• Towards a More Sensible Asylum Policy

    August 18, 2019 // 3 Comments »


    America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for economic migrants. The Trump administration is restoring asylum to its correct role in American immigration policy. It is a long overdue, right thing to do, but almost nobody is satisfied. Here’s why.

     

    Asylum is a very old concept, dating back to the ancient Greeks. It recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. will consider Female Genital Mutilation grounds for asylum while in many nations it is an accepted practice), but in most cases asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group.

    The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994 for example, LGBT status has been, and remains under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.

    But even as those criteria have changed with political winds, asylum has never been about simply wanting a better life. Poverty, for all its horrors, has never fallen within the protected grounds of race, religion, nationality, political opinion, or social group, though is often assumed to by progressive journalists without access to the Internet and some Democratic legislators from the Bronx.

    A theoretical “perfect” asylum case in the U.S. might be a prominent Chinese democracy advocate finally granted permission by Beijing to lecture in the U.S. As he arrives, his government announces he will be arrested upon his return to China for intellectual crimes against the state, and per the State Department, likely subjected to torture.

     

    The reality of 2019 is the asylum system has evolved into a cheater’s backdoor, a pseudo-legal path to immigration otherwise not available to economic migrants. They lack either the skills for working visas, or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and emptily ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent in the last two years even as refusal rates for those cases along the southern border run into the 80th percentile.

    It works — for them. A Honduran on the border who says he came to work is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out over at time years is expensive and politically distasteful (kids in cages!), until recently most asylum seekers were instead released into American society to wait out their cases. They became eligible for work authorization if their cases extended past 150 days, as almost all do. The number of pending cases in early 2019 was 325,277, more than 50 times higher than in 2010.

    Eventual approval rates for all nationalities over the past decade average only 28 percent (some place the approval rate as low as 15 percent and argue it is because of unfairness in the system, rather than illegitimate claims. Others claim the approval rate, however low, is bogus, reflecting clever coaching by immigration lawyers instead of legitimate fears), and after denial the applicant could either refile as a defensive asylum claim, or simply disappear into the vast underground of illegals.

    Previous administrations’ plans to create expedited asylum processes proved ineffective as numbers endlessly just increase to fill the available opportunities. Simply making a claim to asylum has been enough to live and work in America in one status or another. Trump is changing that.

     

    The most visible change is detaining asylum seekers and their families at the border instead of releasing them into society to wait for their cases to be processed. Detention is a deterrent to economic migrants making false claims to asylum, statistically somewhere between seven to nine out of 10 persons plus their families.

    The next change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or in a detention facility, but in Mexico, a program called the Migrant Protection Protocols. People at the border make their asylum claim, and are then nudged a step backward to wait for an answer in Mexico. This relieves the U.S. of the costs, monetary (the House just voted an additional $4.6 billion to be spend on beds and baths for detainees) and political.

    Mexican officials estimate about 60,000 people will be sent to Mexico by the end of August under the Migrant Protection Protocols. The policy seems to be effective in weeding out economic migrants as many, denied the chance to work off their debts in America to the human traffickers they paid for the journey north, choose to return home to Central America and abandon their previous sworn assertion such a return would imperil their lives.

    A more significant Trump change to U.S. policy is to bring it in line with the European standard (“Dublin Convention“) of country of first refuge. Most of Europe subscribes to this model, which requires asylum claims to be made in the first country that can offer refuge. The idea is a person legitimately fleeing a repressive government would want safety as soon as possible. If the person is really just an economic migrant, this will stop him from “forum shopping” to see if the economic benefits are better in Italy or Austria. Or Mexico versus the United States.

    In the American context, if someone is fleeing gang vengeance in Honduras, Mexico would become his refuge even though his cousin needs help in the restaurant in Chicago. The U.S. will thus not consider asylum seekers who pass through another country before reaching the United States (the order is being challenged in the courts.)

    To put the plan into practice, U.S. reached a deal with Guatemala for that nation to take in more asylum seekers from other Central American nations. The U.S. is expected to sign similar agreements with El Salvador and Honduras. The U.S. has had an identical but little-noticed arrangement in place with Canada for many years, allowing the U.S. to not consider asylum applications from persons who did not apply first while in Canada. Despite the media hysteria about cruelty, the idea is nothing new.

