Tuesday, October 8, 2019

The Real Scandal about Refugee Privacy is that there is No Refugee Privacy

While we focus on one dumb tweet, the global push to obtain and share the personal data of millions of refugees without their consent continues unabated and unchallenged.

While we focus on tweets, private companies and government are using the UN to collect biometric data such as eye scans and fingerprints from refugees.
Apparently, Melissa Fleming accidentally shared the personal details of a refugee girl in a promotional tweet for UNHCR. Personally, I was rather surprised at the blowback, because UNHCR collects and shares sensitive personal data about refugees with both private companies and governments all the time with near impunity and with only a passing gesture towards ethics. I was surprised to see experts complaining about a breach of refugee privacy and confidentiality because in today’s data-hungry world, refugees have no privacy. Take, for example, UNHCR and WFP’s program to retinal scan refugees in Jordan in exchange for food rations. To read glowing media accounts of this program, you would think that refugee privacy is a non-issue, like pollution from the poop of flying pegasus unicorns.
To hear aid agencies and donor governments tell it, there’s nothing wrong with non-voluntary retinal scans and one would be foolish to even question the wisdom of creating a global database of refugee eye scans. Forget about the fact that none of the agencies has ever demonstrated that it is capable of keeping such information secure, there is no proper set of terms and conditions as to how this information is used and shared.  Collecting sensitive personal data from refugees is often painted as a technical tool that will help streamline aid; discussion of problems with collecting biometrics is usually limited to the technological challenges, or the possibility for “mistakes.” Rarely discussed is the fact that the personal data of millions of people are being collected, stored and shared by unaccountable international agencies, often working with private tech companies, at the behest of donor governments with murky agendas. For example, why might the EU be interested in a database of fingerprints of people from various West African countries? Might that not help identify people for deportation?

Living Under the Techno-Humanitarian Super-State

While many of us are concerned about data privacy, most of us have control over enough aspects of our lives that we can, if we wish, take measures to protect ourselves. It’s not possible to prevent the government from collecting your personal data — we all gave up that right to privacy long ago. Yet many of use can influence how the government uses our data, at least in theory, through voting. As for non-governmental data collection, its still possible to opt out. For example, it’s possible to go off Facebook or limit the data collected by our mobile phone carriers. But refugees have no power to limit the power of aid agencies and others to collect their data. Refugees have no choice but to exchange their retinal scans for food. The aid agency or UN serves in a quasi-governmental role, but without the same level of accountability. After the retinal scan is collected by the UN, for example, refugees have zero say over how it is used and who it is shared with. In many cases biometric data is collected by external vendors, sometimes even private companies. What happens to the data then? Who knows?
We are all used to our data being collected, stored and used by our own governments, but increasingly, the data of millions who have had contact with an international organization is being collected, stored and used by other governments and by these agencies without any agreed upon rules or standards. At least Facebook is required to release information on its data-collection policies to the public and, if you don’t like it, you don’t have to use Facebook any more. Refugees are being forced to give up their personal information in exchange for food.
A lack of transparency pervades this entire system of data management by humanitarian agencies. It’s become clear that some data is being shared across borders and given to governments that ordinarily would not have access to it. Imagine if you were sitting in London and your fingerprints were being shared with the government of Australia, a country to which you had no ties and had never been. Yet there is some evidence that this is precisely what’s happening, not only to refugees, but to millions of “migrants” and, even, potential “migrants.” Meanwhile, to pass through the gates of a refugee camp anywhere in the world is now to consign yourself to being labelled a “refugee” everywhere and forever, as increasingly the data collected by humanitarian organizations and the UN is shared, preserved and duplicated worldwide. This problem, its sweeping breath and depth, its rapid expansion with almost no pushback from anyone, makes a mockery of a debate over concerns over sharing the personal details of one person via Twitter.
Welcome to the global humanitarian surveillance state. 

