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Jason Dzubow on Political Asylum

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  1. Asylum for Witches

    Just in time for Halloween, the Witchcraft & Human Rights Information Network (“WHRIN”) has released a report called "Witchcraft Accusations and Persecution; Muti Murders and Human Sacrifice." The report was prepared for the United Nations Expert Workshop on Witchcraft and Human Rights, which was held last month, and it discusses the wide-spread and under-reported human rights problems related to witchcraft and other harmful traditional practices. From the WHRIN report--

    In numerous countries around the world, harmful witchcraft related beliefs and practices have resulted in serious violations of human rights including, beatings, banishment, cutting of body parts, and amputation of limbs, torture and murder. Women, children, the elderly, and persons with disabilities, such as persons with albinism, are particularly vulnerable. Despite the seriousness of these human rights abuses, there is often no robust state led response.

    The report indicates that the “exact numbers of victims of such abuses is unknown and is widely believed to be underreported.” “At the very least,” the report continues, “it is believed that there are thousands of cases of people accused of witchcraft each year globally, often with fatal consequences, and others are mutilated and killed for witchcraft-related rituals.” The number of cases—and the level of violence against victims--seems to be rising, and no area of the world is immune, though most of the documented cases are found in India (120 reported cases in 2016), Nigeria (67 cases), Zimbabwe (29), and South Africa (28).

    This is all very sobering, and sad. In my work, I have represented a number of victims of traditional practices who have filed for asylum in the United States. One memorable case involved a young man from Rwanda who was gay. His family decided that he was possessed by demons, and so they had him kidnapped and held in a rural area where he was subject to a three-week exorcism ritual by some type of priest. The ritual involved beatings and starvation, among other things. We argued that all this amounted to past persecution on account of a particular social group—gay people. The government accepted our argument and approved the man’s application for asylum.

    The success of our case was due, perhaps, to the fact that our client easily fit within a protected category for purposes of asylum (there are five protected categories—race, religion, nationality, political opinion, and particular social group, and under U.S. law, it is well-established that LGBT individuals can constitute a particular social group; unless a case fits within a protected category, asylum will be denied). Not all victims of witchcraft-related persecution fit so neatly into the asylum scheme, as the WHRIN report makes plain—

    Those accused of witchcraft, or at risk of such accusations, are not a well-recognised vulnerable group [under the asylum law], and they do not accrue specially recognised rights as such. They do, however, benefit from human rights protections which are available to all people. Those who face persecution in this way may flee and seek protection in other countries, but their situation is precarious even in exile.

    The WHRIN report primarily discusses British law, but asylum applicants in the U.S. could face a similar problem. I have not seen a case where “witches” or “people accused of witchcraft” has been found to be a particular social group (“PSG”) for purposes of asylum, but it seems that a strong argument could be made in favor of such a PSG. Persecution of “witches” might also be couched in terms of imputed religion—maybe the persecutors view the alleged witch in religious terms and would harm her for that reason. If there is an ethnic or racial component to the persecution, that might also allow the applicant’s case to fit into a protected category.

    Besides witchcraft, the WHRIN report discusses other harmful traditional practices: Human sacrifice and murder for body parts, which are used in certain magic rituals (sometime called Muti murder). People with albinism are particularly vulnerable to such attacks (I wrote about that here), and they would likely constitute a PSG under U.S. asylum law. But other people targeted in this way might not easily fit into a PSG.

    To win asylum, the applicant must show that she faces harm “on account of” a characteristic that the applicant herself possess (for example, her race) or on a characteristic that the persecutor “imputes” to the victim (for example, maybe the persecutor incorrectly believes the applicant is a government opponent and seeks to harm her for that reason). In the case of some traditional practice, the victim may not be able to show that the harm is “on account of” a characteristic or an imputed characteristic, and then asylum would be denied. In our exorcism case, for example, we had a relatively easy job, since our client was gay and was harmed due to his sexual orientation. But what if he was not gay and he was being "exorcised" for some other reason--maybe he was an unruly child and his parents wanted to "cure" him? Such a case would present a real challenge under U.S. asylum law.

    Fortunately, there are some resources available. The WHRIN is the obvious starting point. The Forced Migration Current Awareness blog also has a list of resources, and UNHCR has a comprehensive report about witchcraft accusations against children. Given the severity of the harm and the likelihood that the problem is spreading, it seems to me that more work needs to be done in this area. The recent attention from the UN is a good start. Hopefully, we will see those efforts continued and expanded.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, witches Add / Edit Tags
  2. The Self-Fulling Prophecy of Demonizing Immigrants

    In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.

    Prof. Roth recently elaborated on his theories in the Washington Post. He writes--

    When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.

    He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community's faith in our governing institutions--

    The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.

