The Terrorist Tactics of the Anti-Terrorism Executive Order

by Jason Dzubow

Earlier this week, President Trump issued a new Executive Order (“EO”) to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.

“My favorite four-letter word.”

For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six “banned” nations–Iran, Libya, Somalia, Sudan, Syria, and Yemen–may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).

So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That’s not to say that the EO has no effect–it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.

Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn’t all the “improperly” vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.

On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court–and even if it doesn’t–Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump’s supporters who want to see him fighting against “the others” and “the others” themselves, who feel targeted and excluded by the Administration’s policies). In this sense, the EO mirrors a classic terrorist tactic–limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).

And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump’s words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.

Mr. Trump’s EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists’ camp–a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It’s a vicious cycle analogous to the one created by terrorism.

Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.

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Hateful Words and Helpful Actions

by Jason Dzubow

After nearly 3,000 Americans were murdered on September 11, 2001, President Bush spoke to the nation and to the world. He assured us—Muslim and non-Muslim—that American was not at war with Islam. Would that President Trump had spoken similar words before instituting his immigration ban on seven majority-Muslim countries. But that is not Mr. Trump’s style.

Lord of the Zings: The President’s hateful words may be worse than his harmful EOs.

The resulting firestorm may have been pleasing to the President’s most ardent supporters, who seem to relish the sight of suffering families and damaged government institutions, but for those of us concerned about national security, morality, and the rule of law, the President’s Executive Orders (“EOs”) were a frightening development.

The problem, though, was not so much the EOs themselves, the effect of which is not immediately obvious, and in any case, portions of which have been blocked by the courts, but rather the divisive rhetoric attached to the orders. Let me explain.

The EOs, which are currently blocked by the courts, would bar nationals of Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya from entering the United States for 90 days. All refugees would be barred from entering the country for 120 days, and Syrian refugees would be barred indefinitely. On its face, this is not a Muslim ban. If you are from one of the listed countries, you are barred from entry, regardless of your religion, and if you are a Muslim person from another country, you are not barred from entry. But to me, this is a case of “That’s what it says; that’s not what it means.”

So what does it mean? First, in the context of campaign statements disparaging to Muslims, and some statements by Trump surrogates, it’s easy to see why many are interpreting the EOs as a first step towards a more general Muslim ban. Rumors are swirling that the list of countries will be expanded, to include more Muslim nations, such as Pakistan and Afghanistan. In addition, the EOs direct the government to track and publish information about crimes committed by aliens, with a particular emphasis on people convicted of terrorism-related offenses, people who have been “radicalized after entry,” and “gender-based violence against women or honor killings.” Further, the EOs call for a “realignment” of refugee admissions to focus on refugees who are from a “minority religion in the individual’s country of nationality.” It’s hard not to view all this as targeting Muslims.

But perhaps I’ve gotten it all wrong. There have been counter-arguments advanced by the President’s defenders. After all, the EOs do not directly refer to Muslims, and the listed nations are either chaotic (Iraq, Somalia, Yemen, Libya), malignant (Iran) or both (Sudan, Syria). Also, as the EOs require, we should be keeping track of aliens who engage in criminal behavior or who support or commit terrorism (indeed, I myself have argued for such transparency in this blog).

But here is why I don’t buy the counter-arguments and why I believe the EOs are designed to target Muslims: The President is very aware that many people view the orders as a Muslim ban, but he has said nothing to allay the fears of Muslims and immigrants in the U.S. or our Muslim allies abroad. He could easily have issued these same exact EOs and avoided the chaos by better explaining his intentions. He chose to not do that. Maybe it’s me projecting, but I can’t help but feel that he and his core staff are getting some sadistic pleasure watching the suffering and confusion that they are causing. I imagine they also view the mess they’ve made as evidence that they are fulfilling their promises to get tough on immigration and to protect the homeland.

It almost goes without saying that things could have been done differently. The ban could have been explained as a necessary and temporary policy adjustment to enhance our national security. President Trump could have expressed his sorrow that such orders were needed, and he could have reassured people that the ban was only temporary. He could also have made some positive statements about immigrants and Muslims, especially those who are serving with us in the war on terror. But he did not. So all of us are left to wonder whether this is a short-term measure targeting only the listed countries, or whether it is the beginning of something bigger. For American Muslims and immigrants, and for our allies abroad, the uncertainty of the EOs is probably worse than the EOs themselves.

The question, though, is what do we do from here? At this point, it would be naïve to expect any comforting rhetoric, or even common decency, from our President, so I think it is up to us—immigrants, advocates, and their supporters—to craft a response to the new reality.

For me, the protests are a good start. They show our solidarity and our strength (indeed, this is precisely why we held the Refugee Ball last month). There is some comfort in knowing that you are not alone and that the larger community is ready to defend you, and refugees and immigrants in our country are certainly not alone. Tens of thousands of protesters in the streets and at airports have demonstrated as much. We also see this as hundreds of elected representatives and other leaders have been speaking out in defense of our non-citizen neighbors.

Lawsuits—such as the lawsuits by the ACLU and several state governments—are also crucial. Thus far, they have blocked some of the most offensive portions of the EOs. The lawsuits show that the protections of our laws and Constitution extend to all non-citizen in our country and quite possible to some non-citizens who are outside our country. This will, I hope, provide some comfort to those in the Administration’s crosshairs.

Legislation in various states and municipalities is also important. Such action can serve to shield non-citizens from some provisions of the orders, particularly those that seek to encourage (or more accurately, coerce) local governments to help enforcement federal immigration law. They also potentially help build momentum for more positive legislative change on a national level.

Finally, volunteering to assist non-citizens–with housing, food, job search, English–helps such people integrate into our communities and feel more welcome in our country. If you are looking for volunteer opportunities, you might try contacting a local non-profit organization.

While these actions cannot fully allay the fear felt by refugees, asylum seekers, immigrants, Muslims, and many others in our country, they are all signs of the strong resistance President Trump faces to his policies and to his divisive world view. As we move through this difficult time, we must continue to resist hatred and work to support each other.

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Update on President Trump’s Immigration Orders

by Jason Dzubow

Since President Trump began issuing executive orders (“EOs”) on immigration last week, there has been outrage, confusion, and chaos within the immigration community. The EOs were clearly not very well thought out, and seem to have been written by someone lacking a comprehensive understanding of America’s immigration law. As a result, several courts have blocked portions of the EOs, and the Administration has walked back one of the more problematic elements of the new rules. There will be time later for an analysis of how all this affects our country’s security and moral standing, but since we are still in the middle of it, and since the situation is rapidly changing, I wanted to provide an update to my post from last week, to help non-citizens understand their situation.

