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Jason Dzubow on Political Asylum


  1. Cuban Exiles in Spain Coming to the U.S.

    In August, we reported that Spain and the Catholic Church had brokered a deal with the Cuban government to secure the release of dozens of Cuban political prisoners.  The Cubans were to be resettled in Spain.  The only problem: They wanted to come to the U.S., not Spain.  Now, it seems they will get their wish.
    The AP reports that the Cuban dissidents will be coming to the United States where they will receive asylum:
    The State Department is working to bring to the USA most of the 39 Cuban political prisoners exiled to Spain this summer... More than 100 family members would join them. [The] first case has been processed and nearly all are likely to accept the offer. [The] plan gets around a Catch-22 whereby Cubans who left the island were no longer considered in harm's way, and thus not eligible for traditional asylum requests in the U.S.
    Apparently, the Cubans preferred the United States because they had family and community ties here.  While I understand the desire to resettle in a country where you have connections, this is a deal that would likely not be available to asylum seekers from other countries.  Normally, once a person has asylum in one country, he is not eligible to receive asylum in the U.S.  This case reminds us that politics (here, our dislike of the Cuban government) can play a role in the asylum system. 
    I have a case similar to this, where the United Nations resettled my client as a refugee in a country where the client had no community ties or friends, no knowledge of the language or culture, and no prospects for a job.  The client came to the U.S. and is now seeking asylum here.  We'll see if the Immigration Court is as generous to my client as the State Department has been to these Cuban exiles.
  2. The Eleventh Circuit Rules on Impermissible Gay Stereotypes

    Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that an Immigration Judge improperly relied on gay stereotypes to reach an adverse credibility determination. See Todorovic v. Attorney General, Case No. 09-11652 (11th Cir. Sept. 27, 2010). 
    Mladen Todorovic is a gay man from Serbian who came to the United States in 2000.  He applied for asylum in 2003, claiming to have endured several acts of persecution in Serbia on account of his sexual orientation.  Some of the persecution was perpetrated by government officials.  Mr. Todorovic was also persecuted by private individuals, but the government would not protect him.  His asylum claim was filed late, and his case was referred to the Immigration Court.
    The Eleventh Circuit rules against offensive gay stereotypes. Sorry Bruno.
    In his decision, the IJ stated, "[t]he Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay."  The IJ continued, "it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual."  In reaching his conclusion, the IJ again noted that Mr. Todorovic "is not overtly homosexual," and, therefore, that there was no reason to believe he would be "immediately recognized" as gay.
    The Eleventh Circuit first noted that "One clearly impermissible form of conjecture and speculation, sometimes disguised as a 'demeanor' determination, is the use of stereotypes as a substitute for evidence."  A number of other circuits have "rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear."
    The Court held:
    As we see it, this so-called "demeanor" determination rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to "other trait[s]" that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look... The IJ's comments elevated these ungrounded assumptions to demeanor evidence, and the IJ drew adverse inferences about the petitioner's credibility and legal conclusions from them... These stereotypes most assuredly are not substantial evidence. They "would not be tolerated in other contexts, such as race or religion." ... We see no reason to tolerate them here.
    The Court vacated the agency's decision and remand the matter for a new hearing, "free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act."
  3. Are Terrorists Taking Advantage of the Asylum System?