Thursday, September 26, 2019

Giving Mexico Control over US Immigration Is a Bad Idea

By making xenophobia the cornerstone of his administration, Trump has placed himself in a weakened position of needing other countries to help him deliver his signature campaign promise. The out-sourcing of US immigration hands enormous power to Mexico.
Since the Trump Administration appears to have given up on signing a Safe Third Country agreement with Mexico, this post will focus on the two most important changes happening in the US, Remain in Mexico and the Safe Country of First Asylum Policies, and how they are likely to affect long-term Mexico-US relations. The short answer: it’s not good.

Remain in Mexico — Trump Might Not Know Much, But He Knows How To Get Himself Blackmailed.

“Remain in Mexico,” or the Ministry of Truth named “Migrant Protection Protocals (MPP)” is basically the Trump Administration’s attempts to implement a somewhat successful policy put into place between the EU and Turkey a few years ago. Under the agreement, refugees that reach the EU from Turkey are sent back to Turkey, where their asylum claims are processed. Those who are granted asylum are then transferred back to the EU. In exchange, the EU has promised Turkey a boatload of money. Unfortunately, there has been continued fighting over the money, with Erdogan threatening to “release” more migrants into the EU if he doesn’t get more cash. Like the politician who pays up to keep the pee tape out of the newspapers, putting Mexico in charge of US asylum policy is giving Mexico a lot of leverage over the US government in the future.
Today, there are camps of asylum-seekers at the border, waiting for their cases to be heard in special tent-courts. It’s an entire, tent-based system of government. The 9th circuit has allowed the program to go forward, despite concerns expressed by some judges over the possibility of refoulement, or that some asylum-seekers would face death or torture in Mexico. As well, the Court had to go through a convoluted exercise in reasoning to make the original statute make sense. Basically, if a person is clearly not eligible for asylum, they are subjected to expedited removal and sent back, as usual. Now, under the MPP, if the government thinks they might have a case for asylum, they are….also sent back. According to the Court, this will make processing of cases easier. What the 9th circuit are essentially saying is that it will be easier for judges to process asylum cases in tent courts than in regular courts. If any of this makes sense to you, than good for you.
As far as I’m concerned, the rule is illegal on its face. The administration is relying on an obscure clause in the immigration law saying that people refused entry to the US from Mexico may wait in Mexico to be deported to their home country. This clause was clearly not meant to apply to asylum-seekers and, even if it were, it would create unconstitutional discrimination between people applying for asylum after arriving in the US by air and people applying for asylum after arriving in the US by land.
Furthermore, it’s ridiculous to argue that Mexican border camps are “safe” for anyone. What’s the point of keeping people in Mexico if they likely have valid asylum claims? And how is it making anything easier or smoother for judges to force them to adjudicate cases in a tent? We all know that Trump’s been packing the 9th Circuit with friendly judges, but this ruling is disappointing simply as an exercise in basic logic.
Of course, as well all know, what’s really going on is that both the Trump administration and, apparently, the revamped 9th circuit, think that if people are made to wait in Mexico for asylum, they will eventually give up and claim asylum in Mexico instead, which seems to be happening, to a limited extent. This raises the existential question of whether or not the US actually wants to grant asylum anymore. We either believe, as a country, in the right to asylum, or we don’t anymore.
Another problem, of course, is that this policy is once again is making Mexico the linchpin in US immigration policy. Because there is no formal agreement between the US and Mexico, Mexico can stop complying with these policies at any time, to whatever extent it wants. Let’s say, for example, Mexico is in trade negotiations with the US. Maybe it needs leverage. Well, now it has all the leverage it could possibly want or need.
By making xenophobia the cornerstone of his administration and painting immigrants as a clear and present danger to the United States, which they are not, Trump has placed himself in a weakened position of needing other countries to help him deliver his signature campaign promise. Meanwhile, the crises in Central America will continue for the foreseeable future, meaning that there will continue to be plenty of human leverage for Mexico and plenty of headaches for the Trump Administration.