I’ve never felt so proud to be Canadian! Oh, right, I’m American. Woo-f’n-hoo.

As I wrote last time, the EOs’ most damaging effects are on people trying to come to the United States. For people who are already here, the effect is less dramatic (and not all-together clear). Also, I believe nothing I wrote last week is obsolete, so if you have not read the previous posting, please do, as today’s posting is meant to supplement what I wrote last time.

Lawful Permanent Residents from Countries of Particular Concern: In some ways, the worst part of the EOs is how they affected lawful permanent residents (“LPRs” or people with green cards) who are from “countries of particular concern,” meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya (perhaps more countries will be added to this list later).

DHS originally interpreted the EOs to mean that LPRs from these countries would be turned back at the border. Apparently, at least some LPRs were rejected at the airport and sent back to their point of origin (Customs and Border Protection or CBP claims that only two LPRs were turned back). However, after (partially) successful litigation by the ACLU and others, DHS Secretary John Kelly issued a statement that “the entry of lawful permanent residents [is] in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” This means that if you are an LPR from one of the listed countries, you should probably (but not certainly) be able to re-enter the United States, but you should expect delays upon arrival, as your case will be individually reviewed to determine whether you present a threat to the United States. Whether you will, in fact, be able to enter the U.S. is not guaranteed, and how long the delay will be at the airport is currently unknown (DHS claims that entry into the U.S. should be “swift”).

Given all this, it is clearly a bad idea for anyone with lawful status in the U.S. who is from one of the listed countries to travel outside the U.S. at this time. If you are from one of the listed countries and are currently outside the U.S., you should be able to return if you are an LPR (if you have some other status in the U.S., especially a non-immigrant status, you likely will not be able to return at this time). Because there is so much uncertainty for people from these countries, it is best to remain in the United States or, if you are outside the country and are able to return, to return as soon as possible.

People from Countries of Particular Concern Waiting for an Immigration Benefit: For people in the U.S. who are from “countries of particular concern” and who are waiting for an immigration benefit, such as asylum, a work permit or a green card, the situation is also unclear.

Section 3 of the EO on terrorism is titled, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” and states that the U.S. government should conduct a review to determine whether additional information is needed to adjudicate visas, admissions, and “other benefits under the INA (adjudications)” for people from countries of particular concern. The reference to “other benefits under the INA” or Immigration and Nationality Act – the immigration law of the United States –would presumably include benefits such as green cards, asylum, and work permits, though the EO does not specifically define what it means. Also, while the EO suspends immigrant and non-immigrant admissions for 90 days for people from countries of particular concern, it makes no other mention of suspending immigration benefits to such people who are already in the U.S. As a result, it is unclear whether, or for how long, USCIS (the agency that administers immigration benefits) will suspend such benefits for people from the listed countries.

Unfortunately, some leaked–but thus far unconfirmed–emails from USCIS indicate that the agency has decided to suspend all final decisions in cases for people from the listed countries. According to one news source:

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, associate director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

In other words, while interviews can take place for such people, no decisions–to include approval, denial, withdrawal, or revocation–will be made “until further notice.” I can report that USCIS is conducting interviews for people from countries on the list–my Syrian asylum client was interviewed yesterday–but I have not heard anything official yet about whether decisions will be issued. If this is accurate, it means decision will be suspended, at least for a while, on asylum cases. Whether it will affect applications for work permits, which are issued while waiting for a final decision on an asylum case, is less clear. Hopefully, it will not, and hopefully, this suspension will be temporary.

I-730 Petitions: If a person is granted asylum, she can file an I-730 (follow to join) petition for her spouse and minor, unmarried children. For family members from countries on the list, the EO applies, and thus the State Department “has stopped scheduling appointments and halted processing for follow-to join asylee beneficaries who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Further information on appointments for follow-to-join refugees will be available in the future.” In other words, family members of asylees from the listed countries cannot currently come here based on I-730 petitions, but how long this prohibition will last is unknown. In contrast to the State Department website, CBP indicates that I-730 petitions will be adjudicated on a case-by-case basis. How this will ultimately play out, we do not know, but there is still hope that family members overseas will be able to join the principal asylee in the United States. Also, the visa ban is set to expire after 90 days, and so we can hope that once procedures are reviewed, travelers from “countries of particular concern” will be able to come to the United States to join their family members.

People from Other Muslim Countries: At this point the EOs are limited to the seven listed countries. People from other Muslim countries are not affected. However, the EOs require government agencies to determine whether additional countries should be added to the “banned” list. For this reason, if you are a non-citizen, and particularly if you are from a predominately Muslim country, it is important to keep an eye on the news, just in case more countries are added to the list. A good source for up-to-date information about the EOs, and the lawsuits opposing them, is the American Immigration Council’s website, here.

So that is the update for now. It is important to understand that the “ban” described in the EO is temporary, and that the people mainly affected are nationals from “countries of particular concern.” Of course, we will have to see how this plays out going forward, but it is important to remain calm and patient, and to keep hoping–and working–for something better.

[Update for February 2, 2017: I have heard an unconfirmed rumor out of the State Department that additional countries will be added to the list of banned countries. This is not confirmed, but here is the message I received: “There is a draft order being circulated at the State Department. The order has language extending the list of banned countries to Egypt, Lebanon, Afghanistan, Pakistan, Philippines, Mali, Colombia, and Venezuela.” I suggest people from those countries pay careful attention to the news, in case the countries are added to the list, and I suggest that people from these countries not travel outside the U.S. until we have some clarification.]

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President Trump’s Immigration Orders: Some Preliminary Thoughts

by Jason Dzubow

During the first week of his Administration, President Trump has signed two “executive orders” on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.

This is how it looks when America compromises its values.

The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client–and a lawful permanent resident based on asylum–was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend’s client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending–and minor–criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion–closing certain cases where the alien has no criminal issues and has equities in the United States–has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

  • Don’t panic. The President has the power to issue executive orders (“EOs”), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
  • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can’t just be thrown out of the country. Even an expedited process usually takes months.
  • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing–see below) any crimes.
  • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from “countries of particular concern” (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO’s seem to temporarily suspend immigration benefits for people from those nations.
  • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
  • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for “extreme vetting.” Since we don’t really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
  • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone’s guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from “countries of particular concern.” The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end “sanctuary” jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply “information needed for adjudications” of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump’s actions (spoiler alert: They are terribly damaging to our national interests and our country’s character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

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Asylum for DACA Recipients and Dreamers

by Jason Dzubow

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...
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.

