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Jason Dzubow on Political Asylum


  1. Decision to Deny Asylum to "Son of Hamas" Is "Idiotic"

    We've reported before about Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef.  The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.  He has been living in California for the last few years and his application for asylum was recently rejected because he supposedly provided "material support" to Hamas, a designated terrorist organization.  Mr. Yousef claims any "support" he provided was done in the course of learning about the organization in order to prevent terrorist attacks.  His case is currently before an Immigration Judge, who will review his claim for asylum de novo.
    Now, in an unprecedented move, a former Shin Bet (Israeli security) agent has come forward to verify Mr. Yousef's claim.  The Jewish Journal reports that Gonen Ben-Yitzhak confirmed that Mr. Yousef provided information that "prevent[ed] attacks that saved countless Israeli and Arab lives."  Mr. Ben-Yitzak will testify at Mr. Yousef's upcoming asylum hearing. 
    It is illegal for a former Shin Bet agent to publicly reveal his name, and Mr. Ben-Yitzak faces potential legal trouble in Israel when he returns:
    "It's my country, my land. I love the Shin Bet, and I love Israel. But I have to help my friend," he said of the San Diego hearing. "This is my duty -- to stand with him and say the truth. It's something I need to do. He always stood beside me. In the harshest days of the second intifadah, I called and asked about his opinion because his understanding about Hamas is unbelievable."
    The two men received awards at a dinner sponsored by the Endowment for Middle East Truth, a pro-Israel organization.  Other muckety-mucks at the dinner included Senator Sam Brownback, Congressman Brad Sherman, and Congressman Doug Lamborn.  The event was held at the U.S. Senate, leading Mr. Yousef to joke, "How did security let a terrorist like me into this building?" 
    Mr. Yousef's asylum hearing is scheduled for next week.  There seems little doubt that he has a well-founded fear of persecution in the Palestinian territory-not just for his efforts against Hamas, but also for his apostasy (he has publicly referred to Islam as a religion of hate).  The issue is whether his "support" for Hamas will disqualify him for asylum.  Mr. Ben-Yitzak's testimony should go a long way towards solving the "material support" problem.  And even if the Immigration Judge determines that Mr. Yousef supported Hamas, he should still qualify for relief under the United Nations Convention Against Torture, which would allow him to remain in the United States.
    When asked about the U.S. government's effort to deport Mr. Yousef, Mr. Ben-Yitzak, the former Shin Bet agent, said, "It's hard for me to understand -- very hard for me to understand."  Former CIA director James Woolsey was less diplomatic.  "My view is that the decision to deny him political refugee status was incredibly idiotic," Woolsey said.  "It's hard to think of a worse immigration decision in history.  It's fundamentally nuts."
  2. Help for the Stateless?

