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Jason Dzubow on Political Asylum


  1. Center for Immigration Studies: Unaccompanied Minors Are Mexico's Problem

    A recent article by Mark Krikorian of the Center for Immigration Studies posits that even if the unaccompanied minors arriving at our Southern border are refugees, they should be sent back.
    Mr. Krikorian's view of Mexico.

    I find that CIS in general and Mr. Krikorian in particular are usually fairly reasonable in their arguments (though there are exceptions; and more exceptions). However, Mr. Krikorian's recent article is long on insults and short on insights.

    First, the insults (they're more fun to deal with, no?). He refers to the "anti-borders Left," which I suppose means that to him, anyone who advocates for immigrants opposes all borders. This is kind of like saying that anyone who advocates for a speed limit opposes driving. He also refuses to acknowledge that children arriving at the border are unaccompanied (he refers to them as "unaccompanied" - damning them with quotation marks). What he means by "unaccompanied" is that the children are brought here by smugglers who (and this is a real quote from CIS - check the link if you don't believe me) "watch over the children until they are taken into custody by U.S. authorities as part of a process that turns the children over to relatives in the United States." I guess technically, the children are accompanied, though having a smuggler "watch over" my kids is about as desirable as having them spend a night at Neverland Ranch. Finally, here's a good one:

    Asylum is for people willing to go anywhere to get out of where they are; just as a drowning man doesn't pick and choose among life preservers he sees in the water, a genuine asylum-seeker doesn't pick and choose among countries.

    Au contraire, mon Krikorian: Drowning men who hope to survive are actually quite picky about their life preservers. Think about Leonardo DiCaprio in that movie with the boat. Had he been a bit more choosy, maybe he and Kate Winslet would have floated off together into the happily ever after. In the same way, asylum seekers must be very choosy about where they plan to spend the rest of their lives. Just ask all those poor Eritrean refugees in Sudan, who are subject to exploitation, attacks, and expulsions. Probably they are wishing that they had found a better life preserver.

    A Central American refugee's view of Mexico.
    OK, enough of that. Now to Mr. Krikorian's "insights" (sorry for the quotes, I was feeling snarky).

    Mr. Krikorian's main point is that even if the children from Central America are refugees, a point that he does not concede, they can be turned away under international law. Why? Because the 1951 Refugee Convention provides:

    The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

    According to Mr. Krikorian, the underlined language means that an alien who flees persecution and passes through one country should not be allowed to apply for asylum in another country because the alien is not "coming directly" from the territory of feared harm. In other words, Central Americans who pass through Mexico cannot seek asylum in the U.S. because they are obliged to seek asylum in Mexico.

    There is one teeny tiny problem with Mr. Krikorian's idea. As he himself notes, United States law "unfortunately" only allows asylum seekers to be turned away if they come from a "safe third country." U.S. law recognizes only one "safe third country," Canada. He thus suggest that the statutory fix to the border surge is to "bar outright any asylum claim from someone who passed through a third country where he should have made that claim first."

    While I think this is an idea worth discussing, I don't see it as the simple solution that Mr. Krikorian does. For one thing, while Mr. Krikorian wants to convince us that Mexico is a "safe" country, there is a lot of evidence that it is not safe. So if such a law were implemented, I would expect the battle would shift from the applicant's fear of return to her country to why she would not be safe in Mexico (much as the battle in many asylum cases is about the one-year filing deadline, not the fear of return). All this would make Central American cases more--not less--difficult (and time consuming) to adjudicate.

    Also, there is the more philosophical question about how we, as a country, want to treat people coming to us for help. While we cannot solve all the worlds problems, we also cannot ignore those problems. Especially when they are in our backyard (remember the Monroe Doctrine). And especially when our policies contributed to those problems (remember the Monroe Doctrine).

    Mr. Krikorian and I do, I think, agree on one thing: The influx of asylum seekers at our border needs to be addressed. We need to have a rational policy debate about how to treat such people. In my opinion, that debate should protect the integrity of our asylum system (it should not be used as a way to get around normal immigration procedures) and it should also respect the people coming to us for help and protect bona fide refugees. Even though I generally disagree with them, I believe that groups like CIS--groups that advocate for more restrictive immigration policies--have an important role to play in the debate. That role would be more constructive if they focused more on policy and less on polemics.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Another Death in Benghazi

    On June 25, lawyer and human rights activist Salwa Bughaigis was murdered in her home in Benghazi, Libya. Her death is a tragedy for her family and her country, but it also hits home for me for a few reasons.