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Notes from the Immigration Underground

by Jason Dzubow

Within hours of Donald Trump’s election, tens of thousands (literally) of lawyer across the country began organizing to oppose his anticipated policies, whatever those may be. Groups are forming on Facebook and meetings are being scheduled. It’s all very preliminary, but it’s quite clear that if Mr. Trump’s policies equal his harsh campaign rhetoric, attorneys across the U.S. will be prepared to contest those policies in court.

Lawyers are ready to fight for our clients.
Lawyers are ready to fight for our clients.

Of course, one key area of concern is immigration. Mr. Trump has vowed to build a wall, return Syrian refugees, deport criminal aliens, subject Muslim immigrants and visitors to “extreme vetting,” and end “catch and release” at the border.

At this point, it is quite unclear to me what he (1) will do, and (2) can do. Some actions against non-citizens are easier than others. For example, Mr. Trump can enact certain changes without Congressional involvement (diverting resources away from the asylum system, charging a (limited) fee for asylum, eliminating work permits for asylum applicants, and–to a large extent–restricting the definition of particular social group). Other changes require Congressional action (modifying the burden of proof on asylum seekers, blocking asylum seekers who came to the U.S. by passing through a third country, and reducing the one-year time period aliens have to file for asylum after they’ve entered the country). Finally, some changes would require a Constitutional amendment (eliminating due process for non-citizens). So where do lawyers come in? What can we do?

The way I see it, there are three broad areas where lawyers can help: Litigation, lobbying, and public relations. Let’s take a look at each:

Litigation: This is what (many) lawyers do. We represent our clients in court. As it stands now, most non-citizens in Immigration Court do not have an attorney. If deportation cases are stepped up, it’s unclear whether the Immigration Courts can handle the volume (currently, there are about 11,000,000 illegal aliens in the U.S. In FY 2015, the country’s Immigration Judge’s completed almost 200,000 cases. At that rate, it would take over 55 years to resolve the cases of everyone here unlawfully).

It’s well-established that aliens who have an attorney are more likely to win their cases. Indeed, unrepresented asylum seekers win their cases only about 9% of the time. Represented asylum seekers win nearly 50% of their cases. So hopefully, some of our organizational energy will go towards increasing the percentage of represented aliens by providing more pro bono and low bono services–currently, only about 2% of people in Immigration Court have pro bono representation. Perhaps we can also volunteer to present more know-your-rights presentations, so that aliens without lawyers can at least get some help with their cases.

Another benefit of more aliens actively fighting their cases is that it will require more government resources–and time–to deport them. This will slow the system down and prevent the government from deporting more people (normally, I would not consider “slowing the system down” as a “benefit,” but in these times, perhaps it is).

On a higher level is impact litigation–lawsuits to challenge policies that affect many immigrants. I imagine the national organizations, such as AILA, AIC, and the ACLU, among others, will take the lead here. They have the resources and the expertise. By supporting such organizations with our time and our donations, we aid their efforts to block egregious changes to our immigration system.

Lobbying: Lawyers can be effective lobbyists. We know the law, and we know how the law affects non-citizens and their families at the ground level. This type of hands-on experience allows us to talk to law-makers, at the national level, and also at the state and local levels.

Opponents of immigration and refugee admissions are known for their active and passionate lobbying, and we lawyers need to participate with pro-immigration groups to present the other side of the story. I am convinced that when lawmakers hear from real people–people like our clients and their family members–they can be moved. Indeed, before he was a candidate, Donald Trump met with Dream Act activists and told them, “You convinced me.” If such stories can impact Mr. Trump (at least temporarily), they may be able to affect our country’s legislators.

Public Relations: I’ve written about this before, but over the past 20+ years, there has been a growing disconnect between the development of the immigration law, on the one hand, and the “will of the People,” on the other. Through litigation and presidential action, laws have been expanded to benefit more and more aliens–victims of FGM and domestic violence, Dream Act immigrants, unaccompanied minors–without input from “the People” (i.e., Congress).

As one who represents non-citizens, I certainly will not apologize for helping my clients. That is my duty as an attorney. However, I feel that we as immigration advocates need to work harder to build support for more pro-immigrant policies. This involves making our case directly to the American people. If our countrymen had a better idea about who our clients are, why they come here, and how they benefit our nation, I believe that many of them would favor a more open policy towards immigrants.

As I said in the beginning, all this is a quite preliminary. Although Mr. Trump’s rhetoric–and some of his cabinet choices–seem ominous, we really do not know his plans. Nevertheless, it makes sense to start organizing now, so we are prepared for any eventuality.

In his play Henry the Sixth, Shakespeare’s character Dick the Butcher famously intones, “The first thing we do, let’s kill all the lawyers.” The context of that quote is often forgotten. Dick is a follower of Jack Cade, a pretender to the throne of England and a populist. For Jack to take control, law and order must be subverted, and this requires getting the lawyers out of the way. In our own time too, we attorneys stand between a populist and his possible victims, but judging by the early organizing efforts, I have little doubt that we will stand firm.

 

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President Trump and the Future of Our Refugee and Asylum Programs

by Jason Dzubow

The People have spoken. Donald Trump will be the next President of the United States. He will enter office with a Republican House and Senate, though not a filibuster-proof majority, but certainly enough to enact much of his legislative/policy agenda. So what can asylum seekers, asylees, and refugees expect?

Sometimes white is a very dark color.
Sometimes white is a very dark color.

Of course, with Mr. Trump, it’s often hard to know his plan. Will he keep his campaign promises to ban Muslims? Return Syrian refugees? Build a wall? Narrow the category of people eligible for asylum (as implied by the Republican Party platform)? Can these policies even be implemented in practice? It’s far too soon to know which direction Mr. Trump will go with all this, but here are some initial thoughts, not so much about what he will do, but about what he has the power to do.

Banning Muslim Immigrants: The U.S. government has the power to block most anyone from coming to the United States. In previous eras, we have excluded Chinese, Southern Europeans, Jews, and all sorts of other “undesirables.” More recently, after 9-11, we enacted Special Registration for people from certain majority-Muslim nations, though this was not a ban on Muslims, just a restriction on those already here.

Also, if you have ever applied for a U.S. visa, you know that the consulates exercise almost unlimited discretion to deny visas to people deemed ineligible. For people overseas seeking a visa, it would be easy for President Trump to deny visas to applicants from majority-Muslim countries, or to those who are Muslim. This could be done even without Congressional action.