Safe Country of First Asylum

Yesterday, a judge enjoined the Trump Administration’s latest, and most draconian, anti-asylum policy that would have required asylum-seekers who transited through Mexico to claim asylum in Mexico. Basically, this policy was an attempt to get around the legal requirement for a Safe Third Country as is very likely illegal. I can’t predict what judges will decide, but the idea that you could get around a clearly written federal law by pretending it doesn’t exist is a disturbing precedent that I like to think would give any judge pause.
***Update: The Supreme Court has quashed the injunction, a bad sign that it might uphold this illegal Trump administration policy. If you don’t believe me that it’s illegal, just read the law for yourself. It clearly states that the US government needs to sign an agreement before it can send asylum-seekers to a third country. You don’t need a law degree to understand this.
The policy is before the US Supreme Court. The government has made multiple claims that there is a “crisis” and, therefore, they need to upend the regular order of business and ignore the law. It’s not clear how the Supreme Court will view this attempt to circumvent the law based on appeals to a dubious crisis, but we shall see.
Once again, this is a policy the Trump Administration is trying to adapt from Europe, with its repeated attempts to “burden share” via the Dublin Regulations. The problem for the Trump administration is that Dublin is predicated on their being an organization, the European Union, that can regulate, control and share information on asylum applications between the various countries. In order for the “safe first country” policy to actually work, the US government would have to set up a way to verify that people had (1) transited through Mexico or Guatemala and (2) applied for asylum there.
The point of an official Safe Third Country agreement is to regulate all of this and make it all work properly, which is why we have a Safe Third Country agreement with Canada. It is a mystery to me why anyone would think it reasonable for the US government to fail to obtain a Safe Third Country agreement with Mexico, but then go ahead and unilaterally try to implement such an agreement anyway. Once again, this makes no logical sense. But we will see what the Supreme Court thinks.
If the Court allows the Trump administration to implement this bizarre policy of working with Mexico without an agreement, it is again going to create a pressure point between the US and Mexico. Without formal operating procedures, it’s unclear why Mexico would cooperate unless they were getting something in return. Looming over all of this is the fact that Mexico’s asylum system is very small and underfunded. At this point, it is propped up by support from UNHCR and unable to really function on its own. Any budget cuts to UNHCR regional programs would likely trigger a collapse in Mexico’s capacity to process asylum claims, meaning that UNHCR funding is increasingly becoming a critical pressure point for US immigration policy.
All of this outsources of US immigration policy means just one thing — less control over immigration by the US government and more control by other countries, particularly Mexico. It’s a strange place for a country obsessed with nationalism to be.

El Salvador, Honduras and Guatemala Granted Fewer than 200 Asylum Claims Each Year. Yet Now They Are Supposed to Handle Tens of Thousands?

The Administration wants asylum-seekers to play bizzaro musical chairs, fleeing gang violence in one country to claim asylum in another country suffering from record levels of gang violence. But hypothetically speaking, are any of these countries even ready to take over the asylum duties of the United States?
Today, WaPo reports that the Trump administration has signed another “agreement,” or “memo” with a Central American country, this time Honduras, to take over the US’s asylum claims from the region. It’s unlikely that any of these agreements, or memos, or whatever they are, will ever be implemented. But what the media never asks is whether or not any of these countries, including Mexico (who, to their credit, has not signed an agreement but who is being sent asylum-seekers anyways), are ready to take over even a fraction of the US asylum system? Of course, the administration doesn’t care. They only care about optics. But we should care. Because we have to live in the world the Trump Administration’s optics creates.

Where Do I Start?