    Salwa Bughaigis

    Ms. Bughaigis is being remembered for her service on the National Transition Counsel (she resigned because male leaders marginalized the few women on the Counsel), her work for democracy and women's rights, and her early opposition to the Qaddafi regime. Less well known outside of Libya is her work on behalf of political prisoners (at a time when Qaddafi was hanging dissidents in the street) and her efforts--ultimately unsuccessful--to organize a Libyan national lawyers' association. At the time of her death, she was trying to help reconcile Libya's disparate factions and help the country transition to democracy.

    Due to death threats in the months leading up to her death, Ms. Bughaigis had sent her children to live abroad and she and her husband had been spending most of their time outside of Libya. She returned with her husband to vote in the election and was murdered shortly after she voted. Her husband Essam al-Ghariani was apparently kidnapped at the same time, and he is still missing.

    There are a few reasons that Ms. Bughaigis's death resonates with me.

    One reason is that it reminds me how good we've got it here. There is obviously a big difference between being a human rights’ lawyer in post-Qaddafi Libya and an asylum lawyer in the U.S., and though my clients and the people I interact with in government often drive me crazy, no one is trying to kill me. While there are certainly problems with the U.S. asylum system (especially these days), in many ways it is actually quite good, so I am generally working within the system, not trying to create a new system, as was Ms. Bughaigis. In short, I've had it a lot easier than Ms. Bughaigis, and her death reminds me that I should appreciate what we have in the United States--a relatively functional system that aspires to justice and that is designed to protect vulnerable people from harm.

    Ms. Bughaigis herself is similar to some of my clients. In fact, almost at the same time that Jihadist militants broke into Ms. Bughaigis's home to kill her, I was sitting in an asylum office with my client, a woman attorney from Afghanistan who fears harm because of her work representing female victims of domestic abuse, forced marriage, and honor crimes. Other clients have included women who organized and operated girls' schools and NGOs in Afghanistan, a female judge from Ethiopia, and women's rights activists from the Democratic Republic of Congo, Eritrea, and Iran. Like Ms. Bughaigis, these women put themselves at risk to improve conditions for women and girls in their countries. I am thankful that our asylum system recognizes and protects such people.

    Also, Ms. Bughaigis's example demonstrates why asylum seekers should not always be penalized for returning to their home countries. Currently, if an asylee returns to her country, she can lose her asylum status in the U.S. After the Boston Marathon bombing, many politicians called for even greater restrictions on asylees returning to their home countries (because the accused bombers--who had asylum status in the United States--returned to their country before the bombing). The fact is, many people who are working for change in dangerous countries need asylum, but they also need to return sometimes to continue their political missions. Ms. Bughaigis's case is axiomatic: She and her family left Libya due to death threats, but she returned to encourage others to participate in an election. The fact that she was brave enough and devoted enough to return does not negate the fact that she needed a safe haven outside of Libya.

    Finally--and here I must admit to speculating--I can't help but think that if Ms. Bughaigis had a chance to do it over again, she would do it the same way. She obviously believed so strongly in the future of Libya that she was willing to risk everything. She dreamed a beautiful dream, and she died in pursuit of that dream. This seems to me the definition of a life well lived. May she rest in peace.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Michelle Malkin Is Right!

    She got us. A recent article by anti-immigrant activist and daughter of immigrant parents, Michelle Malkin lays bare President Obama's nefarious scheme to enrich immigration lawyers while filing our country with criminals, Muslims, and "Typhoid Marias." Ms. Malkin states:

    Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.
    [L]eft-wing immigration lawyers and ethnic activists operate a lucrative industry whose sole objective is to help illegal aliens and convicted criminal visa holders evade deportation for as long as possible. Groups such as the American Immigration Lawyers Association, the Immigrant Legal Resource Center, and the American Friends Service Committee make their livelihoods off administrative bottlenecks.

    How does she know about this? It’s almost as if she were a fly on the wall at my country club where she overheard me talking with my friends at AILA, ILRC, and AFSC about all the money we've been making since thousands of wealthy Central American children started arriving at the Southern border. Perhaps my friends and I were all speaking a bit too freely after having consumed a few bottles of Vosne-Romanee Permier Cru (1983). We will have to be more guarded in the future.

