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Jason Dzubow on Political Asylum

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  1. The Trump Administration and the Rhetoric of Genocide

    If you go to the White House's official website, you will see this article: "What You Need To Know About The Violent Animals Of MS-13." The article claims that the "violent animals of MS-13 have committed heinous, violent attacks in communities across America." Indeed, the two-page article uses the term "animal" in reference to MS-13 gang members a total of 10 times. What to make of this?


    The path of dehumanization always ends at the same place.


    On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I've met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.

    But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people--even criminals--as "animals" that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people--even bad people--has historically been a first step towards mass murder.

    President Trump's characterization of MS-13 gang members as "animals" reminds me of the Rwandan government's rhetoric prior to the 1994 genocide. Tutsis were referred to as "cockroaches." At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers--it extended to all Tutsis.

    In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President's words will stretch well beyond members of the MS-13 gang. Here's more from the White House website--

    Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory

    So does this mean that all people from El Salvador are suspect? Are they all "animals"? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?

    And if you think that mere words are not dangerous, or they can be dismissed as "Trump being Trump," let's remember how the Nazis engineered the mass killing of millions of Jews and other "undesirables" during World War II. From the U.S. Holocaust Memorial Museum--

    Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image

    The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even "evidence" for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.

    In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government's decision to rip apart parents and children who arrive at the border seeking asylum (in many case from--ironically--MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.

    Let's not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as "animals." And when governments negate the humanity of people--even people deemed undesirable--it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Debating the Immigration Debate

    My law partner and I are adjunct professors at GW Law School, where we teach Asylum and Refugee Law (yes, we are basically one-trick ponies). This week, we learned that a scheduled debate called "Immigration 2018: Words Matter" was effectively canceled after one of the panelists was dis-invited due to his affiliation with the Center for Immigration Studies ("CIS"), an organization that some consider a hate group.



    Andrew Arthur: Master debater

    The event was billed as a "debate on the words used in the immigration debate." Panelists were to discuss "words and phrases like maras, chain migration, criminal alien, and others." The controversial panelist was Andrew Arthur, a Resident Fellow at CIS, and a former Immigration Judge (and a GW alum). However, Judge Arthur's association with CIS proved controversial and ultimately led to the dis-invitation.

    I can't really discuss the situation at GW, as I don't know all the details. Instead, I want to talk more generally about why it is so important for immigrant advocates to engage with groups like CIS.

    Let's start with the organization itself. CIS bills itself as "low-immigration, pro-immigrant." It wants to restrict the number of foreigners we allow into the United States. In contrast, the Southern Poverty Law Center has labeled CIS an anti-immigrant hate group due to its founder's alleged ties to white supremacists and because it circulates writings by supposed white nationalists and anti-Semites.

    As you might guess, I'm not a huge fan of CIS either, and I have found some of their writers to be intellectually dishonest and needlessly divisive (though at least one of their writers thinks I'm a babe, which is quite flattering). However, my overall observation of the organization is that it is making important contributions to the immigration debate, and that its policy positions are generally within the mainstream of our society (unfortunately). For these reasons, I believe CIS's viewpoints deserve serious attention from those of us who care about immigration policy. Also, I'm skeptical of the SPLC's designation of CIS as a hate group. While I support the SPLC and believe it does vital work, I think designating CIS as a hate group is a stretch.

    Further, even if you have a lower tolerance for hate than me, and you believe CIS is a hate group, that does not seem a good enough reason to exclude its writers from the immigration debate. CIS is in-like-Flynn with the current Administration, and so its views really can't be ignored. Also, there are many Americans---including many in the main stream media--who do not view CIS as a hate group, and who pay attention to its opinions. Thus, we need to listen to the organization's views in order to better understand people who seek to restrict immigration.

    I'm not arguing that we need to engage with all individuals or groups that seem hateful. Some people are simply beyond the pale (David Duke, Richard Spencer) or exist merely to provoke reactions rather than advance any real policy agenda (Ann Coulter, Milo Yiannopoulos). Such people have little to contribute to any real discussion on immigration (or anything else), and exist mostly just to promote themselves. Giving them a platform is not productive. But that's not CIS, and when we fail to engage with legitimate and/or influential organizations, the quality of our national debate is diminished.

