ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Jason Dzubow on Political Asylum

description

  1. Illogical Fears Generate Illogical Policies: Notes from the Center for Immigration Studies “Asylum Fraud” Panel

    This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.
    Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.
    On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.

    CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.


    As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.


    The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.


    Immigrants are Dangerous


    To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.


    Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.


    As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.


    What Do the Numbers Tell Us?


    A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”


    So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.


    One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.


    The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.


    Asylum Seekers vs. Refugees


    I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.


    Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.


    For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?


    “Pro-immigrant”


    At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.


    Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.


    Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.


    Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.


    Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.


    Ignoring the Elephant in the Room


    Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.


    Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.


    This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, cis Add / Edit Tags
  2. Anti-Immigration Group Spies on Asylum Division, Lies About It

    Nayla Rush, a Senior Researcher at the anti-immigration Center for Immigration Studies, has apparently been spying on the USCIS Asylum Division - and lying about what she has overheard.
    I couldn't find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.

    First, a bit of background: As you may know, the Center for Immigration Studies or CIS (not to be confused with USCIS - the United States Citizenship and Immigration Services) is a group that wants to restrict immigration to the United States. Their writers are usually intellectually honest, though not always. I often disagree with their policy positions, and I have written about them a few times (here, here, and here). They also occasionally write about me.


    Last week, I visited the CIS website and discovered Nayla Rush's post about attending the USCIS Asylum Division Quarterly Stakeholder Meeting on December 11, 2015. The meeting was for "Stakeholders" in the asylum system: Advocacy groups, lawyers, even--I suppose--people who want to restrict the asylum process. But the meeting is specifically not for the media. The invitation reads, "Note to media: This engagement is not for press purposes. Please contact USCIS Press Office... for any media inquiries."


    It just so happens that I also attended the meeting in question, which was led by the Asylum Division Director, John Lafferty. About 50 people were present, including USCIS staff, private lawyers (like me), and representatives of various organizations involved with asylum law.


    During the first part of the meeting, each person introduced himself and stated the name of his organization. If Ms. Rush introduced herself, I do not remember. But certainly she did not reveal that she was representing CIS - everyone there knows the anti-immigration group and her presence at the meeting would have raised some eyebrows.


    Ms. Rush also did not reveal that she was attending in her capacity as a journalist. Perhaps she hoped to discover some dirt or some secret conspiracy between USCIS and asylum advocates. Maybe she covertly recorded the meeting, Planned Parenthood-style, with the hope of exposing something nefarious. Apparently, she did not find anything too damning, but fear not--in the absence of evidence, you can always make stuff up.


    From the meeting, Ms. Rush claims to have learned that "Officers interview asylum seekers by phone in 60 percent of the cases (except for families who are already in detention centers)." In her piece, "Most Asylum Applicants Are Interviewed by Telephone. Feel Safer?", Ms. Rush notes that it's hard enough to assess an applicant's credibility, but if the officers cannot even look the applicant in the eye, fraudulent asylum seekers--including potentially dangerous people--can scam their way through the system. "Call me skeptical," she writes, "but I don't see how this subjective assessment [of asylum seeker credibility] can be obtained through a telephone conversation."


    So the premise of Ms. Rush's article is that 60% of asylum seekers are interviewed by phone. If this were true, it would be cause for concern. However, the actual number of asylum seekers interviewed by phone is more like 0%. That's zero. Zilch. Nada. None. In fact, every asylum applicant interviews in-person, face-to-face, with an Asylum Officer. So what is Ms. Rush talking about?


    My best guess is that she has confused (or deliberately conflated) asylum interviews and credible fear interviews ("CFI"). The purpose of an asylum interview is to determine whether an applicant may be granted asylum, and thus the legal ability to remain permanently in the U.S. The purpose of a CFI is to determine whether an applicant presents a prima facia case for asylum. If the applicant meets this minimal standard, she will then be sent to an Immigration Judge (or in the case of a minor, an Asylum Officer) to determine whether asylum should be granted. If the applicant fails the credible fear interview, she will be deported. Many credible fear applicants are interviewed by phone, but since this is only an initial evaluation of the case, and since the only purpose is to assess whether the person has articulated a fear of return to her country, credibility is not really a consideration. If the person "passes" the CFI and then presents her asylum case, she will have an in-person interview (or a trial) where credibility is carefully considered.


