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Jason Dzubow on Political Asylum

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  1. Evaluating the Threat Posed by Refugees

    Last month, a Somali refugee and college student drove his car into a crowd at his university, jumped out, and started stabbing people. He was quickly shot dead by a campus police officer. The assailant, Abdul Razak Ali Artan, apparently left Somalia, lived for a time in Pakistan, and was resettled as a refugee in the United States in 2014. After the incident, Donald Trump tweeted that Mr. Artan "should not have been in our country."
    TV shows based on misunderstandings are hilarious; government policies, not so much.
    Incidents like this--where a refugee or asylee commits a (probable) terrorist act--are exceedingly rare. As far as I know, the only other successful attack involving "refugees" was the Boston Marathon bombing, perpetrated by two brothers who came to the U.S. as derivatives of their parents' asylum case. Since 2001, the U.S. has admitted approximately 785,000 refugees and roughly 400,000 asylum seekers. So if all these numbers are accurate (a big "if", as discussed below), then the odds that any given refugee or asylee is a terrorist is 1 in 395,000 or 0.0000844%.

    In looking at the question of refugees/asylees and terrorism, the main problem is that the numbers listed above are not accurate. First, there is no consistent way to count people entering and leaving the United States. The refugee numbers are probably more accurate (though it's unclear to me whether all aliens admitted for humanitarian reasons are included in the count), but asylum numbers are all over the map. Part of the problem is that different agencies (DHS and DOJ) deal with asylum applicants, and they seem to count people differently--sometimes derivative asylees are counted; other times, only the principal is counted. How do the agencies count people whose cases are pending? What about people granted other forms of relief (like Withholding of Removal or Torture Convention relief)? How are family members who "follow to join" the principal applicant counted? I have no idea about any of this, and there is no easily available data source to help. Not surprisingly, the dearth of data has opened the door to conspiracy theorists and anti-immigration advocates who claim we have an "open borders" immigration policy. But the absence of data also creates problems for fair-minded policy makers. How can we make appropriate decisions when we do not have a decent understanding of what is going on?


    A second problem is that we do not have reliable information about how many non-citizens are involved in terrorist activities. Last summer, Senators Jeff Sessions (Donald Trump's current nominee for Attorney General) and Ted Cruz sent a letter to the Obama Administration claiming that at least 380 of 580 people convicted of terrorism charges in the U.S. between September 11, 2001 and December 31, 2014 are foreign born. According to the Senators, "Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas." The letter further claims that since early 2014, 131 individuals have been "implicated" in terrorist activities. Of those, "at least 16 were initially admitted to the United States as refugees, and at least 17... are the natural-born citizen children of immigrants." Using these numbers and the (admittedly questionable) refugee and asylee numbers listed above, the odds that any given refugee or asylee is involved in terrorist activities is still pretty low: One refugee/asyee out of every 28,902 will be involved in terrorist activities (or about 0.0035% of refugees/asylees).


    The Senators were only able to come up with their figures based on publicly-available sources (like news articles), since DHS did not release immigration information about the 580 individuals convicted of terrorist-related activities, or the 131 people "implicated" in such activities. Whether DHS's failure to release this information is prosaic (perhaps confidentiality or technical issues pose a challenge) or nefarious, we do not know, since apparently, the agency has not responded to the Senators' requests. The fact is, Senators Sessions and Cruz are correct: We need more data about the people who are entering our country, and we need to know whether refugees and asylees (and others) are committing crimes or becoming involved with terrorism. Not only will this better allow us to make appropriate policy decisions, but it will also help prevent the type of fake news that is currently filling—and exploiting—the information gap.


    But of course, the situation is more complex than any statistics alone might show. Some people who become involved in terrorism are mentally ill individuals exploited by terrorists (or--sometimes--by over-zealous law-enforcement officers). In other cases, people providing support to a "terrorist" group overseas do not know that the group is involved in harmful activities, or they do not understand that the U.S government views the group as dangerous. Also, as I have discussed previously, the “material support” provisions of our anti-terrorism legislation are extremely broad, and so people who seem far removed from terrorit activities can get caught up by our overly-broad laws.


    Nevertheless, we need to know more about foreign-born individuals--including asylum seekers and refugees--who are implicated in terrorist-related activities, and the basic starting point for any such analysis is the statistical data about who is coming here, how they are getting here, and whether they are accused or convicted of crimes or terrorist-related activities.


    Assuming we do get some accurate data, the question then becomes, How do we evaluate such information? How do we balance concrete examples of non-citizens engaged in criminal or terrorist activities, on the one hand, with the benefits of our refugee program, on the other?


