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  1. Illogical Fears Generate Illogical Policies: Notes from the Center for Immigration Studies “Asylum Fraud” Panel

    This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.
    Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.
    On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.

    CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.

    As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.

    The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.

    Immigrants are Dangerous

    To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.

    Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.

    As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.

    What Do the Numbers Tell Us?

    A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”

    So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.

    One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.

    The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.

    Asylum Seekers vs. Refugees

    I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.

    Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.

    For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?


    At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.

    Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.

    Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.

    Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.

    Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.

    Ignoring the Elephant in the Room

    Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.

    Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.

    This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.

    Originally posted on the Asylumist:
    Tags: asylum, cis Add / Edit Tags
  2. Restaurant Owner Pleads Guilty to Harboring Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    Attachment 1189

    A Pittsburgh restaurant owner has pled guilty to one count of harboring undocumented workers. In December 2016, Xing Zheng Lin, aka Steve Lin, was indicted for two counts of harboring and transporting undocumented workers. The charges were based on an investigation, by the FBI and Homeland Security Investigations, which showed for about five years, starting in 2009, Lin harbored and transported undocumented workers, who were employed at Saga Restaurant in Monroeville, Robinson, and Bethel Park, Pennsylvania.

    Lin is awaiting sentencing. The law provides for a maximum total sentence of not more than 10 years in prison for each alien, a fine of $250,000 for each alien or both. Under the Federal Sentencing Guidelines, the actual sentence imposed would be based upon the seriousness of the offense and the prior criminal history, if any, of the defendant.
  3. Letters of the Week: May 15 - May 21

  4. The days of abdicating our duty to enforce immigration laws are over. By Nolan Rappaport

    © Getty

    On May 11, 2017, Attorney General Jeff Sessions made an appearance before Customs and Border Protection officers at the U.S.-Mexico border to announce the issuance of new guidance to federal prosecutors on criminal immigration enforcement.

    It is here, along this border, he said, that transnational gangs like MS-13and international cartels flood our country with drugs. They leave death and violence in their wake. “And it is here that criminal aliens and the coyotes and the document-forgers seek to overthrow our system of lawful immigration.”

    “I am here to tell you, the brave men and women of Customs and Border Protection: we hear you and we have your back.”

    The president has made enforcement of our immigration laws a priority, and we are seeing the results already. Illegal crossings dropped by 40 percent from January to February of this year, and last month, we saw a 72 percent drop compared to the month before the president was inaugurated. This is the lowest monthly figure in the last 17 years.

    It is “the Trump era.” The days of abdicating our duty to enforce the immigration laws are over.

    But what are his real intentions?

    According to Frank Sharry, one of the nation’s leading liberal spokespersons for immigration reform:

    “Attorney General Sessions is grandstanding at the border in an attempt to look tough and scare immigrants. It’s yet another example of the Trump administration treating all immigrants as threats and as criminals. This is the smokescreen they use to justify their efforts to deport millions, to keep people out of the country, and, ultimately, to try and remake the racial and ethnic composition of America.”

    Sharry’s accusations seem to be based on what he thinks of Sessions, not on what Sessions is doing, which in this case is just prioritizing the prosecution of criminal immigration violations.


    Published originally on The Hill.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

  5. Could Misrepresenting the Purpose of Trump's Muslim Ban Order be Grounds for Impeachment as a Fraud Upon the Court? Roger Algase

    On the afternoon of May 13, the Washington Post published an oped opinion by Harvard Law School professor Laurence Tribe, one of America's best known and most highly respected legal scholars, calling for Donald Trump's impeachment because of his alleged obstruction of justice by firing FBI Director James Comey.

    According to Professor Tribe, Trump's allegedly "phony justifications for the firing", in order to conceal the real reason for that action, namely impeding the investigation into alleged illegal ties with Russia by Trump or his top aides, were among the actions that, In Tribe's words, 'rise to the level of 'obstruction of justice'".

    See: Laurence H. Tribe: Trump must be impeached. Here's why.