    The impact of these changes will be significant. Though Mexico does not yet have a formal safe third country agreement with the U.S., its Commission for Aid to Migrants projects 80,000 asylum requests this year, up from only 2,137 five years ago. Mexico and other Central American nations are expected to also become a place of first refuge for the many Haitians, Cubans, and Africans who previously just passed through their territory en route to America.

    This illustrates an ancillary benefit to moving some of the costs of housing migrants to Mexico, and asking for more asylum processing by Guatemala and other nations: it gives them a reason to police their own borders. Until recently, there was no incentive for these countries to stop migrants headed north, and indeed much incentive to pass on the problems by opening their own borders to northbound traffic. This same thinking allowed human traffickers and drug dealers to operate with near impunity.

    Following all this, the newest change concerns derivative claims to asylum. Spouses and minor children of those approved for asylum continue to be granted asylum alongside the principal. AG Barr, however, recently overturned a decision by the Board of Immigration Appeals saying a Mexican adult man could apply for asylum on the basis of his father being targeted by a cartel. Previous administrations held such an adult, while obviously not a dependent minor, would still automatically “inherit” asylum as the member of a particular social group, his extended family. Barr says now the adult can still apply today for asylum, but has now to prove his case independent of his father.

    Barr’s decision is in line with former Attorney General Jeff Sessions, who ruled victims of domestic violence would no longer be considered members of a particular social group, i.e., all abused women of say Honduras, and were thus not eligible for asylum based simply on a claim to have been such as victim. Sessions determined each woman would need to prove a specific case of persecution and not simply assert she was a victim of a crime sadly endemic to many Central American societies.
    Americans broadly favor immigration in general. But the gap between orderly immigration and unfettered immigration based on how many people can slip through physical holes in the border and loopholes in the law has grown too wide, to the point where a quarter of the 45 million foreign-born people currently in the U.S. arrived here illegally. Some 60 percent of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” As Europe has acknowledged and America is learning, modern immigration comes with considerable social and political costs, and those will be accounted for by society one way (good and thought out) or another (violent and chaotic.)

    As David Frum melodramatically wrote to encourage his fellow progressives to abandon garbage “policy” like abolishing ICE and throwing open the borders, “if liberals won’t enforce borders, fascists will.” Rewriting that a bit, if Congress will not reform immigration policy in line with a broad national consensus, then whoever is in the White House will, albeit in a piecemeal fashion. The result is Obama’s DACA reforms didn’t outlast his administration, and if a Democrat wins in 2020 Trump’s changes to asylum processing will be rolled back. Nothing gets permanently resolved that way, and it needs to be.

     

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    A Broken Asylum System, and How We Ended Up With Kids in Cages

    July 17, 2019 // 8 Comments »


    How did we end up with kids in cages? We put them there, across multiple administrations, and created a politicized immigration and asylum system that constrains better options. So time to stop saying this isn’t who we are and start looking beyond the hysteria.

    There are givens. Immigration restrictions are not inherently racist. All countries have borders. They have to so they can make decisions about who can enter their country and who can be a citizen.

    No nation allows people to simply move in. Every border globally is designed to place a barrier in between those allowed and those who are not. At the same time, most economies depend on the cheap labor of immigrants. For most of the developed world, labor needs are worked out via a points system that admits a regulated number of workers with designated skills coupled with border enforcement. The U.S. instead focuses on “reunification,” with family members legally in the country petitioning for relatives with unknown skills to immigrate (do we get the brother with the 4.0 GPA or the one with 3.0 murders under his belt?) Our borders have historically then been left porous to ensure an adequate number of exploitable workers. But since the number of people drawn to work usually exceeds the demand, our immigration laws also place speed bumps in front of the many, many people around the globe who want to try their luck. Inevitably you end up with kids in cages.

    Bill Clinton’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act set new records for immigrants detained. Next up was George W. Bush’s 2005 Operation Streamline, a zero-tolerance plan to prosecute all illegal entrants. But to avoid the logistics and negative optics, the program made exceptions not written into the law for adults traveling with children. Nature finds a way, and more and more economic migrants arrived with somebody’s child in hand as a Get Out of Jail Free card. Fewer kids in cages, but more illegals.

