Evaluating the Threat Posed by Refugees

by Jason Dzubow

Last month, a Somali refugee and college student drove his car into a crowd at his university, jumped out, and started stabbing people. He was quickly shot dead by a campus police officer. The assailant, Abdul Razak Ali Artan, apparently left Somalia, lived for a time in Pakistan, and was resettled as a refugee in the United States in 2014. After the incident, Donald Trump tweeted that Mr. Artan “should not have been in our country.”

TV shows based on misunderstandings are hilarious; government policies, not so much.
TV shows based on misunderstandings are hilarious; government policies, not so much.

Incidents like this–where a refugee or asylee commits a (probable) terrorist act–are exceedingly rare. As far as I know, the only other successful attack involving “refugees” was the Boston Marathon bombing, perpetrated by two brothers who came to the U.S. as derivatives of their parents’ asylum case. Since 2001, the U.S. has admitted approximately 785,000 refugees and roughly 400,000 asylum seekers. So if all these numbers are accurate (a big “if”, as discussed below), then the odds that any given refugee or asylee is a terrorist is 1 in 395,000 or 0.0000844%.

In looking at the question of refugees/asylees and terrorism, the main problem is that the numbers listed above are not accurate. First, there is no consistent way to count people entering and leaving the United States. The refugee numbers are probably more accurate (though it’s unclear to me whether all aliens admitted for humanitarian reasons are included in the count), but asylum numbers are all over the map. Part of the problem is that different agencies (DHS and DOJ) deal with asylum applicants, and they seem to count people differently–sometimes derivative asylees are counted; other times, only the principal is counted. How do the agencies count people whose cases are pending? What about people granted other forms of relief (like Withholding of Removal or Torture Convention relief)? How are family members who “follow to join” the principal applicant counted? I have no idea about any of this, and there is no easily available data source to help. Not surprisingly, the dearth of data has opened the door to conspiracy theorists and anti-immigration advocates who claim we have an “open borders” immigration policy. But the absence of data also creates problems for fair-minded policy makers. How can we make appropriate decisions when we do not have a decent understanding of what is going on?

A second problem is that we do not have reliable information about how many non-citizens are involved in terrorist activities. Last summer, Senators Jeff Sessions (Donald Trump’s current nominee for Attorney General) and Ted Cruz sent a letter to the Obama Administration claiming that at least 380 of 580 people convicted of terrorism charges in the U.S. between September 11, 2001 and December 31, 2014 are foreign born. According to the Senators, “Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas.” The letter further claims that since early 2014, 131 individuals have been “implicated” in terrorist activities. Of those, “at least 16 were initially admitted to the United States as refugees, and at least 17… are the natural-born citizen children of immigrants.” Using these numbers and the (admittedly questionable) refugee and asylee numbers listed above, the odds that any given refugee or asylee is involved in terrorist activities is still pretty low: One refugee/asyee out of every 28,902 will be involved in terrorist activities (or about 0.0035% of refugees/asylees).

The Senators were only able to come up with their figures based on publicly-available sources (like news articles), since DHS did not release immigration information about the 580 individuals convicted of terrorist-related activities, or the 131 people “implicated” in such activities. Whether DHS’s failure to release this information is prosaic (perhaps confidentiality or technical issues pose a challenge) or nefarious, we do not know, since apparently, the agency has not responded to the Senators’ requests. The fact is, Senators Sessions and Cruz are correct: We need more data about the people who are entering our country, and we need to know whether refugees and asylees (and others) are committing crimes or becoming involved with terrorism. Not only will this better allow us to make appropriate policy decisions, but it will also help prevent the type of fake news that is currently filling—and exploiting—the information gap.

But of course, the situation is more complex than any statistics alone might show. Some people who become involved in terrorism are mentally ill individuals exploited by terrorists (or–sometimes–by over-zealous law-enforcement officers). In other cases, people providing support to a “terrorist” group overseas do not know that the group is involved in harmful activities, or they do not understand that the U.S government views the group as dangerous. Also, as I have discussed previously, the “material support” provisions of our anti-terrorism legislation are extremely broad, and so people who seem far removed from terrorit activities can get caught up by our overly-broad laws.

Nevertheless, we need to know more about foreign-born individuals–including asylum seekers and refugees–who are implicated in terrorist-related activities, and the basic starting point for any such analysis is the statistical data about who is coming here, how they are getting here, and whether they are accused or convicted of crimes or terrorist-related activities.

Assuming we do get some accurate data, the question then becomes, How do we evaluate such information? How do we balance concrete examples of non-citizens engaged in criminal or terrorist activities, on the one hand, with the benefits of our refugee program, on the other?

And by the way, despite what some anti-refugee advocates might argue, our refugee and asylum programs provide concrete benefits: They establish us as a world leader in the humanitarian realm, they demonstrate our fealty to those who have stood with us and who support our values (and thus encourage others to continue standing with us), they provide our country with diverse and energetic new residents who are grateful for our generosity and who contribute to our society. These programs also represent an expression of who we are as a people. As I have frequently argued, for us to abandon these programs–and the humanitarian ideals that they represent–due to our fear of terrorism is a victory for the terrorists.

