Jason Dzubow on Political Asylum

American Lawyer Assists Australian Asylum Seekers

Michael “Dan” Mori is a former Marine Corp attorney who gained fame defending Guantanamo Bay detainee David Hicks, an Australian national captured by the Americans in Afghanistan.  With Mr. Mori’s help, Mr. Hicks accepted a favorable Alfred plea (basically meaning that he did not admit guilt, but agreed that there was enough evidence to convict him). He was sentenced to seven years in prison for supporting terrorists, a charge that he denies. All but nine months of the sentence were suspended. Mr. Hicks served most of his nine months in Australia and was released. The plea came after five years at Gitmo, under less than pleasant circumstances. The case gained quite a bit of attention, as it was the first conviction by a U.S. war crimes tribunal since World War II.

After the Hick’s case, Mr. Mori’s career in the Marines apparently stalled. He alleged (in a lawsuit) that the military retaliated against him for his work on Mr. Hick’s case. He eventually was promoted, but retired soon thereafter and moved to Australia. There, he started work at the plaintiff law firm Shine as a Social Justice Consultant.

It seems that Mr. Mori’s latest project is to help asylum seekers detained by the Australian government on the island of Nauru.

Come on, Mori, admit it – You took the Nauru gig for the beaches!

Nauru is a small island republic in a remote part of the Pacific Ocean. The country became wealthy in the 1960s and 70s by exploiting mineral resources, but when those ran out, the economy went bust. In 2001, Nauru entered into an agreement with Australia to house refugees seeking admission to Australia. In exchange, Australia provides Nauru with financial assistance and technical aid.

The refugee detention center on Nauru has been controversial, and it has closed and re-opened several times. The latest incarnation of the detention center  opened last year in August and holds about 400 men. After a visit to Nauru, Amnesty International described the camp as “a human rights catastrophe … a toxic mix of uncertainty, unlawful detention and inhumane conditions.”

In September 2012, there was an alleged riot at the camp and property was destroyed. The government charged 10 detainees with rioting and destruction of property. The case of the “Nauru 10″ is currently pending, and this is where Mr. Mori comes into the picture.

Mr. Mori and other defense lawyers filed a habeas corpus petition in Nauru, claiming that the detainees are being unlawfully held. The defense team convinced a Nauru court to adjourn the criminal charges until the habeas issue is resolved, and that issue remains pending.

“Whether or not you agree with the process… you have to agree that people being detained should have access to legal help,” said Mr. Mori, who compared the situation in Nauru with Guantanamo Bay. “You have to push the politics aside and remember, if someone’s detained they need access to the law.”

There is a lot at stake for Nauru, which has become dependent on the Australian aid, and for the asylum seekers, whose fate rests in the hands of the Nauru court system. I hope that Mr. Mori and the other lawyers can bring a measure of justice to this obscure corner of the globe.

Originally posted on the Asylumist: www.Asylumist.com.

In Defense of Muslim Asylum Seekers

Since the Boston bombing, we’ve heard much talk about restricting access to asylum (and immigration) for Muslims. Opponents of reform have wondered aloud how the Tsarnaev brothers entered the U.S. and why their father received asylum in the first place (the brothers obtained derivative asylum based on their father’s application). One commentator called for a halt to student visas for Muslims; another for an end to all Muslim immigration. 

As Ben Franklin said, “We must all hang together or assuredly, we shall all hang separately.”

The common belief among such people is that Muslims coming to America pose a threat. And even if only a small percentage of Muslims actually present a threat, we’re better off excluding all Muslims, just to be on the safe side.

Of course I disagree with this viewpoint. In my practice, I have represented many Muslim asylum seekers–from countries such as Afghanistan, Iraq, Iran, Egypt, Somalia, and Syria. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. It’s not uncommon for my clients to have letters of recommendation from members of the military, including high-ranking officers like Generals McChrystal and Petraeus. Indeed, I suspect that my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of the U.S. than the commentators who routinely disparage them.

To illustrate the point, here is a sampling of a few of my recent cases involving Muslim asylum seekers (I have changed the names to protect my clients’ confidentiality):

Daoud is an Afghan man who worked as an interpreter for a private contractor. He served directly with soldiers from the United States military in Afghanistan and was several times in combat situations. His main job was to provide interpretation between the U.S. military and local people. He also provided cultural training to the soldiers. In a counterinsurgency operation, gaining the trust of local people is crucial for identifying and eliminating insurgents. Daoud’s role in his unit’s missions was indispensable. Along with Daoud’s application for asylum, we included letters attesting to his service from many members of the United States military. The letters came from soldiers who served with Daoud and from a two star general familiar with his work. We are currently waiting for a decision in his asylum case.

