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Jason Dzubow on Political Asylum


  1. An Interview with "Juan" - Unaccompanied Minor, ISIS Supporter, and Ebola Carrier

    In a recent press conference, the dynamic duo of Congressman Steve King and rich guy Donald Trump made some pretty frightening claims about the young people who have lately been arriving at our Southern border. Mr. King told the audience that America is becoming “a third-world country” because of “the things that are coming at us from across the border,” including illegal drugs, Central American children of “prime gang recruitment age,” ISIS... and the Ebola virus. These are some pretty serious charges, and so we here at the Asylumist decided to investigate for ourselves. What we found will shock you.

    King and Trump: A couple of cards. Probably jokers.

    After flying down to Texas, I went to a detention facility that must remained unnamed. There, I met a 14-year-old boy, who we will call Juan. Juan hails from El Salvador--or so he says--and claims that members of a gang attacked his house, threatened his family, and tried to kill him. He then fled to the United States. It's a sad tale, but is it true? I suspected that there was more to the story. You see, Juan has brownish skin, so he is likely a Muslim. Plus, when I met him, he was sweating. This, despite the fact that the detention facility is kept at a balmy 52 degrees Fahrenheit. In my book, Sweating = Ebola. I had some hard questions for Juan:

    ASYLUMIST: Salaam Alaikum.

    JUAN: [stares blankly]

    ASYLUMIST: Salaam Alaikum.

    JUAN: I am not sure what you are saying to me.

    ASYLUMIST: Yeh, right. So tell me Juan, if that is your real name, why did you come to the United States?

    JUAN: Actually, Juan is not my name. You just started calling me Juan for some reason. My real name is Alberto.

    ASYLUMIST: For purposes of this interview, we will call you Juan. So tell me, Juan, why did you come here?

    JUAN: In my town, the gang is very powerful. If you don't join them, they threaten you, take your money, even kill you. Gang members have targeted my family because we are Evangelical Christians and we refuse to join the gang. My father is a Minister. Because we refused to join, the gang set our house on fire, they fired a gun through our window, they threatened me many times with guns and knives. Finally, they tried to kill me, so I had to...

    ASYLUMIST: Blah, blah, blah. Everyone knows that you can't get asylum in the U.S. if you are fleeing gang violence. There's no nexus. It will open the floodgates. We have enough problems here already. We don't need ********ers like you messing up our country.

    JUAN: But I am not a gang member! And I heard that in some cases, when a person is threatened on account of his religion, he can receive asylum in the U.S. even if the persecutor is not the government. There is a case about that called Matter of S-A-. Also, the gang targeted my whole family; not just me, and "family" is a protected category under U.S. asylum law. One case that discusses family as a social group is Lopez-Soto v. Ashcroft. Besides these published decisions, there are many unpublished decisions where people like me have received asylum in the United States.

    ASYLUMIST: You seem to know a lot about asylum for a 14-year-old Salvadoran boy. Very suspicious. Let's shift gears. Why are you so sweaty?

    JUAN: I don't have Ebola.

    ASYLUMIST: Ah Ha! I didn't even mention Ebola. Why would you bring it up unless you had Ebola. Thou protesteth too much, dear Juan. Excuse me while I relocate myself outside your six-foot danger zone.

    JUAN: You mentioned it at the very beginning! And I really don't have Ebola. I've been detained here for two months. If I had Ebola, I'd be dead by now.

    ASYLUMIST: You're spitting when you talk. Please stop that.

    JUAN: I was not spitting.

    ASYLUMIST: If you don't have Ebola, how do you explain the sweating?

    JUAN: Maybe because I am stressed. I fled my country and I'm away from my family for the first time. The gang tried to kill me. Now, I've been detained for the last two months.

    ASYLUMIST: I'm not buying it. Didn't you come here to take our jobs and our women, collect welfare, and spread Ebola and Jihad? Is that a prayer rug you're sitting on? And what's that book next to you? It looks like a Koran.

    JUAN: Huh?