But we also need to balance our humanitarian policies and our national security. We need to better understand the issues–so that the public can be more well-informed and so policy makers have the information they need to make good decisions. I hope the new Administration will shine some light on these issues, so that any changes to our refugee and asylum policies are based on accurate information, and not on conjecture or fear.

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In Defense of Muslim Refugees

by Jason Dzubow

Since the vicious attack last week by Muslim extremists in Paris, attention in the U.S. has focused on our country’s refugee policy and President Obama’s decision earlier this year to admit an additional 10,000 Syrian refugees (above the normal refugee ceiling of 70,000). More than half of the nation’s governors have indicated that Syria refugees are unwelcome in their states. Paul Ryan, the new Speaker of the House, is pushing legislation to hinder the admission of Syrian and Iraqi refugees. And most Republican presidential candidates have expressed their opposition to resettling Syrian or Muslim refugees in our country. Senator Ted Cruz has called the plan “absolute lunacy.”

When we say "no" to a refugee, what does it say about us?
When we say “no” to a refugee, what does it say about us?

As an immigration attorney who specializes in political asylum, I represent clients whose lives have been profoundly disrupted by war and terrorism, who have been threatened or harmed by extremists, and who have lost loved ones to terrorist attacks. Many of my clients come from Muslim countries, such as Syria, Iraq, Afghanistan, and Egypt. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. Indeed, I suspect that many of my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of U.S. policy than the American commentators who routinely disparage them.

In the face of barbarism from ISIS and other extremists, we as Americans should not abandon our friends or shrink from our humanitarian commitments. As the leader of the Free World, we must lead not only with the sword. We must also lead by demonstrating our values, and by showing the world that we do not abandon those values in difficult times.

During the refugee crisis that followed World War II, the U.S. committed itself to assisting displaced persons. Since then, we’ve absorbed—and been enriched by—tens of thousands of refugees from Western Europe, the Soviet Union, Indochina, Africa, the Middle East, and the Americas. We are, to a great extent, defined by our generosity towards the dispossessed: “Give me your tired, your poor, your huddled masses yearning to breathe free.”

Allowing ourselves to be intimidated into compromising these humanitarian values would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. Indeed, our asylum and refugee programs are probably more secure than any other aspect of our immigration system.

Also, many of the Muslims who have sought sanctuary in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, no one will cooperate with us going forward.

Finally, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

In the aftermath of the Paris attack and the claim by ISIS that it will send infiltrators to the West disguised as asylum seekers, the desire to re-examine security procedures is understandable. But as we evaluate our humanitarian policies, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

We should not allow the evil deeds in France to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. When considering Muslim refugees and asylum seekers, we should be guided by our highest ideals, not by the dark vision of our enemies.

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Congress: Asylum System Letting in Terrorists

by Jason Dzubow

According to a letter from four members of Congress to DHS Secretary Jeh Johnson,  a “recent disclosure [by USCIS] regarding the number of aliens found to have a ‘credible fear’ in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system.”

Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.
Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.

The “recent disclosure” from USCIS to the House Committee on Oversight and Government Reform revealed that “the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014.” The four Congressman–Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)–requested more information about the 638 aliens in question, including each aliens’ confidential A-file and whether and by what authority each alien was released from detention.

First, what’s this all about?

When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a “credible fear” interview–a preliminary evaluation of eligibility for asylum. The large majority of aliens “pass” the credible fear interview. Their cases are then transferred to an Immigration Judge and–in most, but not all, cases–they are released from detention. Aliens who do not pass the credible fear interview are deported.

In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground (“TRIG”). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden’s best friend). We don’t know–the TRIGs are very broad (as I’ve discussed here).

One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don’t know.

So what’s the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.

I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data–no matter how benign–to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).

Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.

Finally, the letter demands that the files be turned over before COB on June 3, 2015–two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time–while ensuring confidentiality–is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.

I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done. 

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The Way We Mourn Is Part of the Problem

by Jason Dzubow

The Jewish community around the world has recently been in mourning for the loss of three young Jewish men, kidnapped and murdered in the West Bank. Their bodies were found on June 30, more than two weeks after they were taken.

They are all our boys.
They are all our boys.

Israel blamed Hamas for the kidnapping and, since the three teens disappeared, has been engaged in a crackdown against the terrorist organization. For its part, Hamas did not claim credit for the crime, but praised the kidnapping. The event has sparked Hamas rocket fire from Gaza into Israel, retaliatory airstrikes, and the revenge killing of an Arab teen by Jewish extremists.

The discovery of the young men’s bodies also led to mass mourning within the Jewish community in Israel, around the world, and here in Washington, DC. Last week, 1,200 mourners attended a memorial service in suburban DC for the slain teens. Most of the attendees were Jews, but representatives of several local Christian communities were also present. All expressed solidarity with the family members and deep sadness at the loss of “our boys.”

