Law Blog

The Volokh Conspiracy has an interesting post about how asylum claims based on religious persecution are handled in the United States, particularly Christian converts in China, where the government is less than friendly to most organized religion.

As a result, some Chinese Christians seek asylum in the United States and other nations with more religious freedom than their homeland. While there are almost certainly a large number of people who have valid claims for asylum, this fact has been used by some people to give an air of plausibility to fraudulent asylum claims. My sympathies are with anyone who would want to come to the U.S. (or any other country) seeking greater freedom and economic opportunity, and my personal belief is that it should generally be easier to come to this country legally than it currently is.

However, the importance of maintaining integrity of our asylum system cannot be overstated – the U.S. admits a fixed number of asylum-seekers each year, so it is essential to ensure that as many asylum claims as possible are genuine.

As a result, Department of Homeland Security (DHS) trial attorneys often ask people seeking asylum for religious reasons a few basic questions about the religion they claim to practice. In the case of Christians, they will be questions such as “Who is Jesus Christ?”, “What is your favorite story in the Bible?”, “What is your favorite Prayer?” and so on. One would assume that people who made a conscious choice to convert to a particular religion would learn a little bit about that religion’s teachings and theology.

Apparently, a surprising number of individuals cannot answer these questions, or their answers are extremely superficial, and they cannot go into any detail when pressed, indicating that they were coached. Indeed, there are some extremely sketchy “immigration consultation” businesses in the U.S. and elsewhere that will coach people on matters such as this. Because they don’t really care for their “clients” (“victims” might be more accurate) once they’ve taken their money, these businesses often instruct them to give the exact same canned responses every time, which are easy to spot by a trial attorney or Immigration Judge who has heard them before.

This raises an important problem, however: many people who are persecuted because of their religion do not know much about their religion, through no fault of their own. For example, Nazi Germany probably didn’t care how devout or observant the Jews they persecuted were.

Furthermore, many people are persecuted around the world because of their membership by birth in particular religious communities. Children, for example, can be persecuted for belonging to the “wrong” religious sect, even if they have no understanding of their religion beyond the fact that it’s what their parents believe.

Furthermore, people may be persecuted based on their perceived religion. Whether they belong to that religion or not doesn’t change the fact that they’re being persecuted based on religion. If someone is being persecuted because someone else thinks they belong to a religion which they don’t, it’s not reasonable to expect them to know much about that religion.

According to LegalMatch statistics, over half of the clients who sought asylum lawyers in the past year claimed fear of persecution based on their religion or political views. Persecution based on either of these does allow one to seek asylum, and rightly so. On the other hand, it is very easy for someone to claim that they hold certain religious or political beliefs, and very difficult to prove or disprove the sincerity of those beliefs, at least until we get that whole mind-reading thing down.

What, then, is to be done about this? Personally, I think we should err on the side of giving asylum-seekers the benefit of the doubt. On the other hand, the U.S. accepts a limited number of asylum-seekers each year, and every effort should be made to ensure that the available slots go to people who are truly being persecuted, or truly fear persecution.

In the end, asking someone (especially a purported recent convert) to give a very basic explanation of their religious beliefs is probably helpful in determining if those beliefs are sincere. However, for the reasons discussed above, relying entirely on one’s knowledge of their own religion to determine if they’re actually being persecuted is a very bad idea, an could result in legitimate claims being denied, and fraudulent claims, made by people who took the time to study the tenets of a particular religion in more detail, being granted.

This past April it became clear that the usually incredibly popular H1-B visas, of which there are 85,000 issued each year, was far from reaching that number.  Typically tech companies such as Microsoft and Intel are looking to hire foreign-born workers specializing in computer science, engineering, and related fields.

Why the change in numbers you ask?  Commentators attribute the recently-enacted higher standards and greater restrictions placed on the application process and the economic downturn.

In February 2009, President Obama included in his stimulus plan the affirmative obligation for bailout recipients to hire Americans over foreign-born workers.  Although there are many Americans in need of jobs in the country, I agree with the LA Times article that characterizes the H1-B visa workers as a compliment rather than a replacement to the American worker.

A recent study conducted by LegalMatch confirmed the decline in visa applications.  There was an overall decline in H-1B visa inquiries over the past 12 months from the previous year.  Not surprisingly, inquiries for help with green card and other unskilled labor visas remained high.

In my opinion, I think that keeping the application process open until the quota is met is the correct approach to the decline in H1-B interest.  We need to continue to recognize the value that foreign workers play in the booming U.S. technology market and ensure that companies get the workers with the skills they need to continue to prosper.

Images of immigrant issues and struggles in the United States are popular fodder for hit movies such as The Godfather and Gangs of New York. For a nation founded by immigrants, the United States has become a melting pot of international identities and also the center of major immigration issues.

