The Asylumist

The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV. As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.

I suppose the Virginia DMV figures that refugees are used to walking.

The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.

The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal.

Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum. In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country). Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum.

While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum. This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia. An asylum seeker need only show a 10% chance of persecution to obtain asylum.

The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.” I had a brief quote in the article on this point:

Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”

Another part of my comment did not appear in the article, but I think it is relevant:

I do not see how the DMV can say that her “legal status” is under review – it is not. She has been granted Withholding of Removal. That order has not been appealed, and it is final. There is nothing more to review. It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license. Her legal status is Withholding of Removal. It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.

Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele. It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs. My guess is that the lawsuits are coming. Let’s hope so.

Virginia’s Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth “may… inquire into the immigration status of persons stopped or arrested.” The AG had previously determined that “law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws.” Last week’s opinion effectively expands law enforcement’s power to inquire about a person’s immigration status:

So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.

It's not "American" Gothic unless you have the ID to prove it.

It’s a little unclear to me what this means. The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both.

It’s also unclear how this advisory opinion will impact asylum seekers. Many people in Virginia–including many of my clients–have pending asylum cases. Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S. At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien’s status is terminated, but he remains in possession of his work permit). Other times, the alien will have only a printed paper from the Immigration Court or the asylum office. Anyone with a printer could create such a document, so it is weak proof of status.

How then will Virginia law enforcement officers deal with asylum seekers? Will they detain them until their status can be determined? Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke. Or will the police simply take an alien’s word for it when she claims to be an asylum seeker? I doubt such an “honor system” would be acceptable to the AG’s supporters. Or maybe the police will be trained in the various documents that accompany asylum cases. But this would be a poor use of time for officers who are already overburdened.

One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum. At least this would help such people avoid running afoul of local law enforcement. As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.

Virginia Denies Driver’s Licenses to Refugees

As Virginia AG Targets Immigrants, What About Asylum Seekers?