Of course in times of tragedy, it is the nature of communities–even fractured ones like the American Jewish community–to come together to mourn and comfort one another. But this recent tragedy in my own community, and our response to it, has gotten me thinking about whether the way we mourn–and what events we choose to mourn–contributes to the problem of violence between communities. 

One area of concern for me is the us/them mentality of the Jewish community’s response (and obviously this is not unique to the Jewish community). The idea that there is an us and a them. Our expression of grief over the loss of “our boys” seems to me symptomatic of the problem. We grieve for “our boys,” but not for “their boys.” Maybe this is a trite point, but I can’t help but think about some of the people I have represented; people who have faced senseless losses as horrible as those suffered by the Israeli teens’ families.

For example, I am representing a Syrian couple whose newborn baby was asphyxiated by dust and poison gas during a battle. I also represented (successfully) an Iraqi mother who watched her son gunned down in front of her and in front of his own wife and young child. We recently attended an asylum interview for an Afghan man who saw dozens of his relatives and friends killed and maimed by a missile strike on a family wedding. There are no public memorials for these victims. No one even knows about their stories. Indeed, maybe because stories like these are so common in places like Syria, Iraq, and Afghanistan, no one pays much attention. But I have met all these people and heard their stories, so when I see the outpouring of grief for the three Israeli boys, it is difficult not to feel that the solitary suffering of my clients (and millions like them) is unfair and that failing to fully validate the humanity of such victims is unjust. Perhaps if we thought of people like my clients as “us” rather than “them,” we would be more willing to take action to help them (and that goes for all the unaccompanied minors arriving at our Southern border–what if we thought of these children as “our boys and girls”? How would our approach to them differ?).

Maybe I am hoping for too much here. How can we acknowledge so many losses? Why shouldn’t we honor and support “our own” before we deal with everyone else? I don’t know, but it seems to me if we could do better about recognizing the humanity and the value of “the other,” we would take a big step towards preventing future harm for everyone.

A second concern I have about my community’s response to the deaths is more about what we didn’t do. We mourned “our boys,” but not the Palestinian boy who was killed in a barbaric revenge attack by Jewish extremists. Israel quickly arrested the culprits and Prime Minister Netanyahu and many others have condemned the killing. These are obviously important steps, but it is a bit different than mourning the loss of the young Palestinian. Mourning the young man’s death is important not only because “our side” is responsible for his death and thus it reflects on us, as Jews, but also because we need to recognize the boy’s value as a human being.

Again, maybe it is asking too much–especially in the heat of conflict–for Israelis and Palestinians to mourn each others’ losses, but I believe that this is what we must do if we hope ever to end the violence. Indeed, family members of one of the Israeli boys and of the Palestinian boy have been in contact with each other, and some Palestinians and Israelis have been crossing the lines to offer condolences to each other. If people so close to these tragedies can see the humanity in each other, perhaps one day the rest of us will too.

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Beirut Embassy Bomber Gets US Asylum, New Book (Incorrectly) Claims

by Jason Dzubow

A new book by Pulitzer-Prize winner Kai Bird claims that the Iranian intelligence officer behind the 1983 bombing of the U.S. embassy in Beirut–and many other terrorist attacks–received asylum in the United States. Among those killed in the 1983 attack were the CIA’s top Middle East analyst, a “good spy” named Robert Ames, who purportedly cultivated friendly relations with Arab leaders. Mr. Bird speculates that had Robert Ames lived, the U.S. would have had a different, better relationship with the Arab World.

Use of correct terminology is always appreciated.
Use of correct terminology is always appreciated.

According to The Good Spy: The Life and Death of Robert Ames, the CIA and President Bush brought Ali Reza Asgari, the terrorist responsible for the 1983 attack, to the United States in 2007. He came here in exchange for information about Iran, Hezbollah, and other U.S. rivals in the Middle East. This intelligence supposedly led to the assassination of Hezbollah’s number two man and the bombing of a secret Syrian nuclear facility, among other things. 

Like many people who review books, I have not actually read The Good Spy (though it certainly sounds delightful). In my defense, I don’t really plan to review the book. I just want to talk about one word used by Mr. Bird: Asylum. Mr. Bird writes (and here I quote the book):

The decision to give Asgari political asylum under the CIA’s Public Law 110 program was probably opposed by veteran CIA officers who have some knowledge of Asgari’s alleged responsibility for Roberts Ames’s murder…. But they and the agency were reportedly overruled by the George W. Bush administration’s National Security Council.

The emphasis is mine. If Mr. Asgari did, in fact, come to the U.S. under the Public Law 110 program, he did not receive political asylum. Aliens in the United States who fear persecution in their home countries can apply for asylum under INA § 208 (also known as 8 U.S.C. § 1158). Public Law 110, on the other hand, appears at 50 U.S.C. § 403h:

Whenever the Director [of the CIA], the Attorney General, and the Commissioner of Immigration and Naturalization shall determine that the entry of a particular alien into the United States for permanent residence is in the interest of national security or essential to the furtherance of the national intelligence mission, such alien and his immediate family shall be given entry into the United States for permanent residence without regard to their inadmissibility under the immigration or any other laws and regulations, or to the failure to comply with such laws and regulations pertaining to admissibility.

