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Over the past few years, there have been a number of deadly and horrific attacks against Jewish people in Europe. Targeted by radical Muslims, Jews have been murdered in a Kosher market, outside a synagogue, and at a Jewish daycare facility. They have been targeted for attack at a Jewish Community Center, and there have been hundreds of lesser (but still frightening) instances of anti-Semitism.
The Jews of France are not alone. But is that enough?
In response, some (non-French) Jews have suggested that there is no future for Jews in Europe and that they should leave. On one level, this suggestion is based on genuine concern. But on another level, it is quite insulting. It’s as if an African leader came to the U.S. and told American blacks that—in light of Ferguson, Treyvon Martin, and Eric Garner—they should abandon their homeland. My feeling is that a French Jew, an African American, or any other put-upon individual should have the right to make his own decision about whether to leave his country. Unless and until he decides to go, we should do everything possible to help him stay.
Here, however, I am concerned not with the existential issue of European Jewry. Rather, I want to discuss a more narrow question: Whether a French Jew--and I am choosing France because that country has seen the most instances of anti-Semitism--could qualify for asylum under U.S. immigration law.
Asylum decisions are highly dependent on the specific facts of each case; so it is difficult to answer this question in the abstract. However, we can look at general country conditions to get an idea for whether an individual might qualify. Also, where there is a “pattern and practice” of persecution against a specific group, and the asylum applicant demonstrates that she is a member of that group, she can receive asylum (for example, during the 1994 genocide in Rwanda, if an asylum applicant demonstrated that she was Tutsi, she could receive asylum).
To demonstrate a “pattern and practice,” the applicant would have to show that the persecution is systemic, pervasive or organized. Although radical Muslims have attacked Jews in France on several occasions, and the unpredictable nature of the attacks makes everyone feel vulnerable, I think the problem is not systematic, pervasive or organized enough to qualify as a “pattern and practice” of persecution under U.S. asylum law. The recent attacks have been by individuals or small groups; not (as far as we know) the systematic work of an organization. There is a much more widespread problem with harassment, threats, and vandalism. These problems--while frightening--probably would not constitute "persecution" as that term is generally understood. For all these reasons, I believe that a French-Jewish asylum seeker would have a hard time proving that Jews in France suffer from a pattern and practice of persecution.
In the absence of such a pattern and practice, our theoretical French Jew would need to show that he faces a reasonable fear of persecution based on his religion (or other protected ground). If the persecutor is not the government—and here, it is not—he also must demonstrate that the government is unable or unwilling to protect him.
First, it seems clear that the Jews who have been targeted were targeted because they were Jews. Persecution on account of religion is a basis for asylum. So the real question is whether there is a reasonable likelihood of persecution.
Courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average French Jew would be able to show that he faces a 10% chance of persecution. There are nearly half-a-million Jews in France, and only a small number have been harmed. And even in countries with much higher instances of violence--Iraq and Syria, for example--a person can generally not qualify for asylum without an individualized threat. Although the average French Jew would probably not meet this standard, some Jews--those who have received specific threats or who hold high-profile positions, for example--might be able to prove that they face a likelihood of harm.
If our theoretical French Jew demonstrates a likelihood of harm, the next question is whether the government of France is able and willing to protect him. While there are surely people within the French government who do not like Jews, the French government as a whole clearly wants to protect Jewish people. After the Kosher supermarket and Charlie Hebdo attacks, the government deployed thousands of troops to protect Jewish sites. But given the nature of the attacks (random and against soft targets), there is a good argument that the government of France is unable to stop the terrorists.
In the end, it seems that most French (or European) Jews would not qualify for asylum, but some might: Those who have received threats or who are high profile, and who their governments--unfortunately--cannot protect.
Originally posted on the Asylumist: www.Asylumist.com.
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.
As Thanksgiving approaches, I thought it might be nice to look back at our country's earliest--and strangest--effort to help asylum seekers. I'm not talking about the Pilgrims, who came here long before our nation's independence. I'm talking about the French colony of Asylum, founded in 1793 on the shores of the Susquehanna River in northern Pennsylvania.
In those days, the United States and France enjoyed good relations, thanks in part to France’s key role during the American Revolution. When France’s own Revolution went bad, the United States was prepared to help refugees fleeing the guillotine—and to make a profit in the process.
...and that's why, even today, you can find good croissants in northern Pennsylvania.
Several prominent Pennsylvanians were involved in forming the Asylum Company, which purchased land and began constructing large houses in the untamed wilderness. The largest house, called “la grande maison,” was 84 feet long and 60 feet wide. It had eight fireplaces. Supposedly, it was built for Marie Antoinette, wife of King Louis XVI (she of the “Let them eat cake” fame). Unfortunately, Marie Antoinette was executed by the Revolution before she could find asylum in the U.S.
A number of prominent exiles did manage to reach Asylum, including members of the French Royal Court, soldiers, and businessmen. The exiles tried to re-create their aristocratic life style in America, and they enjoyed music and plays, brandy and fine wine. Ultimately, though, the idea of an aristocratic French Court in the Pennsylvania wilderness could not be sustained; the exiles yearned to return to France. One historian described the mood in Asylum:
As time went on [the French] grew to hate the work, the monotony, and the sordid hopelessness of their life at Asylum… Nostalgia had the colony in its grip.
Finally, Napoleon Bonaparte seized power in France and ended the Revolution. He invited all French exiles to return, and promised to restore their estates. The celebration in Asylum supposedly lasted for days, and most of the residents returned to France by 1802. The Asylum Company itself proved a failure, with at least one principal landing in debtor’s prison.
All that remains today of Asylum are some archaeological ruins and a museum. The historic site serves as a reminder of our country’s earliest effort to provide refuge to those fleeing persecution.
Originally posted on the Asylumist: www.Asylumist.com.