    ASYLUMIST: You're sitting on a Muslim prayer rug. And that book looks like a Koran.

    JUAN: No, I am sitting on a towel. There was no bed space for me, so they gave me a towel to sleep on. It is not very comfortable.

    ASYLUMIST: And the book?

    JUAN: Pep Comics # 224. It's about Jughead Jones and his dog named Hot Dog. The dog used to belong to Archie, but somehow Jughead got him.

    ASYLUMIST: I see. Anything else you want to add before I leave this godforsaken place?

    JUAN: I am just hoping to get my case heard. I am afraid to return to my country. I want to live safely and in peace. I don't have any diseases and I am not a terrorist or a criminal. I really don't understand the United States. You are so powerful, and yet you are afraid of a 14 year old boy. I hope you will help me. And why are you on the floor in the fetal position?

    ASYLUMIST: Please don't unleash your Jihadi Ebola attack on me! Ahh! Run away!

    Originally posted on the Asylumist:

    Updated 10-30-2014 at 11:06 AM by JDzubow

  2. “Miranda Rights” for Asylum Seekers

    It’s a common scenario in my office: A person who entered the U.S. unlawfully at the Mexican border, and who was detained and released by U.S. immigration authorities, wants to seek asylum, but has missed the one-year deadline to apply.

    Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.

    Just the other day, a young man from El Salvador came to me for a consultation. In his country, gang members threatened to kill him. They targeted him partly because of his religion (Evangelical), but mostly because he had a job and (they presumed) money. They also targeted his wife and young child. The man’s family went into hiding and the man came to the United States. He entered without inspection in June 2013 and was apprehended by the Border Patrol. After he passed a credible fear interview (a CFI is essentially an initial evaluation of whether the alien can state a claim for asylum), he was released and ordered to appear before an Immigration Judge. The man attended his first hearing, where the IJ gave him additional time to find a lawyer. That’s when I came into the picture—in September 2014; more than one year after the man entered the United States.

    So how to evaluate this man’s case? On the merits, it’s not a great case. He certainly faces grave harm if he returns. But it may be difficult to show that the harm is “on account of” a protected ground: Perhaps he has a claim based on his fear that the gang will persecute him due to his religion, or his particular social group (family; maybe “people with jobs”), but it’s certainly not a slam dunk. Probably the more difficult issue, however, involves the man’s failure to file for asylum during his first year in the United States (in order to qualify for asylum, an alien must file the asylum form--the I-589--within one year of arrival or meet an exception to the one-year deadline). With regard to this filing deadline, the man’s case is pretty typical.

    Like most asylum lawyers, I despise the one-year filing deadline (found at INA § 208(a)(2)(B) and 8 C.F.R. § 208.4). It was originally enacted to help prevent fraud. The logic being that if you had a legitimate case, you’d file it within a year. The reality is quite different. People like the Salvador man know that they face harm in their country, but they have no idea about the law, and little incentive (or money) to hire a lawyer until their court date is imminent—often well beyond their first year here. The result is that legitimate refugees are denied asylum for reasons completely unrelated to their claims and, instead of reviewing the merits of a case, the IJ or asylum officer is stuck evaluating the applicant’s excuse for failing to file within one year. For these reasons, it’s hard to find anyone involved in the system who likes the one-year rule. So what can be done?

    The obvious solution is to eliminate the one-year bar. But that would require Congressional action, and it’s rare these days to see the words “Congress” and “action” in the same sentence. So I won’t hold my breath on this idea.

    A more realistic solution may be to create a Miranda*-style rule for asylum. In other words, the Border Patrol or the Immigration Judge or whoever the alien comes into contact with, would be required to inform the alien that if he wishes to seek asylum, he needs to file the form I-589 within one year of arrival. We could also require that the alien be informed about the one-year rule in a language that he understands, and (since we are wishing) we can even require that they give him a copy of the form and information about where to file it.