In other words, if certain high-ranking leaders in the U.S. determine that a terrorist should be allowed to live in the U.S., the terrorist will be allowed to live in the U.S. But this is usually a quid pro quo and has nothing to do with asylum or the asylum system. Indeed, given his terrorist activities, Mr. Asgari would not be eligible for asylum, as he would be subject to numerous bars under INA § 208(b)(2).

Maybe this is a small point, but I think it is important. Mr. Bird’s book is attracting widespread attention–everyone from Newsweek to Glen Beck’s blog, the Blaze is carrying the story–and it is unfortunate that these outlets are repeating Mr. Bird’s error. The asylum system is already under assault by those who claim it is an entryway for terrorists and criminals, and so Mr. Bird’s incorrect use of the term has unfairly impugned a system that protects thousands of legitimate refugees and that has been specifically designed to block people like Mr. Asgari.

While colloquially, we might label anyone who fears harm and who is admitted into the United States as having received “asylum,” this is simply incorrect, and it damages the asylum system to taint it with association to the likes of Mr. Asgari. I am not saying that Mr. Asgari should not have been brought to the United States. Perhaps the intelligence he provided was worth allowing a mass murderer to resettle in our country. But he came to the United States because our elected officials determined that bringing him here was the best course of action for our country, not because he qualified or was eligible for asylum.

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Amendments to the Terrorism Bar–or–How Fox News Enables the Holocaust

by Jason Dzubow

I’ve created a new invention. It’s called the “No-Hypocrisy Time Machine.” It enables us to travel back into the past to apply today’s laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or–dare I say it–hypocritical thinking. 

Before we begin our journey, let’s look at the laws and policies that we will be sending back in time. 

Barred from asylum: A Jewish boy provides "material support" to the Nazis.
Barred from asylum: A Jewish boy provides “material support” to the Nazis.

After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The “terrorism bars” were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist–for example, giving a glass of water to a guerrilla fighter on pain of death–might be barred from receiving asylum in the U.S.

Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support–such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress–to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) “has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;” (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

Conservative commentators have characterized the exemptions differently. One wrote: “If you’re only sort of a terrorist, you can come to the US.” Fox News opined that the “Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups.” I suppose this isn’t much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

But how does Fox News’s position play out when we place it into our No-Hypocrisy Time Machine? Let’s travel back in time to World War II and the Holocaust to see what happens when today’s laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States–and thus deported into the hands of the Nazis?

The Schindler’s List Jews – These Jews–men, women, and children–would be barred from asylum for working in Oskar Schindler’s factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

Eli Wiesel – The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute “material support.” His request for asylum is denied.

Tom Lantos – The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

Simon Wiesenthal – The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

In fact, I’d guess that many–if not most–Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other “material support” to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who “supported” terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are–at best–inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

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Behind the Security Background Checks

by Jason Dzubow

Before they can receive asylum, every applicant must undergo a security background check. But what exactly does the government check? And how can they learn about an applicant’s background when she spent most of her life outside the United States?

To me, these security background checks have always been a bit of a mystery. I’ve heard that the checks involve multiple agencies (FBI, State Department, etc.) and multiple data bases, but I did not know much more than that. Now, a recent article has shed some light on at least one type of background check: The FBI’s Terrorist Explosive Device Analytical Center (TEDAC) operates the nation’s “bomb library,” which keeps data on explosive devices used in terrorist attacks. TEDAC is directed by Greg Carl and operates out of Quantico, Virginia.

Each bomb maker leaves a unique signature.
Each bomb maker leaves a unique signature.

TEDAC analyzes the “remnants of improvised explosive devices… in hopes of recovering latent prints from the insurgent bomb makers who crafted them.” The Center has created a “comprehensive database of known terrorists for all law enforcement, the U.S. intelligence community and the military to share.” The Center has received evidence from the “underwear bomber,” the Boston Marathon bombing, and from attacks all across the world. The evidence collected by TEDAC comes from “bombings in as many as 25 countries from as far as the Horn of Africa and Southeast Asia, in addition to the United States:”

More than 100,000 boxes of evidence have been collected so far. They contain more than a million fragments fashioned from ordinary objects, which are barcoded and labeled before going through a wide array of forensic examinations, including toolmark identification, which allows matches of fragments to be made. Every scrap is searched for clues to a bomber’s identity.

The Center’s work seems to be effective. “According to Mary Kathryn Book, a physical scientist with the lab, ‘Approximately 60% of the time, we are able to recover prints from these items through fingerprint processing. And then later these prints are searched in our database and we attempt to identify the individuals who left them.'”