Imagine that you belong to a small, local gym. Your gym currently has about 50 members, but honestly, this is about all they can handle. The gym is new, and there are a lot of bugs in the signup process, the locker rooms are too small and there are never enough towels. But it’s sort of working, with help from an international organization dedicated to assisting with gym logistics. Now imagine that every single other gym in the United States suddenly closes simultaneously and all their clients are sent to work out at your gym. How would that go, do you think?
The administration is trying to apply the Turkey model to central America, but Turkey has years of experience dealing with millions of refugees. They already had a considerable infrastructure in place, even before the EU-Turkey agreement. Other countries are not all the same, but no one in the Trump Administration seems to care.
All of the Central American countries are new to the international refugee law regime and all are in the process of setting up asylum offices with UNHCR’s help. To date, Mexico has the most experience with adjudicating asylum claims, having received their own uptick in claims from other Central American countries beginning in 2016. El Salvador, Honduras and Guatemala have each only granted fewer than 100 cases per year. Assuming a 50% acceptance rate, that would still only mean they have received 200 asylum-seeker cases during the year. Each case must be processed and reviewed according to the strict rules and procedures developed over decades by international law and UNHCR. These agencies likely severely lack both capacity and funding to handle a sharp increase of cases.

Asking the Right Questions

In addition to the multitude of other pitfalls to this outsourcing plan, the Administration seems to breezily assume that the lack of an and all preparation is irrelevant to their plans. Yet without a massive influx of US aid and support, none of these countries is ready to handle even a fraction of the responsibility being put upon them, which means that asylum adjudications simply won’t happen. People will be dumped in these countries with no access to asylum at all.
I know that the administration believes, naively, that when asylum-seekers hear they will be sent to a neighboring country, rather than the US, they will simply give up and go home. The Trump Administration should ask how that “wait and see” approach has worked out in Turkey, which currently hosts the most refugees in the world.
I really hope this fact is taken into account by US Courts when they weigh the legality of these “agreements,” or “memos,” or “policies.” If asylum in neighboring countries simply isn’t taking place at all, then the Trump Administration isn’t outsourcing our asylum duties, they are illegally abdicating them.

“Remain in Mexico:” Asylum for the Rich Only

The right to asylum was supposed to be for everyone, but if the Supreme Court allowed the Migration Protection Protocols to stand, the US will have one asylum system for people arriving in the US by airplane and a totally different system for people arriving across the border.
For many years now, asylum cases in the United States have been roughly split between “affirmative” asylum claims, usually people crossing the border without a visa, and “defensive” asylum claims, usually people arriving by airplane with a visa, then claiming asylum once the visa expires. The numbers go up and down, but the US receives a healthy mix of both types of claims. In fact, asylum-by-airplane is an oft overlooked, but very large, class of asylum seekers worldwide.

Rich Asylum-Seekers Only Need Apply

Yet in Europe, the US and Australia, asylum-seekers arriving by plane get very little attention, though this has lately changed in Australia. But the vitriol of anti-refugee sentiment is usually reserved for persons arriving by foot or boat. Why? Probably because being able to afford a plane ticket and a visa means you likely already come from a certain class of persons in your home country.
Just a few days ago (has it really only been a few days?) the US Supreme Court overturned an injunction on the Trump Administration’s MPP “Remain in Mexico” policy, allowing the policy to go forward while the courts adjudicate the merits. I took this as an ominous sign the newly conservative court would uphold the MPP, which clearly, to my mind, violates the statutory intent and overall scheme of the package of laws that make up US asylum policy. A helpful Lawfare blog post informs me that the SC may have overturned the injunction because the plaintiffs lack standing. Let us hope so. I am not an expert on Constitutional law, so I defer to them.

One Asylum System for the Rich, None for the Poor

But if the MPP are allowed to stand, they will have another disturbing consequence beyond their very serious constitutional ramifications, with the SC now “making the law”. In short, we will end up with one asylum system for persons arriving by air and overstaying their visas, who will continue to be able to apply for asylum within the US, and another system for persons arriving by land via Mexico, who will have to apply through “Remain in Mexico,” going to a “tent court” for their hearings and waiting in dangerous conditions for long periods of time while their cases are heard.
This is no less than one system for the rich and another system for the poor. Which could be the motto for the entire Trump Administration. They should put that on our money.

Thursday, September 12, 2019

The Day the Music Died: RIP Rule of Law in America

When people look back at September 11th, 2019, will they remember it as the day the Supreme Court helped the President get around Congress forever?