Fatima is a woman’s rights activist who founded an NGO to educate girls in Afghanistan. The NGO received support from USAID and other international donors, and expanded its work into many Afghan provinces. The Taliban learned of Fatima’s activities and repeatedly threatened her. At some point, the threats became too much, and she decided it was unsafe for her to return to Afghanistan. Her asylum application is pending.

Brahim is an Egyptian activist for gay rights and women’s rights. After the Egyptian revolution, he faced increasing harassment from government officials. He was attacked on several occasions and the police refused to help (once, they actually detained him, even though he was the victim of an assault). With the ascendance of the Muslim Brotherhood, he felt unable to remain safely in Egypt. His application for asylum has received preliminary approval.

Abdul is a journalist and peace activist from Iran. He is also related to an important Iranian opposition leader who lives in exile. Abdul assisted that leader by providing on-the-scene reporting from Tehran during the Green Revolution. After he went to study abroad, the Iranian authorities arrested Abdul’s girlfriend and threatened to arrest him. Rather than return to Iran, Abdul filed for political asylum. His application was granted earlier this year.

These cases are typical of the Muslim asylum seekers that I have represented. They—and thousands like them—have fought and sacrificed and bled in the war against Islamic extremism.

In the aftermath of the Boston attack, perpetrated by two brothers who received asylum in the United States, I understand the desire to examine security procedures for asylum seekers. When you extend a helping hand and then get bit, it’s only natural to hesitate before helping again. But as we think about changing the asylum system in response to the terrorist attack, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

We should not allow the evil deed of the Tsarnaev brothers to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. When making changes to our asylum system, we should be guided by our highest ideals, not by the dark vision of the Tsarnaev brothers.

Originally posted on the Asylumist: www.Asylumist.com.

Would the Last Eritrean to Flee the Country Please Turn Out the Lights

There’s an old joke from the Soviet era where Leonid Brezhnev is talking to his deputy. Brezhnev says, “If we lift the Iron Curtain and allow our people to leave the U.S.S.R., the only ones who will be left here are you and me.” The deputy responds, “Speak for yourself.”

Repressive regimes often prevent their people from leaving. If the doors were open, everybody would go. The classic example of this in today’s world is North Korea. The state is a vicious dictatorship run by a spoiled child. Few people are able to escape from North Korea, and those who do usually end up in China, which is not exactly a paragon of human rights.

Official portrait of the Eritrean National Soccer Team.

If there were a contest for most repressive regime after North Korea, Eritrea would certainly be in the running. The country is a single party state that allows no dissent and has no independent media (it is actually rated worse than North Korea in terms of press freedom–how is that even possible?!). There is a “national service” program that is akin to slavery and members of “unregistered” religions are severely persecuted and killed. On the other hand, they have nice weather this time of year.

Eritreans are not permitted to leave the country without permission, which is often impossible to obtain. But given conditions in Eritrea, and the fact that the country has a long–and difficult to police–land border, many Eritreans flee the country and seek asylum abroad.  Most Eritrean asylum seekers end up in neighboring countries: In 2008, for example, over 8,000 Eritreans sought asylum in Ethiopia and about 13,000 registered as refugees in Sudan. According to the United Nations, in 2011, about 11,900 Eritreans sought asylum in the industrialized world (basically North America, Europe, and Israel), and Eritrea has consistently ranked in the top dozen source countries for asylum-seekers. 

As you might expect, there have been high profile defections. Last year, two Eritrean pilots stole a government jet, flew to Saudi Arabia, and asked for asylum. Last month, a female Eritrean pilot sent to Saudi Arabia to retrieve the stolen jet also defected and has asked the Saudis for asylum. To me, the fact that a woman pilot would request asylum in Saudi Arabia–a country where women are not allowed to drive cars, let alone fly airplanes–speaks volumes about the desperation of these people.

Eritrean soccer players have also defected in droves. In 2006, four players defected in Kenya. The next year, 12 players requested asylum while in Tanzania. Also in 2007, another six players sought asylum in Angola and three more defected and requested asylum in Sudan. After that, the Eritrean government required soccer players traveling abroad to post a bond before leaving the country. Despite this precaution, 12 players defected in Kenya after a tournament in 2009. And last December, the entire team (along with their doctor) disappeared in Uganda. They requested asylum from Kampala. Given this record, its not too surprising that the team has never qualified for the World Cup or the  African Nations Cup.