    Obama initially prosecuted only those found illegally entering more than once. Caught off guard by an influx of asylum seekers from Central America, the administration in 2014 established then-legally permitted family detention centers to hold parents and children — potentially indefinitely — in cages as a means of deterring others. There were also children held alone in cages when they arrived without parents, or in the hands of human traffickers, or when their parents were criminally dangerous. The program ended only because of a 2016 court decision ordering the release of most of those hostage families and largely prohibiting family detention facilities. Adult men, women, and children, would be caged separately in the future.

    The whole Obama program got little media attention, although kids were in cages, mostly at the same facilities in use today. The holding facility at Clint, for example, currently a focal point for progressives, has been open since 2013. It was set up specifically for children. Fort Sill, Oklahoma, housed Japanese-American detainees during WWII, 1200 immigrant children during the Obama years, and will reopen to again take in immigrant children for Trump. Immigrant rights activists dubbed Obama “deporter in chief” for having deported more immigrants than any president. He still holds the title because his administration deported more migrants per year than Trump.

    While many children at the border are with parents, others arrive with human traffickers, some on their own. “Children” can include everyone from infants to 17 year old “boys,” and the dangers of housing those vulnerable people among adults of all types should make it obvious why the law is written as it is. While on the face a nice solution sounds like “parents with their own kids,” imagine the terrible things that can happen when children and adults are detained together.  Also under Trump, parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being criminally prosecuted.

     

    Trump set out in April 2018 to prosecute every illegal crosser, first or tenth time, with or without kids, the letter of the law. There had been a growing rise in the number of people from the Northern Triangle (Honduras, Guatemala, and El Salvador) along with Mexico. For example, the border patrol detained 6,405 unaccompanied children in May 2018, up from 4,302 in April. In comparison with May 2017, the number of unaccompanied children soared by 329% and parents migrating with kids as a family surged by 435% in 2018.

    By law now children and adults cannot be detained together; it was allowed during the Obama years and earlier under the Flores Settlement. Most parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being prosecuted. Overall, interpreting what these laws say must be done versus can be done to end up at what should be done draws some very fine, politically-motivated legal lines.

    What is clear is by ending the various catch-and-release, and ignore and don’t catch policies of his predecessors, Trump triggered the next variation on an old problem. With no legal avenue to immigrate for work, and with border enforcement stopping many from simply walking north and blending into the estimated 11 million illegals already in the U.S., a vast number of economic migrants now ask for asylum. They are aided by for-illegal profit asylum cartels, staff from a Democratic Congresswoman’s office, and volunteer American lawyers.

     

    Asylum applicants must demonstrate if sent home they would be persecuted on account of race, religion, nationality, political opinion, or social group. The definition of those five protected grounds has varied based on American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration for asylum under the Obama administration, rolled back under Trump. However, asylum never has been and was never intended to stretch to security or economic situations affecting blanket-like most everyone in a country. “Wanting a better life” has never been grounds for an asylum claim.

    However, economic immigrants without legitimate claims to asylum have long taken advantage of slow processing by American authorities. A Mexican man caught on the border who says he came just to work may be sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case, however frivolous (there are potential expedited processes.)

     

    The 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires those seeking asylum be detained while their cases are processed. But for logistical and political reasons, prior administrations simply released most asylum seekers into American society to wait. Asylum seekers become eligible for work authorization if their case has been pending for more than 150 days, as almost all do. Trump has directed the letter of the law be followed, ending this catch-and-release system. He also has negotiated for many asylum seekers to wait out their cases in Mexico instead of working the while in the U.S.

    The problem is the backlogs are unresolvable. Affirmative asylum seekers, such as most of those now at the border, apply administratively through DHS. The number of such pending cases as of January 2019 was 325,277, more than 50 times higher than in January 2010. Defensive seekers are those applying for asylum once facing deportation or removal for some reason, including being denied under an earlier affirmative application. These cases go through the courts. As of July 2018, there were over 733,000 pending. The average wait time for a hearing was a staggering 721 days.

    The approval rates for asylum claims are low, and always have been. Some recent figures for Mexican claimant approvals are 12%, Salvadorans 21%, Honduras 22%, and Guatemalans 26%. Those countries account for more than 40% of asylum applications, and have for some time. The high refusal rates, while up under Trump, are not at odds historically. In 1984, only 3% of asylum cases from El Salvador and Guatemala were granted, even as U.S.-sponsored wars raged there. Approval rates for all nationalities over the past decade average only 28%, skewed high over recent years by waves of cases designed to pander to general U.S. voters (Chinese pro-democracy applicants) and evangelical voters (Chinese anti-One Child Policy applicants.)

     

    But as we talk there are still kids in cages. None of this is to defend the conditions in detainee camps. Those are a result of a sudden shift in implementation of immigration law coupled with a lack of infrastructure planning, driven by a president who impulsively wants to be seen as “tough” facing down a problem, all backed by an asylum system no longer suited for the conditions imposed on it. Conditions can be quickly improved, and the House just voted $4.6 billion to do that.

    But we need also acknowledge the dangers in 2019 of hysteria, driven by media and progressive politicians exploiting the situation to paint themselves as liberating another concentration camp on the road to Berlin, when the immediate solutions are more in line with hygiene kits and child care workers. And no whataboutism. Under Obama we tolerated kids in cages. Without that tolerance then we would not have the intolerant situation now.

    But there are deeper dangers. Progressives don’t want to fix Trump’s logistical mistakes (AOC and others voted against the recent humanitarian funding increases.) The camps must not be made more humane, they say, they must be closed. Deportations must not be limited, they must be ended by decriminalizing illegal entry. Free medical care for illegal immigrants. Asylum to economic migrants. Abolish ICE. Open borders.

    Meanwhile, Trump’s immigration policies resonate with important sectors of the public. Some 60% of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” This does not grow from racism or white supremacy (Latinos support much of the Republican immigration agenda), though using those words is an easy way to blame people impacted by decades of imposed change and delete them from the conversation on how to do better.

    The driver seems to be the imposition by elites of an uncounted number of illegal immigrants with unknown skills and unknown criminal backgrounds to have an unknown impact on the places they choose to settle. Do we get the guy with the 4.0 GPA or the one who committed 4.0 murders? We are destined — required — to take the bad with the good, scatter them around the country, and hope for the best.

    So when economic turmoil in Mexico during the early 1990s pushed migrants north, just as war in Central America drove them in the 1980s, and gang violence does today, in America there is no plan. Tired, consumed, with resources stretched, there was a backlash building Trump sensed and acted on. As Trump was unprepared at the border and told DHS to make do, America for decades has been unprepared and told to make due. A de facto open border similar to 2015 Europe imposed by progressives would have the same effect here as there, leading to a new, even more conservative backlash.

     

    The peak year for legal immigration to America was 1907. Your great-grandfather entered an agricultural and rapidly industrializing nation desperate for workers with no time to waste putting kids in cages. To get them out today we need more than olde timey nostalgia and modern outrage. We need a 21st century asylum and immigration policy.

     

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    Don’t Believe America About Syrian Refugees

    September 15, 2015 // 8 Comments »



    The world finally noticed that one Syrian refugee kid drowned on a beach, after failing to notice the Middle East refugee crisis has been an ongoing disaster for almost five years now.

    Same for the U.S.; Obama just announced he wants America to accept 10,000 Syrian refugees, so this is all fixed now, we can go back to Miley and Katy, right? No.

    The Day Before

    Here was the state of affairs as of the day before Obama’s announcement.

    The United Nations High Commission for Refugees referred 15,000 Syrians to Washington for resettlement over the last four years; the United States accepted 1,500, with formally announced plans to take in only another 1,800 by next year, citing, among other issues, concerns over terrorists hiding among the groups.

    With no apparent irony, United States Senator Patrick Leahy stated the refugee crisis “warrants a response commensurate with our nation’s role as a humanitarian leader.” Secretary of State John Kerry said the United States is “looking hard at the number” of additional Syrian refugees it might accommodate, given America’s “leadership role with respect to humanitarian issues and particularly refugees.”

    Many in Washington likely felt that was enough. A token increase, some nice, high-flying language, a little sprinkle of freedom and respect. I think we’re done here.

