Giving Thanks for Refugees and Other Immigrants 

On Thanksgiving Day 2020 I give thanks for the courage and fortitude of immigrants in my own family and of refugees and other immigrants in the U.S..

Personal Ancestral Immigrants

My earliest immigrant ancestor, to my knowledge, was William Brown (my seventh maternal great-grandfather), who left England as a young boy before 1686 to come to the Massachusetts Bay Colony, eventually settling in Leicester, MA, where he was one of its early settlers and officer of the town in various capacities. [1]

His grandson (my fifth maternal great-grandfather) was Perley Brown, who was born on May 23, 1737 in Leicester, MA, where later he was a Minuteman and then fought for the colonists in the American Revolutionary War at the Battle of Bunker Hill and was killed in the Battle of White Plains, NY under the command of General George Washington.[2]

My first maternal great-grandparents, Sven Peter Johnson and Johanna Christina Magnusson (Johnson), were born and married in Sweden and emigrated to the U.S. sometime before 1881, when their daughter (my maternal grandmother), Jennie Olivia Johnson (Brown), was born on February 28, 1881, in Ottumwa, Iowa.[3]

My paternal first great-grandfather, Johann N. Kroehnke (John Krohnke) was born on November 26, 1839 in Holstein, Prussia and emigrated to the U.S. circa 1867 and denounced Allegiance to the King of Prussia (William I?)  when he applied for U.S. citizenship in Davenport, Iowa on October 9, 1867 and received his U.S. naturalization papers on March 7, 1871. He settled in Benton County, Iowa, where he met Elizabeth Heyer, who was born October 13, 1847 in Krofdorf, Prussia?, but the dates of her arrival in the U.S. and obtaining U.S. citizenship are unknown. The two of them were married on December 26, 1871 in that same Iowa county. Thus, she is my first paternal great-grandmother. [4]

To determine whether there are additional immigrants in my family tree, I need the assistance of Henry Louis Gates, Jr.[5]

Refugees and Other Immigrants

I also give thanks for the courage and fortitude of the millions of refugees and other immigrants who have come to the U.S. and who have become U.S. citizens, a few of whom as a pro bono lawyer I helped obtain asylum as their first step for obtaining U.S. citizenship. I thank them for helping me learn about their personal histories and later introducing me to the moving experience of U.S. naturalization ceremonies, when they obtained their U.S. citizenship. (I also was the pro bono attorney for an Afghan man for his interview for U.S citizenship.)[6]

One such ceremony was in Minnesota in February 2016 when U.S. District Court Judge Donovan Frank before swearing in the new citizens, said, ““We are a better country now than we were five minutes ago. We are better with you than without you.”  The Judge  added that three of his five daughters were naturalized citizens.[7]

Ed Collins of Wilmington, Delaware recently wrote about his attending such a ceremony 35 years ago at San Francisco’s Masonic Temple at the invitation of a friend from college. Collins said he “was stunned upon arrival to see around 150 applicants and 300 or so friends and relatives in the auditorium. A judge led the ceremony supported by a military color guard and a small military band. The judge spoke eloquently about the duties of citizenship as well as its privileges. All joined in lustily singing a number of patriotic songs. Finally, the judge led the applicants in swearing allegiance to the U.S. and then pronounced them citizens of the U.S.”[8]

Collins added, “An amazing roar of cheering, applause, laughing and crying swept the room. I have never seen such a large display of emotion and total joy. That moment led me to understand the value that these good people placed on U.S. citizenship. I urge every American to attend a naturalization ceremony at least once. You won’t look upon U.S. citizenship the same way again, and you won’t take your citizenship for granted.”