On February 3rd, 1959, three of America’s most important Rock ‘n Roll artists were killed in a plane crash. The event changed the course of music history and marked the end of one musical era in America and the beginning of another.
On September 12, 2019, the US Supreme Court ruled that the President’s administration could ignore a law written by Congress in order to deny asylum to thousands of people while the policy of denying asylum is adjudicated in the courts. Why do I say this is the end of rule of law in America? Because if the Supreme Court thought that the Administration’s actions were unconstitutional, they would not have allowed the policy to proceed. Yet the Administration’s policy is a clear violation of Separation of Powers. It is Congress who makes the laws and if the President doesn’t like them, he must go through Congress, not the courts, to get them changed.
This is not a close case. The asylum law says this:
“(1) Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section…
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.”
The above exception is why Trump has been trying to get Mexico to sign a Safe Third Country agreement. Without a Safe Third Country agreement, the exception in the law does not apply. You don’t need a law degree to understand this, just the ability to read.
Yet today, the Supreme Court has allowed the United States government to return asylum seekers to Mexico without an agreement. Read the law again: is this legal? No.
Congress could easily change this law, but it hasn’t. So the correct procedure is for either (1) the administration to sign a Safe Third Country agreement with Mexico or (2) change the law by getting Congress to pass a reform package. We’ve been talking about immigration reform in this country for decades. If the Republican Party and/or the Trump administration would like to get it done, then by all means, do it! But to start going around the laws of the United States as written, well, that’s something else entirely. And to have it upheld by the Supreme Court. Well, that’s something else entirely again.

Tuesday, September 10, 2019

PM Modi Shows How Xenophobia is Done. Will Trump Take Note?

Tea and Nationalism
You may have been forgiven if you missed the news the other day that US President Trump wants to DNA test immigrants. Where does he get this stuff from? Like most of Trump’s ideas, this one comes from abroad, in this case, probably Kuwait, where DNA testing is the idea du jour to sort “real” Kuwaitis from everyone else. Meanwhile, many have long pointed out the similarities between Trump’s idea for a border wall and Israel’s actual border wall. And I have personally long suspected that the “birther” conspiracy theory in the US had its true genesis in the Ivorian “birther” conspiracy of the 2000s, where many prominent Ivorian politicians claimed that President Ouattara was not Ivorian, but rather an immigrant. Stop me if this all sounds terribly familiar.
There is nothing new in politics, but Trump has a particular knack for recycling far-right ideas from other countries and generations. Even “America First” was probably lifted from the campaign of Charles Lindbergh. So whenever far-right nationalists in other countries implement extreme ideas, I look on with fear and wait for the tweet.
What is Happening In Assam?
America doesn’t have centralized, compulsory citizenship registration or national ID cards. Instead, we use a patchwork of government registries, like the social security administration, voter registration, birth certificates, passports and driver’s licenses to establish our identity to various government agencies, as needed. But many countries have centralized lists of citizens and, in some countries like Malaysia, a single card to rule them all and in the darkness bind them, like the MyKad, a chip “smart card” containing everything from your citizenship status to your health records.
India created a centralized registry in the 1950s and updating this “National Registry of Citizens” was a key campaign promise of India’s Prime Minster Modi. Bangladesh became an independent country in the 1970s and many Indians feel there has been too much immigration from Bangladesh in the decades since. Today, the Indian government is requiring that all residents of Assam, which borders Bangladesh and is one of India’s most diverse regions both ethnically and religiously, prove their residence in India prior to 1971. Many families, even those living in Assam for generations, simply can’t do this. NGOs are calling it the biggest mass disenfranchisement of the 21st century. It is unclear what will happen to families left of the list, but government officials have spoken of mass expulsion and detention.
What Does this Mean for Global Nationalism?
Americans without Indian relatives usually don’t pay much attention to Assam, except when they drink tea, but everyone in America should pay close attention to what’s happening in Assam today, because what happens in nationalist states no longer stays in nationalist states. Toxic ideas spread abroad throughout the global far-right movement, absorbed like cancerous particles of radium spewed from reactor 4 in the Chernobyl power plant, invisible and deadly. You might not be paying attention, but I can guarantee you Trump is.
Ideas Spread Faster Than Radium Dust