    According to a recent report, about 4,000 people known to be stateless are living in the United States.  Probably, many more are living here under the radar.  Refugees International reports that there are over 12 million stateless people world-wide: "Statelessness results from factors such as political change, border demarcation or secession, forced expulsion, discrimination, nationality based solely on descent, and laws regulating marriage and birth registration."  Stateless people have "limited access to health care and education; prospects for employment are poor, leading to generations of poverty; and their right to freedom of movement is routinely violated. Stateless people face social exclusion, harassment, and violence."
    Current U.S. law does not provide stateless people with any legal status.  Unable to return to their former countries, stateless individuals living in the United States risk being detained and must apply annually for permission to work.  They also face travel restrictions and are often required to report regularly to immigration officials-a requirement that can last indefinitely. 
    When the Dan Glickman of Refugees International testified before Congress last month, he gave the example of Tatianna, a stateless woman from the former Soviet Union:
    Tatianna is a 61 year-old mother and grandmother, a piano teacher who has lived in the United States for over 20 years.  She was born in Russia during Soviet times and eventually moved to what is now Ukraine.  In 1992, after being persecuted by the authorities for her political beliefs, she came to the United States with the younger of two sons and applied for asylum.  Their case was denied in 1997.  Following its independence Ukraine passed a law requiring people to have resided in Ukraine for two years following independence to be eligible for citizenship. Tatianna had fled before having lived in Ukraine for two years and she is therefore not recognized as a Ukrainian citizen. Russia doesn't recognize Tatianna as a citizen either because Russian nationality laws require individuals to have lived in Russia after the collapse of the Soviet Union, which Tatianna did not.
    This means that the United States had nowhere to return Tatianna after denying her asylum claim. Tatiana and her son are stateless.  No country recognizes Tatianna as a citizen. She has no nationality, and there is no legal pathway for her to acquire citizenship in the U.S.  She lives in limbo and is unable to fully participate in society.  She has no travel documents and no means to acquire them.  She has been separated from some of her closest family members for decades.  And although she and her son have paid taxes in the United States since they arrived 20 years ago, she is not eligible for social security.  Tatianna must check in with the Department of Homeland Security (DHS) every month by telephone and every six months in person.  She never knows what might happen when she goes to DHS and lives in fear that she could be arbitrarily jailed.
    The proposed Refugee Protection Act addresses the problem of statelessness and provides a path for stateless residents of the U.S. to obtain their permanent residency and ultimately their citizenship.  Hopefully, support for the RPA will gain momentum and provide help to stateless people in the United States.
  3. Congressional Hearing on EOIR

    On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR).  The hearing was called by Chairwoman Zoe Lofgren (D-CA) as part of a long-running effort to understand why the Immigration Courts and Board of Immigration Appeals (BIA) are as backlogged, inefficient, and overwhelmed as they are. 

      Where the magic happens.
    While ranking member Steve King (R-IA) continued his crusade to find out what "really happened" in the asylum case of President Obama's aunt, the rest of the Subcommittee and witnesses got straight to the crux of EOIR's problems:  lack of resources, insufficient staffing and training of immigration judges, and a complete disconnect between EOIR's capacity to adjudicate cases and ICE's skyrocketing enforcement efforts.   
    First up was Juan Osuna, former Chairman of the BIA and current Associate Deputy Attorney General at the Department of Justice.  As the DOJ representative before the Subcommittee, he was obliged to highlight the positive changes made during the Obama Administration's stewardship of EOIR.  These efforts include the proposed hiring of 47 new immigration judges by the end of 2010, making the complaint process against IJs more transparent, improving the training regime for IJs, and having "meetings" with ICE to express EOIR and DOJ's discontent with the massive number of immigration court cases being initiated by ICE right now. 
    Mr. Osuna is right to be concerned about the astonishing increase in cases before the immigration courts.  He testified that there are a record 275,000 pending matters before EOIR.  Coupled with the decline of IJs actually hearing cases, this has resulted in an average wait-time of 439 days for a case to go to trial.  That's right--the average person who has a case in immigration court has to wait over a year for a hearing on the merits of his or her claim.  Meanwhile, armed with a gargantuan budget and an enforcement mandate, ICE keeps arresting, detaining, and issuing "notices to appear" to as many noncitizens as it possibly can.  EOIR has no control over this and clearly isn't keeping up.   
    As Representative Pedro Pierluisi (D-PR) pointed out, the overwhelming caseload and lack of support is creating a great deal of strain on immigration judges themselves.  Witness and Immigration Judge Dana Marks (also President of the National Association of Immigration Judges), noted that the average Federal district court judge handles 400 cases per year and has three law clerks to assist him.  The average immigration judge completes 1500 cases per year and gets ¼ of one law clerk.  Further, TRAC Immigration reports have indicated that an IJ gets an average of only 70 minutes to hear an immigration case.  Practically speaking, that means that in just over an hour, an IJ has to decide whether the law requires him to split up a family, keep someone detained, or send someone back to his home country to face persecution.  And the DOJ wonders why it has a hard time finding qualified, experienced immigration judges? 
    The laundry list of problems raised at the hearing could go on for pages, so I'll stop here.  I think it is clear enough that as a starting point, EOIR needs more resources if ICE is going to continue to funnel record numbers of people into deportation proceedings.  For other suggestions on how to reform the immigration court system, I recommend reading a recent ABA report called "Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases." You can read the full ABA report here.
  4. UN World Refugee Day

    As millions of people around the globe were marking World Refugee Day on Sunday, UNHCR chief António Guterres called on the international community to do more for the forcibly displaced.