One project that is directly relevant to refugees and asylum seekers is the ongoing examination of IED material from Iraq to determine if “any Iraqi refugees relocated in the United States may be tied to IED attacks, as was the case with two Iraqi refugees based in Kentucky.” (I wrote about this issue here).

Unfortunately, our Congress has decided to cut funds from TEDAC (well, “decided” might not be accurate – they simply slashed and burned the budget indiscriminately). For all of us, there is the concern that we will be less safe due to these budget cuts. For asylum seekers fleeing persecution, it likely also means more delays for security background checks. This means longer insecurity and separation from family. In the unlikely event that Congress gets its act together, we can only hope that TEDAC will receive the funds it needs to keep operating effectively.

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CIS Uses Boston Attack to Condemn Asylum, Immigration System

by Jason Dzubow

The “low immigration, pro-immigrant” group Center for Immigration Studies claims that the “United States has naturalized at least a few thousand alleged terrorists in recent years.” As evidence for this dramatic claim, CIS lists exactly four (four!) examples of naturalized foreigners who engaged (or attempted to engage) in terrorist acts, including Dzhokhar Tsarnaev who is charged in the Boston Marathon bombing.

Hmm... There's something strange about this Naturalization ceremony.
Hmm… There’s something strange about this Naturalization ceremony.

How CIS got from four alleged terrorists to “thousands” is not explained. Although I often disagree with CIS’s conclusions, I’ve found them to be generally reliable when it comes to the facts. Not so in this case. To make such an outrageous and inflammatory claim with almost no evidence casts doubt on the organization’s credibility.

Concerned about the possibility of major immigration reform, is CIS becoming unhinged? Will they–like so many partisan groups–make all sorts of unsubstantiated claims in the hope of getting their way (i.e., killing immigration reform)?

It seems that in many of our country’s policy debates, the end justifies the means. “Swiftboating” has replaced reasoned debate. I hope that CIS won’t go down this road. Like I say, I often disagree with CIS, but I recognize the need for different voices in the conversation. For those voices to make a positive impact, however, they must be grounded in reality. CIS should correct their unfounded claim that the U.S. has “naturalized at least a few thousand alleged terrorists,” and issue an apology.

With that as background, I want to turn briefly to CIS’s testimony on Capitol Hill. This past Monday, Mark Krikorian, Executive Director of CIS testified about the proposed immigration reform before the Senate Judiciary Committee. He spoke about the Tsarnaev family who–he said–immigrated to the United States a decade ago after receiving political asylum. Mr. Krikorian asked:

Why were they given asylum since they had passports from Kyrgyzstan and, especially, why were they given asylum since the parents have moved back to Russia, the country supposedly they were fleeing and wanted asylum from?

A few points. Maybe this is an immigration-lawyer-geek point, but by definition, no one immigrates to the U.S. after receiving political asylum. It is only possible to obtain political asylum if you are already present in the United States. In the case of the Tsarnaev family, events are a bit unclear. It appears that the father came as a non-immigrant to the United States in 2002 with Dzhokhar, and then applied for–and received–political asylum. Afterward, he brought his wife and minor children (including alleged bomber Tamerlan) to the United States. Maybe this is a geek point, but if I were from an immigration organization testifying before Congress, I would want to get the law and terminology correct.

Second, I do not know how Mr. Krikorian knows that the Tsarnaev family had passports from Kyrgyzstan. As far as I know, the family were Russian citizens, and the father was originally from Chechnya, which is part of Russia. While it appears that at least the younger brother was born in Kyrgyzstan, this does not necessarily mean that he had a Kyrgz passport or was a citizen of that country (unlike the U.S., many countries do not automatically confer citizenship on people born within their territory). Assuming that the father had Kyrgz citizenship, he would not have qualified for asylum unless he demonstrated that he had a well-founded fear of persecution in Kyrgyzstan or that he was not firmly resettled in that country. As of now, we do not know why the father received asylum from Russia, let alone from Kyrgyzstan. Suffice it to say that the human rights situation in Kyrgyzstan is no picnic, and that country has produced several hundred thousand refugees. While Mr. Krikorian’s question (why was the family given asylum if they had passports from Kyrgyzstan?) is reasonable, the implied answer (that the family should not have received asylum) is pure speculation.

Finally, Mr. Krikorian asks why the family received asylum since the parents have moved back to Russia, the country supposedly they were fleeing. Again, the implication is that the family should not have received asylum. Mr. Krikorian does not answer his own question, and indeed, we do not know why the father returned to Russia. Maybe he felt that conditions had improved and it would be safe for him to return. Maybe the father was more concerned with his children’s safety than his own, and so once his children were safely in the U.S., he decided to return. Or maybe–as Mr. Krikorian implies–the asylum case was fraudulent from the beginning. At this point, we don’t know. And while I agree that we need to explore all aspects of the brothers’ history, I am not sure that the investigation is well served by cynical assumptions that the father’s asylum claim was false.

