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Jason Dzubow on Political Asylum

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  1. More Syrian Refugees = More Asylum Seeker Delays?

    The U.S. government recently announced that we will be raising the refugee cap and accepting thousands of additional refugees from Syria. We’re hearing the usual angry voices decrying the “invaders” and the “jihadists,” but that is not what I want to discuss today (I’ve already written about Muslim refugees here). Instead, I want to cover two topics: First, I want to discuss the process of how refugees get selected and screened to come to the U.S., and second, I want to discuss whether the additional resources necessary to process these new refugee cases will impact people seeking asylum in the United States.
    For refugees, waiting is a way of life.

    So how does the U.S. government decide who gets resettled in our country? What is done to prevent terrorists and criminals (not to mention phony refugees who are simply economic migrants) from taking advantage of our generosity?


    First, the U.S. Refugee Admissions Program (“USRAP”) is an interagency effort led by three government agencies: the U.S. State Department, the Department of Homeland Security, and the Department of Health and Human Services, Office of Refugee Resettlement. The process also involves the United Nations High Commissioner for Refugees (“UNHCR”), the International Organization for Migration, and a number of nongovernmental organizations that assist during various stages of the process.


    A refugee case begins either through a referral or a direct application. Most cases (about 75%) are referred by UNHCR. Another 25% of cases come through direct applications under various programs. For example, there are programs for U.S.-affiliated Iraqis and for religious minorities from Iran and the former Soviet Union. There is also a program for certain Cubans. The newest program is for Central American minors who have a lawfully-present parent in the United States. In addition, a few cases are referred to the program by U.S. embassies and certain NGOs.


    Each applicant must complete a series of mandatory steps before she can be resettled in the U.S. These include an in-person DHS interview, a security background check, and a medical exam. The process is labor-intensive and generally takes 18 to 24 months from referral to arrival in the United States. It’s not cheap either. Last year, the USRAP cost the U.S. government over $1.1 billion.


    After the refugee is selected, she must be interviewed. The interviews are conducted by DHS officers, and take place at more than 70 locations worldwide. Before the interviews, the applicants are assisted by different NGOs, such as the International Rescue Committee and the International Organization for Migration, which collect biographic and other information that is forwarded to DHS for adjudication.


    Next, all refugees undergo multiple security checks before they can be approved for resettlement in the United States. Refugees are subject to the highest level of security checks of any category of traveler to the U.S. The screenings are conducted by several agencies, including the National Counterterrorism Center, the FBI’s Terrorist Screening Center, DHS, and the Department of Defense. Details of the security checks are classified, and so we do not know a whole lot about the process.


    Finally, refugees undergo a health screening, TB testing, and three days of cultural orientation (where, presumably, they learn about McDonald’s, Taylor Swift, and hot pockets).


    Travel to the U.S. is arranged by the International Organization for Migration. The U.S. government pays IOM for the cost of air travel, but before departing for the United States, refugees sign a promissory note agreeing to repay the cost of their travel (whether they actually repay the loan, I have no idea).


    Nine domestic agencies in about 180 communities throughout the United States work to resettle the refugees. Every week, representatives from the agencies review biographic and other information to determine where to resettle each refugee. The agencies welcome refugees at the airport and begin the process of helping them settle into their new communities. The agencies also provide reception and placement services in the first 30 to 90 days after arrival. This includes finding safe and affordable housing and providing services to promote self-sufficiency and cultural adjustment. The Office of Refugee Resettlement continues to offer support to the refugees for up to five years after arrival.


    So that’s the basic process that each refugee—including the additional Syrian refugees—will go through to get to the United States. It is not a fast process because of the vetting, but it is designed to minimize the risk of terrorists and criminals infiltrating the resettlement system.


    One concern for asylum seekers is whether increasing the number of people admitted under the refugee program will impact the asylum system.


    The asylum office is funded by USCIS customer fees. If you have ever applied for an immigration benefit, you know that filing fees can be expensive. A small portion of the fee covers the cost of operating our asylum system. So if resources are shifted around to resettle additional refugees, the asylum offices should not be affected. They have a different, independent source of funding. That's the good news.