    (I do not have a direct link to this article. Interested readers can go to Google.)

    While Professor Tribe did not mention anything about Trump's executive orders or other immigration actions, an additional possible ground for impeachment, based on similar reasoning, might very well be found in the claim made before the 4th Circuit Court of Appeals by Department of Justice Lawyers at Trump's direction to the effect that the president's latest executive order barring 100 million or more citizens of six almost 100 per cent Muslim countries from entering the United States, solely because of their nationality, was not a "Muslim ban", but was allegedly issued for valid national security reasons.

    See: ABA Bar Journal:

    DOJ lawyer tells 4th Circuit that Trump's travel order 'is not a Muslim ban'

    As I have pointed out in previous recent Immigration Daily comments on this issue, aside from the fact that numerous experts in the field have challenged the genuineness of the purported national security justification for the entry ban,

    the Trump administration has engaged in egregious bad faith by claiming a national security justification for the ban in the face of what what Virginia Attorney General Mark Herring (no connection with the plaintiff in the 3rd Circuit case discussed below) has aptly called "a mountain of evidence" that the entry ban was motivated by Trump's hostility against Muslims and the Muslim religion.

    Trump has said and done almost everything that he can attack Muslim immigrants, thereby also impeding the free exercise of religion by Muslim US citizens guaranteed under the 14th Amendment. He has done this both as a candidate and after he became president.

    See my recent comments on Trump's December 7, 2015 call for a worldwide ban on entry to the US by Muslim from any country, a proposal which remained on his official website for the next 17 months, right up until May 8, 2017, when it was suddenly removed shortly after the 4th Circuit oral argument!

    However, evidence that Trump's seven and six country entry bans were motivated by extreme animosity toward Muslims and their religion is not just based on one speech. The entire history of these two executive orders, comprising statements and actions that Trump has taken after becoming president as well as before, is laid out in a damning April 19 report by the highly respected Brennan Center for Justice at the New York University School of Law called:

    The Islamophobic Administration

    No one who reads this report with an objective and unbiased mind can possibly doubt that Trump's entry ban orders were directed against at least 100 million Muslims because of their religion, not because of any genuine national security concerns.

    The introduction to the report lists five ways, including but not limited to the Muslim bans themselves, in which the Trump administration:

    "through both speech and policy" has been "tangibly harming the American Muslim community".

    The report lists these five ways:

    "the use of anti-Muslim rhetoric; the elevation of Islamophobic staff members to key positions in the White House; the ban on visitors from seven Muslim-majority countries from entering the country; the goal of making vetting procedures 'extreme' for potential visitors and immigrants; and a lack of response to the rise in hate crimes targeted at Muslims and other groups."

    Therefore, there is at least a plausible argument that by instructing his lawyers to argue before the Circuit Court judges that his executive order was "not a Muslim ban" Trump might have directed these lawyers to attempt a fraud upon the court by misrepresenting the real motivation for the six country ban.

    In a 2005 3rd Circuit Court of Appeals case, Herring v. U.S., 424 F.3rd 384, cert. denied 547 U.S. 1123, the federal government was accused of participating in a fraud upon the court by allegedly using bogus national security grounds to withhold evidence which could have led to a heavier judgment against it in an air accident case than the amount which the plaintiffs eventually settled for.

    Even though the government was ultimately successful in defending against fraud upon the court charges in that case, the Court discussed the elements of this form of misconduct which could arguably have a great deal in common with the Trump administration's conduct in the 4th Circuit entry ban case, and possibly other pending federal court actions involving his entry ban executive orders as well - enough resemblances to be worth consideration by a Congressional impeachment panel.

    The Herring case involved a US military plane crash which had taken place in 1948 (almost 60 years before the 3rd Circuit's above decision!) in which the lead plaintiff's father, a civil engineer aboard the plane, had been killed. The plaintiff's mother and two other widows had sued the United States under the Tort Claims Act, but had not been able to gain access to Air Force documents relating to the crash because the government had claimed that they were privileged, because the plane was allegedly on a highly secret mission and that making the report of the crash available would compromise national security.