    There are other reasons to engage with CIS as well. For one, when we fail to engage, we effectively abandon the field to the opposition. While it may seem a principled stand to refuse to debate with a "hate group," that's not how the majority of Americans--who only pay periodic attention to immigration issues--will interpret the situation.

    Indeed, we need to be present when groups like CIS distort the facts, which they sometimes do, and we also need to articulate alternatives to their restrictionist policy proposals. We cannot correct the record or advocate for our own vision unless we are part of the conversation.

    There's also the matter of scoring political points. While I dislike the sophistry of cheap "point scoring" in our political debates, this is still part of the equation. Dis-inviting a group like CIS only plays into the organization's hands. What will they and their allies say about a dis-invitation? Frankly, it doesn't look good, and it tends to bolster right-wing tropes about "snowflakes" and "PC campus culture."

    Finally, there's the issue of safety. Some people (immigrants, for example) might feel targeted by CIS, and perhaps this is a reason to avoid engagement with the organization. In fact, CIS does target immigrants in its policy proposals (the "pro-immigrant" part of its mission statement notwithstanding), and so there is some justification for this concern. But in my opinion, individuals who feel targeted by CIS need to understand the organization's policy positions so that they can help refute those positions. Such individuals also need to explain to CIS how its work hurts real life people. Another aspect of this is that many of CIS's proposals would harm the weakest members of our society, and so we need to engage with the organization in order to stand up when defenseless people are bullied.

    In the end, I don't think we have anything to fear from engaging with CIS. We "pro-immigrant" advocates largely have logic, humanity, and American values on our side. The hard work lies in engaging with those who disagree with us, and hopefully moving our nation in a better direction.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: cis, immigration Add / Edit Tags
  3. The Self-Fulling Prophecy of Demonizing Immigrants

    In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.

    Prof. Roth recently elaborated on his theories in the Washington Post. He writes--

    When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.

    He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community's faith in our governing institutions--

    The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.

    During the 2008 election, Prof. Roth predicted that "the homicide rate in America’s cities would drop because of what [Barak Obama's] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas." Prof. Roth also "worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president." Data from President Obama's time as president now seems to support the Professor's prediction (at least according to Prof. Roth--and I believe him).

    So what does this mean for immigrants and asylum seekers?

    Maybe the answer is fairly obvious--If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle--the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.

    We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.

    Prof. Roth, writing after the massacre in Las Vegas, notes that "most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society.... We have all played a part in creating them."

    If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it's not all that difficult. It's what teachers teach in our schools every day. It's what we require in our workplaces. It's what we see in our places of worship.

    Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you'll see what I mean. Politicians--most notably our Commander-in-Chief--have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.

    Prof. Roth's work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.

    I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.

    Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth's theory is correct, the current Administration's nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It's up to us--those of us who stand with immigrants--to continue offering them help and hope, and to try to break this cycle before it begins.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Answering the Impossible Question

    Possibly the most common question I hear at initial consultations with asylum seekers is, "What are the chances that I will win my case?" It's a reasonable question. People want to know the likelihood of success before they start any endeavor. The problem is, it's impossible to answer this question. Why is that?
    The other Impossible Question: "Does this dress make me look fat?"
    One reason is mathematical. Probabilities are tricky to calculate and even more tricky to understand. Also, it is very hard to apply probabilities in a meaningful way to a single event. What does it mean, for example, when the weather report shows a 30% chance of rain? If you run 100 computer simulations of the weather, it will rain 30 times. But in the real world, it will either rain or it won't. The problem is that we do not have complete information to start with, and that there are too many variables to predict precisely how the weather will evolve over time. Without sufficient information, we have to approximate, and we are left with a range of possible outcomes and probabilities. As Niels Bohr observed, "Prediction is very difficult, especially if it's about the future."