    The Day After

    But, after seeing that it was a slow week and the media was still showing sad pictures of refugees on the TV box, it seemed more (rhetoric) was needed. So, on September 10, President Obama announced, per the New York Times headline, he will “Increase Number of Syrian Refugees for U.S. Resettlement to 10,000.”

    Well, that’s good, right? I mean, the estimates are that there are some four million Syrian refugees already out there, with another 10 million internally displaced, so even if it is 10,000 that’s hardly anything but still, better than nothing.



    What He Said, What He Meant

    Maybe. But let’s dig down one level deeper.

    To be precise, Obama did not say the U.S. is taking 10,000 Syrian refugees in FY2016. He did not say if the 10k were part of the U.S.’ overall 70k refugee cap, or in addition to it, meaning other refugees could be left behind to favor the flavor-of-the-moment out of Syria. Obama also did not explain that the United States processes refugees abroad (if the person is somehow in the U.S. physically, that’s asylum, different thing, done while the person is in the U.S.)

    Actually, have a look at the exact wording from the White House spokesperson (emphasis added): “The president has… informed his team that he would like them to accept, at least make preparations to accept at least 10,000 Syrian refugees.”

    Refugees are processed, not accepted. That processing can take years, indefinite if enough information on a person’s security background cannot be amassed; there remains great fear in the U.S. government about terrorists sneaking into refugee flows, and so if a positive “up” decision cannot be made that a person is “safe,” then the default is indefinite pending status. Such a conundrum has, for example, stymied the applications of many Iraqis and Afghanis who served as translators for the American military and fear for their lives, only to have been stuck left behind.

    As Representative Peter King said “Our enemy now is Islamic terrorism, and these people are coming from a country filled with Islamic terrorists. We don’t want another Boston Marathon bombing situation.”

    There are also medical and other checks before a refugee is approved. With all the variables, there is no average processing time, but post-9/11 we can say the average is s-l-o-w. In the world of suffering, slow can often mean death.



    Bottom Line

    It appears the White House is taking full advantage of the media’s ignorance of how refugee processing works to create the appearance of doing something when little of a practical nature is being done, all sizzle and no meat. There is little help coming from the United States for any significant number of Syrian refugees. Sorry guys!



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    Edward Snowden’s Statement

    July 12, 2013 // 7 Comments »

    Edward Snowden, in front of officials from Human Rights Watch and Amnesty International at Moscow’s Sheremetyevo Airport, made clear both his own bona fides as a whistleblower, and the hypocrisy of the United States in its manhunt for him.

    Whistleblower? Snowden’s remarks reinforce the basic tenet of whistleblowing, that it is an act of conscience. He made clear what he gave up– home, family, perhaps even his liberty and life– and what we gained, learning what a government which claims to be “of the people” is doing to the people. Snowden still loves America, if not its government and its intelligence services. He reinforced the idea that one courageous act of conscience might make a difference in a nation gone astray.

    Snowden also touched on the most fundamental of points: that the America he is defending is not limited to physical safety, but extends deeper, to the freedoms from unwarranted search and seizure that define America. We are better people than we are now.

    Hypocrisy? Of the countries that offered to help Edward Snowden, the U.S. itself has accepted 3,103 of their own asylees, 1,222 from Russia and 1,762 from Venezuela. The U.S. took those people in without a hint of regard for anyone’s opposition. This is in fact how the asylum system, codified by various UN treaties the U.S. has signed, should work.

    The concept of asylum reaches back to the original democracy, Greece, and it is shameful that the United States today, in only this one case, refuses to recognize it as a fundamental right of a free people. Our Founders, who pledged their own lives, fortunes and sacred honor to such ideals, would weep.

    Irony? During the Cold War, the Soviet Union was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West. Indeed, it was only about a year ago that the U.S. gave Chinese dissident Chen Guang Cheng refuge in our own embassy in Beijing before allowing him to enter the United States. Chen had escaped from Chinese government house arrest and was a fugitive to reach the U.S. embassy.


    Bonus: Please also see my article, Edward Snowden’s Long Flight, as there seem to be some overlaps between what I wrote and today’s statement.



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