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Jason Dzubow on Political Asylum

Judge Upholds Subpoena of Asylum Records for “Son of Hamas”

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Courthouse News Service reports that U.S. District Court Judge George Daniels "has ordered Israel's top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy."* And who has the informant been ordered to turn over this information to?* The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine.* If this report is accurate, it would represent an outrageous violation of an asylum seeker's right to confidentiality.

First, a bit of background.* Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas.* The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience.* An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since.* I've written about him before, here and here* (sorry for misspelling his name!).

Do you really want these guys learning the details of your asylum case?

The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York.* The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members.* The defendants in the case filed a subpoena seeking information from Mr. Yousef, including "All documents related to Mosab Hassan Yousef's application for political asylum in the United States of America."* Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks.

I am but a humble immigration lawyer, and so I don't often deal with things like subpoenas.* But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances.* It seems to me that there are several bases for such a motion here:

First, asylum applications are confidential.* Mr. Yousef's application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known.* Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).

Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote.* While discovery in civil cases is quite broad, it is not unlimited.* Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a "fishing expedition" (as we litigators say).

Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities.* Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact.* If* this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.

Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef.* For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant.

Originally posted on the Asylumist:

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