In my practice, I have represented many asylum seekers from Eritrea. They fear indefinite conscription, and religious or political persecution. My clients have been physically beaten, detained in metal shipping containers, and treated as slaves. Their family members have disappeared or been killed. Indeed, the situation is so bad that the United Nations actually created special guidelines for assessing Eritrean asylum claims.

While the civilized governments of the world should be working to change the regime in Eritrea (and other countries that abuse human rights), we should continue to offer asylum to people who flee such places.

Originally posted on the Asylumist: www.Asylumist.com.

CIS Uses Boston Attack to Condemn Asylum, Immigration System

The “low immigration, pro-immigrant” group Center for Immigration Studies claims that the “United States has naturalized at least a few thousand alleged terrorists in recent years.” As evidence for this dramatic claim, CIS lists exactly four (four!) examples of naturalized foreigners who engaged (or attempted to engage) in terrorist acts, including Dzhokhar Tsarnaev who is charged in the Boston Marathon bombing.

Hmm… There’s something strange about this Naturalization ceremony.

How CIS got from four alleged terrorists to “thousands” is not explained. Although I often disagree with CIS’s conclusions, I’ve found them to be generally reliable when it comes to the facts. Not so in this case. To make such an outrageous and inflammatory claim with almost no evidence casts doubt on the organization’s credibility.

Concerned about the possibility of major immigration reform, is CIS becoming unhinged? Will they–like so many partisan groups–make all sorts of unsubstantiated claims in the hope of getting their way (i.e., killing immigration reform)?

It seems that in many of our country’s policy debates, the end justifies the means. “Swiftboating” has replaced reasoned debate. I hope that CIS won’t go down this road. Like I say, I often disagree with CIS, but I recognize the need for different voices in the conversation. For those voices to make a positive impact, however, they must be grounded in reality. CIS should correct their unfounded claim that the U.S. has “naturalized at least a few thousand alleged terrorists,” and issue an apology.

With that as background, I want to turn briefly to CIS’s testimony on Capitol Hill. This past Monday, Mark Krikorian, Executive Director of CIS testified about the proposed immigration reform before the Senate Judiciary Committee. He spoke about the Tsarnaev family who–he said–immigrated to the United States a decade ago after receiving political asylum. Mr. Krikorian asked:

Why were they given asylum since they had passports from Kyrgyzstan and, especially, why were they given asylum since the parents have moved back to Russia, the country supposedly they were fleeing and wanted asylum from?

A few points. Maybe this is an immigration-lawyer-geek point, but by definition, no one immigrates to the U.S. after receiving political asylum. It is only possible to obtain political asylum if you are already present in the United States. In the case of the Tsarnaev family, events are a bit unclear. It appears that the father came as a non-immigrant to the United States in 2002 with Dzhokhar, and then applied for–and received–political asylum. Afterward, he brought his wife and minor children (including alleged bomber Tamerlan) to the United States. Maybe this is a geek point, but if I were from an immigration organization testifying before Congress, I would want to get the law and terminology correct.

Second, I do not know how Mr. Krikorian knows that the Tsarnaev family had passports from Kyrgyzstan. As far as I know, the family were Russian citizens, and the father was originally from Chechnya, which is part of Russia. While it appears that at least the younger brother was born in Kyrgyzstan, this does not necessarily mean that he had a Kyrgz passport or was a citizen of that country (unlike the U.S., many countries do not automatically confer citizenship on people born within their territory). Assuming that the father had Kyrgz citizenship, he would not have qualified for asylum unless he demonstrated that he had a well-founded fear of persecution in Kyrgyzstan or that he was not firmly resettled in that country. As of now, we do not know why the father received asylum from Russia, let alone from Kyrgyzstan. Suffice it to say that the human rights situation in Kyrgyzstan is no picnic, and that country has produced several hundred thousand refugees. While Mr. Krikorian’s question (why was the family given asylum if they had passports from Kyrgyzstan?) is reasonable, the implied answer (that the family should not have received asylum) is pure speculation.

Finally, Mr. Krikorian asks why the family received asylum since the parents have moved back to Russia, the country supposedly they were fleeing. Again, the implication is that the family should not have received asylum. Mr. Krikorian does not answer his own question, and indeed, we do not know why the father returned to Russia. Maybe he felt that conditions had improved and it would be safe for him to return. Maybe the father was more concerned with his children’s safety than his own, and so once his children were safely in the U.S., he decided to return. Or maybe–as Mr. Krikorian implies–the asylum case was fraudulent from the beginning. At this point, we don’t know. And while I agree that we need to explore all aspects of the brothers’ history, I am not sure that the investigation is well served by cynical assumptions that the father’s asylum claim was false.