    I think the 1966 Supreme Court case Miranda v. Arizona provides a good model for how to protect aliens. That case created the famous "Miranda warning" that police read at the time of arrest (You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney...). In reaching its decision, the Court wanted to protect our Fifth Amendment right against self incrimination (no one "shall be compelled in any criminal case to be a witness against himself"). The Court reasoned that in the intimidating environment of police custody, suspects might feel compelled to talk, and so the Court created the Miranda warning to help ensure that people will understand their right against self incrimination. One portion of the case particularly strikes me:

    An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.

    The image of the beleaguered suspect, disoriented and in unfamiliar surroundings, unable to exercise his Fifth Amendment rights, seems to me analogous to the alien, recently arrived in the U.S., who is taken into custody, placed into a system that he does not understand, in a language that he (probably) does not understand, and who then loses substantive rights as a result of his predicament. True, in the case of Miranda, the suspect was momentarily disoriented and vulnerable, whereas with asylum seekers, the person has a whole year to file his case. But just as the Miranda Court examined specific instances where suspects' rights were violated and reached its conclusion that protection was necessary based on an analysis of how suspects actually behaved in custody, an examination of how many aliens are behaving will reveal that they are not aware of the one-year filing requirement.

    For many legitimate refugees--like my potential client from El Salvador--learning about the one-year filing requirement is much more difficult than it might seem. They are in a new country where they do not understand the language or culture, they probably have spent much of their lives living in fear of their government, they often have no support network and few resources, and many times the "advice" they receive from notarios, unscrupulous lawyers, and "friends" is incorrect. In short, unless they are well-educated or well-connected, many asylum seekers have little chance to learn about the one-year filing requirement. The result, of course, is that they miss the deadline and lose their opportunity to claim asylum.

    Aliens have a due process right to file for asylum. However, just like suspects in police custody, unless they are made aware of their rights, many legitimate refugees will continue to miss the one-year deadline and lose their right to seek asylum. It seems easy enough to solve this problem: Create a Miranda-style rule requiring government officials to inform aliens about the one-year deadline.

    Originally posted on the Asylumist:
  3. Towards a New Definition of "Refugee"

    There are, in effect, two definitions of "refugee." There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person's definition.
    The legal definition of refugee includes:

    any person who is outside any country of such person’s nationality... and who is unable or unwilling to return to... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

    The lay person's definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.

    Refugees or "refugees"?

    The mass movement of people--especially young people--escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of "refugee."

    Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a "pull" factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.

    To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels' offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.

    We could simply categorize as a "refugee" anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.

    There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.

    There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.

    But what if we could reduce the drawbacks and keep the benefits?

    The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.

    Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.

    Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.

    Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don't think we're there yet--although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.

    Originally posted on the Asylumist:
    Tags: asylum, border Add / Edit Tags
  4. Center for Immigration Studies: Unaccompanied Minors Are Mexico's Problem

    A recent article by Mark Krikorian of the Center for Immigration Studies posits that even if the unaccompanied minors arriving at our Southern border are refugees, they should be sent back.
    Mr. Krikorian's view of Mexico.

    I find that CIS in general and Mr. Krikorian in particular are usually fairly reasonable in their arguments (though there are exceptions; and more exceptions). However, Mr. Krikorian's recent article is long on insults and short on insights.

    First, the insults (they're more fun to deal with, no?). He refers to the "anti-borders Left," which I suppose means that to him, anyone who advocates for immigrants opposes all borders. This is kind of like saying that anyone who advocates for a speed limit opposes driving. He also refuses to acknowledge that children arriving at the border are unaccompanied (he refers to them as "unaccompanied" - damning them with quotation marks). What he means by "unaccompanied" is that the children are brought here by smugglers who (and this is a real quote from CIS - check the link if you don't believe me) "watch over the children until they are taken into custody by U.S. authorities as part of a process that turns the children over to relatives in the United States." I guess technically, the children are accompanied, though having a smuggler "watch over" my kids is about as desirable as having them spend a night at Neverland Ranch. Finally, here's a good one:

    Asylum is for people willing to go anywhere to get out of where they are; just as a drowning man doesn't pick and choose among life preservers he sees in the water, a genuine asylum-seeker doesn't pick and choose among countries.