    Frankly, though, as the father of two future Andover academicians with a yacht that won’t pay for itself, I’d like to know who let out our little money-making secret? Ms. Malkin gives us a clue. She writes, “Insiders have told me again and again over the years: ‘It ain’t over ‘til the alien wins.’” Who are these colloquialism-spouting “insiders” that tattled on us? One source seems to be a former law clerk from the Fifth Circuit (hence, ain’t) who, Ms. Malkin tells us, believes that Ms. Malkin is “absolutely correct” in her analysis: “immigration lawyers use the current system of endless appeals to make illegals essentially undeportable.” This clerk was also amazed that “illegal aliens, unlike American citizens, get TWO appeals as of right - one to the BIA and then another to the Circuit Court of Appeals.” I am not sure whether Ms. Malkin or the unnamed clerk emphasized TWO to show how amazed she/he was, but the emphasis was in the original article. I am also not sure how Ms. Malkin (or the clerk) got from “TWO appeals” to “endless appeals” in the same paragraph. Probably I was too busy counting my endless money to follow the logic (I made $2.00 today). Finally, I wonder who these poor Americans are who receive only ONE paltry appeal. My guess is that they are not before an administrative court (immigrants appear before administrative courts—the Immigration Court and the Board of Immigration Appeals or BIA), which usually allow for an administrative or inter-agency appeal and an appeal to a federal court (TWO appeals! Even for U.S. citizens! Ain’t that sumpin’?).

    Ah, but it only gets worse from there. Ms. Malkin even knows how we lawyers operate. She writes that the “legal tricks” for avoiding deportation include scams that would make Professor Harold Hill blush. Scams such as asylum (trouble!), cancellation of removal (Trouble!), and adjustment of status (TROUBLE! TROUBLE! TROUBLE!). Yes, we surely got trouble. I myself am a purveyor of that legal sleight of hand known as “asylum,” where we gather a type of snake oil known as evidence (which of late for my cases has included such gems as death certificates for close family members, medical reports about serious injuries, and letters from U.S. military commanders) and submit it to the Immigration Judge in the hope that our client won’t be deported to his death.

    Ms. Malkin even knows about the “fraud-friendly U visa,” which provides a path to citizenship for “virtually anyone who applies.” All you need is to be the victim of a serious crime, the cooperation of law enforcement—who must submit signed documents on your behalf—and about three years of waiting. Then you too will gain residency based on a U visa. Easy peasey.

    And then, of course, there are the “young illegal border surgers” who have been arriving along our Southern border like so many crazed teenage Beliebers. They too have a “plethora of litigation bites at the apple that will keep them in our country in perpetuity.” Lucky for them that they have such a plethora of options given that, historically, something like 97% of asylum claims from Central America and Mexico are denied. And lucky for us too—I can almost hear the coins clinking into my cup as these young Rockefellers pay my fellow attorneys and me for each delicious bite at that apple. Ka-ching!

    Of course, none of this would be possibly without the complicity of the BIA, a bunch of "meddling activists" who Ms. Malkin tells us, "have the power to overturn deportation orders nationwide.” Never mind that less than 10% of Immigration Court cases are appealed and only about 11% of those are successful, or that—depending on the circuit court—between 5% and 30% of BIA decisions are overturned in federal court. It’s clear that the Mexican-loving hippies on the Board will stop at nothing to keep illegals in our country. And by the way, these endless appeals (ONE!) to the Board are earning big money for us lawyers. Why, my last BIA appeal alone paid for my oldest child’s college (in 15 years, assuming I can find a money market account that earns 88% per year; I'll let you know).

    In the end, I have no regrets. I suppose I could have taken the more honorable, but less lucrative path and worked as a political pundit, serving my country by courageously standing up to powerless immigrants and refugee children. Instead, I have chosen to make the big money by representing those immigrants and refugees. Believe you me, I am laughing all the way to the bank...

    Originally posted on the Asylumist: www.Asylumist.com.
  4. The Way We Mourn Is Part of the Problem

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

    They are all our boys.

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

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

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

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

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

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

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

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

    Originally posted on the Asylumist: www.Asylumist.com.
  5. Premium Processing for Asylum Seekers

    For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive "premium processing." For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?

    Waiting in line is a poor man's game.

    There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.

    First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and--at least based on my observation of the local office here in Virginia--we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created "short lists" where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.

    So how would premium processing help?

    Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but--if implemented correctly--it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

    Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients' interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.

    Of course, we don't know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.

    I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.

    Originally posted on the Asylumist: www.Asylumist.com.
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