Tuesday, July 30, 2019

We Don’t Need Bill Barr’s Opinion on What the Word “Group” Means

Bill Barr, philosopher of language?
Years ago, when the international Refugee Convention that became the basis of our refugee law was drafted in upstate New York, the drafters struggled to create a law that would be fair and would offer protection to those who needed it most, without leading to open borders. They came up with a vague concept, persecution, which was not defined. Over time, however, judges all over the world, guided by voluminous UNHCR policy papers, have slowly hammered out a workable definition of persecution through thousands and thousands of examples.
Instead of offering international protection to everyone who was persecuted, however, the drafters took the additional step of creating five categories of people on account of which the persecution had to be done. I you weren’t being persecuted on account of one of these five categories, you couldn’t be a refugee no matter how badly you were being persecuted. These five categories reflected the pre-occupations of the 2nd World War (and the Cold War) in response to which the Convention was being drafted: race, religion, nationality and political opinion. These were the main reasons for Nazi and Communist persecution.
But the drafters knew that there may be other reasons for persecution, so they added in the category of “other social group,” creating a sort of catch all to cover possible other types of people who might need protection. “Other social group” was never defined and subsequent generations of judges have struggled, both here in the US and elsewhere, to figure out what it means.
Enter the Trump administration. For decades, the category of “other social group” has expanded to include classes of people who were not recognized as being in need of protection in 1951, but are frequently persecuted, like gay people, people at high risk of gang violence and women fleeing cultures of gender violence and control. Of course, the Nazis also persecuted gay people, but so did the US government, so including homosexuality as a protected category never entered the debate in upstate New York all those years ago. Ditto gender persecution, which many people both here and in Communist countries regarded as the normal state of affairs.
Today, these gaps in the refugee regime are increasingly filled by the “other social group” category. But defining gay people or abused women as a “social group” isn’t always easy. Under US law, groups must share at least one common characteristic. The formulation often requires that the intent on the part of the government to persecute on a group bases be inferred, rather than explicit, conduct. Such persecution often requires a showing that the government failed to act and allowed others to persecute instead. As a result, the jurisprudence around the “other social group” category is often….creative, to put it mildly. Basically, judges use a badly drafted, vague and out-dated law to achieve the right result. But this leaves these decisions especially vulnerable to retrograde thinking.
The growth of jurisprudence around “other social group,” or “particular social group” under US law, has proved to be low-hanging fruit, first for Sessions, and now for Barr. Instead of relying on judges to shape asylum law, Barr is opting for the same top-down approach as Sessions did, shrinking definitions and interpretations of refugee law by fiat so that they apply to narrower categories of people. The administration is now trying to scrape away the advances judges have made in defining “other social group.” I am not sure if this approach, overriding judges, is constitutional, but from the perspective of interpreting the Refugee Convention, it is highly problematic.
For starters, US refugee law adopts almost verbatim the definition in the 1951 Refugee Convention, meaning that we cannot look to Congress for ideas as to what the law means. Instead, we must look to the drafting process of the 1951 Convention. But the Convention was specifically written for events occurring as a result of World War II in Europe. It was drafted to be a time-limited document, not a living document like the US Constitution. Later, the time and location restrictions were removed, but the definition was not revised. To treat any term or concept in US refugee law as having one right meaning is therefore not possible. The Convention terms and concepts were never meant to be applied to any of the circumstances for which they are now being used. The best approach would be for Congress to draft a new law, or even to participate in the drafting of a new international Convention that is updated for our modern needs.
Absent this unlikely scenario, a better approach would be to continue to allow US refugee jurisprudence to develop organically over time, reflecting the common-sense approach crowd-sourced from the minds of hundreds of judges, as overseen by the US Supreme Court, and guided UNHCR policy, which attempts to impose some sort of global standardization so the US does not veer off in a wildly different direction from, say, Canada. What we definitely do not need is Bill Barr’s personal opinion on what words mean.