    In a recent broadcast on San Diego Public Radio, Amita Sharma reports on Somali asylum seekers who "are taking a suspicious route" to the United States.  This, at a time when "the Al-Qaeda-linked Somali Islamist group al-Shabab has threatened to attack the United States." 
    The asylum seekers leave Somalia for Kenya, where they obtain false passports.  From there, they travel to Cuba and then Central America, where they make their way to Mexico.  In Mexico, they surrender to the authorities and receive an expulsion document, which allows them to travel through Mexico.  The Somalis then enter the U.S. illegally and file for asylum.
    According to the KPBS report, the Somalis have no identification and use the Mexican expulsion document--which is issued by the Mexican government based on the alien's representations--as their ID when they apply for asylum.  The fear, of course, is that these Somalis are terrorists coming here to attack our country.  Federal agents say that the criminal background check performed on all asylum seekers is inadequate: "if they've never been to America, there won't be any criminal record of them."
    I have represented many Africans who have traveled to the U.S. in a similar fashion.  The route often takes them through different African countries, then to South America, Central America, Mexico, and the United States.  They use one or more false passports and meet several different smugglers along the way.  The trip is circuitous and strange, and it is not clear why people pass through so many different countries (my guess is that the smugglers can get more money if they make the journey longer).
    Many of my clients have been instructed to surrender to the Mexican authorities in order to obtain the "expulsion document," which they use to prove their date of entry into the United States (aliens are only eligible for asylum if they show that they filed their application within one year of arrival; the Mexican document demonstrates that they were in Mexico on the date that the document was issued).  In my experience, the Mexican document does not--as the article states--prove the alien's identity.  To establish identity, we submit other documents, such as school and work records, a driver's license or a birth certificate.
    Nevertheless, people are crossing our Southern border and applying for asylum, and we do not know much about them.  This certainly does present a security threat, but it must be viewed in context--Many more people cross the border, never claim asylum, and live here illegally.  Given that asylum seekers undergo a background check (albeit imperfect) and government interviews (also imperfect), it seems that any terrorist would be better off entering the U.S. and not seeking asylum.  Why initiiate contact with government authorities if you plan to engage in criminal activity? 
    I can imagine scenerios where a terrorist would come here and falsely claim asylum.  However, given the level of government scrutiny involved, asylum is probably one of the least effective means for a terrorist to infiltrate our country. 
  4. Riding for Refugees

    Next month, thousands of bikers in Canada and the U.S. will be riding to raise money for refugees.  The event, called Ride for Refuge, takes place in more than a dozen locations in the two countries (and at least one location in Australia), and will raise money to assist refugees and others in need of refuge both locally and overseas.  The proceeds will be distributed to more than 200 churches and charities. 
    Biking for refugees - Please, if you are not divine, wear a helmet.
    The Ride was begun in 2004 by members of International Teams Canada, a Christian missionary group, and has thus far raised over $1.5 million.  This year, they hope to have 7,000 riders and raise an additional $1.5 million.
    The Ride for Refuge is not the only Christian organization riding to help refugees.  The South West Times reports that on October 3rd, parishioners from the First Christian Church (Disciples of Christ) in Liberal, Kansas will be traveling 900+ miles to Texas to deliver goods and money to refugees there (though it does not appear they will covering the 900 miles by bike!).  The fund raiser was begun in 1979 by Feliberto Pereira, a Cuban refugee who wanted to help others in his predicament.  According to the South West Times, this will be the last year for the refugee ride, which ends at the Southwest Good Samaritan Ministries, a refugee center located near the Mexican border.
    The fund raising by these groups (and other religious charities) recalls Matthew 25:  Jesus said, "For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me."  Then the righteous [people asked] him, "Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?"  Jesus replied, "I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me." 
    In an age of increasing anger and xenophobia, it's nice to see people who take the gospel seriously and who walk the walk.  And pedal the bike.
  5. Asylum for Nazis?

    The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway.  Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country's law on gun ownership and having possible links to organized crime.  Mr. Datsik's asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.
    In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years.  In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing "race-hate" by the Leeds Crown Court in England.  After receiving bail, the two men fled the UK for Los Angeles.  On arrival at LAX, immigration officials took the two men--now dubbed the "heretical two"-- into custody.  The men filed for political asylum in the United States. 

    The Heretical Two
    The heretical two believe that their government is unjustly curtailing their right to freedom of speech.  Indeed, many European governments--in particular Germany--have made neo-Nazi activities and Holocaust denial illegal.
    Claims for asylum by European neo-Nazis raise some interesting questions.  For one, can a person receive asylum in the United States for hate speech that is illegal in his home country?  Such speech would be legal in the United States, but can be punished by jail time in Europe.  Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted "on account of" political opinion.  Whether or not the government action against the individual rises to the level of "persecution" might be a more difficult case to make.  But recently, an Immigration Judge granted asylum to some German home schoolers who faced "persecution" because they refused to send their children to public school (the DHS appeal of this decision is currently pending).  If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well. 
    Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum.  Our asylum laws, to some extent, reflect our values.  We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary--even crucial--by the Chinese government.  Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant.  Do we think that people arrested for political statements should be granted asylum?  Does the imprisonment of such people rise to the level of persecution? 
    If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum.  Whether they qualify as a matter of discretion is another matter.
    As for the heretical two, their applications for asylum were denied and they declined to appeal.  After removal to England, they were each convicted of crimes related to racial hatred.  Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months. 
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