    During the 2008 election, Prof. Roth predicted that "the homicide rate in America’s cities would drop because of what [Barak Obama's] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas." Prof. Roth also "worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president." Data from President Obama's time as president now seems to support the Professor's prediction (at least according to Prof. Roth--and I believe him).

    So what does this mean for immigrants and asylum seekers?

    Maybe the answer is fairly obvious--If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle--the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.

    We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.

    Prof. Roth, writing after the massacre in Las Vegas, notes that "most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society.... We have all played a part in creating them."

    If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it's not all that difficult. It's what teachers teach in our schools every day. It's what we require in our workplaces. It's what we see in our places of worship.

    Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you'll see what I mean. Politicians--most notably our Commander-in-Chief--have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.

    Prof. Roth's work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.

    I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.

    Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth's theory is correct, the current Administration's nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It's up to us--those of us who stand with immigrants--to continue offering them help and hope, and to try to break this cycle before it begins.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. The Attorney General's Jaundiced--and Inaccurate--View of Asylum

    In a speech last week to the Executive Office for Immigration Review (the office that administers the nation's immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
    Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.


    Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

    While he views our asylum policy as "generous," and designed to "protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality," Mr. Sessions feels that our generosity is being "abused" and that "smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress."

    Mr. Sessions also lambasts "dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process."

    Indeed, Mr. Sessions believes that our asylum system is "subject to rampant abuse and fraud." Because the system is "overloaded with fake claims, it cannot deal effectively with just claims."

    First, it's quite sad that our nation's chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I've written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system's superiority over our adversary.

    Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles--free speech, religious liberty, equality, rule of law--are not empty words, but are ideals we actually stand behind.

    And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

    None of this came up during Mr. Sessions's talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn't care. Or--what I suspect--he views asylum seekers as a threat to our security and a challenge to our country's (Christian and Caucasian) culture.

    The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

    The most obvious error is his claims that "dirty immigration lawyers... are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process." Aliens who are "unlawfully present" in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

    Mr. Sessions also says that our asylum system is "overloaded with fake claims." But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud." I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

    Finally, Mr. Sessions opines that "smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress." So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

    These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn't understand the benefits our country receives from the asylum system.

    I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers--and our country’s devotion to the rule of law--will suffer because of it.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: eoir, sessions Add / Edit Tags
  4. DACA Reform and Its Hostages (i.e., Asylum Seekers)

    President Trump recently sent a letter to Congress laying out his "Administration's principles for reforming our Nation's immigration system." In effect, this is what the President wants in exchange for agreeing to legalize DACA recipients (also known as Dreamers). Whether this is an opening bid or a final offer remains to be seen, but many Democrats and some Republicans seem to view the proposal as a non-starter.


    Haggling over brown people? Where have I seen that before?

    While the President's letter covers a wide range of topics--from the border wall to hiring more ICE agents to eliminating the DV lottery--I want to focus here on the possible effects on our asylum system. Specifically, Section 1-C of the letter, Asylum Reform, lists the Administration's ideas for "correcting the systemic deficiencies that created that [asylum] backlog." Would that these ideas were so benign.

    Below, I have listed the text of the President's letter in bold, and added my comments (and complaints) in italics. Without further ado, here is the President's proposal with commentary:

    The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes.
    It seems what the President means by "asylum loopholes" is the asylum process itself. But asylum is not a "loophole." It is the law, which says that if a person is physically present in the U.S. and he fears persecution in his home country, he can apply for asylum and stay here until his case is adjudicated. An executive order from the President cannot nullify this, but Congress and the President together can change the asylum law. I have not seen any movement in that direction, at least not yet.

    There are more than 270,000 pending cases in the asylum backlog before USCIS, and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created that backlog.
    I don't get to say this too often, but I agree with Trump! The backlog is way too large, and we need to reduce it. The Administration wants to hire 370 new Immigration Judges and 1,000 ICE attorneys. I've written before about some constructive and low-cost ideas for reducing the backlog. If anyone in the Administration is interested, you can see my thoughts here.

    i. Significantly tighten standards and eliminate loopholes in our asylum system.
    It's not clear which standards would be tightened and which loopholes eliminated. There are plenty of changes that could be made. Some might be productive (such as cracking down on notario and attorney fraud); others would likely result in eligible aliens being denied asylum and returned to face persecution (raising the evidentiary bar, for example). One area of concern for the Administration is asylum seekers at the border who arrive here and are then paroled into the U.S. Whether we could block such people without violating our treaty obligations (and our moral values) is an open question. Of course, Congress has the power to override treaties, but the unintended consequences of such a move might do (additional) damage to our standing in the world.

