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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.
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.
Originally posted on the Asylumist: www.Asylumist.com.
The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I've received inquiries from several such people. They want to know whether they are eligible for asylum under international law.
Who knew that the road to safety would be this long?
To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.
Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”
If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.
For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group--for example, Tutsis in the 1994 Rwanda genocide--faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a "now we see the violence inherent in the system" sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove "pattern and practice," but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered "pervasive," for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered "past persecution," and this made his case more difficult).
In the absence of a "pattern and practice," an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it's about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.
Although the average African American would probably not meet the standard for asylum, some African Americans--those who have received specific threats and, of course, those who were previously persecuted--might be able to prove that they face a likelihood of harm and thus meet the definition of "refugee."
Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.
In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.
Originally posted on the Asylumist: www.Asylumist.com.
Asking a lawyer whether you need a lawyer for your asylum case is kind-of like asking a pastry chef whether you should have dessert. My answer: Of course you should hire a lawyer, and have a double helping of Windsor Torte while you’re at it.
A decent lawyer can help you prepare and present your case, and increase the likelihood of a successful outcome. However, there are some people who need a lawyer more than others, and if your resources are limited, you will have to decide how best to prioritize your needs.
"I don't need a doctor - I'll fix it myself!"
So how do we know that a lawyer actually improves the chances for success? And who really needs a lawyer, anyway?
First, there has been at least one statistical analysis of how lawyers impact asylum cases, and the result is pretty definitive: Lawyers matter. A study of asylum decisions in Immigration Court by TRAC Immigration finds that, on average, asylum applicants with a lawyer win about 51.5% of their cases. Asylum applicants without a lawyer win only about 11% of their cases (the effect was even more disparate for “priority” cases involving women and children). That’s a big difference, but there are a few caveats to these numbers.
For one thing, the cases reviewed in the study were in court. Such cases are adversarial, and can be procedurally complex, as compared to cases before the Asylum Office. Thus, it is harder for an unrepresented applicant in court to win his case. Also, some applicants receive pro bono (free) legal assistance. However, it is more difficult to get a pro bono attorney if you have a weak or meritless case (or if you have criminal convictions). This creates a vicious cycle, where applicants with bad cases are less likely to receive legal representation, and I think it probably skews the statistics, making it appear that people without lawyers are more likely to lose their cases (since people with weak cases have a harder time finding legal representation). Even considering these factors, it does appear that competent representation makes it more likely that an applicant will be granted asylum.
But if you are like many asylum seekers, you have limited resources. Attorneys can be expensive, and pro bono representation can be difficult to secure. So who really needs an attorney, and who can get by without one?
If your case is before an Immigration Court, it is best to have a lawyer. Most judges will pressure you to get a lawyer, and they will usually give you an extension of time to find an attorney. Court cases are adversarial, which means that if the ICE attorney aggressively opposes relief, it can be very difficult—even for an applicant with a strong case—to effectively present his case, avoid any pitfalls, and obtain a grant.
For applicants whose cases are before the Asylum Office, the story is a bit less clear-cut. Asylum Office cases are (supposedly) non-adversarial. The procedural requirements are generally (but not always) less stringent. Many people prepare their cases and attend the asylum interview without the help of a lawyer (some use paid “translators,” with mixed degrees of success), and there are many examples of pro se (unrepresented) applicants who receive asylum. There are, however, some red flags, which, if present, militate in favor of hiring an attorney.
Asylum applications may be denied if they are not filed within one year of the alien’s arrival in the U.S. There are exceptions to this rule, but if you are filing for asylum more than a year after you’ve come to the United States, it is a good idea to have an attorney.
Asylum applications can also be denied if the applicant has been convicted of a crime, or if the applicant “persecuted” others in her home country (or elsewhere). If you’ve been convicted of a crime, or if you fall into a category where the U.S. government might suspect you of persecuting others (such as police officers, members of the military, members or supporters of armed groups), you should have a lawyer.
In addition, people who provided “material support” to terrorists are barred from asylum. Unfortunately, that covers a broad range of activities. So if you’ve given money or any type of support to a terrorist group—even if you did it under duress—you need a lawyer. Doctors who treated combatants fall into this category.
Other issues that might require the help of an attorney include travel back to the home country (especially after an instance of persecution), or living in a third country before coming to the United States.
Finally, to win asylum, the applicant must show that she faces persecution “on account of” race, religion, nationality, political opinion or particular social group. If you do not obviously fit into one of these categories, it is helpful to have an attorney, who can make a legal argument that your case falls into a protected category, and that you are thus eligible for asylum.
Even if there are no obvious issues in your case, a lawyer’s advice can be helpful. Sometimes, there are problems in a case that are not apparent until a lawyer reviews it. You are far better off identifying and addressing such issues before they become a problem. For those who cannot afford an attorney, or who choose to do their cases pro se, it is possible to win. But some cases are more difficult to win than others, and-especially for these problem cases—the help of a competent attorney can make all the difference.
Originally posted on the Asylumist: www.Asylumist.com.
Let's say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.
If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
If you guessed "d", you win. By giving a glass of water to the IS fighter, you and your daughter have provided "material support" to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child's life. And even though it was only one glass of water (what we lawyers call "de minimis"). How can this be?
After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to "material support," which one jurist has called "breathtaking in... scope," see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:
Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives
Id. And anyone who provides any type of support to these "terrorists" is subject to the material support bar.
The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it's not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.
Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds ("TRIG"). In that vein, DHS has issued group-based exemptions that allow people involved with certain "terrorist" groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at TRIGQuery@uscis.dhs.gov.
One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice ("DOJ"). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:
[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.
Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn't for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.
Blocking terrorists and their supporters from the U.S. is obviously an important goal--it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.
Originally posted on the Asylumist: www.Asytumist.com.
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.
Dr. 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.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 07-07-2016 at 10:54 AM by JDzubow