The policy implications for such a move would be unpredictable. How would the “banned” countries react? What would this mean for our diplomatic relations with those countries and our ability to cooperate with them against the war on Islamic extremists? There are also economic implications for trade, business investment, and universities that enroll (and make money from) foreign students. I imagine the competing constituencies would weigh in on the efficacy of a Muslim ban, and so it is difficult to know how this would work in practice. But President Trump will basically have the power to block Muslims who are overseas from coming to the United States.

Refugees: This past year, we accepted about 85,000 refugees. Traditionally, the plurality of refugees we accept are Christian, but in FY 2016–for the first time since FY 2006–the plurality (44%) of refugees resettled in the United States were Muslim (the Pew Research Center provides some good data on this subject). This shift reflected President Obama’s response (tepid, in my opinion) to the Syrian refugee crisis. In determining how many refugees to bring to the U.S., the President consults with Congress and comes up with a number. So Mr. Trump could reduce or eliminate the number of refugees coming to the U.S., or he could shift the focus away from Muslim refugees.

Again, there are policy implications for such a move. The world is facing the worst refugee crisis since World War II. What does it mean for the character of our nation to ignore the suffering of these individuals? How will our retrenchment affect the efforts of other countries to assist refugees? How will it affect our ability to wield moral authority and to continue our role as the leader of the Free World? Or have we as a nation decided to abdicate that role?

Asylees and Muslim Refugees Who Are Already in the United States: And what about those Syrian refugees (and other refugees and asylees) who are already here and have already been granted refugee status or asylum in the United States? Deporting people who are here, with lawful status, is much more difficult than excluding people from coming here in the first place. Such people have a Constitutional right to due process of law, meaning that they cannot be deported from the U.S. without a legal procedure. Currently, that procedure involves presenting one’s case to an Immigration Judge, who then determines whether the person is eligible to remain in the United States. People who have already qualified for protection under U.S. law (which is based on our ratification of various international treaties) cannot simply be removed from the country. The procedure to remove them is long, and–given that they have already qualified for protection–under current law, they cannot be deported.

For these reasons, although Mr. Trump has vowed to send Syrian refugees back, I suspect that this will not be easily accomplished. First, it would mean a change in the law, and this requires the cooperation of Congress. As mentioned, while the Republicans have a majority of seats in Congress, there is still a powerful Democratic minority that could potentially block such a change. Also, it is likely that a significant minority of Republicans would oppose changing our humanitarian laws.

And even if the law related to asylum were changed, there are several other laws that people currently in the U.S. might use to avoid removal. For example, those who fear harm as defined by the UN Convention Against Torture might assert a defense based on that treaty. Those who have been here for longer periods of time might be eligible for other forms of relief, like Cancellation of Removal or adjustment of status based on a family relationship. In short, people who are living in the U.S. and who have refugee or asylum status have several layers of protection that will likely insulate them from any effort to have them removed. And any effort to make the sweeping changes needed to force such people to leave will require unified Congressional action, something that we are unlikely to see.

Of course, if such changes could somehow be made, there are policy implications here as well. What will it mean to send back Syrian refugees (mostly women and children) to that war torn region? How will it affect our moral standing in the world? What would it mean for international law in general if we abrogate our treaty obligations? And what would be the “ripple effect” of such a policy?

People with Asylum Cases Pending: People who are in the United States with asylum cases pending also have the benefit of due process protections. They cannot be deported unless and until an Immigration Judge determines that they do not qualify to remain in the United States. Under current law, even people from majority-Muslim countries benefit from these protections–which are “rights”–under domestic and international law. To change this regime, Congressional action would be necessary. Again, it is unclear whether President Trump will have the supported needed to enact such sweeping changes in this area of law.

The bigger immediate concern for people with pending asylum cases is how the Trump Administration will allocate resources towards the asylum system. I suspect that resources will be increased for Immigration Courts (which can deport people, but which can also grant relief and allow people to stay here). I am not so optimistic about the Affirmative Asylum System–these are the Asylum Offices that review asylum cases filed by people who are in the U.S. and who fear persecution in their home country. The Affirmative Asylum System is already beleaguered by long delays, and if the new Administration diverts resources from that system, it will only slow the process further. One option for a Trump Administration might be to eliminate the Asylum Offices and send everyone to Immigration Court. How this would play out in terms of delay or efficacy, I do not know.

The Wall and Restrictions on the Definition of Particular Social Group: Finally, Donald Trump has promised to build a wall to prevent people from entering the U.S. through Mexico. This seems to me more a fanciful campaign promise than a realistic or effective means of tightening the border. So I doubt he will build an actual wall. He could however, make it more difficult for people arriving at the Southern border to seek asylum by restricting the definition of those eligible for asylum. Specifically, many people who come to the border seek asylum because they fear persecution by gangs or domestic violence (in legal terms, they are seeking asylum because they fear persecution on account of their “particular social group”). Our current system allows such people to arrive at the border, “pass” a credible fear interview, enter the U.S., and then have their cases adjudicated by an Immigration Judge. If a Trump Administration restricted the definition of particular social group, and raised the bar for credible fear interviews, it could largely shut down the border without resorting to a wall, and probably without violating our treaty obligations.

Again, of course, there are policy concerns here. If relations with Mexico sour, that country could do less to interdict migrants traveling north through it’s territory. That could result in a larger refugee crisis at our border. Also, if our country closes the doors to refugees in our backyard, other countries may follow suit, and the result would be a more severe worldwide refugee crisis, and the likely deaths of many innocent people trying to escape harm.

For now, all this is conjecture. Donald Trump will not assume office for another few months. During that time, he will (presumably) begin to articulate how he will translate his promises into actual policy. Given the campaign we just witnessed, it is difficult not to be pessimistic. However, to paraphrase John Donne, No policy is an island, entire of itself. To implement changes to the humanitarian laws will implicate many other important policy areas. Perhaps–we can hope–this will help mitigate the more radical plans raised prior to the election. Here’s John Donne, once more, “Any man’s death diminishes me / Because I am involved in mankind / And therefore never send to know for whom the bell tolls / It tolls for thee.” Let’s hope Mr. Trump recognizes the gravity of his proposed changes, and the effect they could have on innocent lives. Let’s hope.

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Third Party Candidates and the Triple Threat to Democracy

by Jason Dzubow

President Obama said in a radio interview, “If you vote for a third-party candidate who’s got no chance to win, that’s a vote for Trump.” But for those planning to vote third party, it’s not simply the prospect of a President Trump that worries me. It’s also the idea that voting Libertarian or Green actually sets back the hope of growing those movements. Worst of all, voting third party represents an inability to compromise—and the ability to compromise is perhaps the most important characteristic necessary for democracy to survive.