    From all this, it seems that Ms. Rush is either so unfamiliar with the asylum process that she confused two basic concepts (asylum and CFI), or she understands the asylum process and she is a big liar. My guess is that it's the latter. Why? Because the article is not the only instance of Ms. Rush's dishonesty when it comes to refugees.


    Take, for example, Ms. Rush's recent report on the UN's Role in U.S. Refugee Resettlement, where she claims that the "United States is entrusting the staff of the United Nations High Commissioner for Refugees (UNHCR) with the entire selection and pre-screening process of Syrian refugees eligible for resettlement in the United States" (the emphasis is mine). The implication is that the UN determines who comes to the U.S. as a refugee. This is completely false. The UN refers refugees to the U.S. government, which then independently screens them and performs background checks (I've written about this process here). Ms. Rush's fear-mongering and dishonesty about Syrian refugees suggests that her motivation is to score political points, regardless of the facts.


    Frankly, I am not particularly bothered by Ms. Rush attending the Asylum Division meeting under false pretenses and then writing about it. I happen to believe (like her, I think) that the system should be more transparent. What bothers me is that she would attend the meeting and then deliberately distort what she heard.


    As I have written before, there are legitimate arguments for limiting the number of refugees and asylum seekers we admit into the United States. We as a country should be discussing these issues, and organizations like CIS have an important role to play in that conversation. But when CIS distorts the facts in order to advance its argument, it impoverishes the debate and damages its own credibility. Hopefully, in the future, CIS and Ms. Rush will be more responsible and more honest as we continue to discuss this important topic.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Responding to the Center for Immigration Studies on Asylum

    The Center for Immigration Studies ("CIS") is a restrictionist immigration group with which I rarely agree (though they did recently call me a babe, which I certainly appreciate). In a new report, Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled, CIS Fellow Dan Cadman argues that it has become easier to obtain asylum in the U.S., and as a result, more aliens--including dangerous aliens and aliens with false asylum claims--are coming to the United States and using the asylum system to gain entry into our country.



    If I were a president, CIS thinks I would be Babe-raham Lincoln.

    The CIS report makes a number of findings and recommendations, and if you are interested in this subject, it's worth a read (and if you are not interested in this subject, why the hell are you reading my blog?). Today, I want to talk about the report's main recommendations. We'll go through them one by one:


    (1) Congress must take steps to legislatively curb the propensity of courts to grant protections to aliens who are members of, have participated in, or have materially supported heinous criminal organizations or insurgencies... if those organizations systematically victimize others. This can be done by amending current language that limits the persecutor bar only to those who persecute under the five designated grounds, or by adding supplementary language to establish victimization of others with the purpose of furthering unlawful objectives as a bar to asylum or refuge.



    Who can argue with blocking persecutors and criminals from entering the United States? (Anyway, we have enough of our own already--I'm talking to you Dick Cheney). And CIS is correct that the persecutor bar only blocks people who persecuted others based on one of the five protected grounds (race, religion, nationality, particular social group or political opinion). This is almost as bizarre as granting asylum only to people who face persecution based on one of the five protected grounds.


    Overall, I don't really have a problem with this recommendation, except for the fact that it is totally unnecessary. The persecutor bar is not the only bar to asylum. Anyone who committed (or who the U.S. has reason to believe committed) a serious non-political crime is barred. Ditto for anyone where there are reasonable grounds to believe that the person is a danger to the security of the United States. These are mandatory bars for asylum and withholding of removal. So while there is nothing wrong with CIS's proposal, it's hard to imagine how it would actually change anything--all the people it seeks to block are already barred under other provisions of the statute.


    (2) Congress must roll back the recently-issued “Notice of Determination” promulgated by the administration with relation to terrorism and material support waivers.



    I've already discussed this issue pretty extensively here. In short, the only people who benefit from this change are those who provided support to terrorists where that support was coerced or unknowing. In other words, people who are innocent, and who, in many cases, are actually victims of those terrorists.


    (3) DHS (and, failing its action, Congress) must immediately institute a mandatory program of routine audits of a percentage of both credible fear findings, and formal asylum grants — perhaps an across-the-board 10 percent of all cases — as a method of detecting fraud and ensuring appropriate findings of credibility, and approval of asylum cases.



