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Jason Dzubow on Political Asylum


  1. Help for Afghanis “Outed” by Wikileaks

    The website Wikileaks, which exists to make public "sensitive material," recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan.  Among the information released are names and villages of Afghanis who assisted the United States.  Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed "collaborators."  A few days after Wikileaks published the documents, numerous tribal elders received threatening letters.  One elder was murdered.  The magazine reports:
    The frightening combination of the Taliban spokesman's threat, [Tribal Elder] Abdullah's death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past....  [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.

    A Taliban fighter checks out Wikileaks.
    (To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference.  Some argue that the Taliban already know the "collaborators."  Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents.  Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)
    What then can be done about Afghanis who have been "outed" by Wikileaks?  One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis "who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment."  Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question.  If not, this law will not help them. 
    If it turns out that the Taliban's threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act.  It's good policy to show our allies that we protect them, especially when they were endangered by our own security failing.  More than that, protecting such people is the right thing to do.
  2. As Virginia AG Targets Immigrants, What About Asylum Seekers?

    Virginia's Attorney General, Ken Cuccinelli, last week released an advisory opinion concluding that law enforcement officers in the Commonwealth "may... inquire into the immigration status of persons stopped or arrested."  The AG had previously determined that "law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws."  Last week's opinion effectively expands law enforcement's power to inquire about a person's immigration status:
    So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.

    It's not "American" Gothic unless you have the ID to prove it.
    It's a little unclear to me what this means.  The opinion recognizes a distinction between civil and criminal violations of the immigration law, but it is not always clear whether the opinion is referring to civil violations, criminal violations or both. 
    It's also unclear how this advisory opinion will impact asylum seekers.  Many people in Virginia-including many of my clients-have pending asylum cases.  Some of these cases take years to resolve, and oft times the asylum seekers do not have any solid evidence of lawful status in the U.S.  At most, such people have a work permit, which is not proof positive of lawful status (in some cases, an alien's status is terminated, but he remains in possession of his work permit).  Other times, the alien will have only a printed paper from the Immigration Court or the asylum office.  Anyone with a printer could create such a document, so it is weak proof of status. 
    How then will Virginia law enforcement officers deal with asylum seekers?  Will they detain them until their status can be determined?  Detaining people who have possibly suffered past persecution and who have come to our country for help seems a cruel joke.  Or will the police simply take an alien's word for it when she claims to be an asylum seeker?  I doubt such an "honor system" would be acceptable to the AG's supporters.  Or maybe the police will be trained in the various documents that accompany asylum cases.  But this would be a poor use of time for officers who are already overburdened.
    One possible solution would be for the federal government to immediately issue an identity document to anyone who claims asylum.  At least this would help such people avoid running afoul of local law enforcement.  As a patchwork of anti-immigrant laws spreads across the country, perhaps this type of federal intervention is the only practical way to protect people who have come here seeking asylum.
  3. European Court Fines Switzerland for Violating Asylum Seekers' Rights

    Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.
    The applicants-Ms. Mengesha Kimfe and Ms. Agraw-and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there.  In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons.  The couples were not married at the time.

    It's a tough job keeping those feisty European states in line.
    After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation.  They remained in Switzerland, however, because the Ethiopian authorities prevented their return.
    The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that "unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton." 
    After her marriage, Mengesha Kimfe mainly lived with her husband, illegally.  After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed.  Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband.  As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father.  Her application for a residence permit for her husband's canton was finally granted in 2008 on the grounds of family unity.
    The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively.  They did not contest their deportation.  Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples.  The Court observed that the possibility of leading a life as a couple was one of the essential elements of the "right to respect for family life," as protected under the European Convention on Human Rights.  The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate.  Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples' right to live together), and found that the private right outweighed the state interest.  Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe's case and 5,526 Euros in Ms. Agraw's case.
    While a supra-national court is vital in countries where the rule of law is weak, it's hard to imagine the United States ever submitting to international review of its legal decisions.  I for one trust our own courts more than I trust most international bodies in such matters.  Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive.  The idea, of course, is to bring international courts up to (at least) the level of American courts.  If that happens, it will be easier to make the argument for international review in cases such as the one here.  I just don't expect that to happen anytime soon.
    The European Court's press release and links to its decisions (in French only) are available here.
  4. Third Circuit Grants Relief to Mentally Ill Respondent