    High Commissioner made his call during a press conference in Syria - broadcast on a live video link - where he met earlier in the day with President Bashar Assad and other top leaders. Syria hosts about 1 million mainly Iraqi refugees, according to the government.
    "I appeal to the international community to do more to host refugees," Guterres said just two days after the UN refugee agency announced that 100,000 Iraqi refugees have been referred for resettlement from the Middle East to third countries since 2007, a major milestone for one of the world's largest refugee populations.
    UN Secretary-General Ban Ki-moon, meanwhile, also made an appeal on behalf of refugees in a special World Refugee Day message. "Refugees have been deprived of their homes, but they must not be deprived of their futures," he said, while calling for working with host governments to deliver services and for intensified efforts to resolve conflicts so that refugees can return home.
    To read more, click here.
  5. The ICE Plan Cometh

    Immigration and Customs Enforcement (ICE) has announced a new five-year Strategic Plan.  The Plan's top three priorities are: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.  There is not a whole lot in the Plan that relates to asylum, perhaps because ICE does not view asylum seekers as a major concern.  However, a few sections of the Plan may impact asylum seekers:
    One objective of the plan is to dismantle organized alien smuggling.  In my practice, I've seen a number of asylum seekers who have followed a smuggling route from Africa to the U.S. (via South and Central America).  My guess is, this operation is too small to garner much attention from ICE, though there certainly are examples of individual smugglers brought to justice.  We'll see if ICE's plan impacts these small-scale operations, and whether it does anything to stem the modest flow of asylum seekers entering at our Southern border. 
    The report also states that "newly arriving aliens who do not successfully evade detection are apprehended, detained, and removed as appropriate by law."  As long as these arriving aliens continue to have opportunities to request asylum and credible fear interviews at the border, this provision should not greatly impact asylum seekers.  The danger is that the practice of cajoling, threatening, and tricking arriving aliens into waiving their right to seek protection will become more common in a culture of stepped up enforcement.  Such behavior is not supposed to happen now, but I have heard many reports that it does.  Hopefully, ICE's get-tough approach will not compromise our human rights obligations.
    The plan continues:
    To best protect the system, ICE will work closely with USCIS and the Department of State to identify, address, and prevent the many large-scale, organized frauds perpetrated on the government each year. In addition, ICE will pursue criminal cases against individuals who lie on applications, engage in fraud, and pose a threat to national security or public safety. As ICE attorneys have great insight into possible fraud, they will actively refer cases to ICE agents and, as possible, serve as Special Assistant United States Attorneys to assist with prosecutions. ICE will expand the number of document and benefit fraud task forces to every Special Agent in Charge office.  Following criminal cases, ICE will work closely with USCIS to address lingering administrative fraud.  Also to protect the integrity of the immigration system, ICE will remove aliens who receive final orders, with a focus on convicted criminals and those who have most recently received orders.
    I've written before about methods to combat asylum fraud.  While ICE can target cases of individual fraud, I've always felt that the best policy is to pursue attorneys, notarios, and others who create fraudulent cases.  These people are the most culpable, and removing them from the scene will have a greater impact than removing an individual alien.  Plus, from my conversations with ICE attorneys, it should not be too hard to identify the fraudsters.  The danger, of course, is that legitimate asylum seekers will be intimidated by over-zealous attorneys looking for fraud.  In an atmosphere of increased enforcement, it will be more important than ever for ICE personnel to be sensitive to the situation of legitimate asylum seekers.
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