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If you follow the news from the Executive Office for Immigration Review or EOIR--the office that oversees the Immigration Courts--you are aware of the recent lawsuit filed by Judge Afsaneh Ashley Tabaddor. Judge Tabaddor is an IJ in Los Angeles. She was appointed in 2005 and has been serving ever since. Judge Tabaddor also happens to be Iranian-American.
Judge Tabaddor has been mistreated by the executive Branch. We hope she doesn't Leave. We are Root-ing for her.
According to Judge Tabaddor's complaint against EOIR, trouble began for her in the summer of 2012 when the White House--considered by some a radical Muslim organization--invited her to attend a "Round Table with Iranian-American Community Leaders." After some hemming and hawing over the nature of the event, EOIR granted the Judge leave to attend. But afterward, EOIR banned Judge Tabaddor from adjudicating cases involving nationals from Iran. So in other words, an Iranian American Judge who is active in her community is not permitted to hear cases where the alien is from Iran.
On it's face, EOIR's decision seems completely ridiculous and indefensible. It would be like forcing members of the National Association of Women Judges to recuse themselves in cases involving women, or stopping members of a Jewish judges association from hearing cases involving Jews, etc., etc. But can EOIR's decision somehow be justified? Does it make sense to ban an Iranian-American who is involved in her community from hearing cases form Iran? Permit me to try to make that argument (as an asylum lawyer, tilting at windmills is my specialty).
Perhaps EOIR is concerned about the Judge because Iran is considered our enemy (or--on a good day--our rival). Allowing Judge Tabaddor to hear Iranian cases would be like allowing an American originally from the Eastern Block to serve in the White House during the Cold War (Zbigniew Brzezinski) or like allowing a German-American to lead the fight against Germany in WWI (John J. "Black Jack" Pershing) or against the Nazis in WWII (Major General Carl Spaatz). Hmm, maybe that argument doesn't work so well after all. Let me put it another way. If you are at war with Japan, you'd better imprison all Japanese-Americans. Wait. Maybe that is not such a good argument either. Let's try this a little differently.
It could be that EOIR is worried about the appearance of bias. Appearance is very important for judges. If an IJ is perceived as biased, it reduces our confidence in her decisions. It would be as if five Republican-appointed judges voted to end an election recount, giving the victory to the Republican presidential candidate. Oy. Let me give you a better example. Maybe it would be like allowing a Russian figure skating judge who is married to the director of the Russian Figure Skating Association to serve as a judge at the Sochi Olympics. And then the Russian skater miraculously wins. Harrumph. I guess that one doesn't work too well either. Maybe we should look at the problem another way.
What if we assume that Judge Tabaddor is, in fact, biased in favor (or against) Iranian respondents. If that is the case, why should the recusal order be limited to cases from Iran? Iran and Iraq fought a war recently, so probably the IJ is biased against Iraq and should not hear cases from that country either. Iran also fought a war with Greece back in the day, and if I were Iranian, I'd still be bitter about the Battle of Thermopylae. So the Judge should also be banned from hearing cases involving Greeks, or at least Spartans. Iran has endured invasions by Mongols and Arabs, so Judge Tabaddor obviously should not hear Mongolian or Arab cases, and since Mongolians were mixed in pretty good with the Chinese, we'd better also ban her from Chinese cases--just to be safe. And of course, Iran doesn't much like Christians, Baha'is or Jews, so the Judge should probably be kept away from cases involving those faiths. In addition, Iran has disputes with Russia, Azerbaijan, Turkmenistan, and Saudi Arabia. The Judge would have to be banned from hearing cases involving those nationals as well. And don't even get me started about cases involving Israelis. So basically, if Judge Tabaddor is biased, as EOIR seems to assume, the only cases she should decide involve people from Guyana or New Zealand. And maybe São Tomé, but I'm not even sure that's a country.
In the end, I really don't know whether Judge Tabaddor's lawsuit will succeed. IJs exist to implement the authority of the Attorney General. If the AG chooses to prevent certain IJs from reviewing cases from certain countries, that may be within his discretion. While the law may not be clear (at least to me), I have no doubt about which side is right. If an IJ behaves in an inappropriately biased manner, she should be removed from her job. But where--as here--there seems to be no question as to the Judge's integrity, her docket should not be restricted in this insulting and discriminatory way.
Originally posted on the Asylumist: www.Asylumist.com.
There are, in effect, two definitions of "refugee." There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person's definition.
The legal definition of refugee includes:
any person who is outside any country of such person’s nationality... and who is unable or unwilling to return to... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion
The lay person's definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.
Refugees or "refugees"?
The mass movement of people--especially young people--escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of "refugee."
Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a "pull" factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.
To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels' offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.
We could simply categorize as a "refugee" anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.
There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.
There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.
But what if we could reduce the drawbacks and keep the benefits?
The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.
Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.
Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.
Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don't think we're there yet--although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.
Originally posted on the Asylumist: www.Asylumist.com.
If you talk to people working in the human rights field, many will tell you that they view their work as an expression of their political and moral beliefs. More often than not, those beliefs are grounded in religious faith.
Dare to dream...
That is true for me. I am Jewish and I am an asylum lawyer. I view my work as an expression of my Jewish values. These values are derived not just from our sacred texts--which encourage discussion, debate, and self reflection--but also from our experience as a people who lived in exile and faced centuries of persecution. For me, Jewish values include respecting the life and dignity of all people, trying to understand "the other," trying to understand myself, and sympathizing with the powerless. All this is a good fit with asylum law where I represent foreign people who face harm or death from governments or terrorist groups. But how do these values align with support for Israel?