    As a result, and after going all the way up to the Supreme Court, which remanded the case to the District Court in U.S, v. Reynolds, 345 US 1 (1953) for further fact finding in which the government was ordered to produce the report so that the court could look at it and decide whether the claim of privilege was valid, but still refused to produce it the report, the plaintiffs finally settled the case for less than the full amount of their claim.

    In 2000, the lead plaintiff found out that the government had declassified the report in question, and she and the other plaintiffs then brought an action to vacate the settlement and reopen the case on the grounds that by claiming privilege with respect to the crash report, the government had committed a fraud upon the court.

    In the new lawsuit, the plaintiffs contended that the declassified report did not contain anything which would have revealed military secrets or compromised national security, as the government had claimed it did in the original lawsuit a half century before.

    After reviewing the now declassified report, the 3rd Circuit determined that there was in fact military information in the report which justified the government in asserting privilege, and that therefore the claim of fraud upon the court failed. The lawsuit to reopen the settlement decision was dismissed.

    Obviously, there are differences between the above case and the current litigation in the 4th Circuit and other federal courts over the legality of Trump's Muslim ban executive order. In the current litigation there is no claim of government privilege based on secrecy. Nor is there any mystery about what the alleged justification that the president is claiming for the executive order is, since the reasons for issuing the president's order are set forth in full detail in the order itself.

    But the Herring case, as well as the 1953 Supreme Court decision in the original lawsuit remanding the case to the District Court for further fact finding which was quoted at length in the 2005 3rd Circuit decision, both stand for the proposition that the courts do not have to accept the federal government's reasons for taking or refusing to take certain actions, even when a claim of national security is involved, if the national security claim is made with intent to deceive.

    In the Herring case, the effect of the government's alleged deceptive claim of privilege on national security grounds was to induce the plaintiffs to settle a tort case for 25 per cent less than they had asked for in the complaint.

    In the case of Trump's six (originally seven) country Muslim entry ban, the effect of the Trump administration's allegedly fraudulent use of national security and anti-terror justifications in order to impose a ban on entry to the US by at least 100 million members of a religion toward which Trump showed intense hostility during his campaign, and at least two of the highest ranking advisers he appointed after he took office as president (Stephen Bannon and Michael Flynn) openly regarded as fundamentally evil, has had infinitely greater ramifications than the settlement of a tort suit.

    It has sent a clear message, not only to America's 3 or 4 million Muslim US citizens and legal residents, but to Muslims in every country in the world, whether or not on the banned list (which, by the terms of the executive order itself is not necessarily limited to just six countries - it contemplates adding many others to the list - guess which religion will be in the majority in those countries as well!) that their religion is disfavored in America in violation of our Constitution.

    The order also sends a message that people who belong to that religion, merely by that fact, will be subject to suspicion and special scrutiny under the name of "extreme vetting" if they seek to enter the US, and that members of that religion who are US citizens may also become subject to special surveillance and observation, as Trump also threatened repeatedly during the campaign.

    With this background, and in view of the enormous consequences of this executive order if it is upheld, the Trump administration is under an even greater obligation to be honest and truthful with the federal courts about the real reasons for issuing the six country entry ban order.

    Given the enormous evidence that is already in the record showing that the president is not adhering to that standard of honesty and good faith, either in the alleged national security justifications for the ban that he is asserting in court, or in his lawyers' even more dangerous and authoritarian argument that the courts have no power to look at the motivation for the ban at all, the question of whether the president is responsible for an attempt to commit a fraud upon the court cries out for investigation leading up to impeachment proceedings.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world, without regard to their ethnicity, religion or nationality, obtain work visas and green cards.

    Roger's immigration law practice is primarily concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 training work visas; and in green cards through labor certification and opposite sex or same sex marriage. His email address is

    Updated 05-15-2017 at 12:10 AM by ImmigrationLawBlogs

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