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Jason Dzubow on Political Asylum

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  1. Paralympic Athletes Seek Asylum

    The Paralympic Games wrapped up earlier this week in London, and like the Olympic Games, some athletes have decided to seek asylum rather than return home.*
    Two athletes from the Democratic Republic of the Congo, Dedeline Mibamba Kimbata
    and Levy Kitambala Kinzito, have supposedly filed for asylum in the
    United Kingdom.* Ms. Kimbata seems to be the more well-known of the
    two.* She was a teenage basketball player from Kinshasa who lost both
    legs to a land mine when she was 18 years old. *"I thought my life was
    over," she said.* "People told me I had a new life now, but I thought:
    'How can you tell me this when you have legs and I do not?* Even if I
    accept this new life I do not have legs.'"* After two years in the
    hospital, where she often had to sleep in the corridor and borrow a
    wheelchair just to reach the bathroom, she received prosthetic legs from
    the Red Cross.*

    Ms. Kimbata (left) received a racing wheelchair from Anne Wafula Strike, a Kenyan-born British athlete.

    Ms. Kimbata is now a wheelchair racer.* She states that the DRC
    received money for her to pay for a racing wheelchair, but she never
    received the chair.* She arrived in the UK with her orthopedic chair
    (which is designed to be pushed by someone else) and only received a
    racing wheelchair when another athlete generously helped her out.
    In the United Kingdom, she decided to seek asylum.* Ms. Kimbata told the press
    that she saw her neighbors shot dead by government troops on election
    day and that 95% of people in her area voted against President Kabila.*
    While these events probably would not qualify Ms. Kimbata for asylum (at
    least under U.S. law), the fact that she is a high-profile athlete
    speaking out against her government may put her at risk, particularly
    given the repressive nature of the regime in her country.* For these
    reasons, she likely has a good chance for success in her asylum claim.
    It seems that all together, at least six Congolese athletes and
    coaches (from the Olympics and the Paralympics) have requested
    protection in the UK.* As I have written before, such high-profile
    defections are a powerful repudiation of the home government, and
    hopefully they will help bring about some desperately needed changes.
    Finally, having assisted many asylum seekers in the United States, I
    have witnessed how difficult it is to leave everyone and everything
    behind to seek refuge in a foreign land.* It must be even more daunting
    for someone like Ms. Kimbata, who will have to live with her serious
    disability in a new place and (presumably) without family support.* She
    is obviously a very courageous woman, and I hope that she will find
    safety and success in her new country.
    Originally posted on the Asylumist: www.Asylumist.com.
  2. The Party Platforms and Refugees

    The platforms of the various political parties are basically
    statements about what those parties believe and what they intend to do
    if elected.  Since it is now election season (the joy), I thought it
    might be interesting to see what the party platforms have to say about
    refugees, so here we go:
    Republicans
    The Republican Party Platform is the only platform that directly references our country's commitment to refugees.  The Platform states:
    We affirm our country's historic
    tradition of welcoming refugees from troubled lands.  In some cases,
    they are people who stood with us during dangerous times, and they have
    first call on our hospitality.

    "My wife owns a couple of refugees."

    This is a positive statement, and it is encouraging.  As an asylum
    attorney, I particularly like the second sentence, which acknowledges
    that some refugees are people who stood with the United States and now
    face persecution in their homelands.  I represent many people from Iraq,
    Afghanistan, and elsewhere who assisted the U.S., often at great risk
    to themselves.  My clients include law enforcement officers,
    journalists, interpreters, human rights workers, and others.  Given that
    they risked their lives to help us in our mission, we should offer them
    refuge when needed.
    Unfortunately, of late, we have heard many anti-Muslim statements
    from prominent members of the Republican party.  It seems that such
    bigotry is inapposite to the Party Platform, which recognizes people
    like my Muslim clients who "stood with us during dangerous times."  I
    hope that the spirit of the Platform-rather than the hatefulness of some
    Republican officials-will prevail in the Grand Old Party.
    Democrats
    The Democratic Party Platform
    does not specifically mention refugees.  It does discuss immigration,
    and endorses comprehensive immigration reform, the DREAM Act, and the
    new Deferred Action program.  However, it is disappointing that the
    Platform is silent on refugee issues. 

    "If you're a refugee and you live in a tent, you didn't build that."

    Since President Obama has been in office for several years, we can
    safely assume that his policy on refugees and asylees will continue
    forward if he is re-elected.  The Obama Administration has capped the
    number of refugees admitted into the U.S. at 80,000 per year.  However,
    we have never reached the cap.  In 2009, we admitted 74,602 refugees; in
    2010, we admitted 73,293; and in 2011, we admitted 56,384 refugees.  As
    for asylees, we admitted 22,219 in 2009; in 2010, we admitted 21,056;
    and in 2011, we admitted 24,988 (all of this is courtesy of the DHS Yearbook of Immigration Statistics).
    President Obama's policies have been comparable with his
    predecessors, and I think we can expect similar policies if he has a
    second term.
    Libertarian Party
    Since I have an affinity for third parties, I thought I would mention two.  The first is the Libertarian Party.  The party's Platform
    is silent on refugee issues.  The only mention of human rights is in
    the context of property law: "Property rights are entitled to the same
    protection as all other human rights."  The Platforms mentions
    immigration and states:
    Sexual orientation, preference, gender,
    or gender identity should have no impact on the government's treatment
    of individuals, such as in current marriage, child custody, adoption,
    immigration or military service laws.
    Given the general Libertarian philosophy ("We would end the current
    U.S. government policy of foreign intervention, including military and
    economic aid"), I'd imagine that they would leave refugee assistance up
    to private individuals and agencies, such as churches or humanitarian
    NGOs.  Like much of Libertarianism, this is nice in theory, but has
    problems in practice.  For various reasons, refugees impact national
    security and relationships between nations.  For this reason,
    governments cannot always leave refugee policy in the hands of private
    organizations.
    Green Party
    Finally, the Green Party Platform
    mentions refugees several times, but always in the context of the
    Israeli-Palestinian conflict: "We reaffirm the right and feasibility of
    Palestinian refugees to return to their homes in Israel."
    While I support the rights of Palestinian refugees, this is pretty
    ridiculous.  Why single out Palestinians among all the world's refugees
    while at the same time completely ignoring refugees from other
    countries, including many who are living (and dying) under worse
    conditions than the Palestinians?  It seems to me that this is not a
    serious party platform, which is unfortunate, as we could certainly use a
    strong, articulate liberal voice on this and other issues.
    OK, so there you have it.  To judge solely by party platform, I'd say
    that the Republicans win on the refugee issue, though I suppose the win
    is mostly by default.
    Originally posted on the Asylumist: www.Asylumist.com.
  3. BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

    Earlier this month, the Ninth Circuit held that DHS does not have the
    authority to terminate an alien's asylum status (I wrote about this here). 
    The Court reasoned that although the regulations allow for DHS to
    terminate asylum, the statute (upon which the regulations are based)
    grants authority to terminate exclusively to the Attorney General (and
    through him to the Immigration Judges).  Now the BIA has weighed in, and
    they have reached the opposite conclusion-the Board held that DHS has
    the authority to terminate asylum, and that the IJ has no authority to
    review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

    A BIA Board Member addresses the Ninth Circuit.

    First, it strikes me as a strange coincidence that the Ninth Circuit
    ruled on asylum termination a few weeks ago and now the BIA is
    publishing a decision on the same issue.  The BIA publishes only about
    40 decisions per year, and so it seems odd that they would publish a
    decision on this same issue at the same time as the Ninth Circuit.  Call
    me paranoid, but I feel like we should contact Oliver Stone about this
    one (though perhaps the more prosaic explanation is that the BIA knew
    about the Ninth Circuit case and was waiting for a decision there before
    it issued its own decision on the matter).
    In essence, the Board held that under the applicable regulations,
    both the IJ and DHS have authority to terminate asylum in certain
    circumstances.  However, these are two independent tracks.  According to
    the BIA, the regulations do not give the IJ authority to review an
    asylum termination by DHS.
    The Board framed the issue as follows: "[W]hether an Immigration
    Judge has jurisdiction under 8 C.F.R. 1208.24(f) to review the DHS's
    termination of an alien's asylum status pursuant to 8 C.F.R.
    208.24(a)."  The Board drew a bright-line distinction between the
    regulations in section 1208 (which the Board held are for EOIR) and the
    regulations in section 208 (for DHS).  The BIA concludes that
    [T]he regulations for termination of
    asylum status provide for either (1) USCIS adjudication, with the
    possibility of the alien asserting a subsequent claim for asylum before
    the Immigration Judge in removal proceedings or (2) Immigration Judge
    jurisdiction to conduct an asylum termination hearing or to reopen the
    proceedings for the DHS to pursue termination of asylum status.  The
    regulations do not confer jurisdiction on the Immigration Judge to
    review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).
    What this means is that although the IJ does not have the authority
    to review termination of asylum by DHS, the alien may re-apply for
    asylum anew before the Judge.  The IJ does not have to accept the
    determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien's eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.
    The dissenting Board Member points out that section 208 of the
    regulations discusses the IJ's authority to terminate asylum, and so "it
    is logical to infer that he also has the authority to restore asylum
    status terminated by the DHS."  Although this would make sense from a
    practical point of view-it would be more efficient to allow the IJ to
    review a DHS termination rather than force the alien to re-apply for
    asylum in Immigration Court-I am not so sure that it is "logical to
    infer" that the IJ has the power to review a DHS termination,
    particularly given that in other instances, the regulations specifically
    grant such authority to the IJ.
    Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc
    before the BIA).  Although asylum termination is fairly uncommon (as
    far as I can tell), the issues of who has the authority to terminate a
    grant of asylum and how that decision is reviewed are important.  I
    expect we will see much litigation about these issues over the next few
    years.
    Originally posted on the Asylumist: www.Asylumist.com.
  4. Asylum Seekers as Law Breakers

    I recently litigated an Eritrean asylum case where my client traveled
    through various countries to reach the United States.  He passed
    through each country illegally--sometimes with a false South African
    passport; other times, he just crossed the borders without inspection. 
    From the beginning to the end of his journey, smugglers assisted him
    (for a price--the average cost for such a trip is around $15,000.00).  My
    client did not ask for asylum in any of the countries he passed
    through, even though he remained in some countries for several months
    and even though such countries (theoretically at least) offer asylum to
    refugees.

    Asylum seekers or asylum sneakers?

    From my client's perspective, he was fleeing an extremely repressive
    regime, and he dreamed of starting a new life in the U.S., where he
    would be safe and enjoy freedom.  (It's said that in art, imitation is
    the highest form of flattery; I'd say that in international affairs,
    immigration is the highest form of flattery).
    The Immigration Judge was not pleased with my client's illegal
    journey or with his failure to seek asylum in any country along the
    route, and he had some strong words for the client at the end of the
    hearing.  While I don't agree with all that the Judge had to say, I
    think his words are important, and I wanted to share them here:
    First, the Judge told my client that asylum exists to help people who
    are fleeing persecution.  It is not an alternative for those without a
    better immigration option.  When a person flees her country, she should
    seek asylum in the first country of safety; she should not shop around
    for the country where she would prefer to live.  To use asylum as an
    alternative to immigration is an abuse of the system, and takes
    advantage of our country's generosity.  If enough people abuse the
    system, we might change the law to make asylum more restrictive.
    Second, smuggling is a criminal activity and when an asylum seeker
    pays a smuggler, he is complicit in that activity; he is not an innocent
    bystander.  Each smuggled person pays thousands of dollars to
    smugglers.  Collectively, this is big--and illegal--business.  It violates
    the sovereignty of nations and possibly supports a network that might
    be used for more nefarious purposes, like facilitating the transport of
    terrorists, criminals, and drugs.
    Third, each asylum seeker who enters the U.S. in the manner of my
    client makes it more difficult for legitimate asylum seekers who follow
    him.  As more people enter the U.S. this way, a reaction becomes more
    likely.  Maybe the law will be changed to deny asylum claims where the
    applicant passed through other countries without seeking asylum.  Maybe
    other restrictions will be put into place.  In any case, if there are
    new restrictions, legitimate refugees will suffer.
    Finally, the Judge warned my client against encouraging his fellow
    countrymen by his example.  He noted that such encouragement might
    violate criminal and immigration laws, and this could cause problems for
    my client.  It could also be dangerous for any future asylum seekers,
    as people have been harmed and killed on the journey to the U.S.
    I think the Judge said all this to try, in a small way, to stem the
    flow of asylum seekers across the Southern border.  I am not sure
    whether his words will have any effect, but I believe they are worth
    hearing.  And while his points are legitimate and important, there are
    convincing (to me at least) counterpoints to each.  But I will leave
    those for another time. 
    Under the current asylum law, illegal travel through various
    countries is a discretionary factor, but without more, it is generally
    not a basis for denying an asylum claim.  Despite his concerns, the IJ
    granted my client's application (and DHS did not appeal).  How many more
    people will follow him and receive asylum in the United States remains
    to be seen.
    Originally posted on the Asylumist: www.Asylumist.com.
  5. Bill Linking Palestinian and Jewish Refugees Sets a Dangerous Precedent

    A new bill
    in the House of Representatives seeks to link resolution of the
    Palestinian refugee situation with the plight of Jews (and Christians)
    expelled from Arab lands.  Both Palestinians and Jews suffered as a
    result of expulsions from their home countries during and after the
    creation of the State of Israel.  Palestinians left and were forced to
    leave Israel (and the West Bank and Gaza).  And most Jews living in
    Muslim countries left or were forced to leave their homes as well.  The
    bill is designed to ensure that these Jews are not forgotten by linking
    resolution of their issues with resolution of the on-going Palestinian
    refugee crisis.  The bill's supporters state:
    Any comprehensive Middle East peace
    agreement can only be credible and enduring if it resolves all issues
    related to the rights of all refugees in the Arab world and Iran,
    including Jews, Christians and others.

    In the chess game of life, Palestinians are everyone's favorite pawn.

    The legislation has bipartisan support in the House and calls on the
    Obama administration to pair any reference to Palestinian refugees with a
    similar reference to Jewish and other refugees.
    While I agree that it is important to remember and address the
    grievances of Jews and others expelled from Arab lands (I recently wrote
    about this issue), linking the resolution of that problem with the
    issue of Palestinian refugees sets a dangerous precedent and undermines
    international law related to the protection of refugees.
    The United Nations Convention Relating to the Status of Refugees (1951) defines a refugee as:
    A person who owing to a well-founded fear
    of being persecuted for reasons of race, religion, nationality,
    membership of a particular social group or political opinion, is outside
    the country of his nationality and is unable or, owing to such fear, is
    unwilling to avail himself of the protection of that country; or who,
    not having a nationality and being outside the country of his former
    habitual residence as a result of such events, is unable or, owing to
    such fear, is unwilling to return to it.
    The majority of Palestinians who fled Israel and now live in various
    Arab countries are "refugees" according to this definition.  They do
    "not [have] a nationality and [are] outside the country of [their]
    former habitual residence as a result of such events."  Of course one
    reason they remain refugees is because the different Arab governments
    have refused to grant them citizenship.  The other reason is that Israel
    does not permit them to return home.
    As opposed to the Palestinians, the large majority of Jews who fled
    Arab countries are not "refugees" as that term is defined in
    international law.  Most (if not all) such Jews have been granted
    citizenship in their new country of residence (be it Israel, the U.S.,
    France or some other country).  Also, for the most part, Jews expelled
    from Arab lands do not wish to return to their home countries.  This
    does not mean that these Jews do not have legitimate claims for
    compensation for lost land, property, and the lives of loved ones.  They
    most certainly do.  But this is not the same as being a refugee.  Thus,
    the new bill is factually incorrect when it refers to such Jews as
    refugees.
    Far worse than the semantics of "who is a refugee" is the problem of politicizing a humanitarian benefit.  Anyone
    who meets the definition of "refugee" is a refugee.  Period.  Such
    people are entitled to protection in the host country because they are
    refugees.  There are no other requirements (though obviously there are
    exceptions for persecutors, criminals, and terrorists). 
    By linking the fate of one refugee population to another, the bill
    adds an external contingency to international refugee law.  We no longer
    protect refugees because they are refugees.  Now, we only protect them
    if some other conditions are met.  Does this mean that we should deport
    legitimate asylum seekers from Mexico until Mexico compensates us for Pancho Villa's
    1916 invasion?  Can Great Britain deny asylum to all Egyptians unless
    Egypt returns the Suez Canal?  Is Japan permitted to reject all Chinese
    asylum seekers until China returns "Manchukuo?"
    This is not how international refugee law works.  We do not blame the
    victims and hold them hostage until some outside contingency-in this
    case a contingency not of their own making-is satisfied.  In other
    words, it is not the fault of Palestinian refugees that Jews were
    expelled from Arab lands.  So why should the Palestinians' fate be tied
    to compensation for the Jewish "refugees" (something over which they
    have no control)?

    I think the real motivation for this bill is not to help Jews from
    Arab lands.  Rather, it is to justify Israel's refusal to allow
    Palestinians to return to their homeland by demonstrating that there was
    suffering and loss "on both sides."  This seems to me a cynical and
    sinister use of international refugee law.  I hope the bill will be
    soundly rejected.
    Originally posted on the Asylumist: www.Asylumist.com.
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