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Jason Dzubow on Political Asylum


  1. 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

    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:
  2. 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
    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:
  3. Julian Assange: Legitimate Asylee or Propaganda Pawn?

    Ecuador has granted asylum to Wikileaks founder Julian Assange.* Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution-including the prospect of extradition to the United States, where he would not get a fair trial.* "It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty," the Foreign Minister told journalists in Quito, the Ecuadoran capital.* "Ecuador is convinced that his procedural rights have been violated."* Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.* Given the UK's lack of cooperation (including a thinly veiled-and quite shocking-threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

    Could this be Julian Assange escaping from the Embassy?

    I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his "accomplishments."* While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.* For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.* Such people now face increased danger in their home country.* Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.* Exposure damaged our international relationships and did nothing to further the cause of freedom.* Our diplomats and our military officials need to communicate frankly with each other.* This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).* I suppose overall, I believe that Mr. Assange did more harm than good.* But I also suppose that my opinion in this regard is not all that important.* What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.
    It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.* First of all, Mr. Assange is a citizen of Australia.* He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.* If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.* Normally, a person receives asylum from his home country; not from a third country.* As a citizen of Australia, he should receive protection from his own government.* There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).* Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.* Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.**
    Second, Mr. Assange is wanted for two crimes-sexual assaults-in Sweden.* He claims that the charges have been contrived to punish him for exposing state secrets.* That may well be true, but there is no indication that Sweden would deny him a fair and public trial.* Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.* All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.
    Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.* So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).* That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?* *
    Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution-as opposed to prosecution-in the United States.* As far as I know, exposing government secrets is illegal in every country.* People who violate this law may be punished according to the law.* Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to "persecution."* In Mr. Assange's case, there is no reason to believe that he would face the death penalty.* Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.* Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.* It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.* As he does not face "persecution" in the U.S., he would not qualify for asylum from the United States.
    For all these reasons, Mr. Assange would not qualify for asylum under international law.* Ecuador has its own reasons for granting Mr. Assange asylum.* Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.* Maybe they just want to annoy the the U.S. and the West.* Maybe they see it as a way to score propaganda points.* Who knows?* What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.
    Originally posted on the Asylumist:
  4. Letters from Witnesses

    One key piece of evidence in most asylum cases is the witness letter.* Under the REAL ID Act, asylum applicants are required to obtain evidence where such evidence is reasonably available.* Often times, the only evidence that is reasonably available is a letter from a witness.* So what makes a good witness letter?
    First, the witness needs to identify herself and state how she knows the applicant.* While this may seem like a no-brainer, you'd be surprised how many witnesses don't include this information.* I prefer that the witness states her name, address, phone number, and email address.* Then she should describe how she knows the applicant (for example, "Mr. X and I met in the church choir in 2003.").

    There's no excuse for failing to get witness letters.

    Next, the witness should list what they know about the applicant's claim-here, the attorney should emphasize to the witness (or the applicant who will relay it to the witness) that she should focus on the legally relevant facts.* Extraneous material is a distraction.* I can't tell you how many witness letters I've seen where the witness rambles on about how he hopes everything is fine in America and that he is praying for the applicant.* Who cares?* Instead, the witness should mention what he or she knows about the case.* One way to start this section of the letter is like this: "Mr. X asked me to write what I know about his problems in Cameroon.* Here is what I know..."
    Also, I prefer that the witness write about what she has seen with her own eyes.* Did the witness see the applicant engage in political activity?* Did she see the applicant get arrested?* Did she see the applicant's injuries after he was released from detention?* The witness should write what she saw (and the date that she saw it).* Secondhand information is admissible, but most fact finders will give such information little weight.
    I also hate when witnesses give me general statements, like "Please don't return to Ethiopia, it is dangerous here."* Not helpful.* We want specific information about why it is dangerous, not general, conclusory statements that really tell us nothing.* A better letter might say, "Please don't return to Ethiopia, as the police came to the house on March 4, 2012 and they asked about you."
    My clients often ask about how long the letter should be.* My hope is that the letters will be under one page, though sometimes more space is necessary if a witness has a lot of information.* I prefer that the witness gets to the point and doesn't waste time with irrelevant information, so hopefully that leads to shorter letters.* Also, the longer the letter, the greater the possibility for inconsistencies.
    Finally, I prefer that the witness include a copy of her photo ID (passport, work ID, school ID, etc.).* Also, if the witness and the applicant know each other from school, for example, it would be nice to have some evidence that the witness attended the school (like a transcript).* Of course, this assumes that the applicant has also included evidence that he attended that school.
    One final note about witness letters.* Unless they are consistent with the applicant's affidavit, they will harm the case.* I would rather submit no letter than an inconsistent letter.* For this reason, it is important to compare the witness letters with the applicant's affidavit (and his other evidence) to ensure consistency.* While people often have different recollections of events-even dramatic events-the fact finder in an asylum case will likely draw a negative inference from inconsistent statements, and this could cause the application to be denied as not credible.
    Witness letters are often crucial to a successful asylum application.* A well-crafted letter will help your client's case and could make the difference between a grant and a denial.
    Originally posted on the Asylumist:
  5. Sudanese Lost Boy Will Run for Gold with Team USA

    A dozen years ago it seemed impossible that Lopez Lomong would be running as a member of the United States Olympic team.* In 2000, he was 15 years old and living in Kenya.* Most of his life had been spent in refugee camps.

    Lopez Lomong: Living the Dream.

    Mr. Lomong grew up in rural Sudan, without running water or electricity.* When he was still a boy, rebel soldiers kidnapped him and other children, intending to turn them into soldiers.* The rebels drove the children to their camp in a truck-it was the first time Mr. Lomong had ridden in a vehicle.* He escaped from the camp with other boys and ultimately arrived in Kenya, where border guards sent them to a refugee camp.
    Life in the camp was difficult-there was not enough food and nothing to do.* Mr. Lomong began running as a form of escape: "When I ran, I was in control of my life," he writes. "I ran for me."* He got into the habit of running the perimeter of the camp-18 miles-in bare feet.
    In 2000, he walked five miles with some friends to watch the Olympics on a small black and white television.* Inspired by American runner Michael Johnson, his dream was born: To run in the Olympics for the United States of America.
    In 2001, the U.S. brought 3,800 "lost boys" to the United States for resettlement.* Among them was Lopez Lomong.* In the U.S., he continued running-it was something familiar to him in his new country.
    In 2007, Mr. Lomong became a United States citizen.* "Now I'm not just one of the 'Lost Boys,'" he told reporters. "I'm an American."* He went to Beijing with the U.S. Olympic team in 2008, but he did not qualify for the final round due to an injury.
    Since he has been in the U.S., Mr. Lomong wrote a book about his experience, Running for My Life, and established a foundation to help people in his native South Sudan.
    Now, he is again competing with Team USA.* (As a side note, more than 40 athletes on our national team are foreign-born.)
    This time around, Mr. Lomong has a chance for gold.* He has qualified for the finals of the men's 5,000 meter race, which is scheduled for tomorrow.* Hopefully, we'll see him on the podium.* It would be another remarkable achievement in an extraordinary life.
    Originally posted on the Asylumist:
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