    Au contraire, mon Krikorian: Drowning men who hope to survive are actually quite picky about their life preservers. Think about Leonardo DiCaprio in that movie with the boat. Had he been a bit more choosy, maybe he and Kate Winslet would have floated off together into the happily ever after. In the same way, asylum seekers must be very choosy about where they plan to spend the rest of their lives. Just ask all those poor Eritrean refugees in Sudan, who are subject to exploitation, attacks, and expulsions. Probably they are wishing that they had found a better life preserver.

    A Central American refugee's view of Mexico.
    OK, enough of that. Now to Mr. Krikorian's "insights" (sorry for the quotes, I was feeling snarky).

    Mr. Krikorian's main point is that even if the children from Central America are refugees, a point that he does not concede, they can be turned away under international law. Why? Because the 1951 Refugee Convention provides:

    The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

    According to Mr. Krikorian, the underlined language means that an alien who flees persecution and passes through one country should not be allowed to apply for asylum in another country because the alien is not "coming directly" from the territory of feared harm. In other words, Central Americans who pass through Mexico cannot seek asylum in the U.S. because they are obliged to seek asylum in Mexico.

    There is one teeny tiny problem with Mr. Krikorian's idea. As he himself notes, United States law "unfortunately" only allows asylum seekers to be turned away if they come from a "safe third country." U.S. law recognizes only one "safe third country," Canada. He thus suggest that the statutory fix to the border surge is to "bar outright any asylum claim from someone who passed through a third country where he should have made that claim first."

    While I think this is an idea worth discussing, I don't see it as the simple solution that Mr. Krikorian does. For one thing, while Mr. Krikorian wants to convince us that Mexico is a "safe" country, there is a lot of evidence that it is not safe. So if such a law were implemented, I would expect the battle would shift from the applicant's fear of return to her country to why she would not be safe in Mexico (much as the battle in many asylum cases is about the one-year filing deadline, not the fear of return). All this would make Central American cases more--not less--difficult (and time consuming) to adjudicate.

    Also, there is the more philosophical question about how we, as a country, want to treat people coming to us for help. While we cannot solve all the worlds problems, we also cannot ignore those problems. Especially when they are in our backyard (remember the Monroe Doctrine). And especially when our policies contributed to those problems (remember the Monroe Doctrine).

    Mr. Krikorian and I do, I think, agree on one thing: The influx of asylum seekers at our border needs to be addressed. We need to have a rational policy debate about how to treat such people. In my opinion, that debate should protect the integrity of our asylum system (it should not be used as a way to get around normal immigration procedures) and it should also respect the people coming to us for help and protect bona fide refugees. Even though I generally disagree with them, I believe that groups like CIS--groups that advocate for more restrictive immigration policies--have an important role to play in the debate. That role would be more constructive if they focused more on policy and less on polemics.

    Originally posted on the Asylumist:
  5. Michelle Malkin Is Right!

    She got us. A recent article by anti-immigrant activist and daughter of immigrant parents, Michelle Malkin lays bare President Obama's nefarious scheme to enrich immigration lawyers while filing our country with criminals, Muslims, and "Typhoid Marias." Ms. Malkin states:

    Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.
    [L]eft-wing immigration lawyers and ethnic activists operate a lucrative industry whose sole objective is to help illegal aliens and convicted criminal visa holders evade deportation for as long as possible. Groups such as the American Immigration Lawyers Association, the Immigrant Legal Resource Center, and the American Friends Service Committee make their livelihoods off administrative bottlenecks.

    How does she know about this? It’s almost as if she were a fly on the wall at my country club where she overheard me talking with my friends at AILA, ILRC, and AFSC about all the money we've been making since thousands of wealthy Central American children started arriving at the Southern border. Perhaps my friends and I were all speaking a bit too freely after having consumed a few bottles of Vosne-Romanee Permier Cru (1983). We will have to be more guarded in the future.