    This is an intriguing idea about how to stop fraud, but I don't think it would be particularly effective. I've always felt that the most cost-effective way to fight fraud is to go after the attorneys and notarios who commit fraud. Randomly auditing cases probably won't deter fraudulent applicants--they already face scrutiny from decision-makers, so what's one more level of review going to do?


    Perhaps one way to refine CIS's idea would be to select certain applicants for a more extensive interview or court process (rather than a separate audit). This might involve consular investigations or contacting overseas witnesses, more extensive questioning of the applicant, verifying the applicant's employment and education, etc. Applicants could be selected randomly or--better yet--selected based on an initial evaluation of the likelihood of fraud. While I still think it makes more sense to attack the source of the problem (the attorneys and notarios who facilitate fraud), subjecting suspicious (or random) cases to increased scrutiny might deter some people from making false claims.


    (4) The prosecution of asylum (or refugee) fraud and misrepresentations [should be made] a priority.


    Again, I think it would be more cost-effective to prosecute the lawyers and notarios who create fraudulent cases, but I have no problem with prosecuting asylum applicants who commit fraud. The problem is, such cases are difficult to prosecute given the high burden of proof (beyond a reasonable doubt) and the difficulty of obtaining evidence against the alien who faked his case. Such evidence is especially difficult (and expensive) to obtain when it comes from overseas.


    (5) Congress should amend the INA to provide that refugees and asylees will only be entitled to apply for conditional residence after a year in status, and not eligible to apply for adjustment to full lawful permanent resident status until after three years.... Although the three years of conditional residence does not eliminate fraud, it acts as a levee against an overwhelming volume of fraud while at the same time permitting government officials additional opportunities to further examine the bona fides of cases before immediately granting resident alien status.


    I guess I really don't see the point of this suggestion. As things now stand, an alien who gets asylum can apply for a green card after one year. At that time, USCIS often re-considers the alien's asylum case. For example, many Ethiopians who received asylum based on membership in a certain political opposition party have had their green cards held up (sometimes for years) due to the party affiliation (and the party's possible relationship to an armed guerrilla group). Sometimes their asylum cases are reopened. Once an asylee gets her residency, she can apply for citizenship after four more years. At that time, USCIS often examines the bona fides of the asylum application again. Indeed, even after an alien obtains citizenship, a fraudulent application can haunt him. I recently met an Afghan man whose citizenship was revoked due to fraud. He is currently in removal proceedings. The point is, USCIS has plenty of opportunities to re-examine an asylum claim. I don't see how one more opportunity will make much difference.


    (6) Each application for adjustment of status filed by an asylee or refugee should, prior to adjudication, include careful consideration of whether there are changed conditions that merit denial of adjustment and termination of asylee or refugee status.


    This seems pretty similar to # 5, above. Perhaps it also refers to changed country conditions that now make it safe for the alien to return home. I suppose USCIS could use any of the opportunities discussed above (application for green card or citizenship) to re-evaluate country conditions. But country conditions rarely change too much, and so I doubt this would result in many asylees being sent home.


    (7) Congress should amend the INA to provide that return to the ostensible country of persecution, however briefly, by a refugee or asylee at any time prior to adjustment to full lawful permanent residence shall be deemed prima facie evidence that the individual is not entitled to such status, and require him to be placed into removal proceedings.

    This idea was much discussed after the Boston Marathon bombing. The alleged bombers were derivative asylees, and they visited the home country prior to the bombing. In fact, as the law now stands, asylees who return home can lose their status. Indeed, even after an asylee becomes a lawful permanent resident, she can lose her status if she returns home (I wrote about this here). Return to the home country does not automatically cause an alien to lose status, as there are sometimes legitimate reasons for going back, but anyone who returns as an asylee or an LPR risks being placed into removal proceedings. Because this law already exists, CIS's suggestion here seems redundant.


    So there you have it. For completeness sake, I note that I did not discuss the report's recommendation to reject an asylum reform bill that is pending in the Senate. It seems that bill ain't going anywhere, and so there is not much point in talking about it, especially since I've already rambled on long enough. Adieu.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, cis Add / Edit Tags
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: