« Co-Authoring with Students and Collaborative Learning, (Largely) Successful | Main | Consent to General Personal Jurisdiction »

Tuesday, May 10, 2016

Asylum Fraud and Immigration Loopholes

On Monday, Chicago immigration lawyer Robert DeKelaita was convicted of falsifying paperwork to help his clients win their asylum claims. Over the past ten years DeKelaita has won asylum for hundreds of Iraqi Christians facing deportation. However, in many cases he did so by impermissibly coaching his clients. DeKelaita would teach his clients how to lie in their interviews with the state department in order to improve their chances of gaining asylum. I have  mixed feelings about this case. What DeKelaita did was clearly illegal, but it is the type of last resort that results from a draconian immigration system. For  immigrants facing deportation the options for relief are dismal. Consequently, I can understand (although not condone) why immigration lawyers would feel the urge to coach or even manipulate the facts of their client's case.

The year I was a law clerk on the Third Circuit Court of Appeals my judge received numerous asylum cases from Chinese petitioners yet  they always took one of two forms. If the petitioner was married, he (all these petitioners were male) would seek relief from deportation based on persecution pursuant to China's one child policy. If the petitioner was single, he or she sought  relief as a persecuted Christian. The same fact patterns appeared over and over.

The one child policy men claimed they feared returning to China because they had violated the one Child policy and would face persecution by the Chinese government if they returned. In each of these cases, the men had left their wives and children in China yet, they presented no evidence that their wives had suffered retribution  (please note that I am just referring to these cases, there is plenty of evidence that men and women have been punished though forced sterilizations, abortions and other means for violating this policy).  Similarly,  the Christian asylum cases that came before us were all factually similar as well. The petitioners all claimed to be devout Christians who would face persecution if they returned to China. However,  none of the petitioners had been religious in China and even in the United States, their religious activities were infrequent and minimal.

Some of these cases may have been genuine. However, it  certainly appeared that the petitioners had been coached by their lawyers in order to shoehorn these men and women into meeting the criteria for one of the only two likely possibilities for avoiding deportation. DeKelaita clearly took his coaching too far. Still, his case highlights the fact that our asylum categories and criteria are too narrow. For as long as there have been immigration regulations, there have also been exceptions and the more we cut off one path to immigration, the more likely it is that people will try and pigeonhole themselves, legally or illegally,  into another.

In my book, Buying A Bride, I devote a whole chapter to the "marital immigration loophole." This loophole arose during the late 19th and early 20th centuries as US immigration law became increasingly restrictive. First Chinese and then Japanese immigrants were banned, then poverty and literacy requirements were enacted to reduce Eastern and Southern European immigration then, lastly,  specific country quotas were passed. These restrictions drastically reduced immigrants' ability to enter the United States but marriage  to an American citizen  provided a way around nearly all of these restrictions.

Mail order brides were legal immigrants yet they were also clearly exploiting a loophole in immigration law. Critics of the US's restrictive immigration policy were appalled that marital immigration permitted these "undesirable " women to continue entering the United States. Nevertheless, today, most people acknowledge, that it was actually the United States' restrictive, race based immigration policies that were disgraceful. A poignant example of this is the history of America's Armenian mail order brides.  These women were refugees of the Armenian genocide yet, it was only as wives of Americans that they were granted entry into the United States. Consequently, although I don't agree with what DeKelaita did,  I understand how he might have felt that a legal system which requires a persecuted minority to return to a country where they face a real possibility of future persecution (even if they don't meet that legal definition) is one that is seriously flawed.

Posted by Marcia Zug on May 10, 2016 at 01:20 PM | Permalink

Comments

I don't quite understand how the fraudulent Chinese asylum applications fit into the rest of the post. It's easy to see how Iraqi Christians are a persecuted minority and certainly the same for the Armenians during the genocide, but the Chinese immigrants are by and large economic migrants, right?

Posted by: John | May 10, 2016 4:30:45 PM

Post a comment