    The possible bad news is this: All the new refugees must undergo security background checks. This process is quite opaque, and therefore we know little about it. Whether the resources used for refugee background checks will impact the background checks for asylum seekers, we don’t know. It seems that refugees and asylum seekers are subject to many of the same security checks. If so, additional background checks for refugees might further slow the background check process for asylum seekers.


    Thus, while the additional refugees probably will not slow down the asylum interview schedule, they might cause more delay for asylum seekers' background checks. Whether and how much of an impact there might be, we will know soon enough.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, delay, syria Add / Edit Tags
  2. The BIA's Tepid Response to Asylum Fraud

    A recent Board of Immigration Appeals ("BIA") decision upheld an Immigration Judge's adverse credibility finding where the respondent's affidavit was "substantially similar, and in some regards identical, to an asylum application previously filed by respondent's brother in a different proceeding." Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).
    The BIA should think of more creative ways to prevent cheating.
    In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times--in 2004 and 2006--and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times--in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother's case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.

    After informing R-K-K- of the problem, the Immigration Judge ("IJ") gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers' "common backgrounds and experience," and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.


    The IJ did not accept R-K-K-'s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.


    The BIA affirmed the IJ's decision and issued a published decision in order to set forth a "procedural framework under which an Immigration Judge should address... inter-proceeding similarities." The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent's credibility based on the totality of the circumstances. The shorter answer is, Who cares?


    I do not know how often "inter-proceeding similarities" are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person's case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.


    But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it's nice to have a framework to assess credibility when this issue comes up. But what about the missing "transcriber"? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.


    Frankly, the BIA's decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.


    Some--perhaps most--of the fraudsters' clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these "clients" are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand "the system," and who have no support network in the United States.


    So is R-K-K- a victim or a villain? We don't know, and given the BIA's "framework" for analyzing similar cases, I guess we never will.


    How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.


    There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don't like it, but I'll file a complaint when it's justified. And--so the reasoning goes--if the offending attorney is barred from practice, his future clients/victims will be protected.


    The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel--this ranges from a benign screw-up (which can--and does--happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else's case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.

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

    Updated 09-11-2015 at 12:11 PM by JDzubow

  3. Terrorism, Trump, and the Moral Cowardice of Our Time

    It's September, and for most of us, it's a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

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    History is filled with people who think that their ignorance should trump your life.

    Since then, we've witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.


    Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.


    But one word that I have often heard used to describe terrorists is "cowardly." I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but--at least to me--not cowardly.


    There is another, perhaps more profound, application of the label "coward" when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person's humanity. It takes courage--sometimes great courage--to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed "us;" therefore we are justified to harm "them." But this fails to account for the fact that there is no "them"--there are only people, living their lives day to day.


    Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country's systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I'd wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn't. To meet and come to know your "enemy" destroys the very notion of us-versus-them. While it's easy to project your hate and anger and fear onto "the other," it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).


    For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.


    Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.


    Mr. Trump--and the bevvy of Republican contenders racing to keep up with him--want to detain, deport, and deter many potential immigrants, including "illegals," refugees, asylum seekers, and H1B workers. Of course it's a whole lot easier to deport people you've labeled illegals, "rapists" and "killers." It's harder when you have to contend with actual human beings and their stories.


    Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project--where we screen unrepresented cases and refer them to pro bono attorneys--and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).


    Now maybe you believe that all "illegals" like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It's a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported--our country has limited resources, we have to help "our own" before we help others, etc. But to create a straw man--an "illegal"--without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, "Deport them all," you better know who it is that you are deporting and exactly what that means.


    The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend's friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: "You did the most important thing a person can do--you made me look good for recommending you." I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of "illegals" is one thing. To know the individual is quite another.


    Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, "You convinced me." In the face of hearing their stories, even The Donald wanted to help.


    To some degree, all of us are guilty of dehumanizing "the other." It's impossible not to. But when we advocate for positions that harm others without understanding--or even trying to understand--the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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