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Jason Dzubow on Political Asylum

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  1. When the Counter-Terrorism Unit Comes Calling

    My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

    ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.


    Ruth Dickey, immigration attorney extraordinaire.


    What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

    HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

    HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

    The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

    Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

    While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed about a week after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

    Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

    I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:


    • That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
    • That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
    • That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
    • Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
    • That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).


    Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

    First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

    Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

    Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

    So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

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

    Updated 08-01-2018 at 02:39 PM by JDzubow

    Tags: asylum, ice Add / Edit Tags
  2. Asylum and the Limits of Mercy in a Nation of Laws

    The case of Ded Rranxburgaj, a rejected Albanian asylum seeker living in Detroit, has been getting attention lately. Mr. Rranxburgaj arrived in the United States in about 2001 and applied for asylum. An Immigration Judge rejected his claim in 2006, and the BIA denied his appeal in 2009. Instead of deporting him, the government allowed him to remain in the U.S. for humanitarian reasons: He was the primary caretaker for his wife, who has multiple sclerosis. Mr. Rranxburgaj's wife is wheelchair bound, and she recently suffered a stroke. Doctors say that she is too sick to travel.

    Rev. Zundel: When life gives you ICE, make ice cream.

    There seems little doubt that Mr. Rranxburgaj is a "decent, family man" who does not pose a danger to the United States. According to his wife, he is a "very good husband" who helps her "take a shower... change clothes [and] cook." Besides his wife, he has two sons in the United States--a DACA recipient and a U.S. citizen.

    Mr. Rranxburgaj was living here peacefully since his case ended in 2009, but events took a turn for the worse last year when ICE decided to implement his removal order. According to an ICE spokesman: "In October 2017, ICE allowed Mr. Rranxburgaj to remain free from custody while making preparations for his departure pursuant to the judge’s order, which he had satisfactorily done." "He was again instructed to report to ICE [to be deported this week], but did not report as instructed."

    Instead, Mr. Rranxburgaj took refuge in the Central United Methodist Church in downtown Detroit. Since ICE generally does not arrest people from churches, Mr. Rranxburgaj apparently hopes to avoid removal by remaining there, at least until something can be done about his deportation order. His lawyer has requested a stay of removal from ICE, but there is no decision yet, and ICE does not appear willing to play nice. An agency spokesman says that Mr. Rranxburgaj is considered a "fugitive."

    Meanwhile, the church is standing with Mr. Rranxburgaj and his family. The Pastor, Rev. Dr. Jill Zundel, said that the decision was in line with the teachings of Jesus, who had "compassion for those who seek new hope in a new land." Rev. Zundel, who--if I can say this about a member of the clergy--seems like a real bad ***, has a tattoo on her arm that reads, "When injustice becomes law, resistance becomes duty."

    There are different ways to look at Mr. Rranxburgaj's case. On the one hand, he is a man who has been in the United States for 17 years, his immediate family members are all here, he takes care of his sick wife, and he does not pose a danger to our country. So he should be allowed to stay. On the other hand, he is a man whose asylum case and appeal were rejected, and who is violating the law by remaining in our country. Allowing him to remain here will only encourage others to follow his lead. Therefore, he must go.

    In short, Mr. Rranxburgaj's story lays bare the conflict between enforcing the immigration law and showing mercy in a sympathetic case.

    This situation reminds me of another--much older--conflict between law and mercy (or, more accurately, between law and justice, but I think the concepts of mercy and justice are closely related). After he was unjustly sentenced to death, Socrates sat in his cell waiting to be executed. His friend Crito arrived to help him escape. In the ensuing dialogue (creatively named The Crito), Socrates argues that he cannot violate a law, even an unjust law. He says that he entered into a social contract with "The Law" by choosing to live in Athens, and he gained benefits accordingly. To violate the rules now would undermine the social contract and ultimately destroy the city. Rather than breaking the law to escape, Socrates believed he should try to persuade the authorities to let him go. Failing that, he must accept death, since he could not justly attack The Law (by escaping) on account of having been unjustly convicted. In other words, Socrates disagrees with Rev. Zundel's tattoo.

    So where does this leave us?

    I must admit that my sympathies lie with Mr. Rranxburgaj and his family. They are not doing anyone any harm. What is the benefit of ripping the family apart, especially considering the wife's vulnerable position? Thomas Aquinas writes that "Mercy without justice is the mother of dissolution; justice without mercy is cruelty."
    In Mr. Rranxburgaj's case, fealty to the abstract concept of "The Law" seems cruel in the face of family separation and the wife's illness.

    On the macro level, Mr. Rranxburgaj's case begs the question whether there is room for mercy (justice?) in the enforcement of our nation's immigration laws. Well, why shouldn't there be? Every person convicted of a crime is not subject to the maximum penalty. Indeed, due to mitigating factors and prosecutorial discretion, very few criminals actually receive the maximum sentence. The same is true for government enforcement in the civil arena: Not everyone who breaks the speed limit receives a ticket. If there is room for mercy and justice in the implementation of the criminal and civil law, why can't the immigration laws be interpreted in a similar manner?

    Unfortunately, that is not the view of the Trump Administration, which seems hell-bent on enforcement. To be fair, restricting immigration was an important plank of Mr. Trump's campaign, and so it makes sense that he would crack down on illegal immigration. However, in Mr. Rranxburgaj's case, and in many other instances, the Administration's policies defy common sense. In the rush to implement The Law, the Administration has lost sight of justice. And of humanity.