I prefer Clinton's baggage to Trump's barrage.
I prefer Clinton’s baggage to Trump’s barrage.

Let’s set aside the third party candidates—Jill Stein of the Green Party and the Libertarian Party’s Gary Johnson—and whether they have the abilities needed to serve as President. For purposes of this discussion, it doesn’t much matter—they both have their strengths and weaknesses, as does Hillary Clinton. But unlike voting for Ms. Clinton, voting for a third-party candidate constitutes a triple threat to democracy. Why do I say this?

First, because Donald Trump is, himself, a threat to our country’s democracy. I won’t rehash all the ways Mr. Trump is unfit to lead our nation. I doubt anyone who reads this blog supports his bid for the White House. But I will note that for people like my clients–immigrants and refugees from majority-Muslim nations–this election is about life or death. Mr. Trump has threatened that if he wins the presidency, he would return Syrian refugees to their war-torn region: “If I won, they’re going back,” he’s said. Scapegoating refugees and immigrants is nothing new, but as a Jew whose European relatives were destroyed by Hitler, I know very well where this type of talk ultimately leads.

Further, Mr. Trump’s repeated comments about putting Hillary Clinton in jail reveal quite clearly his fundamental inability to lead a democratic society. It’s not just Ms. Clinton, by the way. Anyone who disagrees with Mr. Trump on policy, or who stands in the way of his bid for power is “stupid” or a “liar” or “corrupt” or a “fat pig” or should be thrown in jail (or worse). Maybe an uncompromising bully can succeed in the world of business, but that’s not how politics—particularly democratic politics—works. As President, you have to be able to talk to people who disagree with you: Leaders of other nations, members of Congress, governors, civic and business leaders. Even with regard to rivals, you have to find common ground in order to make progress and keep our country safe. Also, in a democracy, you have to make arguments to convince your opponents that you are correct. You have to persuade them. It’s hard to get cooperation or build coalitions when you threaten or denigrate anyone who disagrees with you. Indeed, this approach to governing is antithetical to democracy.

Second, I believe that voting for either third party candidate will set back progress towards a more viable multi-party (as opposed to two-party) system. I felt the same way about Bernie Sanders, even though his policies more closely align with my own beliefs. For a third party candidate to succeed in office, he or she needs a viable foundation upon which to govern. I am a member of the Green Party, and I will vote Green for the down-ballot candidates. For a Green Party (or Libertarian) candidate to successfully lead our nation, we need third-party governors, mayors, members of Congress, etc. This is how a movement is built: From the bottom up. It takes time, patience, and commitment. More, it takes many people willing to devote themselves to lower-profile races. If we had dozens of elected officials from the Green Party serving in local offices, we would be more ready for a Green President (ditto for the Libertarians). Without that, a third-party President would have no base to build upon, and I believe such a President could accomplish little. In this way, the third-parties’ focus on the presidency distracts from the real work of building a viable alternative to the Democrats and Republicans. And this, I believe, is bad for our democracy.

Finally, voting for a third party candidate threatens our democracy because it represents an inability to compromise. Compromise being essential to any democratic society.

Jill Stein has argued that voters should not have to choose a “lesser evil,” that she—and presumably Gary Johnson—represent a third way. This is false. Polling and social science data demonstrate that neither third-party candidate can win this election. Indeed, Gary Johnson—who is more popular than Jill Stein—has less than a 2% chance of winning even one electoral vote! Maybe you don’t believe the polls. Maybe you also think that global warming is a fraud, that cigarettes don’t cause cancer, and that vaccines cause autism. If so, you are probably voting for Donald Trump already. But if you live in the real, evidence-based world, here is some (non) news: Global warming is real, cigarettes do cause cancer, vaccines do not cause autism, and neither third-party candidate has any chance to win this election.

Perhaps you see your third-party vote as a boycott of “The System.” But that argument fails as well. If you don’t like the corporate policies of, say, Starbucks, you can stop buying their coffee and hope that the economic impact of losing your business will cause them to change their ways. But that’s not how it works with elections. “Boycotting” the election because you oppose the “lesser evil” only serves to empower the greater evil. It’s as if boycotting Starbucks would encourage them to continue the very policies you oppose. In other words, boycotting the election will have the exact opposite effect of what was hoped for.

We live in a democratic republic. If we had a different system—like a parliamentary democracy—voting third party might make sense. Once the elected officials are in office, they themselves would have to make the compromises necessary to forge a ruling coalition. But in our system, we, the people, elect a President. We have to make those compromises ourselves. And of course, making compromises is not easy—not getting your way never is. But that is our system, and for now at least, this is our choice: Vote for Hillary Clinton or for Donald Trump. The others are just a dangerous distraction from reality.

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The Muslim Immigrant’s Guide to a Donald Trump Presidency

by Jason Dzubow

Donald Trump has repeatedly promised to bar Muslim foreigners from the United States. More recently, he’s called for “extreme vetting” of such people. Given his pronouncements, it’s not surprising that Muslim immigrants and asylum seekers are worried. But fear not – there is an easy solution for people affected by the ban: Convert to Judaism.

When Trumpette first converted, we were kvelling. Now, we're verbissen.
When Trumpette first converted, we were kvelling. Now, we’re verbissen.

“What!!??! How can I change my religion? I don’t know anything about Judaism,” you say. Do not fret; I am here to help. I will explain to you how to be Jewish. It’s really not that hard. Jews and Muslims are already a lot alike. We both hate pork and love hummus. We’re both perpetuating the War on Christmas by wishing others, “Happy holidays.” And we both really want to own Jerusalem. See, we’re practically cousins.

Besides, converting to Judaism is the perfect cover. Donald Trump’s own daughter converted, and he hasn’t tried to ban her from anything.

So how do you “pass” as Jewish?

The first thing to know is that a Jewish person never answers a question. Instead, he responds with a question of his own, often followed by a complaint. So for example, if someone asks you, “How are you doing today?,” you don’t say, “I’m fine.” Instead, you say something like, “How should I be doing? What with my bad stomach. My fakakta doctor prescribed me some pills, but they do bubkis.” Get it? Let’s try an example in the immigration context. Here’s a common question that you might encounter:

Immigration Officer: “How many children do you have?”

Non-Jewish Answer: “Three.”

Jewish Answer: “How should I know? They never call, they never write. My youngest is running around with some shiksa. And my oldest! Don’t even get me started. I told her, ‘Go to medical school, like your cousin Herbie,’ but what does she do? Majors in Liberal Arts. Feh! Her father and I spend $50,000 a year on college so she can work as a barista. Oy, what tsuress. Just thinking about it, I’m verklempt already.