As I have said, I often disagree with CIS, but I believe they (and other restrictionist groups) have an important role to play in the current discussion about immigration and asylum reform. I just believe that the debate–and the credibility of CIS–would be better served if the organization speculated a little less, and got the facts right a little more.

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Immigration, Asylum Reform and the New Terrorism

by Jason Dzubow

The situation is still developing in Boston.  As of this writing, one terrorist is dead; another is on the loose, and a third man–dubbed “an accomplice”–is in police custody. There are still many unanswered questions about the men’s motivation and what connections, if any, they have to other terrorists. One thing we do now know is that the two men who placed the bombs are from Chechnya.

Chechnya is part of the Russian Federation. It has been seeking independence since the break-up of the Soviet Union. The state is majority Muslim and the war against Russia has attracted radical Islamists and has helped radicalize some of the indigenous population. The Russian government has committed terrible atrocities in Chechnya, and Chechen separatists are some of the most evil terrorists around (their worst attack came in 2004, when they took an entire school hostage–in the end, over 380 people were killed, including many, many children).

We still do not know if the Boston attack was somehow related to the conflict in Chechnya, but here are some things we do know: The two bombers were brothers who came to the United States legally with their family. The older brother has been a lawful permanent resident since 2007. At least one brother had a driver’s license (apparently, investigators used facial recognition software to help match a photo of the man with his driver’s license). The younger brother attended school in the U.S., at least since the seventh grade.

One question is how they obtained legal status here? Slate reports that the family escaped the war in Chechnya and went to Kazakhstan and then came to the U.S. as refugees. If this is correct, it will raise questions about the U.S refugee program. I have discussed this issue before, and perhaps will revisit the question once we have more information.

Another question is whether the men were sent here to commit terrorist acts? If it is correct that the brothers have been LPRs since 2007, it seems unlikely that they were sent to the U.S. to engage in terrorist acts. Once a refugee arrives in the U.S., he can become an LPR after one year. This means that the brothers–ages 26 and 19–must have been here since at least 2006. In 2006, they would have been ages 19 and 12. I doubt they could have been sent here at those ages with the idea that they would attack U.S. targets years later. It seems more likely that they somehow got involved in terrorism while in the United States.  

A final questions (for now), is how the revelation that the attackers were Chechen will affect the debate over immigration and asylum reform. I have no doubt that opponents of reform will use the attack to try to derail any new law. But on the other hand, when something like this happens, it is perfectly legitimate to raise security concerns. On this point, I would offer a few observations:

– Immigration reform brings otherwise invisible people out of the shadows. If we legalize people who have been here for years, we learn more about those people. One of the Boston terrorists was identified, in part, because he had a driver’s license. If he was living here illegally, he might not appear in any state or federal database. Thus, legalization reduces the number of unknown people and helps us know more about the people who are here.

– Second, if we are worried about terrorists within our foreign-born populations, we should encourage people within those communities to cooperate and trust law enforcement officials. If foreigners without legal status are afraid of law enforcement, it is less likely that they will cooperate with government investigations. If such people have a path to lawful status, they will be less afraid, and thus more likely to cooperate.

– Finally, the vast majority of immigrants and asylees are law abiding. Many of my asylum-seeker clients have worked closely with the U.S. military in countries like Iraq and Afghanistan. They have risked their lives to fight terrorists and extremists. Punishing and stigmatizing such people, and hundreds of thousands of other law-abiding foreigners, for the actions of two or three terrorists is simply wrong. And, in a country premised on individual rights and responsibilities, it is un-American.

In the coming days and weeks, we will learn much more about the terrorists, their motivation, and how they got to the U.S. We will also learn how the attack will impact the debate over immigration reform. While national security issues should certainly be a part of this debate, I hope that the attack will not destroy the hopes of thousands of good, law abiding immigrants.

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To the Security Officers of the World: Thank You

by Jason Dzubow

In light of the terrorist attack in Boston earlier this week, I wanted to write about security at Immigration Courts, USCIS, and the Asylum Offices.

As of this writing, we don’t know who perpetrated the attack on the Boston Marathon. But we do know that as residents of a free society, we are vulnerable. We also know that people who would harm others have all too easy access to powerful weapons: guns, explosives, you name it.

Bull
Don’t forget to thank the people who keep us safe.

In the context of immigration, there are those in our society who not only oppose immigration and immigrants, but who hate foreigners and would do them—and the Americans who work with them—harm. Behind such people are others—people who would not engage in physical violence themselves, but who encourage such behavior in others with their racism and xenophobia. For these people, their hate is matched only by their dishonesty. Because if a person is honest, and considers perspectives other than his own, it is hard to hate. I am thinking about people like Pam Geller, who says that all Muslims are terrorists and “savages,” Lou Dobbs, who claims that illegal immigrants bring bubonic plague, and Pat Buchanan who is fighting to preserve white America (ok, I admit to a soft spot for Pat Buchanan; at least he is entertaining). But I digress.

For the small number of people who might consider attacking immigrants and “the system,” Immigration Courts, USCIS, and the Asylum Offices are potential targets.