As I have said, I often disagree with CIS, but I believe they (and other restrictionist groups) have an important role to play in the current discussion about immigration and asylum reform. I just believe that the debate–and the credibility of CIS–would be better served if the organization speculated a little less, and got the facts right a little more.

Originally posted on the Asylumist: www.Asylumist.com.

Immigration, Asylum Reform and the New Terrorism

The situation is still developing in Boston.  As of this writing, one terrorist is dead; another is on the loose, and a third man–dubbed “an accomplice”–is in police custody. There are still many unanswered questions about the men’s motivation and what connections, if any, they have to other terrorists. One thing we do now know is that the two men who placed the bombs are from Chechnya.

Chechnya is part of the Russian Federation. It has been seeking independence since the break-up of the Soviet Union. The state is majority Muslim and the war against Russia has attracted radical Islamists and has helped radicalize some of the indigenous population. The Russian government has committed terrible atrocities in Chechnya, and Chechen separatists are some of the most evil terrorists around (their worst attack came in 2004, when they took an entire school hostage–in the end, over 380 people were killed, including many, many children).

We still do not know if the Boston attack was somehow related to the conflict in Chechnya, but here are some things we do know: The two bombers were brothers who came to the United States legally with their family. The older brother has been a lawful permanent resident since 2007. At least one brother had a driver’s license (apparently, investigators used facial recognition software to help match a photo of the man with his driver’s license). The younger brother attended school in the U.S., at least since the seventh grade.

One question is how they obtained legal status here? Slate reports that the family escaped the war in Chechnya and went to Kazakhstan and then came to the U.S. as refugees. If this is correct, it will raise questions about the U.S refugee program. I have discussed this issue before, and perhaps will revisit the question once we have more information.

Another question is whether the men were sent here to commit terrorist acts? If it is correct that the brothers have been LPRs since 2007, it seems unlikely that they were sent to the U.S. to engage in terrorist acts. Once a refugee arrives in the U.S., he can become an LPR after one year. This means that the brothers–ages 26 and 19–must have been here since at least 2006. In 2006, they would have been ages 19 and 12. I doubt they could have been sent here at those ages with the idea that they would attack U.S. targets years later. It seems more likely that they somehow got involved in terrorism while in the United States. 

A final questions (for now), is how the revelation that the attackers were Chechen will affect the debate over immigration and asylum reform. I have no doubt that opponents of reform will use the attack to try to derail any new law. But on the other hand, when something like this happens, it is perfectly legitimate to raise security concerns. On this point, I would offer a few observations:

- Immigration reform brings otherwise invisible people out of the shadows. If we legalize people who have been here for years, we learn more about those people. One of the Boston terrorists was identified, in part, because he had a driver’s license. If he was living here illegally, he might not appear in any state or federal database. Thus, legalization reduces the number of unknown people and helps us know more about the people who are here.

- Second, if we are worried about terrorists within our foreign-born populations, we should encourage people within those communities to cooperate and trust law enforcement officials. If foreigners without legal status are afraid of law enforcement, it is less likely that they will cooperate with government investigations. If such people have a path to lawful status, they will be less afraid, and thus more likely to cooperate.

- Finally, the vast majority of immigrants and asylees are law abiding. Many of my asylum-seeker clients have worked closely with the U.S. military in countries like Iraq and Afghanistan. They have risked their lives to fight terrorists and extremists. Punishing and stigmatizing such people, and hundreds of thousands of other law-abiding foreigners, for the actions of two or three terrorists is simply wrong. And, in a country premised on individual rights and responsibilities, it is un-American.

In the coming days and weeks, we will learn much more about the terrorists, their motivation, and how they got to the U.S. We will also learn how the attack will impact the debate over immigration reform. While national security issues should certainly be a part of this debate, I hope that the attack will not destroy the hopes of thousands of good, law abiding immigrants.

Originally posted on the Asylumist: www.Asylumist.com.

To the Security Officers of the World: Thank You

In light of the terrorist attack in Boston earlier this week, I wanted to write about security at Immigration Courts, USCIS, and the Asylum Offices.

As of this writing, we don’t know who perpetrated the attack on the Boston Marathon. But we do know that as residents of a free society, we are vulnerable. We also know that people who would harm others have all too easy access to powerful weapons: guns, explosives, you name it.

Don’t forget to thank the people who keep us safe.

