (Table 14) shows that in 2009, 495 refugees came from Russia and 601 came from the Ukraine, for a total of 1,096, far short of the 4,000 refugees listed on FAIR’s chart.  Again, FAIR seems to be listing the number of refugees from the former Soviet Union who are adjusting status, not the number of new admissions.  Some of these refugees may have lived in the U.S. for decades before adjusting status.

Page 14 of the report unfairly represents the proportion of refugees accepted by the United States.  The report states:

[The] United Nations High Commission on Refugees (UNHCR)… states that the United States accepted of 62,000 refugees out of 84,000 who were identified as needing permanent resettlement by that agency in 2009 — nearly three-fourths of the total.

In fact, footnote 23 of the FAIR report states that: “In 2009, UNHCR submitted 129,000 refugees for resettlement…. 84,000 refugees were actually resettled last year.”  So it seems to me a bit misleading to say that the U.S. accepted “62,000 refugees out of 84,000 who were identified as needing permanent resettlement,” when, in reality, the UN identified 129,000 refugees in need of permanent resettlement (and when there are about 15 million refugees worldwide).  This means that the U.S. accepted less than half of the refugees identified for resettlement, not three-fourths as stated in FAIR’s report. 

In sum, FAIR’s report gives a distorted impression of the number of refugees and asylees coming to the U.S.  The report should have relied on the number of new arrivals–not the number of refugees and asylees who are already here and who are applying for residency–to make its points.  Perhaps this would have made FAIR’s points somewhat less compelling, since the number of refugees and asylees arriving in the U.S. is less than what the report represents, but it would have had the virtue of being less misleading.

In future posts, I will discuss some points of agreement and disagreement with FAIR’s policy recommendations.    

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