Even more inspiring was the December 2015 naturalization ceremony at Washington, D.C.’s Rotunda of the National Archives Museum, where the original Constitution, Declaration of Independence and Bill of Rights are permanently displayed on the 224th anniversary of the ratification of the Bill of Rights. The welcome of the new citizens was given by President Obama. Here are some of his remarks that day:[9]

  • “To my fellow Americans, our newest citizens. You are men and women from more than 25 countries, from Brazil to Uganda, from Iraq to the Philippines.  You may come from teeming cities or rural villages.  You don’t look alike.  You don’t worship the same way.  But here, surrounded by the very documents whose values bind us together as one people, you’ve raised your hand and sworn a sacred oath.  I’m proud to be among the first to greet you as “my fellow Americans.”
  • “Just about every nation in the world, to some extent, admits immigrants.  But there’s something unique about America.  We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants.  That is who we are.  Immigration is our origin story.  And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition.  It’s who we are.  It’s part of what makes us exceptional.”
  • “And perhaps, like some of you, these new arrivals might have had some moments of doubt, wondering if they had made a mistake in leaving everything and everyone they ever knew behind.  So life in America was not always easy.  It wasn’t always easy for new immigrants.  Certainly it wasn’t easy for those of African heritage who had not come here voluntarily, and yet in their own way were immigrants themselves.  There was discrimination and hardship and poverty.  But, like you, they no doubt found inspiration in all those who had come before them.  And they were able to muster faith that, here in America, they might build a better life and give their children something more.”
  • “We can never say it often or loudly enough:  Immigrants and refugees revitalize and renew America.  Immigrants like you are more likely to start your own business.  Many of the Fortune 500 companies in this country were founded by immigrants or their children.  Many of the tech startups in Silicon Valley have at least one immigrant founder.”
  • “We celebrate this history, this heritage, as an immigrant nation.  And we are strong enough to acknowledge, as painful as it may be, that we haven’t always lived up to our own ideals.  We haven’t always lived up to these documents.”
  • “And the biggest irony of course is that those who betrayed these values were themselves the children of immigrants.  How quickly we forget.  One generation passes, two generation passes, and suddenly we don’t remember where we came from.  And we suggest that somehow there is ‘us’ and there is ‘them,’ not remembering we used to be ‘them.’”
  • “The truth is, being an American is hard.  Being part of a democratic government is hard.  Being a citizen is hard.  It is a challenge.  It’s supposed to be.  There’s no respite from our ideals.  All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient.  When it’s tough.  When we’re afraid.  The tension throughout our history between welcoming or rejecting the stranger, it’s about more than just immigration.  It’s about the meaning of America, what kind of country do we want to be.  It’s about the capacity of each generation to honor the creed as old as our founding:  “E Pluribus Unum” — that out of many, we are one.”
  • “That is what makes America great — not just the words on these founding documents, as precious and valuable as they are, but the progress that they’ve inspired.  If you ever wonder whether America is big enough to hold multitudes, strong enough to withstand the forces of change, brave enough to live up to our ideals even in times of trial, then look to the generations of ordinary citizens who have proven again and again that we are worthy of that.”
  • “That’s our great inheritance — what ordinary people have done to build this country and make these words live.  And it’s our generation’s task to follow their example in this journey — to keep building an America where no matter who we are or what we look like, or who we love or what we believe, we can make of our lives what we will.”
  • “You will not and should not forget your history and your past.  That adds to the richness of American life.  But you are now American.  You’ve got obligations as citizens.  And I’m absolutely confident you will meet them.  You’ll set a good example for all of us, because you know how precious this thing is.  It’s not something to take for granted.  It’s something to cherish and to fight for.”
  • “Thank you.  May God bless you.  May God bless the United States of America.”

Conclusion

Given the recent frequent negative comments about immigrants, especially in the rural areas of the U.S., it would be instructive to have such naturalization ceremonies broadcast live in all parts of the states where they occur. Another source of information and inspiration for all current U.S.  citizens is the recent widespread statements of governors justifying their support for resettlement of refugees in their states. [10]

Pope Francis also provides a religious justification for welcoming, protecting, promoting and integrating refugees and other immigrants.[11]

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[1] Carol W. Brown, William Brown: English Immigrant of Hatfield and Leicester, Massachusetts and His Descendants, c. 1669-1994, at 1-4 (Gateway Press, Baltimore, MD 1994).