    ii. Elevate the threshold standard of proof in credible fear interviews.
    Presumably, this will go beyond what the Trump Administration has already done to make it more difficult for asylum seekers arriving at the border or an airport. Again, how much can be done without abrogating our treaty obligations is unclear, but certainly Congress and the President can make it more difficult for people arriving here and requesting asylum upon arrival.

    iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate.
    Why these two proposals did not warrant their own Roman numerals, I do not know. As for the first, there are already severe immigration consequences for filing a frivolous asylum application (including a bar to all benefits under the INA), but I suppose the penalties could always be made worse. Also, the Trump Administration has already set forth a policy on expedited removal, so perhaps the new proposal would incorporate those ideas (which basically expands the temporal and geographic boundaries of expedited removal).

    iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits.
    As you might imagine, the immigration law currently has no provisions what-so-ever to block terrorists from coming here. Amazing that no one noticed this before. Lucky for us, some keen-eyed Trump Administration official caught the problem, and so now we can finally make some rules blocking terrorists. Whew!

    v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits.
    An alien convicted of an aggravated felony is ineligible for most immigration benefits, including asylum. I agree that the definition of aggravated felony could use some work--some offenses that might seem serious (like assault and battery against a police officer) are generally not aggravated felonies under the Immigration Act; other crimes that seem minor (such as shoplifting) might be an aggravated felony. It's clearly not equitable. My fear is that the Trump Administration will blindly expand the definition of aggravated felony so that any crime--no matter how minor--will bar asylum seekers from the U.S. and will needlessly divide more families through deportation.

    vi. Expand the ability to return asylum seekers to safe third countries.
    The idea of sending asylum seekers back to the last "safe" country they passed through is not new. For various reasons, I doubt it is the magic bullet that some immigration resrictionists think it is. For one thing, it is difficult to know whether a particular country is safe, and so I suspect that such a provision might just shift the battle from the fear of persecution in the home country to whether the third country is "safe." Also, whether the "safe" countries will agree to accept non-citizens we send their way seems doubtful.

    vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied.
    This provision probably involves closing "loopholes" at the border. Here, some data might be useful. Is there any evidence that paroled aliens commit crimes? How often do such people fail to appear for court hearings? What is the cost of detaining such individuals? Making rational and effective policies requires answering such questions before taking action.

    viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony.
    There is a waiver available to refugees and asylees who commit crimes (INA § 209(c)), including in some cases, aggravated felonies. However, BIA case law largely already prevents aggravated felons from taking advantage of the waiver. My main problem with eliminating the waiver is that it will result in people being deported to countries where they face harm, even for relatively minor crimes (many minor crimes are considered aggravated felonies already, and the Trump Administration plans to broaden the definition of aggravated felony even further).

    ix. Require review of the asylee or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions.
    Asylees who return home are already subject to having their status terminated. So like many of the provisions listed here, this one seems like piling on. Also, there are legitimate reasons why some asylees need to return home--to see sick family members, for example. Also, in some cases, asylees do not fear their home government; they fear terrorist groups in their country. Such people can return home for a brief period, but if they remain in their country for the long term, they face great danger. The current law recognizes this, and makes some exceptions for asylees who return home. This seems more fair than a blanket prohibition.

    None of these provisions have yet been implemented or incorporated into law, and we will have to see how negotiations proceed. The Administration can argue that it is fair to bargain with the fate of DACA recipients in order to "reform" our immigration system (which certainly does need reforming). And perhaps that is the reality of politics. But I can't help think there is a better way, and that it is not necessary to pit one minority group against another, and to hold so many innocent people hostage to a political agenda.

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

    Updated 10-17-2017 at 12:48 PM by JDzubow

    Tags: asylum, daca Add / Edit Tags
  5. The New Travel Ban, Asylum Seekers, and I-730 Petitions

    As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the "banned" countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.


    Moose limb ban.

    Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here's how things look now:

    Asylum Seekers

    The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides--

    Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

    Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states--

    The suspension of entry pursuant to section 2 of this proclamation shall not apply to... any foreign national who has a document other than a visa -- such as a transportation letter, an appropriate boarding foil, or an advance parole document -- valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

    The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

    Asylees

    People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees' rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

    I-730 Petitions

    When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their "following to join" family members here may be problematic, at least as I read the President's order. Section 3(a) states--

    [S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

    Basically, this means that people outside the U.S. from a "banned" country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)--

    The suspension of entry pursuant to section 2 of this proclamation shall not apply to... any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

    Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don't see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further--

    A waiver may be granted only if a foreign national demonstrates to the consular officer's or CBP official's satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

    The proclamation gives some examples of when a waiver might be appropriate, including where the "foreign national has previously established significant contacts with the United States" or where "the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship." None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

    We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

    So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

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