In the context of immigration, there are those in our society who not only oppose immigration and immigrants, but who hate foreigners and would do them—and the Americans who work with them—harm. Behind such people are others—people who would not engage in physical violence themselves, but who encourage such behavior in others with their racism and xenophobia. For these people, their hate is matched only by their dishonesty. Because if a person is honest, and considers perspectives other than his own, it is hard to hate. I am thinking about people like Pam Geller, who says that all Muslims are terrorists and “savages,” Lou Dobbs, who claims that illegal immigrants bring bubonic plague, and Pat Buchanan who is fighting to preserve white America (ok, I admit to a soft spot for Pat Buchanan; at least he is entertaining). But I digress.

For the small number of people who might consider attacking immigrants and “the system,” Immigration Courts, USCIS, and the Asylum Offices are potential targets.

Of course, such offices are part of the federal government, protected by armed guards and metal detectors. Before this week, I hadn’t given it much thought. Mostly, I assumed that the security officers were there in case an immigrant becomes violent (or, perhaps more likely, a lawyer becomes violent and decides to clobber his client). But in the aftermath of the Boston attack, I am reminded that the officers are there to protect the immigrants, their advocates, and government employees from harm.

I suppose it is an obvious point, but for busy people (like me) who view the security checks as a nuisance, it is important to remember how essential they are. Also, lest anyone thinks security officers at the Immigration Courts (and elsewhere) don’t put their lives on the line, check out this virtual tribute to private security officers killed in the line of duty.

Today, I passed through three different securitywww.Asylumist.com check points—at my son’s day care (he’s in a federal building), the Asylum Office, and the Immigration Court. I try to be friendly to the officers whenever I see them and to thank them, but it’s not always easy when I am rushing from one place to the next. Today, I tried to make a special effort to express my thanks, and going forward, I will try to be better about that. So, to the extent that anyone pays attention to what I write here, I’d like to say to the security officers who protect us: Thank you.

Originally posted on the Asylumist: www.Asylumist.com.

Attention Glenn Beck – Please Hire Me!

It seems that Glenn Beck is hiring immigration lawyers, and I want in.  First, some background:

I’ve written before (here and here) about the Romeike family, a German Evangelical homeschooling family. They were granted political asylum in the United States after the German government tried to force them to send their children to public school. DHS appealed the ruling, and the Board of Immigration Appeals reversed the Immigration Judge’s decision. The case is currently before the U.S. Court of Appeals for the Sixth Circuit.  Oral argument is scheduled for later this month.

The Romeikes have a tough case. They have to demonstrate that they face persecution in Germany. They face fines and possible jail time, and they might even lose custody of their children. Such punishments are harsh, but I doubt a court would find that they rise to the level of persecution (though maybe the loss of the children would qualify).

This would be me if I worked for Glenn Beck (except I am not black) (and I normally do not wear a tie).

Further, and this may be the most controversial aspect of the case, the Department of Justice is supposedly taking the position that the Romeikes do not have a “right to home school anywhere.”  At least this is how the Home School Legal Defense Association characterizes the DOJ’s position. Frankly, I am a bit skeptical that this is actually DOJ’s position (their brief is not public, so I have not seen it), given that they can probably win their case without stirring up this type of controversy (see previous paragraph). But I suppose if DOJ wanted to make all possible arguments against asylum, this would be one.

So how does Glenn Beck tie into all this?

Earlier this week, Mr. Beck discussed the Romeike family on his show:

“They [Romeikes] did it the right way,” said Beck. “They had their visas. They came here and asked for political asylum. Because if they return to Germany the state will take their children unless they dump them into the system that [goes against their Evangelical values].”

Beck said that the idea of deporting the Romeikes flies in the face of everything that the U.S. stands for. “There is nothing more un-American than this.”

Mr. Beck compared the family with our country’s earliest settlers, who were seeking religious liberty. 

The Romeike’s have become a bit of a cause célèbre among American homeschoolers and religious conservatives. A petition to the White House supporting them has received over 100,000 signatures, and–this is the part that caught my attention–Glenn Beck has pledged $50,000 to pay for their legal fees.

As a side note, I do these cases for far less than $50,000 (for affirmative asylum cases, I charge $2,400, which makes me think I need to raise my rates). Mr. Beck, if you feel inclined to help out others seeking asylum based on religious persecution (and I represent many, including people from Iran, Iraq, China, Afghanistan, and Eritrea), please give me a call. 

So is it hypocritical for conservatives who normally oppose immigration to support the Romeikes? Writing for Salon, Sally Kohn theorizes that Mr. Beck and his fellow conservatives are supporting the Romeikes because they are white. While I am no fan of Glenn Beck, I am willing to give him the benefit of the doubt on this one (though it seems reasonable to ask why he isn’t funding asylum seekers from countries like Iran and Eritrea, which harshly punish–and kill–religious dissidents). So what’s going on here?

