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Jason Dzubow on Political Asylum


  1. Report from the AILA Conference

    So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference.  I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn't think I would get much out of it.  Turns out, I really enjoyed the conference-it is fun to meet and hear about people who are doing the same work as you and who speak the same "language," though invariably I spent most of the time hanging out with people I already knew.  Although the fee was pretty steep, I'm glad I went, and maybe I will go again next year if I am feeling flush.
    I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney.  The subject was the UN Convention Against Torture ("CAT").  More specifically, we talked about how the Torture Convention might apply to non-governmental actors.  My role was pretty easy-I presented some hypothetical examples for the audience and the panelists to discuss.  Since I am not so creative, my hypos were actual cases that I had litigated.  One "hypo" examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT.  In real life, I lost that case, though I managed to convince the IJ that FGM was torture.  At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006).  The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities.  That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.

    The audience responds to my analysis of the UN Convention Against Torture.
    Aside from that panel, there were a number of panels-and some informal meetings-relevant to the asylum practitioner.  Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a "particular social group."  I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass). 
    AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice.  Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference.  The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense.  One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner.  Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys.  There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.  
    Overall, it was a useful and energizing conference.  I hope to be back next year.
  2. Accused Russian Spy Was an Asylee

    Among the 10 people arrested and accused of "conspiring to act as unlawful agents of the Russian Federation within the United States" and "conspiracy to commit money laundering" are "Vicky Pelaez and the defendant known as 'Juan Lazaro,'" her husband, both residents of Yonkers, New York. 
    Ms. Pelaez is a journalist and a native Peruvian.  While working as a journalist in December 1984, members of the Tupac Amaru Revolutionary Movement kidnapped Ms. Pelaez and her cameraman.  She was released a day later after her TV station agreed to air a propaganda piece by the guerilla movement.  Before she was released, she apparently persuaded one of the group's leaders to let her interview him.  The interview later appeared in a left-leaning newspaper. 

    Only one man can stop the Commies and still look this good.
    After the kidnapping, Ms. Pelaez and her husband came to the United States where she applied for asylum.  Her case was granted, and she went on to become a U.S. citizen and a popular writer for a Spanish language newspaper in New York.  Apparently, Ms. Pelaez has been supportive of socialist governments in Latin America, including Cuba, Venezuela and Bolivia.  She has also opposed the U.S. wars in Iraq and Afghanistan and supported the rights of Indigenous peoples and undocumented immigrants in the United States.
    Ms. Pelaez's husband, "Juan Lazaro," admitted that the Russians paid for his home and that he passed letters to their intelligence service, but he has refused to reveal his true name, according to prosecutors.  It seems that Ms. Pelaez's attorney is disputing this account, and I have not verified it.
    All the defendants, including Ms. Pelaez's husband, are being held without bail, except Ms. Pelaez, who is expected to be released today, although she will be confined to home detention.  It seems that she is the only member of the group that did nto receive "spy training" from the Russians.  
    Ms. Pelaez's political views have led some to believe that this is a case of political persecution by the U.S. government.  Her criminal attorney describes a conversation he had with her:
    "When I first met Vicky I asked her: if you are innocent why the U.S. government would bring this charges against you." Vicky Pelaez believes that her criticism against the U.S. policies have converted her in a target for many people "that are very angry" at her political views.
    An interesting side issue is the status of her husband.  Whether he was granted asylum or came here as her derivative (or came here in some other way) is unclear.  If he received asylum himself or entered the U.S. as Ms. Pelaez's derivative, his entry into the U.S. represents a failure of the background security check: he entered using a false name and he was apparently not born in Uruguay, as he had claimed.  Of course, the husband came to the United States 25 years ago, and the security systems have (hopefully) improved since then. 
    As we learn more about this strange case, maybe the details of Ms. Pelaez and her husband's entry into our country will be revealed.  Time will tell if there are lessons to be learned.
  3. “Son of Hamas” Granted Asylum

    In an anti-climatic end to a three-year legal battle, the Department of Homeland Security agreed that Mosab Hassan Yousef should be granted asylum in the United States, reports the San Diego Union Tribune.  Mr. Yousef is the son of a founding member of Hamas.  He converted from Islam to Christianity, spied for Israel, and wrote a book about his experience.  On his blog, Mr. Yousef desceibes what happened and thanks his supporters.  "Honestly, I am still in shock," he writes.
    In a 15-minute hearing before the San Diego Immigration Court yesterday, the DHS attorney indicated that "There has been a change in the department," and told the Judge that DHS would no longer oppose Mr. Yousef's application for asylum.  DHS originally opposed the application because Mr. Yousef allegedly gave "material support" to Hamas, a terrorist organization.  Mr. Yousef claimed that any "support" he gave to Hamas was solely for the purpose of determining the group's plans and foiling attacks against Israelis and Palestinians.   
    During the course of his legal ordeal, Mr. Yousef because a cause celebre for pro-Israel groups, as well as certain Israeli officials and members of Congress, all of whom claimed (quite credibly) that his actions saved many lives.  Recently, a former Israeli security agent arrived in the U.S. to testify on Mr. Yousef's behalf, and several members of Congress wrote letters to the Immigration Judge supporting his application.  Given the evidence-at least the publicly available evidence-it seems clear that the decision yesterday was the right result.  Mr. Yousef does not appear to be a terrorist, and he would certainly face persecution or death if he returned to the Palestinian territory.
    One interesting side note, many people, including some members of Congress, complained loudly about President Obama's aunt, whose case was reopened and who was recently granted asylum.  They speculated-without any evidence-that President Obama somehow improperly influenced the asylum process to help his relative.  I wonder if these same members of Congress will complain about their fellow Congresspeople who wrote to the IJ in Mr. Yousef's case.  These Congresspeople clearly intended to influence the Judge and the DHS attorney, and the case ended with the result they were seeking.  Personally, I don't see any evidence of improper behavior in either case, but one would hope that if a Congressperson opposes improper outside interference with one case, he should oppose it in another.
    The Need for Reform
    Finally, this case illustrates the need for Congress to reform the law on "material support."  Mr. Yousef is hardly the only person to be labeled a "terrorist" under this broad provision.  Others who have been forced on pain of death to provide food and other supplies to terrorist groups are subject to the same problems.  The members of Congress who supported Mr. Yousef should consider supporting the Refugee Protection Act, a bill that would modify the definition of "material support" to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars.  The bill would, of course, continue to bar those with legitimate ties to terrorist activity from entry into the United States.  Perhaps Mr. Yousef's case will provide some momentum to this worthy bill.
  4. Rwandan Woman Who Became US Citizen Is Accused of Genocide