Of course, such offices are part of the federal government, protected by armed guards and metal detectors. Before this week, I hadn’t given it much thought. Mostly, I assumed that the security officers were there in case an immigrant becomes violent (or, perhaps more likely, a lawyer becomes violent and decides to clobber his client). But in the aftermath of the Boston attack, I am reminded that the officers are there to protect the immigrants, their advocates, and government employees from harm.

I suppose it is an obvious point, but for busy people (like me) who view the security checks as a nuisance, it is important to remember how essential they are. Also, lest anyone thinks security officers at the Immigration Courts (and elsewhere) don’t put their lives on the line, check out this virtual tribute to private security officers killed in the line of duty.

Today, I passed through three different security check points—at my son’s day care (he’s in a federal building), the Asylum Office, and the Immigration Court. I try to be friendly to the officers whenever I see them and to thank them, but it’s not always easy when I am rushing from one place to the next. Today, I tried to make a special effort to express my thanks, and going forward, I will try to be better about that. So, to the extent that anyone pays attention to what I write here, I’d like to say to the security officers who protect us: Thank you.

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Case Dismissed Against “Halva Terrorists”

by Jason Dzubow

Last August, I wrote about three Eritrean refugees who were arrested at Phoenix airport and accused of plotting a terrorist attack.  The Eritreans were caught with a package of halva (a common Mideast dessert, which is delicious AND Kosher for Passover).  The package of halva was suspicious because it had a cell phone taped to it.  TSA suspected this was a mock up of a bomb, and that the Eritreans were on a “dry run” for a terrorist attack.  Unfortunately, in this day and age, it is hard to blame TSA for being overly cautious.  Nevertheless, the charges seemed like a bit of a stretch. 

Jello shaped likes a grenade is also a bad idea for airplane travel.

Now, the government has dismissed the case against the three refugees:

“Based on the new information, further prosecution is not in the interest of justice,” wrote Assistant U.S. Attorney Joseph Koehler in his motion to dismiss the charges.

Philip Seplow, an attorney for one of the three, said he thinks the government simply realized the refugees were not guilty and the whole thing was a big misunderstanding, partially because of a significant language barrier.  Mr. Seplow reports that when he informed his client that she had been cleared of the charges, she wept with relief.

Of course it is better to be safe than sorry, and it is difficult to imagine how the government could have handled this case any better.  As for me, next time I travel, I will not be carrying any halva.

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Refugee Terror Plot or Over-Enthusiastic Airport Screeners?

by Jason Dzubow

Arizona Central reports that two Eritrean refugees and another man have been held without bond after they were arrested by the Transportation Security Administration (“TSA”) at Phoenix Sky Harbor International Airport.  According to a TSA spokesman, Luwiza Daman tried to bring a suspicious device onto an airplane: “a box containing a paste-like substance with a cell phone taped to it.”  TSA officers spotted the package and arrested the refugees.  The “paste-like substance” turned out to be halva, a common Middle Eastern dessert, which supposedly “resemble[s] explosive material on an X-ray machine, particularly when combined with a cellphone, which is frequently used as a remote detonating device.”

This is a deadly explosive.

After receiving so much criticism over its screening techniques, TSA is quite proud of having discovered this “fake bomb.”

I suppose it’s possible that this was–as TSA claims–a “dry run” for a terrorist bombing, but based on the publicly available information, the government’s evidence appears weak at best.

First of all, it seems bizarre to claim that halva resembles explosive material.  It’s a common food in many parts of the world–friends visiting from overseas have brought me halva as a gift.  I wonder if TSA would have made these arrests if the substance had been something more familiar, like peanut butter.

To be fair, the fact that a cell phone was taped to the container of halva made the TSA agents suspicious.  This reminds me of a case from last year where two men from Yemen were arrested carrying packages with cell phones taped to them.  No charges were filed in their cases, and officials determined that the men had no connection to terrorists.  In fact, it is common for people traveling back and forth from their home countries to carry packages for others.  Often mail service in these countries is unreliable (or non-existent), so people ask their countrymen to deliver packages to their families.  In this case, one of the refugees was supposedly carrying the phone and the halva to Iowa to deliver to the brother of another suspect.  Since they often carry packages for multiple individuals, it is not uncommon for them put each person’s items together in a bag or tape them together.

This is a delicious snack.

When TSA agents questioned the suspects separately, their statements were inconsistent.  However, according to Arizona Central, the agents used an Amharic interpreter.  The principle language of Eritrea is Tigrinya and the suspects’ first language is Kunama.  It’s unclear why the agents did not find an interpreter for a language the suspects spoke (interpreters for most languages are available by telephone).  Therefore, any inconsistencies, indeed, any statements made by the suspects are of little value.

In denying bond, the judge noted that the case presents the court with two possibilities:

“One, a significant injustice to individuals lawfully present in the United States as refugees because they allegedly misunderstood English,” he said. “Or a knowing and intentional attempt by someone … to attempt a dry run.”