    And by the way, despite what some anti-refugee advocates might argue, our refugee and asylum programs provide concrete benefits: They establish us as a world leader in the humanitarian realm, they demonstrate our fealty to those who have stood with us and who support our values (and thus encourage others to continue standing with us), they provide our country with diverse and energetic new residents who are grateful for our generosity and who contribute to our society. These programs also represent an expression of who we are as a people. As I have frequently argued, for us to abandon these programs--and the humanitarian ideals that they represent--due to our fear of terrorism is a victory for the terrorists.


    But we also need to balance our humanitarian policies and our national security. We need to better understand the issues--so that the public can be more well-informed and so policy makers have the information they need to make good decisions. I hope the new Administration will shine some light on these issues, so that any changes to our refugee and asylum policies are based on accurate information, and not on conjecture or fear.

    Originally posted on the Asylumist: www.Asylumist.com
  2. Where Terror Victims Are Treated as Terrorists

    Let's say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.
    If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
    If you guessed "d", you win. By giving a glass of water to the IS fighter, you and your daughter have provided "material support" to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child's life. And even though it was only one glass of water (what we lawyers call "de minimis"). How can this be?


    After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to "material support," which one jurist has called "breathtaking in... scope," see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

    Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

    Id
    . And anyone who provides any type of support to these "terrorists" is subject to the material support bar.


    The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it's not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.


    Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds ("TRIG"). In that vein, DHS has issued group-based exemptions that allow people involved with certain "terrorist" groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at TRIGQuery@uscis.dhs.gov.


    One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice ("DOJ"). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

    [A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

    Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn't for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

    Blocking terrorists and their supporters from the U.S. is obviously an important goal--it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

    Originally posted on the Asylumist: www.Asytumist.com.
  3. In Defense of Muslim Refugees

    Since the vicious attack last week by Muslim extremists in Paris, attention in the U.S. has focused on our country’s refugee policy and President Obama’s decision earlier this year to admit an additional 10,000 Syrian refugees (above the normal refugee ceiling of 70,000). More than half of the nation’s governors have indicated that Syria refugees are unwelcome in their states. Paul Ryan, the new Speaker of the House, is pushing legislation to hinder the admission of Syrian and Iraqi refugees. And most Republican presidential candidates have expressed their opposition to resettling Syrian or Muslim refugees in our country. Senator Ted Cruz has called the plan “absolute lunacy.”

    When we say "no" to a refugee, what does it say about us?As an immigration attorney who specializes in political asylum, I represent clients whose lives have been profoundly disrupted by war and terrorism, who have been threatened or harmed by extremists, and who have lost loved ones to terrorist attacks. Many of my clients come from Muslim countries, such as Syria, Iraq, Afghanistan, and Egypt. These are people who have devoted their lives--and often risked their lives--to promote democracy, women's rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. Indeed, I suspect that many of my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of U.S. policy than the American commentators who routinely disparage them.

    In the face of barbarism from ISIS and other extremists, we as Americans should not abandon our friends or shrink from our humanitarian commitments. As the leader of the Free World, we must lead not only with the sword. We must also lead by demonstrating our values, and by showing the world that we do not abandon those values in difficult times.

    During the refugee crisis that followed World War II, the U.S. committed itself to assisting displaced persons. Since then, we’ve absorbed—and been enriched by—tens of thousands of refugees from Western Europe, the Soviet Union, Indochina, Africa, the Middle East, and the Americas. We are, to a great extent, defined by our generosity towards the dispossessed: “Give me your tired, your poor, your huddled masses yearning to breathe free.”


    Allowing ourselves to be intimidated into compromising these humanitarian values would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. Indeed, our asylum and refugee programs are probably more secure than any other aspect of our immigration system.

    Also, many of the Muslims who have sought sanctuary in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, no one will cooperate with us going forward.

    Finally, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

    In the aftermath of the Paris attack and the claim by ISIS that it will send infiltrators to the West disguised as asylum seekers, the desire to re-examine security procedures is understandable. But as we evaluate our humanitarian policies, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

    We should not allow the evil deeds in France to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. When considering Muslim refugees and asylum seekers, we should be guided by our highest ideals, not by the dark vision of our enemies.

    Updated 11-19-2015 at 02:31 PM by JDzubow

  4. Congress: Asylum System Letting in Terrorists

    According to a letter from four members of Congress to DHS Secretary Jeh Johnson, a "recent disclosure [by USCIS] regarding the number of aliens found to have a 'credible fear' in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system."
    Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.