    Another difficulty is that predicting case outcomes involves human beings, and we are a notoriously capricious species. At the outset of a case, the lawyer may not know whether the client can get needed evidence, or whether she can remember her testimony, or how a witness will behave. Also, the lawyer may not know who the fact finder will be (with Immigration Court cases, we usually know in advance; for Asylum Office cases, we never know until the day of the interview). Also, what if the fact finder is in a particularly good or bad mood on the day of the case? Or what if she is hungry during the case (one Israeli study famously correlated favorable parole decisions to whether the judge had recently eaten lunch!)? These "human factors" can greatly affect the decision, and few of them can be known in advance, which again makes predicting difficult.


    That's not to say we know nothing about the likelihood of success. For Immigration Court cases, there is data available about the grant rates of individual Judges. Also, there is some data available about Asylum Office grant rates. Of course, all of this is very general and does not necessarily bear much relationship to the likely outcome in a given individual's case, but I suppose it's better than nothing.


    As a lawyer, once you get a sense for asylum cases, you can at least give the client some idea about the outcome. I can tell a strong case from a weak case, for example. If the client has a lot of credible evidence, has suffered past persecution on account of a protected ground, and faces some likelihood of future harm, the client has a strong case. The most I will say to such a prospective client is that, "If the adjudicator believes that you are telling the truth, you should win your case." I might also say that since the corroborating evidence is strong, it is likely that the adjudicator will believe the claim.


    I do think there is a basic human desire behind the question about the chances for success, and that is the desire for certainty. Asylum cases now take years, and it is very difficult to live your life for so long under the threat of deportation. When the clients ask about the likelihood of success, I know part of what they want is reassurance. Even if the case is weak, they want to feel like they have a chance. They want to feel that what they are building in the U.S. while they wait for a decision will not all be lost. How, then, do we balance the need for certainty with providing an honest evaluation of the case?


    For my clients, I try to give them both honesty and hope. In the beginning, I give the client my honest assessment of the case and the likelihood of success. Knowing my assessment (whether it is good or bad), if the client decides to go forward, my focus shifts to creating the strongest case possible with the facts and evidence available, and to helping reassure the clients so they feel some hope. I try to encourage the client to do what is within their power to make the case better: Gather evidence, talk to witnesses, find experts, etc. At least this helps empower the client a bit, and it gives them some agency over their case outcome.


    Different lawyers do things differently, and there are probably many "right" ways to balance realism and hope. There are also wrong ways. Any lawyer who "guarantees" you will win an asylum case is a lawyer you should avoid. No lawyer can guarantee a win because we do not make the decisions--the government does. Also, lawyers who make dubious promises ("I am good friends with your Judge, so I can get you a quicker hearing date") are probably lying to get your business. Be careful, and remember that offers that seem too good to be true probably are. For all its flaws, the American immigration system is largely free from corruption. Lawyers don't have special relationships with adjudicators that can change outcomes or speed adjudication. When a lawyer oversells hope at the expense of realism, you are safer to seek a different attorney; one who is more interested in telling the truth than in selling you his services.


    So when a prospective client asks me the chances for success, I'll try to give the best evaluation I can, so that the person can make an informed choice about whether to file an asylum case. Once the case is started, I will try to address weakness and gather evidence to maximize the chances for a win. I will also try to encourage the client, so that she has some hope during the long wait.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. President Trump's Immigration Orders: Some Preliminary Thoughts

    During the first week of his Administration, President Trump has signed two "executive orders" on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.
    This is how it looks when America compromises its values.
    The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client--and a lawful permanent resident based on asylum--was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend's client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending--and minor--criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion--closing certain cases where the alien has no criminal issues and has equities in the United States--has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

    Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:


    • Don't panic. The President has the power to issue executive orders ("EOs"), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
    • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can't just be thrown out of the country. Even an expedited process usually takes months.
    • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing--see below) any crimes.
    • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from "countries of particular concern" (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO's seem to temporarily suspend immigration benefits for people from those nations.
    • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
    • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for "extreme vetting." Since we don't really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
    • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.


    In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.


    The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone's guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from "countries of particular concern." The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.


    The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end "sanctuary" jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply "information needed for adjudications" of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.


    So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump's actions (spoiler alert: They are terribly damaging to our national interests and our country's character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

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