    In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA's denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).
    Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident.  He was eight years old.  Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings.  Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity.  His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture ("CAT").  He also asked for an indefinite continuance so that his competency could be determined. 
    The IJ (in York, Pennsylvania) denied the motion for a continuance.  The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution "on account of" a protected ground.  However, he granted Ms. Soobrian's application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.
    The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was "no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture."  Mr. Soobrian filed a Petition for Review in the Third Circuit.  Based on an unopposed motion, the case was remanded "for consideration of whether the class of mentally ill persons is a 'particular social group' for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was 'more likely than not' to be tortured if removed."
    On remand, the IJ held that "mentally ill persons" could constitute a particular social group.  However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources.  He also found no evidence that the government could not or would not protect such people.  As such, he denied Withholding of Removal.  Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.
    On appeal, the BIA again affirmed the IJ's finding vis-a-vis Withholding of Removal.  The Board did not rule on whether "mentally ill persons" constitute a particular social group.  Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness.  The BIA again reversed the CAT grant, holding under a de novo standard of review that "the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering." 
    In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ's decision on Mr. Soobrian's CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.
    As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo.  Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact.  Under those circumstances, "the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components."  Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian's Petition concerning the CAT claim.
    The Court also held that Mr. Soobrian's due process rights were not violated when the IJ refused him a continuance due to his mental health issues.  The Court reasoned:
    Under our immigration laws, there is only a passing reference to an alien's mental competency at a removal hearing.  If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
    The Court ultimately found that Mr. Soobrian had received sufficient procedural protections.  In dicta (and relying on a Tenth Circuit decision), the Court also found that "the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding." 
    Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel.  Most mentally ill respondents will not be so lucky.  For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.
  5. Hirsi Ali Calls for a New Way to Evaluate Asylum Seekers

    Ayaan Hirsi Ali, a prominent critic of fundamentalist (and not so fundamentalist) Islam and the author of Infidel and Nomad, recently told The Australian that it was futile for countries to attempt to establish the bona fides of would-be refugees, not least because many asylum-seekers will say anything in order to qualify for asylum.  "Everybody lies," she said.  Indeed, she herself admitted to lying on her own application in order to gain asylum in The Netherlands.
    Instead of simply assessing whether an asylum seeker has a well-founded fear of persecution, Ms. Hirsi Ali proposes a sort-of cultural test:
    [We] have to change the paradigm. You have to say, "You're welcome, we need immigrants but there are many conditions. Here is the law, the culture, the customs. Here is what you agree to, and in exchange you get to live in a peaceful, prosperous society where you have all this opportunity. If you don't agree we will just return you."
    First, the problem of fraudulent asylum claims is widely acknowledged (I wrote about it here).  However, Ms. Hirsi Ali's statement that "everybody lies" on their asylum applications is simply wrong.  That would mean that no one who has been persecuted in their country has ever escaped and sought asylum abroad.  Maybe it's a small point-as she was likely speaking in general terms-but when we're talking about people who have been tortured and lost loved ones, it seems a bit insensitive and ungenerous.
    Second, while there may be reason for a cultural test in Australia (Ms. Hirsi Ali was speaking about asylum seekers in Australia), it seems less needed in the U.S.  Ms. Hirsi Ali is concerned about importing destructive cultural practices, such as female circumcision, forced marriage, and honor killings.  She associates these practices with Islam and would basically exclude asylum seekers who refuse to adopt a more Western lifestyle.  Most people seeking asylum in the U.S. are not from countries where these practices are common.  According to the Department of Justice, almost 35% of successful asylum seekers come from China.  The next largest groups-about 4% each-come from Ethiopia and Haiti.  While these countries certainly have problems (hence people from these countries seek asylum), the asylees from these places generally embrace Western values and do not bring with them the kinds of cultural baggage that concerns Ms. Hirsi Ali.  
    In addition, any type of "cultural test" for asylum seekers seems doomed to fail.  If, as Ms. Hirsi Ali says, people will "say anything," then certainly they will falsely claim to adopt Western values in order to win asylum.   
    Finally, under U.S. law, people who practice FGM or commit honor killings are not eligible for asylum (whether the adjudicator learns about these acts is another matter).  Asylum seekers who are found to have persecuted others (FGM is a form of persecution) or who have committed serious non-political crimes (like murder) may not receive asylum.  If asylees commit such crimes in the United States, they will be deported.  Asylees should be educated about these laws, and such laws need to be enforced.
    It seems that a cultural test as proposed by Ms. Hirsi Ali is not needed for asylum seekers in the United States.  We can better balance our human rights obligations with our desire to avoid negative cultural influences by educating new Americans, making it safe for people to report abusive cultural practices, and enforcing the law.
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