    Frankly, though, as the father of two future Andover academicians with a yacht that won’t pay for itself, I’d like to know who let out our little money-making secret? Ms. Malkin gives us a clue. She writes, “Insiders have told me again and again over the years: ‘It ain’t over ‘til the alien wins.’” Who are these colloquialism-spouting “insiders” that tattled on us? One source seems to be a former law clerk from the Fifth Circuit (hence, ain’t) who, Ms. Malkin tells us, believes that Ms. Malkin is “absolutely correct” in her analysis: “immigration lawyers use the current system of endless appeals to make illegals essentially undeportable.” This clerk was also amazed that “illegal aliens, unlike American citizens, get TWO appeals as of right - one to the BIA and then another to the Circuit Court of Appeals.” I am not sure whether Ms. Malkin or the unnamed clerk emphasized TWO to show how amazed she/he was, but the emphasis was in the original article. I am also not sure how Ms. Malkin (or the clerk) got from “TWO appeals” to “endless appeals” in the same paragraph. Probably I was too busy counting my endless money to follow the logic (I made $2.00 today). Finally, I wonder who these poor Americans are who receive only ONE paltry appeal. My guess is that they are not before an administrative court (immigrants appear before administrative courts—the Immigration Court and the Board of Immigration Appeals or BIA), which usually allow for an administrative or inter-agency appeal and an appeal to a federal court (TWO appeals! Even for U.S. citizens! Ain’t that sumpin’?).

    Ah, but it only gets worse from there. Ms. Malkin even knows how we lawyers operate. She writes that the “legal tricks” for avoiding deportation include scams that would make Professor Harold Hill blush. Scams such as asylum (trouble!), cancellation of removal (Trouble!), and adjustment of status (TROUBLE! TROUBLE! TROUBLE!). Yes, we surely got trouble. I myself am a purveyor of that legal sleight of hand known as “asylum,” where we gather a type of snake oil known as evidence (which of late for my cases has included such gems as death certificates for close family members, medical reports about serious injuries, and letters from U.S. military commanders) and submit it to the Immigration Judge in the hope that our client won’t be deported to his death.

    Ms. Malkin even knows about the “fraud-friendly U visa,” which provides a path to citizenship for “virtually anyone who applies.” All you need is to be the victim of a serious crime, the cooperation of law enforcement—who must submit signed documents on your behalf—and about three years of waiting. Then you too will gain residency based on a U visa. Easy peasey.

    And then, of course, there are the “young illegal border surgers” who have been arriving along our Southern border like so many crazed teenage Beliebers. They too have a “plethora of litigation bites at the apple that will keep them in our country in perpetuity.” Lucky for them that they have such a plethora of options given that, historically, something like 97% of asylum claims from Central America and Mexico are denied. And lucky for us too—I can almost hear the coins clinking into my cup as these young Rockefellers pay my fellow attorneys and me for each delicious bite at that apple. Ka-ching!

    Of course, none of this would be possibly without the complicity of the BIA, a bunch of "meddling activists" who Ms. Malkin tells us, "have the power to overturn deportation orders nationwide.” Never mind that less than 10% of Immigration Court cases are appealed and only about 11% of those are successful, or that—depending on the circuit court—between 5% and 30% of BIA decisions are overturned in federal court. It’s clear that the Mexican-loving hippies on the Board will stop at nothing to keep illegals in our country. And by the way, these endless appeals (ONE!) to the Board are earning big money for us lawyers. Why, my last BIA appeal alone paid for my oldest child’s college (in 15 years, assuming I can find a money market account that earns 88% per year; I'll let you know).

    In the end, I have no regrets. I suppose I could have taken the more honorable, but less lucrative path and worked as a political pundit, serving my country by courageously standing up to powerless immigrants and refugee children. Instead, I have chosen to make the big money by representing those immigrants and refugees. Believe you me, I am laughing all the way to the bank...

    Originally posted on the Asylumist:
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