You see – It’s easy. Here’s another one. Let’s say that someone asks you a question that you want to avoid answering. One way to do that is by minimizing the importance of the question, and then making the questioner feel guilty about asking it. We Jews do that by taking the most important word in the question, replacing the first letter in the word with “schm” and then repeating it back. Often, this is followed by a reference to the Nazis. Here’s an example in the immigration context to help clarify what I mean:

Immigration Officer: “Hello sir, may I please see your visa?”

Non-Jewish Answer: “Here is my visa.”

Jewish Answer: “Visa, schmisa! Do you think I’ve been sitting on a plane squished up like a sardine for the last 12 hours just so some Himmler-wanna-be can ask for my papers? My family didn’t survive the Holocaust, not to mention the pogroms, just to have some shmendrick treat me like a gonif. Next thing you know, you’ll be deporting me to a camp. The whole thing makes me want to plotz.”

At that point, your interrogator will likely let you pass through customs just to get rid of you, which is another advantage of converting to Judaism.

OK, I think you’ve got it. But here’s one last example. This one’s a bit more advanced, so pay attention. If you can master it, no one will ever question your newfound Judaism. In English, most sentences are constructed with a noun, followed by a verb. We Jews often reverse that construction. So we wouldn’t say, “She is a fast driver.” Instead, we might say, “Fast, she drives.” But typically, we’d try to be a bit more colorful: “Fast, shmast. Like Marrio Andretti, she drives.” And here it is in the immigration context:

Immigration Officer: “The fee for your green card is $1,070.”

Non-Jewish Answer: “Here is $1,070.”

Jewish Answer: “Nu? One thousand and seventy?! What am I, a Rothschild? Why don’t you take my first born son while your at it. Maybe you can get some schlemiel to pony up that kind of money, but not me. Anyway, gelt like this, I don’t have. Maybe the big machers can afford your fees, but not us little pishers. Now, be a mensch and hand to me your brochures about moving to Canada?”

So that’s it. Look, it isn’t pretty to have to convert (or pretend to convert) to survive. We Jews have done it before (remember the Spanish Inquisition and the crypto-Jews?), but I suppose it beats the alternative. Anyway, in four years, when Michelle Obama becomes president, you can always convert back.

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Refugees and the Republican Party Platform

by Jason Dzubow

The Republican Party Platform is finally here (yippee!). While the document does not bind either the party or its candidate, it does tell us something about Republican thinking on a wide variety of topics. Two paragraphs in the 54-page Platform cover asylum and refugee issues, and I want to discuss those here.

The RNC Platform would block "the gays" from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.
The RNC Platform would block “the gays” from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.

Interestingly, the Platform itself does not call for a “total and complete shutdown of Muslims entering the United States.” However, it does view asylum through the prism of national security, and it does place extra scrutiny on people coming from “regions associated with Islamic terrorism.”

The first paragraph of interest (found on page 26 of the Platform) reconfirms America’s commitment to assisting refugees, but with a few caveats–

From its beginning, our country has been a haven of refuge and asylum. That should continue — but with major changes. Asylum should be limited to cases of political, ethnic or religious persecution. As the Director of the FBI has noted, it is not possible to vet fully all potential refugees. To ensure our national security, refugees who cannot be carefully vetted cannot be admitted to the country, especially those whose homelands have been the breeding grounds for terrorism.

I take issue with a few points here. First, the Platform seeks to limit asylum to people who face “political, ethnic or religious persecution.” Under our current law, a person can qualify for asylum if she fears persecution on account of race, religion, nationality, political opinion or particular social group. Presumably, “ethnic” persecution in the Platform refers to persecution on account of race or nationality under existing law, which means that four of the five protected categories are covered in the RNC document.

Conspicuously absent from the Platform’s language, however, is protection for people who are members of a “particular social group.” This omission is significant for a few reasons. First, it contravenes our treaty obligations (we are signatories to the 1967 Protocol Relating to the Status of Refugees, which covers all five protected categories). If we seek to modify our obligations under the treaty, other countries may follow suit. This would have an unfortunate ripple effect on refugee protection throughout the world. It would also downgrade our leadership role with regards to refugee resettlement, and may signal a withdrawal of our leadership in world affairs more generally.

Second, the change would mean that we no longer offer refuge to many people who we now protect. Those who fear persecution on account of sexual orientation, female genital mutilation, and domestic violence are some prime examples of people we protect because they are members of a particular social group (“PSG”). Indeed, those refugees most affected by this change would be women and sexual minorities. I suppose this is consistent with the rest of the RNC Platform, which–to say the least–is not all that friendly towards women or LGBT individuals.

Third, eliminating PSG as a protected category would effectively end any possibility for relief for the unaccompanied minors who have been arriving at our Southern border in large numbers since about 2012. Most of these young people are fleeing violence in Central America. They already have a difficult time obtaining protection in the U.S., but if the PSG category were eliminated, the likelihood that any of them could obtain asylum would become virtually nil.

The second paragraph in the RNC Platform related to refugees appears on page 42 of the document–

[We] cannot ignore the reality that border security is a national security issue, and that our nation’s immigration and refugee policies are placing Americans at risk. To keep our people safe, we must secure our borders, enforce our immigration laws, and properly screen refugees and other immigrants entering from any country. In particular we must apply special scrutiny to those foreign nationals seeking to enter the United States from terror-sponsoring countries or from regions associated with Islamic terrorism. This was done successfully after September 11, 2001, under the National Security Entry-Exit Registration System, which should be renewed now.

I take issue with a number of points in this paragraph, but here I will discuss only those related to refugees. First, the paragraph echos Donald Trump, who has claimed that we don’t know where these refugees come from, or who they are. This is utterly false. In truth, we know far more about the refugees who come here than we know about other categories of immigrants or non-immigrant visitors. Refugees are subject to intensive screenings and multiple background checks. Indeed, we probably know more about the refugees (and immigrants) entering our country than we know about our own citizens, and most studies show that such people are less likely to commit crimes than the native born.

I also disagree with the Platform’s plan to re-start the National Security Entry-Exit Registration System (“NSEERS”), which was suspended in 2011. Under NSEERS, men and boys from many Arab and Muslim countries were required to specially register with the U.S. government. The confusing system led to great difficulty for many of these people (and their families), but resulted in no terrorism-related convictions. In other words, there is basically no evidence that NSEERS made us any safer, but there is plenty of evidence that it harmed innocent people who happened to be from Arab or Muslim countries.

