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Jason Dzubow on Political Asylum

Dream Activists vs. Asylum Seekers

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By now, you're probably familiar with the Dream 30, a group of 30 young Dreamers: 29 Mexicans and one Peruvian who grew up in the U.S. and who would likely benefit from the Dream Act. The group voluntarily left the United States, returned to Mexico, and then presented themselves at the U.S. border and requested asylum. The point is to call attention to the plight of all young people in their position, stop deportations of such people, and push immigration reform.

The 30 activists were detained and interviewed about whether they had a credible fear of return to Mexico. According to their attorney David Bennion, 9 of 25 interviewed Dreamers were found not to have a credible fear of return. This is significantly above the average denial rate, which was about 8.3% for FY2013. Mr. Bennion points out that the Dreamers should have done better--not worse--than average, given that they are generally well educated and speak English. Based on this, attorney and Dream 30 supporter Mathew Kolken smells a rat. He writes, "Looks like the [Obama] administration is making an example out of the DREAM 30 in order to make a political point."

I don't remember the Freedom Riders running over other poor people to reach their goal.

Of the original group, eight were released and the remainder have been detained since September 30, 2013 (even some who have demonstrated a credible fear). The detained Dreamers are currently on a hunger strike to call attention to their cause.

The most recent news is that one of the Dreamers was deported to Mexico.

As an asylum attorney, I must admit that I have mixed feelings about the strategy of these activists. But before I get to that, I want to raise an objection to Mr. Kolken's conclusion that the high denial rate for the Dream 30's credible fear interviews is evidence that the Obama Administration is somehow punishing these activists.

It is true that the Dreamer's denial rate (36%) is much higher than the over-all denial rate (8.3%) for credible fear interviews. However, there are several (legitimate) factors working against the Dreamers. For one, they are mostly from Mexico, which has a very low asylum grant rate. Since something like 98% of Mexican asylum claims are denied, it stands to reason that credible fear cases from Mexico will be less likely to succeed than average. Since Mr. Kolken is comparing the 36% denial rate of the (Mexican) Dreamers to the 8.3% denial rate for all countries, many of which have very high asylum grant rates, it really is not a fair comparison. In addition, the Dreamers were in the United States, and then they voluntarily departed (though one could argue that they were forced to leave due to their lack of papers). Asylum claimants who voluntarily return to their home countries are much less likely to succeed when compared to asylum applicants who did not return to the country of feared persecution. I am not sure how much of a factor this is, as some aspects of the asylum claims may have arisen since the Dreamers returned to Mexico, but my guess is that the voluntary return weakens the Dreamers' asylum and credible fear claims. For these reasons, I am not convinced that the 36% denial rate is all that unusual (though the fact that several Dreamers have passed their credible fear interviews and yet remain detained is somewhat unusual). So for me, at least, the jury is still out as to whether the Obama Administration (or ICE/Enforcement and Removal Operations, which often defies the Obama Administration) is retaliating against the Dreamers.

Now to the mixed feelings.

On the one hand, I can appreciate creative acts of civil disobedience as much as the next middle-age, father-of-two, with-a-mortgage-to-pay guy. It's also quite clear that the Dream Activists are earnest and passionate, and that they are gaining attention for the cause (hopefully more positive than negative).

On the other hand, as an attorney who represents asylum seekers, I am concerned about their tactical decision to use the asylum system as the vehicle for their civil disobedience. While it appears that at least some of the Dreamers returned to Mexico and then found that the situation was unsafe, the fact remains that they left the U.S. without seeking asylum and returned to Mexico. They then presented themselves at the border and requested asylum. If the Dreamers actually had a fear of returning to Mexico, they should have requested asylum before they left. Indeed, a major factor in any asylum case where the applicant returns to her country is the return trip itself. Without a good explanation or evidence of changed circumstances since the date of return, a return trip to the home country will doom most asylum applications.

Also, to some extent, the asylum system is already under siege, and I fear that using that system to make a political point will do further damage. I don't want to overstate the case here. There are those who blame the Dreamers for the current mess at the border (asylum offices across the country have ground to a halt as resources have been shifted to deal with a dramatic increase in credible fear interviews at the border), but that problem started long before the Dream 30 (or their predecessors, the Dream 9). Nevertheless, the actions of the Dream 9 and the Dream 30 are certainly the most high profile credible fear cases at the border, and their leadership may encourage others to try to exploit the credible fear system.

Finally, I can't help but view this tension--Dreamers vs. Asylum Seekers--as a case of the poor eating the poor: Desperate people trying to regularize their status are using a tactic that harms other desperate people fleeing persecution. While I hope (against the odds) that we will have a DREAM Act and Comprehensive Immigration Reform, I am not convinced that using the asylum system to make a political point in support of those goals is the best strategy. I fear that the collateral damage to legitimate asylum seekers will be too great.

Originally posted on the Asylumist:

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  1. MKolken's Avatar
    Jason, where your theory fails is that you don’t know the particular facts of any of the DREAM 30′s individual cases to be able to assess whether any of their claims are legitimate.

    Their lawyer David Bennion does, and you insinuate that he presented his clients for the purpose of filing frivolous claims for political reasons. That is a dangerous, and potentially unethical supposition, especially considering that two-thirds of them have established credible fear, and you don’t know the facts.

