Now it’s a war on asylum.

Sunday, October 15th, 2017
By: Jonathan MontagJ.D.

Of all the things one would think a large, rich, heterogeneous, morals-based society would not go to war against, it would be asylum seekers. Yet this is what our country is doing. For a country that has as one of its identifying symbols a statue of liberty, it is dispiriting that this is happening. The war is not against the powerful, educated, and entitled immigrants literally coming to take our jobs, but with the weakest, most powerless, and most oppressed.

Attorney General Jeff Sessions rallied the asylum-war fighters in a speech last week.  Basically, the speech stated that a lot of people lie in their claims of persecution and asylum applications and it is destroying America.

Reading the speech, one has to wonder if Mr. Sessions was born yesterday. What! People lie? Why, Heavens to Betsy! Certainly there are people who have good lives in foreign countries, but want to try to have a better one in the United States, so lie and ask for asylum. However, I suspect that is a minority of liars. The vast majority are fleeing their countries to escape some sort of oppression or severe want or danger, but the asylum laws do not recognize their plights as a valid basis for asylum.

A particular paragraph in Mr. Sessions’ speech illuminates this. He stated, “We have a generous asylum policy that is meant to protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality. Unfortunately, this system is currently subject to rampant abuse and fraud. And as this system becomes overloaded with fake claims, it cannot deal effectively with just claims. The surge in trials, hearings, appeals, bond proceedings has been overwhelming.”

He indicates that asylum is available to those because of persecution based on “fundamental things” like religion or nationality. Well, that’s about two-fifths of it. Asylum is available to those who have a well-founded fear of persecution on account of their religion and nationality, but also on account of race, political opinion, or social group. Now suppose you face certain death for refusal to join a gang. The police can’t help. So you flee to the United States. You explain the danger. You explain that two of your friends were found with bullets in their heads. You provide a letter from the local priest explaining the danger. Is that risk of death alone a basis for asylum? No, because the claim must have one of the five nexuses. Is the claim on account of religion, nationality, race, political opinion, or social group? Most likely not.

Suppose you are a Syrian resident of Aleppo. You have been trapped in your apartment for a year. Your uncle and cousin were killed by snipers, Your children haven’t had a school to go to for all that time. The hospitals in your neighborhood have all been bombed out. You manage to sneak out, pay smugglers, ride dinghies, the whole tale. You tell your story. Is that risk of death a basis for asylum? Is the claim on account of religion, nationality, race, political opinion, or social group? Most likely not.

Now, when you are arrested by U.S. immigration authorities after reaching the United States – Yes, that’s what we do with asylum seekers – throw them in jail, men, women (if there’s room for them and the children), and unaccompanied children (though the children sometimes can get out, to the consternation of Mr. Sessions), you learn that telling the unvarnished truth about your asylum claim will mean expulsion and death. However, you also learn the benefit of mixing  a little religion, nationality, race, political opinion, or social group in to the tale. Are you any more or less likely to be killed if you return to your country? No. Are you any more likely to be allowed to avoid your death and be granted asylum by lying? Yes. This must be what Mr. Sessions was referring to when he said in his speech, “Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing—if the alien shows for the hearing,” Is it understandable that people fleeing for their lives would do this? Is it something new? Is it something no attorney can or should participate in? Is it what Mr. Sessions would make you think the lying is all about? [Yes. No. Yes. No.]

Now, suppose you are a kid who is of a minority tribe or caste or community. As a kid, you were beaten up three times because of it. As an adult, you cannot get a decent job because of it. So, you get to the United States and apply for asylum. Is it a slam dunk case? No. Is being beaten up three times persecution? How about four times? How about twice, but hospitalized once afterward? Is not being able to find work persecution? How about if you can barely survive on the kind of work you can find? Is filing such a claim abusive? Is this what Mr. Sessions means by, “The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims.”?

Finally, while it is relatively clear what religion and nationality, two of the five bases all asylum claims must involve under the asylum law, mean, less clear are the other three, race, political opinion, and the most obscure of all, social group. Any idea what a social group is under the asylum law? Is your mother’s book club a social group? Wealthy landowners? Despite the sixty-plus years since the post World War II, international asylum agreements were made and “social group” introduced into the law, in 2014 the Ninth Circuit Court of appeals wrote  that the term “social group” was in flux. The last three years in asylum law have been all about courts trying to understand the analyze the government’s definitions of social group. Is it wrong as an asylum seeker or his attorney to test the limits? To try to extend the limits? To try to fit your client within the limits? [No. No. No.] Is this what Mr. Sessions is referring to when he states, “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”? Hopefully not. Hopefully, he is referring to another kind, which I have written about over and over in this blog.

Mr. Sessions also complains about the increase in numbers of people coming to the country and asking for asylum. He ignores the fact that the world is on fire. There are all kinds of upheaval all over the world. Russia is turning into a dictatorship. The Chinese are cracking down. Syria is still in the midst of a civil war. Bangladesh and Pakistan are in all kinds of upheavals. Afghanistan and Yemen are in full-fledged civil war. Iraq is a mess. Turkey is cracking down. Somalia at war. Congo, at war. Libya at war. Egypt, Ethiopia, Eritrea oppressive. Palestine still under occupation. Closer to home, Brazil is in economic free-fall, Central America is wracked by violence, and Mexico is considered by the Pentagon to being close to becoming a failed state.  Not to mention outflows from Cuba, the immigrant ethnic group that must not be named. With such conditions all over the world, is there any reason not to expect more asylum applicants?

Sessions’ speech is not all that is going on in the asylum context. There are the executive orders regarding travel bans. The President lowered the annual refugee quota.  Nearly all arriving aliens are being detained.  Immigration judges are being giving numeric performance standards (quotas).

It has come to the point I discourage people from seeking asylum here. Do you want to be arrested and shuffled from jail to jail, far from lawyers and far from family support or at least six months? Do you want to face an unsympathetic and harried judge while you have no ability to present a case in some remote detention facility? There must be a better way. There must be a better place. Posted October 15, 2017.





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