Finally, there is one point in the Platform that I agree with: We must continue to screen refugees and others who come to our country from regions that produce terrorists (and from everywhere else as well). Of course, we already do this, and I don’t think there is anyone in American who thinks we should do otherwise. The RNC’s implied accusation here is that Hillary Clinton and Barack Obama have been letting un-vetted refugees enter our country. That is a lie, and anyone who follows the painfully-slow process of refugee admissions knows it.

What little the RNC has to say in its Platform is not good for refugees, and it is especially bad for refugees who happen to be women, children, LGBT individuals or Muslims. If there is a silver lining here, I suppose it is that the Platform devotes only two paragraphs to refugee issues. These days, when it comes to Republicans and refugees, the less said, the better.

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From an Asylum Attorney to the Green Party’s Jill Stein: Hillary Clinton Is Not the Same as Donald Trump

by Jason Dzubow

Dr. Jill Stein is the Green Party’s presumptive nominee for President of the United States. In a recent appearance on Democracy Now!, she argued that there was little difference between Hillary Clinton and Donald Trump:

Trump says very scary things—deporting immigrants, massive militarism and, you know, ignoring the climate. Well, Hillary, unfortunately, has a track record for doing all of those things. Hillary has supported the deportations of immigrants, opposed the refugees—women and children coming from Honduras, whose refugee crisis she was very much responsible for by giving a thumbs-up to this corporate coup in Honduras that has created the violence from which those refugees are fleeing. She basically said, “No, bar the gates, send them back.” You know, so we see these draconian things that Donald Trump is talking about, we actually see Hillary Clinton doing.

CtuthuluDr. Stein says that, people are “very quick to tell you about the terrible things that the Republicans did, but they’re very quick to forget the equally terrible things that have happened under a Democratic White House…. It’s time to forget the lesser evil, stand up and fight for the greater good.”

I am a member of the Green Party. I am also an attorney who represents immigrants and asylum seekers. My clients have fled persecution in the Middle East, Africa, and the Americas. They are not people who have the luxury of idealism. They are people whose loved-ones have been killed by war and terrorism. Many of my clients have been attacked or threatened with death. Their first priority is to keep their families and themselves alive. By leaving everything behind–family members, friends, homes, careers–in order to find safety in America, they have already chosen the lesser evil that Dr. Stein speaks about.

We are now almost at the start (!) of the general election season. Are the two major candidates for President really the same, as Dr. Stein argues? My clients don’t think so. They are genuinely afraid of Donald Trump and of what he represents. When Mr. Trump threatens to ban Muslims from the United States, or when he refers to Mexicans (and Americans of Mexican decent) in a racist manner, my clients wonder whether there is a future for them in this country.

One of my clients is a women’s rights activist from Afghanistan. Will she be able to reunite with her young children, or will they be prevented from coming to the U.S. because of their religion? Other clients are a Syrian couple, both doctors, whose first child died in the war. Will they be able to keep their second child safely in the United States, or will they be forced to leave? What about my Iraqi client who was kidnapped and tortured by terrorists? Or my Pakistani-journalist client whose step-father was murdered in retaliation for the family’s democratic political views? And what about my Honduran client who was shot in the head by members of MS-13 because he refused to join their gang? If Mr. Trump had his way, I imagine all these people—and many more—would be blocked from seeking refuge in our country.

Contrast this with Hillary Clinton. Dr. Stein points out that Ms. Clinton supported a coup in Honduras that supposedly helped create the current refugee flow from that country, and that Ms. Clinton favors detention of asylum seekers, including families with children, who arrive at our Southern border. Based on the evidence I have seen, Dr. Stein’s claim about the coup is dubious: Violence was rising in Honduras before the coup, and it continued to rise after the coup. It is very difficult to pin the current waive of migration to the coup (or to credit Ms. Clinton with causing it). As for the detention of families at the border, I have yet to see a solution to this problem that is practically and politically viable. Should we simply throw open our border to all comers? My sense is that the large majority of Americans would oppose such a move. I personally think we should be using more alternatives to detention, but this is a policy tweak; not a complete solution. A leader’s first priority must be to protect our country. How that can be achieved without control of our border, I do not know. In sum, the “lesser evils” discussed by Dr. Stein are difficult policy choices, and reasonable people can differ on the solutions.

More important than her previous policy positions are the positions Ms. Clinton would likely take if elected President. The Democratic Party has moved to the left, and whatever policies Ms. Clinton advances will be determined largely by where the party stands politically. On immigration, it is in a different universe from the Republican Party and from Mr. Trump, whose hardline stance on immigrants is well known. For Dr. Stein to argue that the two candidates’ positions on immigration are similar is like saying that black is the same as white (ok, maybe it’s more like saying that dark gray is the same as light gray, but you get the idea).

I have been a member of the Green Party for over 15 years. I support many of it’s policies. But I have found it very difficult to support the top-down strategy that seems to have characterized the party since at least 2000, when Ralph Nader siphoned off votes from Al Gore. I have always felt that the Green Party should focus on state and local races. A “revolution” (whatever that means) will not come from the top down–it will come from the bottom up. So while I believe the Green Party should run a national campaign in order to raise awareness on various issues, I also believe it should ultimately endorse the Presidential candidate that represents the “lesser evil.” In the current election, that candidate is Hillary Clinton. There are major differences between her and Donald Trump, and those differences may determine whether people like my clients live or die. I hope Dr. Stein will keep such people in mind as we move through this election campaign.

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Trump Campaign’s Law Firm Represents Muslims, Mexicans, Criminal Aliens

by Jason Dzubow

Donald Trump–who famously declared his intention to ban Muslims from coming to the United States, and who called Mexican migrants “rapists“– is represented in his presidential campaign by a law firm whose pro bono clients include Muslims and Mexicans, as well as many other immigrants and asylum seekers.

Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.
Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.

To be sure, all 2,400+ attorneys at Jones Day do not support Mr. Trump, and many have been quite vocal (at least anonymously) about their opposition to the candidate and their firm’s representation of him. It also seems that the lead attorney for the Trump campaign, Donald “Don” McGahn II, has been under some pressure to separate himself from the firm. However, at least for now, Jones Day seems to be all in for the Republican nominee.

Given it’s support for the candidate, perhaps it’s a bit ironic that Jones Day has spent considerable money and pro bono time representing the very people that Mr. Trump seeks to ban from our country. Indeed, Jones Day has been recognized for its service by a number of leading immigrant-advocacy groups, including Human Rights First, the National Immigrant Justice Center, Tahirih Justice Center, the Lawyers’ Committee for Civil Rights Asylum Project, Immigration Equality, and the Capital Area Immigrants’ Rights Coalition. These organizations represent immigrants and asylum seekers throughout the country. Many of their clients are detained in ICE custody. Some are criminals. Others are (gasp!) Muslim. The work of these organizations has helped save thousands of lives, and the support of firms like Jones Day is integral to their efforts.