    Beatrice Munyenyezi, 40, of Manchester, New Hampshire was indicted last week on two counts of lying to obtain her U.S. citizenship.  According to a report from the Associated Press, Ms. Munyenyezi left Rwanda in 1994 after the genocide that killed over 800,000 people.  She entered the U.S. as a refugee in 1998 and became a permanent resident one year later.  In 2003, she was sworn-in as a U.S. citizen.  In all her applications, Ms. Munyenyezi denied any involvement in the genocide.
    Now federal authorities have arrested her and issued an indictment.  According to a press release from the United States Attorney's Office:
    The Indictment alleges that MUNYENYEZI obtained her U.S. citizenship unlawfully after making material misrepresentations on a number of occasions before and after she came to the United States from the country of Rwanda. In particular, the Indictment alleges that MUNYENYEZI participated, committed, ordered, oversaw, conspired to, aided and abetted, assisted in and directed persecution, kidnapping, rape and murder during the Rwandan genocide of 1994. It is alleged that MUNYENYEZI misrepresented these facts in order to obtain immigration and naturalization benefits.
    If the blogosphere is to be believed, Ms. Munyenyezi's guilt is far from certain, and the U.S. government along with corrupt U.S. government agents are complicit in an international effort to frame her and other Hutus, while ignoring atrocities committed by the Rwandan Patriotic Front (the Tutsi rebel group who put an end to the genocide).  While I can accept that Rwandan government leaders do not have clean hands, the effort to re-write history sounds pretty dubious to me.  At the time of the genocide, I was an intern in the Bureau of Population, Refugees, and Migration at the U.S. State Department.  We were closely following events in Rwanda, and I don't remember there being many questions about who was murdering whom.  That said, the U.S. government bears the burden of proving that Ms. Munyenyezi lied on her applications, and it will have to submit evidence of her involvement in the persecution.   
    Ms. Munyenyezi is not the only person in her family accused of human rights violations.  A United Nations tribunal has also charged her husband and her mother with involvement in the mass murder.  If convicted in the U.S., Ms. Munyenyezi faces up to 10 years imprisonment, followed by 3 years of supervised release and a $250,000 fine, along with revocation of her U.S. citizenship.
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  5. Journey to the U.S. Can Be Especially Dangerous for Women

    Asylum is one of the few mechanisms for people who enter the U.S. illegally to obtain legal status in our country, and many asylum seekers risk the difficult journey from their home countries, through South America, Central America, and Mexico, and into the United States.  The trip is dangerous for everyone, but women face particular hardships. 
    A recent report from the Immigration Policy Center by Kavitha Sreeharsha notes that "70% of women who cross without spouses or other [family members] are sexually assaulted during the border crossing."  "Advocates report that women are encouraged to take birth control pills before traveling across the border in anticipation of the sexual assault."  Probably as a result of this danger, the ratio of female to male asylum seekers who enter the country at the Southern border is very low (according to DHS, only about 17% of people apprehended at the U.S./Mexican border are female).
    In my own practice, I regularly see asylum seekers who have traveled from Africa and crossed into the United States illegally.  Some have been apprehended at the border and later released; others have avoided capture.  It's very rare for me to see female asylum seekers who entered the United States in this manner.  In fact, I can only think of one woman client who crossed the border without inspection.  She traveled from Africa to South America and then to Central America and Mexico.  She met different smugglers in each country.  Sometimes, she traveled with other Africans, but other times, she was alone.  She made the journey with no particular problems and then she crossed the Rio Grande River with a few dozen migrants.  Once she was in the United States, the smugglers separated her and another woman (and that woman's small children), and locked them in a house.  The smugglers raped my client.  After some days, she escaped and contacted the police.  The smugglers were never captured.
    My client's story illustrates the danger faced by women traveling alone along the smuggling route.  Of course, we hope that the countries where these smugglers operate will crack down on the practice, but such reforms seem a long way off in most places.  The story also illustrates the risks people will take to escape their problems and seek a better life in our country.  To paraphrase the old idiom: immigration is the sincerest form of flattery.
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