My guess is that Mr. Beck is confusing American values–such as allowing parents to home school their children–with asylum law, which protects people from persecution on account of religion. Just because we in the U.S. enjoy a particular right–like the right to school our children at home–does not mean that an alien can get asylum when his country refuses to allow him the same right. We have a right to abortion in the U.S. and a right to own a gun, but I doubt an alien who was denied one of these rights in another country would qualify for asylum in the U.S.

Also, I wonder whether Mr. Beck has thought about the dreaded “slippery slope” argument. Would he support this family if they were members of a Christian Identity (i.e., Neo-Nazi) Church? What if they were (gasp!) Muslims? 

The Romeikes, like any other asylum seeker, need to show that they face persecution, as that term has been defined by case law. Otherwise, they simply do not qualify for asylum. I wish the Romeikes well in their case. But if it doesn’t work out for them, and if Glenn Beck wants to fund some other worthy asylum seekers who are fleeing religious persecution, I have a few cases he might be interested in… 

I corrected an error in an earlier version of this post.

Originally posted on the Asylumist: www.Asylumist.com.

Fox News Goes After Syrian Asylee – By Any Means Necessary

On Fox News, the ends always seem to justify the means. It’s acceptable to smear a perceived political opponent based on the most tenuous of evidence. For this reason, even when Fox News raises a legitimate concern, it’s hard to separate truth from half-truth (which reminds me of the old Yiddish proverb: “A halber emes iz a gantse lign” or “A half-truth is a whole lie”). So I am not exactly sure what to make of Fox’s latest campaign to “expose” Syrian asylee Daoud Chehazeh.

According to Fox News:

Daoud Chehazeh is a known associate of the 9/11 hijackers.  The government has spent more than half a million dollars trying to deport him, but has had no success.

Like a Swedish gymnast, Fox News is both fair and balanced.

Another (of many) reports by Fox News states:

With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time after a series of bureaucratic screw ups at the federal level….

It’s a slap in the face to Americans, especially the victims of 9/11 and the families,” said Jim Bush, who as a New Jersey state criminal investigator was part of the 9/11 investigation code-named PENTTBOMB. His partner in the investigation was Bob Bukowski, a now-retired FBI special agent.

“Three thousand people were murdered,” Bukowski said. “(Chehazeh) was definitely part of that conspiracy…. He facilitated the moves and protection up to the whole flight, basically, of Flight 77. Could we prove that in a court of law? No. But there are other remedies. Deport him. That’s what should have been done in this case.”

Before I get to Mr. Chehazeh’s case, I want to break down some of the Fox commentary. First, it’s true that “Daoud Chehazeh is a known associate of the 9/11 hijackers.” According to a published federal court decision, he met two of the hijackers at a mosque in Northern Virginia. After the September 11th attack, Mr. Chehazeh contacted the FBI and reported whatever information he had on the two men. So to claim that he was a known associate of the hijackers, without mentioning that he went to the FBI to report what he knew about the men, is kind of like calling Woodward and Bernstein “known associates” of Richard Nixon because they reported the Watergate cover-up. At best, it’s a half-truth.

Second, Fox News claims that the “government has spent more than half a million dollars trying to deport” Mr. Chehazeh. How they could possibly know the amount that the U.S. government spent on Mr. Chehazeh’s case is beyond me. Unless they actually know how many hours each government employee worked on the case, it seems impossible that they could know the amount. Here, I suspect that Fox News just guesstimated (which is a polite way of saying that they made it up).

Next, Fox News says that “With nearly 400,000 people waiting for U.S. citizenship, Daoud Chehazeh last November received political asylum for a third time….” I am not sure who these 400,000 people are, or how Fox arrived at this figure. I also am not sure what they have to do with anyone’s asylum case. I do know that Mr. Chehazeh did not receive asylum “for a third time.” He received asylum once (in 2002). The government appealed and later filed a motion to reopen, but he was only ever granted asylum one time.

Finally, the retired FBI agent Bob Bukowski says that Mr. Chehazeh was “definitely part of [the 9/11] conspiracy…. Could we prove that in a court of law? No.” It seems to me, if Mr. Chehazeh was “definitely” part of the conspiracy, Mr. Bukowski could prove it in a court of law. In fact, claiming that someone was “definitely” responsible for murdering nearly 3,000 people when there is little or no evidence to support such a claim, would likely form a strong basis for a libel lawsuit.

Despite the problems in Fox’s reporting, Mr. Chehazeh’s case raises some serous issues.