    The "recent disclosure" from USCIS to the House Committee on Oversight and Government Reform revealed that "the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014." The four Congressman--Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)--requested more information about the 638 aliens in question, including each aliens' confidential A-file and whether and by what authority each alien was released from detention.


    First, what's this all about?


    When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a "credible fear" interview--a preliminary evaluation of eligibility for asylum. The large majority of aliens "pass" the credible fear interview. Their cases are then transferred to an Immigration Judge and--in most, but not all, cases--they are released from detention. Aliens who do not pass the credible fear interview are deported.


    In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground ("TRIG"). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden's best friend). We don't know--the TRIGs are very broad (as I've discussed here).


    One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don't know.


    So what's the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.


    I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data--no matter how benign--to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).


    Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.


    Finally, the letter demands that the files be turned over before COB on June 3, 2015--two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time--while ensuring confidentiality--is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.


    I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. A Well-Founded Fear... of Muslim Asylum Seekers

    For some time now, the threat of Islamic extremism has been an important factor in our country's immigration and asylum policies. But two recent--and horrific--events overseas have reminded us about the gravity of that threat.



    First is the case of Man Haron Monis, an Iranian national who received asylum in Australia. Last month, Mr. Monis took hostages in a café, forced them to display a Jihadi flag, and demanded to speak to the Australian Prime Minister. By the time the incident ended, two hostages were dead and several were injured. Mr. Monis also died in the confrontation. The incident was only the most recent in a long history of problems for Mr. Monis. Among other things, he had been charged as an accessory in the murder of his ex-wife, he was charged with several counts of sexual assault against various women, and he had notoriously sent hate letters to the families of Australian service members killed in Afghanistan, which also resulted in criminal charges.

    The second incident is the massacre at Charlie Hebdo magazine in France. The suspects in that attack seem to have been French nationals of Algerian decent who saw the attack as revenge for the magazine's cartoons disparaging the Prophet Mohamed. At least some of the suspects in that attack have had prior problems with the law, including terrorism-related arrests, and the men seem to have been connected with a Yemeni terrorist network.

    So with two fresh examples of Islamic extremists attacks in the West, it seems to me a fair question to ask: Why do we risk allowing terrorists into our country through the asylum and refugee system? Why not simply limit asylum to people who hale from non-Muslim countries? Certainly there are plenty of non-Muslim refugees who need our help. And certainly, as well, there are people not too far on the fringe who--assuming they could not eliminate asylum altogether--would be very happy to limit humanitarian relief to non-Muslims.

    There are several ways to address these questions. One way--which I won't discuss in detail but I want to mention--is to talk about historic injustices in the relationship between the Muslim World and the West: Colonization, economic exploitation, repeated military interventions, humiliation. The West's actions in the Middle East have contributed to the problem of Muslim extremism. But we have to live with the world that now exists, however imperfectly that world came to be, and I don't think the West's past failures justify putting our citizens at risk of attack by extremists. In other words, just because we helped create the problem of extremist terrorism does not mean that we shouldn't do everything possible to prevent terrorists from coming to our countries, including--if appropriate--closing the door to asylum applicants from Muslim countries.

    However, there are other reasons that I think justify allowing people from all countries to seek refuge here.

    For one thing, allowing ourselves to be intimidated by terrorists into modifying our humanitarian values or cutting ourselves off from Muslim people would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. In a future post, I will make some suggestions for how we might further strengthen our defenses.

    Second, many of the Muslims that seek protection in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would be to send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, people will not cooperate with us going forward.

    Third, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

    Finally, on a more personal note, most of the asylum seekers I represent come from Muslim countries such as Afghanistan, Iraq, Syria, and Egypt. Almost all of them hold strong pro-Western views (i.e., they believe in the foundational values of our country). Many of them worked with the United States or with Western organizations. Others are political activists, women's rights activists, and gay rights activists. One of them famously (or infamously in his country) made a trip to Israel in an effort to promote peace. Many of my clients have been threatened by the same types of people who committed the murders in Australia and France. Some of my clients have lost family members to Islamic extremist attacks. A good number of my clients continue their political activities after they are granted asylum, as they hope to help bring change to their countries. As a matter of principle, morality, and as a matter of our national interest, I feel we are well-served by offering protection to such people.

    Although the news usually reports terrorist attacks, it rarely reports the opening of a new school for girls. It reports threat levels and terrorist "chatter," but it often ignores peace-building efforts, reconciliation, and democratic activism. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. We need to remain hopeful and not surrender to fear.

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