Given the stakes involved, it’s hard to blame the TSA for arresting the refugees, but considering the scanty evidence, this looks more like a case of the TSA getting ahead of itself than a case of terrorists on a practice run.  

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Senator Paul Seeks Hearing on Refugees Accused in Terror Plot

by Jason Dzubow

Last week, two Iraqi men were arrested in Kentucky and charged with (among other things) “conspiring to kill U.S. nationals abroad, conspiring to use explosives against U.S. nationals abroad, distributing information on the manufacture and use of IEDs, attempting to provide material support to terrorists and to al-Qaida in Iraq, and conspiring to transfer, possess and export Stinger missiles.”  According to the criminal complaints (available here and here), both men entered the United States as refugees in 2009, and have been living here ever since. 

Most refugees are not all that scary.

Given the obvious breach of security, Senator Rand Paul of Kentucky has called for hearings to determine “how the heck” these alleged terrorists got into our country.  Senator Paul also asked, “How do you get asylum when you come from a friendly government?”  The Center for Immigration Studies echoes this sentiment:

The bigger question is why are we taking refugees from Iraq at all? Resettlement to the United States should be used only as the absolute last resort for people who will surely be killed if they stay where they are and who have nowhere else — nowhere whatsoever — to go.

CIS complains that as conditions in Iraq have improved, the number of Iraqi refugees coming to the U.S. has ballooned–from 200 in the early years of our “Mesopotamian adventure” (as CIS calls it) to 18,000/year in recent years.

As to the first point, I agree that refugees coming to the U.S. pose a security challenge.  It’s possible to search a person’s criminal background in the United States and in most developed countries.  But refugees rarely come from developed countries.  DHS supposedly has ways to check a person’s background against certain databases, but again, it is not clear how these databases are created or how accurate they are.  Of course, we face these same challenges for anyone coming to the United States.  The question is, what do we do about it?

Some commentators, like Mark Krikorian at CIS, believe we should simply stop admitting refugees from Iraq (and possibly from everywhere else as well).   I suppose that would close the door to terrorists who might take advantage of our generous refugee program, but it seems like throwing out the baby with the bath water.  The fact is, there are very few examples of refugees who have committed (or been accused) of terrorism.  The idea that we should forsake all refugees (and our humanitarian obligations/ideals) because of a few bad actors is a short-sighted and cowardly response to the problem.  As a nation, we are a world leader in many areas, including the humanitarian area.  We have greatly benefited from our leadership role, and from the many refugees, asylees, and immigrants who have made our country their new home.  We should not give up our leadership or the benefits that accrue to us because we fear terrorism.  We should not let the terrorists win.

I also want to briefly address Senator Paul’s second point–that people should not receive asylum when they come from a country with a “friendly government,” like Iraq.  The law of asylum states that a person may receive asylum if he has a well-founded fear of persecution in his country.  Whether that country is friend or foe is not relevant to the law.  The law also states that a person may receive asylum if he fears persecution by a non-governmental actor, and the government is unable or unwilling to protect him.  Sometimes, governments friendly to us persecute their citizens (for example, we had a good relationship with General Pinochet, but he killed thousands of his people).  Other times, friendly governments are unable to protect their citizens, as is the case for many people fleeing the Taliban in Afghanistan or insurgents in Iraq.  Since asylum is a humanitarian relief, it should not be contingent on political alliances.  If a person meets the standards for relief, that should be enough.  

All that said, Senate hearings on security and refugees is a worthy topic.  In examining security, I hope Senator Paul keeps in mind the humanitarian nature of the refugee program, the benefits that program brings us, and the ideals that the program represents. 

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Are Terrorists Taking Advantage of the Asylum System?

by Jason Dzubow

In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who “are taking a suspicious route” to the United States.  This, at a time when “the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States.” 

The asylum seekers leave Somalia for Kenya, where they obtain false passports.  From there, they travel to Cuba and then Central America, where they make their way to Mexico.  In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico.  The Somalis then enter the U.S. illegally and file for asylum.

According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document–which is issued by the Mexican government based on the alien’s representations–as their ID when they apply for asylum.  The fear, of course, is that these Somalis are terrorists coming here to attack our country.  Federal agents say that the criminal background check performed on all asylum seekers is inadequate: “if they’ve never been to America, there won’t be any criminal record of them.”

I have represented many Africans who have traveled to the U.S. in a similar fashion.  The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States.  They use one or more false passports and meet several different smugglers along the way.  The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).

Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the “expulsion document,” which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued).  In my experience, the Mexican document does not–as the article states–prove the alien’s identity.  To establish identity, we submit other documents, such as school and work records, a driver’s license or a birth certificate.

Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them.  This certainly does present a security threat, but it must be viewed in context–Many more people cross the border, never claim asylum, and live here illegally.  Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum.  Why initiiate contact with government authorities if you plan to engage in criminal activity? 

I can imagine scenerios where a terrorist would come here and falsely claim asylum.  However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country. 

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