For one thing, the IJ’s behavior during the case was–to say the least–unusual. According to the government’s brief (as set forth in the Third Circuit’s decision):

[The IJ’s] behavior in this matter… included… ordering the Service… to personally travel to Respondent’s place of detention to assist him in preparing his I-589 [application for asylum and withholding of removal]. When the Service declined, the [I]mmigration Judge advised that she would assume Respondent had a meritorious claim and grant him asylum. Ultimately, the Immigration Judge personally reviewed and completed Respondent’s I-589. At the time of the individual hearing prior to obtaining any testimony from Respondent, the Immigration Judge advised that she was ready to render a decision

The IJ’s actions are strange, and might very well have been reversed on appeal, but the government attorney failed (forgot?) to file a brief, and so the government’s appeal was dismissed.

Another odd aspect of the IJ’s decision is that she found an exception to the one-year filing requirement based on changed circumstances, to wit: the fact that Mr. Chehazeh had recently spoken to the FBI. However, she granted asylum based on Mr. Chehazeh’s particular social group–”hopeless debtors.” It’s questionable whether this is a cognizable social group. Also, if the IJ found an exception to the one year-rule based on Mr. Chehazeh’s cooperation with the FBI, she should have granted asylum on a related ground (such as imputed political opinion since anti-American extremists might view Mr. Chehazeh as pro-American). Instead, the IJ granted asylum on a totally different basis: The fact that Mr. Chehazeh owed a substantial debt to someone in Syria. Since he owed this debt at the time he arrived in the U.S., more than one year before filing for asylum, it is unclear why he would qualify for an exception to the one-year rule.

Despite the difficulties with the case, it appears that the matter is now settled, and–unless new evidence is unearthed–Mr. Chehazeh will be able to remain in the United States as an asylee.

So in the end, Fox News has a point: There are real problems with Mr. Chehazeh’s case, both procedurally and substantively. However, since Fox’s coverage of the case is so distorted and inaccurate, it leaves more questions than answers.

Originally posted on the Asylumist: www.Asylumist.com.

Pity the Persecutors

Passover is the holiday where we remember the Jews’ exodus from slavery in Egypt. As we all know, it didn’t end well for the Egyptians, what with the 10 plagues (including death of the first born – oy vey!), and then the business about drowning in the Red Sea.

The Passover Seder is the meal where we re-tell the story of the Exodus. At the Seder, we dip our finger (or a spoon for the germ-o-phobes among us) into  our wine 10 times, and remove one drop each time. This reminds us that the joy of our liberation is diminished by the suffering of the Egyptians.

Don’t you Jews eat any other part of the Matzah?

I often think about how the source countries for my clients are affected by my clients’ departure. Many of my clients are well educated and talented people. They are exactly the type of people the source countries need in order to improve. The only problem is that such people are often targeted by fascist regimes (like the Syrian government) or extremists movements (like the Taliban).

Some would argue that people like my clients should stay in their countries and work (or fight) for change. That is easy to say for people who do not live in such places, and who do not face threats to themselves and their family members. Many of my clients did, in fact, work for change in their countries before they left. For example, I am about to file the case of an Afghan man who worked for various NGOs helping children and women. After receiving many threats, he was brutally attacked with a knife (necessitating numerous surgeries), and finally fled for his life. His case is in some ways typical of my clients. They continue their good work in the face of death threats, but at some point, they feel compelled to leave. International humanitarian law exists to help such people, and my feeling is that each person needs to make his own decision about whether to stay or go (the Washington Post recently ran a depressing photo essay about this choice in the context of Syria).

One thing that seems obvious is that when such people leave, their home countries are diminished. While I can’t say I pity the persecutors, I do feel bad that good people–people who could make a difference in their home countries–are forced to leave. This harms the people who are left behind and helps create a vicious cycle: Conditions are bad, so good people leave, and then conditions get worse, so more good people leave.

My one hope, which I see with my clients, is that they often remain engaged trying to help their homelands. Many of my clients are journalists and human rights activists. They can continue to support change in their home countries (by working for the media, for human rights organizations or for the U.S. government), while living safely in the United States.

So as we celebrate Passover, I am thankful for freedom and safety. But I will also try to remain cognizant of those who are left behind.

Originally posted on the Asylumist: www.Asylumist.com.