There was a time when I felt that my values were largely consistent with supporting Israel. After all, it is a small country, created by refugees and surrounded by enemies. But more recently, it has become harder for me to be "pro-Israel," as that term is generally understood. It's not that I don't support Israel and believe it should exist as a Jewish state. I do. But I have found that in recent years, it has become increasingly difficult to reconcile the values that guide my life and career with being "pro-Israel." There are several reasons for this.
For one, it is difficult to accept the dishonesty of the pro-Israel side. Of course, this is not a problem confined to supporters of Israel. If anything, I see more dishonesty from opponents of Israel. But since I am Jewish and concerned about the behavior of my side, it is difficult to square my Jewish values with the pro-Israel propaganda that I daily see in the news. An example of this is how Israel's supporters consistently put forth a narrative that exonerates Israel for any blame in the current conflict. It is true that Hamas initiated the recent fighting, but that is hardly the beginning of the story. Israel seems always to have an excuse for failing to make concessions or reign in settlers. As a result, moderate Palestinians are undermined (since they cannot show progress to their constituents) and extremists are empowered. A more honest evaluation would include self criticism--what have Israel and its supporters done wrong? How have their actions contributed to the cycle of violence? How have Israeli policies encouraged Jewish extremism? This type of analysis, I have never heard from the pro-Israel camp.
Also, I have great difficulty accepting the alliance of pro-Israel Jews with Neo-Conservatives and Christian Zionists. I find the Neo-Conservative's view on the use of force to be immoral and anti-Jewish, not to mention cynical, short-sighted, and ineffective. Exhibit No. 1 in that regard is our war in Iraq. As for the Christian Zionists--people like John Hagee of Christians United for Israel--their purported love of Israel seems a thinly veiled proxy for hating Muslims. If there ever came a time when Israel was actually able to make peace with the Arabs, the Christian Zionists would be opposed: Peace with Muslims is not compatible with their world view. The values of Neo-Conservatives and Christian Zionists are profoundly contrary to my own. And while I understand that the enemy of my enemy is sometimes my friend, for me, certain alliances are beyond the pale.
I also have trouble with the knee-jerk defensiveness of the pro-Israel camp, which is eager to label any expression of anti-Zionism as Antisemitism. Sometimes anti-Zionism is Antisemitism, and sometimes it is not. But there is a flip side to that coin: For many years, Jews have made the State of Israel an integral part of our religion. Synagogues have Israeli flags and signs supporting Israel, we celebrate Israeli Independence Day, we send our young people to Israel to study, we raise money for Israel. In other words, we have made Judaism and Zionism synonymous. In that case, it is hard to fault our enemies for confusing the two concepts. Frankly, I think our attachment to Israel is a good thing. What I oppose is the assumption that all criticism of Israel is made in bad faith, which allows us to avoid the difficult task of self examination.
Linked to the issue of defensiveness is the on-going effort by Israel supporters to stifle speech that they view as anti-Israel. They threaten funding sources, ban (or attempt to ban) disfavored speakers from Jewish events, label leftist Jewish groups "traitors," and they rejected the dovish J Street's attempt to join the Presidents Conference, an umbrella organization of Jewish-American agencies. If the pro-Israel camp sought to counter the ideas they find offensive, that would be one thing. But instead, they seek to eliminate those ideas. I am a believer in free speech and in the (very Jewish) idea of debating issues. To me, these efforts to squelch speech and avoid engagement on difficult issues is offensive.
Finally, I do not appreciate the effort of Israel supporters to deflect attention from Gaza by comparing it to the much more deadly situations in Syria or Iraq. While I think it is legitimate to ask non-Jews and non-Palestinians why they are more concerned about Gaza than Syria, I do not think that question is appropriate for Jews (or--obviously--Palestinians). As Jews, we should be concerned about the behavior of other Jews. We should question Israel's policies that we disagree with. The fact that others are behaving worse than us does not seem a valid justification for our own actions.
I remember an incident from when I lived in Israel--way back in 1990. I was visiting the Jewish settlers in Hebron, a large Arab town in the West Bank. We went to the Tomb of the Patriarchs, which is considered the burial place of Abraham, Isaac, and Jacob. It is a holy place for Jews and Muslims. We were in the Jewish section when the settlers started singing "Jerusalem! Jerusalem!" and dancing. They danced into the Muslim part and interrupted a dozen old Muslim men who were praying. At the moment, I felt I had to choose sides--with the settlers or with the Muslims. I am sorry to say that I chose to dance and sing with my fellow Jews. The old Muslim men stopped their prayers and watched us quietly, humiliated.
I still believe that there is a choice to make, but it is not a choice between Jews and Muslims or Israelis and Palestinians. It is a choice between right and wrong. I am pro-Israel in that I believe Israel should exist as a Jewish democratic state and that it has the right to defend itself from terrorists' missiles and tunnels. But if "pro-Israel" means persecuting, humiliating, and de-humanizing Palestinians, refusing to make concessions for peace, demonizing opponents, stifling speech, and making alliances with morally bankrupt groups, you can count me out.
Originally posted on the Asylumist: www.Asylumist.com.
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.
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.
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.