And it’s not just organizational support. Aside from fundraising, a perusal of the firm’s recent pro bono successes reveals that Jones Day attorneys have directly represented Muslim, Mexican, and Central American asylum seekers, among many others. The firm has also represented criminal aliens in their quest to remain in the United States.

For example, in March 2016, three attorneys from the Jones Day Chicago office won a victory in the Ninth Circuit for a Salvadoran man convicted of perjury. As a result of this success, the man has an opportunity to present his case for relief to the Immigration Judge, and he now has a chance to stay in the United States with his wife and son. The firm also successfully represented a gay man from Jamaica who received relief under the Torture Convention (most likely, he was ineligible for asylum due to a criminal conviction), an Afghan man convicted of assault against a police officer, and a Mexican citizen who was charged with procuring his admission to the U.S. by fraud.

In addition to its criminal-immigration work, the firm has obtained asylum for a Muslim refugee from Somalia, a Muslim refugee from Iraq, and many other clients from majority-Muslim countries, including a woman from Mali, a family from Kyrgyzstan, a man from Turkey, a family from Iran,  a woman and her son from Iraq, and a man from Yemen (the firm’s website does not specify whether these clients are Muslim, but it seems likely that many are).

In fact, the firm has an entire webpage devoted to its pro bono asylum and immigration activities. Jones Day is rightly proud of this work–the firm has assisted scores of asylum seekers and immigrants. It has won many cases and has represented aliens in precedent-setting litigation before the federal appellate courts and the U.S. Supreme Court. The firm is also rightly proud of its support for various non-profits, which help thousands of foreign nationals and their families. But how do these effort squares with the firm’s representation of Mr. Trump, whose central message is anti-Muslim and anti-immigrant?

It seems pretty clear that there is no ethical conflict in terms of the Rules of Professional Responsibility that lawyers must follow, and I have no doubt that the firm can competently represent both Mr. Trump and its pro bono clients. However, it does seem to me that representing the Republican nominee creates a real moral conflict for Jones Day.

From my observation, big-firm attorney who represent asylum seekers and immigrants pour their hearts and soles into the cases. They often become friendly with their clients and they are heavily invested in the case outcomes. How would it feel to devote yourself to such a case, only to have your firm’s most high-profile client denigrate your efforts?

I am not a Jones Day attorney. I am not even a big-firm attorney. Never have been; probably never will be. But it seems to me that the character of a firm is important. That character is defined by the work the firm does–the paid work, and perhaps even more so, the pro bono work, which represents the firm’s core values. Mr. Trump’s campaign is diametrically opposed to the values that underpin much of Jones Day’s pro bono work, and I do not see how these two paths can be morally reconciled. I also do not see how the firm can maintain its integrity by helping needy immigrants at the same time it is working to elect a president who is a bigot and a xenophobe.

Abraham Lincoln once observed that a house divided against itself cannot stand. I wonder: Can a law firm?

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Did Immigration Advocates Help Create Donald Trump?

by Jason Dzubow

As Donald Trump marches (goose steps?) toward the Republican nomination, there’s been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.

Mr. Trump's real estate empire and his political campaign were both built using immigrants.
Mr. Trump’s real estate empire and his political campaign were both built using immigrants.

One big issue is immigration. Last June, Mr. Trump called Mexican immigrants “rapists” and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).

There are many explanations for why Mr. Trump’s xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country’s history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.

Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.

Now wait just one gosh-darned second here, you say. Isn’t this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there’s a difference. Allow me to explain–

Over the last 20 or so years, we’ve seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned–protecting victims of forced abortion, for example–but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.

Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.

Between 2009 and 2012, increasing numbers of people–mostly Central American–began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.

Most of the Central American applicants don’t easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.

As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.

It seems likely that these two events–changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border–helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries–they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that “something else” includes an improved legal climate and publicity about asylum.

Added to all this is the Obama Administration’s decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.

We now return to Donald Trump.

The idea that “liberal elites” are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump’s narrative. This world view is not unrelated to reality. Indeed, as we’ve seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action–all methods of choice for the “liberal elite.”

Should we–the liberal elite–have done things differently? I’m not sure, but I certainly won’t apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President’s decision to bring more Syrian refugees here was also the right choice, and–to me at least–represents a fairly tepid response to a massive crisis.

But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans–all Americans–have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we “elites” have, to a certain extent, trampled over the democratic process.

Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren’t likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I’d like to see a little more of it in our national conversation about immigration.

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Terrorism, Trump, and the Moral Cowardice of Our Time

by Jason Dzubow
History is filled with people who think that their ignorance should trump your life.
History is filled with people who think that their ignorance should trump your life.

It’s September, and for most of us, it’s a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

Since then, we’ve witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.

Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.

But one word that I have often heard used to describe terrorists is “cowardly.” I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but–at least to me–not cowardly.

There is another, perhaps more profound, application of the label “coward” when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person’s humanity. It takes courage–sometimes great courage–to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed “us;” therefore we are justified to harm “them.” But this fails to account for the fact that there is no “them”–there are only people, living their lives day to day.

Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country’s systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I’d wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn’t. To meet and come to know your “enemy” destroys the very notion of us-versus-them. While it’s easy to project your hate and anger and fear onto “the other,” it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).

For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.

Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.

Mr. Trump–and the bevvy of Republican contenders racing to keep up with him–want to detain, deport, and deter many potential immigrants, including “illegals,” refugees, asylum seekers, and H1B workers. Of course it’s a whole lot easier to deport people you’ve labeled illegals, “rapists” and “killers.” It’s harder when you have to contend with actual human beings and their stories.

Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project–where we screen unrepresented cases and refer them to pro bono attorneys–and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).

Now maybe you believe that all “illegals” like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It’s a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported–our country has limited resources, we have to help “our own” before we help others, etc. But to create a straw man–an “illegal”–without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, “Deport them all,” you better know who it is that you are deporting and exactly what that means.

The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend’s friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: “You did the most important thing a person can do–you made me look good for recommending you.” I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of “illegals” is one thing. To know the individual is quite another.

Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, “You convinced me.” In the face of hearing their stories, even The Donald wanted to help.

To some degree, all of us are guilty of dehumanizing “the other.” It’s impossible not to. But when we advocate for positions that harm others without understanding–or even trying to understand–the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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