My persecution is not more valid than your persecution.

Sunday, March 20th, 2022
By: Jonathan MontagJ.D.

News from the United States-Mexico border centers on Ukrainians and Russians coming to seek asylum. Some are let in and some are not. The basis for denying entry is what the media refers to “Title 42,” a term oblique to the layman, reminding one of other mysterious number-based monikers like Area 51, District 9, or Studio 54.

Title 42 (The Public Health and Welfare) refers to one of the 54 volumes of federal statutes  – laws passed by Congress. Readers of this blog are likely familiar with other titles like Title 8 (Aliens and Nationality) – the Immigration and Nationality Act I always site to in these blog posts, Title 18 (Crimes and Criminal Procedure), the federal criminal code, and Title 21 (Food and Drugs), containing all the drug laws.

Of the 161 chapters in Title 42, the one that applies to these Ukrainians and Russians is 42 U.S. Code § 265 – Suspension of entries and imports from designated places to prevent spread of communicable diseases, which states:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

This is not the first we heard of Title 42, that is to say, 42 U.S.C. § 265. Ever since being implemented on March 20, 2020,  it has been used to deport people seeking asylum at the United States border. Whether 42 U.S.C. § 265 or pre-42 U.S.C. § 265, pictures of Central Americans and Haitians being denied entry, massing at the border, being removed by Mexican authorities, and repelled at the border by tear gas, horses and whips, have blessed the airwaves. There was great consternation by some of the rule and the earlier closing of the border to asylum seekers, but not enough to remove the restrictions.

What has always been missing in the application of the law is consistency. One day you hear from a family not allowed into the country because of 42 U.S.C. § 265 and the next day a different family walks into your office, having been allowed to enter the country. While every exception to strict application of the law can be applauded as the application of humanity by U.S. border officials, it also makes advising people very difficult – I tell a person that surrendering at the border is likely futile and another lawyer, oblivious to 42 U.S.C. § 265 or disingenuous about the existence of the law, tells the same person it is not a problem, and lo and behold, the person is allowed to enter. So who’s the idiot?

The inconsistencies in the application of the law then continue. Once a person is allowed into the country, the law calls for detention and a “credible fear interview” to determine if there is a valid asylum claim. Those that cross this hurdle can then be considered for release from detention. In practice, many who are allowed to enter are released without the interview. Others pass their interview and are released while others, similarly situated, are not released and must pursue their asylum in the immigration court while detained. Again, multiple opportunities for a lawyer to lay out the huge obstacles to seeking asylum, only to be made to look like an idiot when, against all odds, entry goes as smooth as silk.

The biggest problem for these Ukrainian and Russian asylum seekers is that they rarely qualify for asylum. Here is a typical scenario. A person lives in Ukraine. Their city is being attacked by missiles and rockets. There is no food and no electricity and they have family in the United States. In danger for their lives, certainly they are eligible for protection as refugees! Right? Well, Wrong.

The definition of a refugee can be found at Title 8, this is to say 8 U.S.C. 1101(a)(42):

The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….

How would a fleeing Ukrainian qualify based on this definition? The viable hook is that as a Ukrainian being bombed, you are being persecuted because of your nationality and need protection from the war. Unfortunately for asylum seekers, asylum case law tends to restrict eligibility rather than expand it, mainly in deference to government agencies who tend to apply asylum law restrictively. Consider how a 9th Circuit Court of Appeals decision from 2004, Knezevic v. Ashcroft, looked at people seeking protection from war:

Further, the IJ’s reasoning misses the critical distinction between persons displaced by the inevitable ravages of war (e.g., the bombing of London by the German Luftwaffe during World War II), and those fleeing from hostile forces motivated by a desire to kill each and every member of that group (e.g., the destruction of the Jewish neighborhoods on the Eastern front of Europe by the Einsatzgruppen, who followed the German Wehrmacht in WWII). In the first example, although the German armed forces intended to conquer and occupy London, they did not intend to kill every Londoner. In the latter example, the Nazi detachments did intend to kill every Jew, which made the persecution individual to each Jewish resident of an area invaded by the Nazis.

Not to get too deep in the woods with the scenario, but asylum is granted because a person’s government is unable or unwilling to protect them.  The government of Ukraine is certainly willing to protect the fleeing Ukrainian. Whether it is unable to is, at the time of the posting of this post, not clear. Also, worthy of consideration is whether the generalized danger to Ukrainians from the Russian invasion is persecution on account of nationality that the government of Ukraine cannot protect against so that 40 million Ukrainians are eligible for asylum.

None of this is to say that an individual’s experiences could be the basis of a valid claim.

Oddly, the situation for Russians is better asylum-law wise. With the steep penalty for anti-war utterances (or, apparently, uttering “war” itself), showing some past violation or a determination to speak out in the future, a person could be eligible for asylum based on political persecution. A young man may have a claim to political persecution if he can demonstrate a legitimate fear of being conscripted into the Russian army and sent to Ukraine to be compelled to commit war crimes. “May” is the operative word as there is a lot that would have to go wrong before a young Russian man would actually be faced with having to commit a war crime, making the probability of persecution so low as to invalidate an asylum claim.

Considering the grim reality that these people are not really eligible for asylum just like many others seeking asylum at our borders, is there anything that distinguishes them from the others – Africans, Haitians, Latin Americans…? Latin Americans have a shorter trip to the United States, passing through fewer countries where they could conceivably seek asylum. Accounts of the countries Ukrainians coming here pass through reveal more countries than the countries on a Viking Cruise. So, morally, who has the stronger claim to entry?

Unfortunately for the Ukrainians and Russians, there is no constituency to fight for them politically to let them in. The “right” is not about to start clamoring to, “Let ‘em in,” as their whole thing is that immigration is a blight. The more nationalist, white supremacist right may favor these people over others because they, “look like us,” but these people tend to also be the pro-Russian elements, thus unsympathetic to Ukrainians and Russian dissidents. On the left, the pro-immigrant community is certainly not going to fight for the entry of Russians and Ukrainians over everyone else. For them, appeals to help Ukrainians and Russians will be a part of appealing for everyone seeking protection.

It is really about time terrible things stop happening. Posted March 20, 2022.


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