    So let me ask you this, when you speak to a client for the very first time, and they tell you that they want to apply for asylum but don’t give you any of the particulars of their case do you make a generic assessment based solely on their country of origin? I sincerely hope not.

    Your inference that the DREAM 30 are not legitimate asylum seekers is both reckless, and wrong, not to mention defamatory.

    I’d seriously consider a retraction.
  2. JDzubow's Avatar
    Here is a comment from David Bennion that was posted on the other website - it is worth a read:Thank you for your thoughtful post, Jason. One important fact that may not have been clear is that none of my 34 clients who entered at the port of entry in Laredo on Sept. 30 left the U.S. for the purpose of participating in the action. Some were deported, some had parents who were deported, but most were "attritioned" by the current administration's enforcement policies, which were dreamt up by our friends at CIS and FAIR. A disproportionate number lived in Arizona and cited Arpaio's campaign of oppression as the reason they were forced out. Most of the 34 would have been eligible for DACA had they not left before the announcement in June of last year.
    This is an important difference from the case of 3 of the participants of the Dream 9 action, who had left the U.S. shortly before the action (the other 6, however, had left or been deported before DACA). Many of the 34 had experienced threats, extortion, or physical attacks after arriving in Mexico. Many hail from states like Sinaloa, Veracruz, Guerrero, Nuevo Leon, and Michoacan, that have had high rates of cartel violence and official corruption. Several had family members who were kidnapped or killed. One was sexually assaulted after her return. Several are gay or lesbian. None presented "frivolous" claims.
    You may not have been aware of the timing of my clients' departure from the U.S., but it is an important factor in their cases. I think immigration attorneys and Americans in general have misconceptions about the situation in Mexico. The country is still in the midst of a drug war that has claimed between 50,000 and 100,000 lives. Civil militias have arisen in Michoacan because the Knights Templar are the de facto government there. The entire police force of Veracruz was disbanded in 2011 because it was unreformable. A culture of machismo makes the drug war particularly dangerous for women and LGBT people.
    The drug war is relatively recent, and a settled body of case law has not developed around Mexican social group claims. Likewise, the "Dreamer" social group claim is largely untested. We know that the immigration system as a whole disproportionately targets Mexicans (EWI penalties, Operation Streamline, racial profiling, etc.), and the asylum process is no exception. Even if courts are initially skeptical of a new type of claim, it is our job as zealous advocates to push the bounds of the law to recognize realities on the ground and gain protection for our clients. Had other lawyers not done this, we wouldn't have domestic violence, FGM, or LGBT claims recognized as social groups as they are now.
    There is certainly a political element to the action. But each of the participants has a legitimate fear of harm that, had they entered individually, would likely have satisfied the credible fear threshold as it is normally applied. None of the denials were based on credibility concerns. All were represented at the interviews by pro bono counsel, either myself or co-counsel at the University of Texas clinic or DMRS in El Paso. Most conducted their interviews in English (all are fluent) and there were few, if any, discrepancies between the fear interviews and the border interviews. DHS responded to a political action with another political action by changing the credible fear process for my clients to generate an unusually high rate of denial. (And as you noted, ICE is still holding without explanation 6 of my clients who passed their interviews or court review.) This was a conscious shift from the Dream 9, all of whom passed their interviews on similar facts. Note that all 3 of the activists in the Dream 9 action who left the U.S. in order to participate in the action passed their fear interviews. I'm certain DHS believes the shift is justified by broader concerns, and maybe you agree, but it is undeniable that they treated these cases differently.
    I have handled asylum cases since I started practicing immigration law, and have represented clients from around the world. I have little faith in the U.S. government's commitment to protecting the rights of displaced and persecuted people who seek protection here. I have seen too many heartbreaking cases to put my trust in the system. I believe that advances come only when we refuse to accept the crumbs that the government, backed by a misinformed public, throws our clients, and instead fight back.
  3. JDzubow's Avatar
    And my response: Hi Mathew and David - I appreciate your strong advocacy for the Dream Activists. I know that is what great advocates do. David's comment helps alleviate one big concern that I have about these activists, but it does not make me feel a whole lot better about the over-all strategy. It sounds like what he is saying is that the Dream 30 (or 34) left the US at different times and for different reasons. Once they returned to Mexico, they developed a well-founded fear. Thus, their claims will be based on "changed circumstances." What worries me is that these cases are being used to promote a political agenda (Dream Act) - and it is an agenda unrelated to the substance of their claims (fear of persecution in Mexico). While asylum applicants are free to say whatever they please about their cases, I think my concern about how their Dream Act activism impacts the asylum system is completely legitimate. It is a subject very worthy of discussion, and I do not see how such a discussion is in any way "defamatory."
  4. MKolken's Avatar
    Thank you for your acknowledgement that your initial analysis is not based on a careful examination of the individual facts of the case. Everyone is entitled to an unsubstantiated opinion.

    That being said, it has just been reported that five more members of the DREAM 30 have been released from custody, bringing the number up to 16, with only a single individual being removed. Not bad odds.

    As for your concern about how their Dream Act activism impacts the asylum system, immigration lawyers have a duty and obligation to provide zealous representation. Forgoing viable available defenses based on external factors that have no bearing on the case at bar opens you up to an ineffective assistance of counsel claim. I assume you aren't suggesting that.
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