Immigration Reform for Asylum Seekers, Part One

Now that Comprehensive Immigration Reform is finally on the table, I thought I would discuss my own “wish list” for reforming the asylum and humanitarian relief system. Human Rights First is in the forefront of the effort to include asylum reform in any CIR package, and they–along with scores of other organizations and law professors–have submittedrecommendations to Congress and the President. Below is my own take on asylum reform, including some thoughts on Withholding of Removal and relief under the United Nations Convention Against Torture:

- One Year Filing Deadline: The current law requires aliens to file for asylum within one year of their arrival in the United States. There are two exceptions to this rule: (1) changed circumstances (i.e., it was safe to return home when the alien arrived here, but something changed, and it is no longer safe to return home); and (2) extraordinary circumstances (i.e., something prevented the alien from filing for asylum–maybe she was a child and did not have the capacity to file, or maybe she was suffering from post traumatic stress disorder). Aliens who cannot demonstrate an exception to the rule will be denied asylum if they file more than one year after they arrive in the U.S.

 

Also on my wish list: My Little Pony (with brush).

Supposedly the original purpose of the one-year rule was to prevent fraud. However, the real-life effect of the rule is to block legitimate refugees from obtaining asylum. One group in particular that has been negatively affected are LGBT asylum seekers. In many cases such people are not “out” when they arrive in the U.S., and it takes them time–often more than one year–to understand their sexual orientation and then decide to seek asylum. Other people harmed by the one-year rule include those who are emotionally unable to prepare their cases due to the severe traumas they suffered, people who do not know about the one-year requirement, and people who wait to seek asylum in the hope that country conditions back home will improve.

Having litigated dozens of cases where the one-year rule was a factor, I don’t see how it ever prevented fraud. It is an arbitrary rule, which does nothing except block legitimate asylum seekers from obtaining relief. My number one hope for asylum reform is that the one-year rule will be eliminated.

- Asylum Clock: I have written previously about the Asylum Clock. When an alien files for asylum, DHS starts a “clock.” When the clock reaches 150 days, the applicant can file for a work permit. If the applicant does anything to delay her case, the clock stops. Theoretically, when the delay ends, the clock should re-start. But thanks to ambiguous rules governing the Asylum Clock, that does not always happen.

Although I really can’t stand the Asylum Clock, I suppose I recognize that it is a necessary evil. Prior to the clock, it was common for aliens to file frivolous asylum applications in order to obtain a work permit. In those days, cases took years to adjudicate, so anyone claiming asylum could work lawfully in the U.S. for years before their case was denied. The Asylum Clock, combined with the fact that asylum cases–at least at the Asylum Offices–are usually decided in a matter of months, have greatly reduced frivolous applications. Although it has helped to reduce fraud, the Asylum Clock is incredibly annoying.

The bottom line for me is that the presumption of the Asylum Clock should be in favor of keeping the clock moving. If an Asylum Officer or an Immigration Judge finds that the alien is purposefully delaying his case or that the case is frivolous, they should stop the clock. But the clock should not be stopped for legitimate delays (For example, sometimes an attorney must refuse an appointment date due to a conflict. When this happens, the clock stops. But why should the alien be penalized because the attorney is unavailable on a particular date?). My “wish” here is that the Asylum Clock rules will be re-written to make it easier and faster for asylum seekers to get their work permits.

- Withholding of Removal and Convention Against Torture (“CAT”): There are two distinct categories of people who receive Withholding or CAT instead of asylum. One group are people who are ineligible for asylum because they are criminals or human rights abusers. The other group are people who missed the one-year filing deadline for asylum (and receive Withholding) and people who face torture in their countries, but not on account of one of the protected grounds for asylum (they receive CAT). Aliens who receive Withholding or CAT receive a work permit, which must be renewed every year, but they can never become residents. Unlike asylees, they cannot petition to bring immediate family members to the U.S. and if they leave the U.S., they cannot return. Finally, because few people have these statuses, people with CAT or Withholding often have trouble obtaining a driver’s license and convincing employers that they are lawfully present in the United States.

Frankly, I am not in favor of giving more benefits to criminals or human rights abusers who receive Withholding or CAT. Some immigration rights advocates would disagree with this (and there are legitimate reasons to disagree), but I feel that there should be consequences for our bad actions, and people who do not qualify for asylum due to their own bad conduct should suffer those consequences.

On the other hand, it is unfair to penalize people who receive Withholding or CAT because they missed a filing deadline, or because they face torture for some reason other than race, religion, nationality, particular social group or political opinion. My “wish” here is that such people receive some or all of the benefits normally given to asylum seekers. These people have done nothing wrong, and often they have suffered serious abuse in their homelands.

Well, that’s enough for now. I have a few more wishes, but I will cover those in a future post. 

Originally posted on the Asylumist: www.Asylumist.com.