According to a recent report published by the Council on Foreign Relations, “The continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy, and to imperil its national security.”

Urging for a fundamental overhaul of the U.S. immigration system, I agree with many of the suggestions of the report.  But as a citizen, rather than a policy maker, I believe that the emphasis and main concerns of the report are misplaced.  We need to worry less about national reputation and border patrol and more about ensuring that those immigrants, whether legal or illegal, are provided the support necessary to realize the American Dream.

The report provided a variety of suggested areas of improvement, including:

• Devising a comprehensive immigration reform plan
• Attracting skilled immigrants
• Increased National security
• Employer enforcement of immigration laws & standards
• Simplifying, streamlining, and investing in the immigration system
• Improving America’s image abroad
• Better border enforcement
• State and local enforcement

The seven most popular states for immigrants to settle in are California, New York, Florida, Texas, Pennsylvania, New Jersey, and Illinois, according to statistics compiled by LegalMatch.  Many of the immigration issues presented by LegalMatch clients arise because an individual immigrant attempted to navigate their way through the complicated and paper-heavy legal system without an attorney and ran into problems.

Aside from potential language issues, many immigrants working on visas or their citizenship status are trying to understand a foreign legal system.  I barely understand the American system as it is and could not imagine attempting to work within one I have no background knowledge of!  All parties involved from the government, to employers, to the immigrants themselves need to strive to work within rather than around the legal system.

Opinions vary about the economic and other effects of immigration.  Whether pro or anti-immigration, one thing remains true- we are a nation founded by immigrants and we must embrace our multi-national heritage and provide the same services and opportunities to everyone that comes within our border.

Following up on my previous article on immigrant removal, I wanted to know where some of our LegalMatch clients were coming from. I looked at the data for 2008 in order to compare it to current Department of Homeland Security (DHS) statistics on estimated unauthorized immigrant populations in the United States. 

According to LegalMatch.com data, the following states are the top ten locations for immigrants seeking removal attorneys:

1. CA: 16%
2. TX: 12%
3. FL: 7%
4. NY: 6%
5. AZ: 5%
6. GA: 4%
7. WA: 3%
8. NJ: 3%
9. NC: 3%
10. CO: 3%

These numbers almost exactly match DHS data on the estimated US population of unauthorized immigrants. The first five states on both lists are the same. The percentages are also almost exactly the same, with a few exceptions.

Assuming a correlation between the number of people facing removal and the number of immigrants present in the state (i.e. higher removal numbers means a likelihood of higher numbers of people in general) this LegalMatch data is evidence that federal estimates are accurate.

Now that we can assume the veracity of these figures, some may wonder why some states, such as New Jersey or Georgia, have a significantly higher proportion of unauthorized immigrants (and thus, immigrants facing removal) then other states situated right next to them. Common sense already dictates that states like California or Florida would have high ratios due to simple geography. But why Colorado and not Utah? Why New Jersey and not Pennsylvania?

Further analysis of these states would be necessary, but my hunch says it’s a mixture of jobs, economic strength, the presence of large urban populations, and how many immigrants are already in the state. Colorado, for instance, may have fewer farms than Nebraska and Kansas, but it has a larger immigrant population as well as more dense urban cities. Georgia, although conservative, also has a dense urban core surrounding Atlanta. New Jersey neighbors the extremely diverse New York City. A variety of reasons may drive immigrant migration, and further examination of LegalMatch data may shed some light on these patterns.

The numbers of illegal aliens facing removal from the United States has been on the rise since 2001. In the past 8 years there has been a 40% increase in the number of aliens removed (deported) from the United States. 

I was curious of the most common causes for removal. According to LegalMatch.com intake reports compiled from thousands of client entries in the past 12 months, these are the most common reasons cited for removal from the U.S.:

• Convicted of a crime: 42%
• In the United States illegally: 40%
• Visa has expired: 16%
• Not paid taxes: 1%

A lot of squabbling goes on in the media and the blogosphere about whether an “illegal immigrant” is actually a criminal. The point of these “debates” is usually to score quick political talking points.

Contrary to popular belief however, mere unauthorized presence in the United States is not always a crime. The above poll matches Homeland Security data showing that in fact, the majority of aliens removed from the United States were not criminals. According to Department of Homeland Security statistics for 2007, only 31% of immigrants removed were actually convicted of a crime.

Although removal can subject one to criminal sanctions, the majority of removal cases are limited to civil penalties or based on breaches of administrative laws. When an immigrant is removed without criminal consequences it is incorrect to really refer to this person as a “criminal.” The “illegal aliens are criminals” talking point is nonetheless often used to somehow justify the mass jailing and deportation of illegal aliens, but it rings hollow when statistics show that the rule being broken by most of these people is mere unauthorized presence. According to the above statistics, it would be incorrect to assume that more than 42% of those immigrants facing removal are in fact criminals.