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Jason Dzubow on Political Asylum

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  1. 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.
  2. Congressman Steve King's Aunt Onyango Stunt

    Congressman Steve King (R-Iowa) is the latest politician to exploit President Obama's Aunt Onyango for political gain.  Zeituni Onyango is the Kenyan half sister of President Obama's father.  She filed for asylum in 2002 and lost, but after Obama came onto the national scene, she re-applied and her application was granted.  Applications for asylum are confidential, but that doesn't seem to bother Rep. King.  In a letter to the Chair of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, he writes:
    I am concerned about the public perception that favoritism played a role in the grant of asylum to Ms. Onyango.  The Boston Globe reported that "the [asylum] decision unleashed a firestorm of criticism from those who felt Onyango received preferential treatment because of her relationship with the president."   In order to better determine whether favoritism played a role - especially because Ms. Onyango had been earlier turned down for asylum and ordered deported in 2004 before her nephew became president - the Subcommittee needs to hear from Ms. Onyango herself.  Therefore, I will invite her as the Republican witness on the second panel at Thursday's hearing.  
    While I understand that asylum proceedings are generally confidential, Margaret Wong, Ms. Onyango's attorney, has clearly courted press attention regarding this matter.  In fact, I assume that the press learned that Ms. Onyango received asylum because of comments to the media made by Ms. Wong.  Therefore, Ms. Onyango has made herself a public figure and should have no hesitation about appearing before the Subcommittee.  Further, in order to facilitate Ms. Onyango's appearance before the Subcommittee, I request that you and Chairman Conyers authorize the Committee to reimburse her travel expenses.
    I've already written about Ms. Onyango's case and the likely basis for granting her asylum.  Suffice it to say, for anyone familiar with the law of asylum, it's no great stretch to imagine why Mr. Onyango's case was approved.  Further, Rep. King's attempt to blame Ms. Onyango's attorney (who is apparently a bit of a self-promoter) for turning Ms. Onyango into a public figure is ridiculous--Ms. Onyango cannot be blamed for her attorney's actions.  Finally, if there were any type of misconduct or improper influence in this case, why ask Ms. Onyango about it?  Why not subpoena the Immigration Judge or the DHS attorney?  The reason is simple.  Rep. King does not care about the truth.  He just wants to exploit Obama's Aunt for his own political gain.
  3. Can DNA Stop Asylum Fraud?

     The United Kingdom isexperimenting with genetic testing as a method for reducing asylum fraud.  According to the UK Border Agency, falsifying nationality to gain political asylum has been a particular problem among East Africans (I recently discussed this problem here).  In response, the UKBA attempted to implement a program to genetically test East African asylum seekers to determine their country of origin.  The 2009 program was much criticized by scientists and immigrant advocates, and the British government ultimatelyshelved the plan.  However, the UK is continuing a smaller scale "proof of concept" project that is scheduled to finish up this month.  According to the UKBA: 
    Participation in the project will be entirely voluntary, and will test whether there is the potential for these investigations to be supported by wider use of DNA testing and isotope analysis. Whilst this trial is being undertaken, no decisions on individual cases will be made using these techniques, and they will not be used for evidential purposes.
    At the end of the project, the UKBA will evaluate the efficacy and ethics of the project and determine whether the technique could be used to augment its decision-making process in asylum cases. 



    A UKBA scientist tests for Somali nationality.
    The main objection to the project seems to be that it conflates nationality with ancestry.  A Somali citizen, for example, may be of Ethiopian ancestry.  The science website Singularity Hub reports:
    [G]enes don't relate to political borders. And there are strong doubts as to whether testing this particular group can even provide the slightest statistical reliability, mainly because of past and present population movements throughout the region.
    Current TV reports on a second part of the test:
    [An] applicant will be asked to give hair and fingernail samples; by looking at which forms of certain elements the samples contain, the government scientists hope to find evidence of the person's diet and environment [to determine the country of origin]. But isotope specialist Tamsin O'Connell says the results won't be specific enough to be meaningful. "It is very difficult to identify individuals to very specific locations using isotopes alone," she said.
    In other words, whether or not genetics and isotope analysis can be used to determine nationality is a dubious presumption.  Further, using genetic testing in this way raises ethical issues.  Current TV reports that geneticists and isotope specialists have referred to the project as "horrifying," "naïve," and "flawed."
    Writing for the Singularity Hub, Christopher de la Torre imagines a time when genetic testing might be able to identify a person's country of origin: 
    Using DNA to track populations and ancestry isn't new, but regulating according to DNA opens a Pandora's box of potential. As the rate of technological progress grows exponentially, it's more important than ever to balance our ability with morality.
  4. Pennsylvania Man Sentenced for Asylum Fraud