    When our government replaces mercy with cruelty, it is not only "illegals" who will suffer. We all will. And so it is heartening to see brave people like Rev. Zundel and her congregation standing up for justice, even when it sometimes means disobeying the law.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. DHS Is Your Friend on Facebook, Whether You "Like" It or Not

    Following the December 2, 2015 terrorist attack in San Bernardino, California, where the husband-and-wife perpetrators had purportedly become radicalized via the internet, Congress requested that the Department of Homeland Security ("DHS") take steps to better investigate the social media accounts of immigrant applicants (the husband was an American-born U.S. citizen of Pakistani decent; his wife was a lawful permanent resident from Pakistan). In response, DHS established a task force and several pilot programs to expand social media screening of people seeking immigration benefits and U.S. visas. DHS also approved creation of a Social Media Center of Excellence, which would conduct social media background checks for the various DHS departments. The Center of Excellence would "set standards for social media use in relevant DHS operations while ensuring privacy and civil rights and civil liberties protections."
    The director of the Center of Excellence, Bill S. Preston, Esquire.
    Last month, the DHS Office of Inspector General released a (clumsily) redacted report detailing the efficacy of DHS's efforts and making suggestions. Due to the incomplete redaction job, it seems likely that the pilot program focused on refugees and perhaps asylum seekers, but the plan is to expand the program to cover all types of immigration benefits.

    The goal of the pilot program was to help develop policies and processes for the standardized use of social media department-wide. "USCIS had previously used social media in a limited capacity, but had no experience using it as a large-scale screening tool." The pilot program relied on manual and automated searches of social media accounts to "determine whether useful information for adjudicating refugee applications could be obtained." It seems that the ability of DHS to investigate social media accounts was limited by technology: At the time the pilot program was launched in 2016, "neither the private sector nor the U.S. Government possessed the capabilities for large-scale social media screening."


    In one portion of the pilot program, applicants were asked to "voluntarily" give their social media user names. USCIS then "assessed identified accounts to determine whether the refugees were linked to derogatory social media information that could impact their eligibility for immigration benefits or admissibility into the United States."

    DHS has also been looking into social media, email, and other computer files of people entering or leaving the United States, including U.S. citizens, and this inquiry is far from voluntary. There have been numerous recent reports of DHS Customs and Border Protection ("CBP") agents demanding passwords for cell phones and computers. The number of people subject to such searches increased significantly at the end of the Obama Administration, and seems to be further increasing under President Trump. Anecdotal evidence suggests that the large majority of people targeted for these searches are Muslim.

    All this means that DHS may be looking at your accounts on Facebook, Twitter, LinkedIn, Instagram, etc. to determine whether you pose a threat and (possibly) to assess your credibility. They might also gain access to your email and other information stored on your computer or your cell phone. This data could then be used to evaluate your eligibility for immigration benefits, including asylum.


    On the one hand, it seems reasonable that DHS would want to look into social media and other on-line material. After all, it is well-known that terrorists rely on the internet to spread their messages, and as DHS notes, "As the threat landscape changes, so does CBP." Also, most immigration benefits are discretionary, meaning that even if you qualify for them, the U.S. government can deny them in the exercise of discretion. Therefore, if DHS "requests" certain information as part of the application process, and the applicant fails to provide it, DHS can deny the benefit as a matter of discretion.


    On the other hand, the inter-connectivity of the on-line world could yield evidence of relationships that do not actually exists. For example, one study estimates that Facebook users (all 1.6 billion of them) are connected to each other by 3.57 degrees of separation. That means there are--on average--only 3.57 people between you and Osama bin Laden (assuming he still maintains his Facebook page). But of course, it is worse than that, since there are many terrorist suspects on Facebook, not just one (Osama bin Laden). So if you are from a terrorist-producing country, it's likely that suspected terrorists are separated from you by less than 3.57 degrees of separation. Presumably, DHS would take these metrics into account when reviewing on-line data, but you can see the problem--your on-line profile may indicate you have a relationship with someone with whom you have no relationship at all.

    So what can you do to protect yourself?

    First, don't be paranoid. It's nothing new for DHS or other government agencies to search your on-line profile. Since everything posted on-line is, at least in a sense, public, you should be discrete about what you post, and you should be aware that anyone--including the U.S. government--could be reading it.


    What's more problematic is when CBP seizes electronic devices at the border and then reviews emails and other confidential information. This is extremely intrusive and an invasion of privacy. There is also an argument that it violates the Fourth Amendment right to be free of unlawful searches, but generally, people coming and gong from the U.S. have less protection than people in the interior (though I imagine that as CBP steps up the practice, we will see lawsuits that further define Fourth Amendment rights at the border). Knowing that you could be subject to such a search at least enables you to prepare yourself. Don't travel with devices if you don't want them searched. Be careful what you store on your devices and in the cloud.


    Also, if you think you have problematic on-line relationships or derogatory on-line information, be prepared to explain yourself and present evidence if the issue comes up.


    On-line information can affect an asylum or immigration case in more subtle ways. For example, if you state in your application that you attended a protest on a particular date, make sure you got the date correct--DHS may be able to find out the date of the protest, and if your account of events does not match the on-line information, it could affect your credibility. The same is true for more personal information. For instance, if your asylum application indicates you attended high school from 1984 to 1987, that should match any available information on the internet. Mostly, this simply requires that you take care to accurately complete your immigration forms, so that there are no inconsistencies with data available on-line.


    Again, it's not really news that DHS is reviewing social media and other on-line information. It does appear that such practices will become more common, but as long as applicants are aware of what is happening, they can prepare for it.

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

    Updated 03-15-2017 at 10:46 AM by JDzubow

    Tags: cbp, dhs, ice Add / Edit Tags
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