    From a June 10, 2010 Department of Justicepress release:
    David Lynn, 35, of Holland, PA, was sentenced today to 40 months in prison for leading an asylum fraud scheme that netted him and five co-defendants millions of dollars in illegal profits, announced United States Attorney Zane David Memeger. Lynn pleaded guilty, in October 2008, to one count of conspiracy, one count of visa/asylum fraud, one count of money laundering, and conspiracy to commit money laundering. Lynn, who was charged with five co-defendants, ran a business that filed at least 380 bogus asylum applications for clients, between January 2003 and March 2007, charging an average of $8,000 for an application.
    Investigators say Lynn posed as a lawyer.  According to an ABC News report, "only a handful of Lynn's 380 clients from around the country made it through the system by claiming they would face oppression if they returned home."  The majority of the aliens are in removal proceedings.  Some have already left the country knowing they were going to be deported.  According to another report, the perpetrators were Russian immigrants and most clients were from Russia, Ukraine, and Poland.
    Unfortunately, it is a common pattern for unscrupulous immigrants to exploit their countrymen, who are naive about the American system and are ready to trust their own kind.  What's most amazing to me is that a guy who lost the large majority of his cases and charged $8,000 per person--far more than most legitimate lawyers--seemed to maintain a booming business.  It's a sad testament to the gullibility and desperation of the clients, some of whom may have lost out on bona fide claims.  Other clients were likely complicit in the fraud, and it's harder to muster sympathy for them. 
    I believe the best way to stop fraud is to go after people like Mr. Lynn, who blatantly take advantage of a system that is designed to help the most vulnerable.  By stopping Mr. Lynn, the DOJ has helped to preserve the integrity of the asylum process.  Congratulations to those involved in the investigation, and keep up the good work.
  5. "Son of Hamas" Seeking Asylum in United States

    The son of a founder of Hamas, a designated terrorist organization, is scheduled to appear in Immigration Court in San Diego on June 30, 2010.  Mossad Hassan Yousef, son of Hamas founding member Sheikh Hassan Yousef, says that he "accepted Christ" in 2005.  He also claims to have worked as a spy for the Israeli intelligence agency Shin Bet, and says he helped foil numerous terrorists attacks.  Apparently, his father disowned him, and he fears return to the Palestinian territory.  The younger Yousef has written a book about his experience, Son of Hamas, subtitled: A Gripping Account of Terror, Betrayal, Political Intrigue, and Unthinkable Choices.

       Hamasochist?
    Mr. Yousef has been blogging about his life and his asylum case.  He writes that despite his questionable pedigree, he entered the U.S. without difficulty in January 2007.  Seven months later, he applied for political asylum.  His application was rejected because the Asylum Office deemed him a danger to the security of the United States and a terrorist.  The case was referred to an Immigration Judge.  Mr. Yousef seems surprised by his situation:
    My concern is not about being deported. It is that I am being forced to stand and defend myself as a terrorist! This is ridiculous. And as long as this case is in the courts, I cannot leave the United States. If I do, I will never be able to return. For what? For risking my life fighting terrorism in the Middle East for ten years? For saving the lives of Israelis, Palestinians and Americans?
    Maybe so, but I can understand why the Asylum Office was hesitant to grant asylum.
    Mr. Yousef claims that DHS is relying on the work he did for Shin Bet-which involved "helping" members of Hamas in order to infiltrate the organization-to charge him with providing material support to terrorists.  He writes, "If Homeland Security cannot tell the difference between a terrorist and a man who spent his life fighting terrorism, how can they protect their own people?"  He continues:
    Exposing terrorist secrets and warning the world in my first book cost me everything. I am a traitor to my people, disowned by my family, a man without a country. And now the country I came to for sanctuary is turning its back.
    We'll see.  I imagine Mr. Yousef knows that the judge will review his asylum claim de novo, so the Asylum Office's conclusion should not be much of a factor.  He seems to have a strong asylum case, and his story about working for Shin Bet appears credible.  Maybe DHS believes that he is a double agent, or maybe they have evidence that we (and Mr. Yousef) does not know about.  Or maybe, as Mr. Yousef suggests, DHS is simply incapable of distinguishing between a terrorist and an anti-terrorist.  I don't know, but I wonder, if DHS is really so concerned about Mr. Yousef, why he is not currently detained pursuant to INA § 236A (Mandatory detention of suspected terrorists)?
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