[2] Id. at 17-27.  See also these posts to dwkcommentaries: Watertown, Massachusetts, 238 Years Ago (April 20, 2013); The American Revolutionary War’s Siege of Boston, April 19, 1775-March 17, 1776 (July 27, 2012); The American Revolutionary War’s Battle of Bunker Hill, June 17, 1775 (July 30, 2012); The American Revolutionary War’s Campaign for New York and New Jersey, March 1776-January 1777 (Aug. 13, 2012); The American Revolutionary War’s Battle of Brooklyn (Long Island), August 1776 (Oct. 8, 2012); The American Revolutionary War: The Battle of Harlem Heights, New York, September 1776 (Oct. 10, 2012); The American Revolutionary War: The Battle of White Plains, October 1776 (Oct. 12, 2012). George Edwin Brown and Jennie Olivia Johnson Brown, dwkcommentaries.com (Mar. 17, 2013); n.1 supra at 267.

[4] Hansen, The Heyers From Krofdorf to Keystone at 9, 19 (Amundsen Publishing Co., Decorah, IA 1977).

[5] Finding Your Roots with Henry Louis Gates, Jr., PBS.org.

[6] Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).

[7] See these posts to dwkcommentaries.com: Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy (June 7, 2015); Minnesota Welcomes New Citizens (June 8, 2015); Another U.S. Citizenship Naturalization Ceremony (Feb. 18, 2016).

[8] Collins, Letter: A U.S. Naturalization Ceremony to Remember, W.S.J. (Nov. 23, 2020). Collins was prompted to write his article by reading another about a recent naturalization ceremony attended by Wall Street Journal columnist Jo Craven McGinty. (McGinty, More Green Card Holders Are Becoming U.S. Citizens, W.S.J. (Nov. 13, 2020).)

[9] President Obama Welcomes New U.S. Citizens with Inspiring Challenge, dwkcommentaries.com (Dec. 16, 2015)(contains full text of Obama’s speech).

[10] See these posts to dwkcommentaries.com: U.S. State and Local Governments’ Justifications for Consenting to Resettlement of Refugees (December 31, 2019); Five More States Have Consented to Refugee Resettlement (Jan.7, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments (Feb. 2, 2020).

[11] Pope Francis Reminds Us to Welcome, Protect, Promote and Integrate Refugees and Other Migrants, dwkcommentaries.com (Jan. 1, 2020).

 

 

Objections to Proposed U.S. Rule Changing Asylum Procedures

The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) has proposed a rule that would significantly shorten the time for asylum seekers to file their paperwork for asylum and to amend that paperwork.[1] Given my experience as a pro bono attorney for such individuals, I filed with the EOIR a comment objecting to that proposed rule. Here is that comment followed by another objection by a Minnesota lawyer and friend, Steven Thal.

My Objection to the Proposed Rule[2]

“I am writing to oppose EOIR’s proposed rule to curtail human rights of asylum seekers by limiting timelines for applications and unlawfully restricting the type of evidence presented. The rule represents yet another attempt to restrict the right of people to obtain protection from persecution and torture—rights that the U.S. has agreed to meaningfully implement. By putting up nearly-insurmountable obstacles in that process, this proposed rule violates the rights of asylum seekers and, therefore, U.S. and international law. For the following reasons, I request that this rule be withdrawn in its entirety.”

I.“The 15-day filing deadline for asylum- and withholding-only removal proceedings will contravene our international and domestic laws.”

”The proposed rule will violate our obligations under the UN Refugee Convention and U.S. law by impinging on the ability for people in asylum- and withholding-only proceedings to adequately prepare their case. The rule proposes to require filing within 15 days of the person’s first hearing. For most in asylum- and withholding-only proceedings, this will be an impossible task as many are recently-arrived in the U.S., lack sufficient language skills to prepare a filing that must be in English, lack the resources to pay the now-required $50 fee, and are unlikely to secure reliable counsel on that timeline. Asylum seekers are entitled to present their case and be represented by counsel. This new rule infringes on those rights and must be withdrawn. Moreover, the rule will unduly impact attorneys and service providers—particularly nonprofit providers—who will be overburdened and unable to find pro bono counsel willing to complete applications on such a timeline”

II.“The proposed restrictions on evidence are a blatant attempt to deny asylum protections and improperly restrict due process.”

“The proposed changes to evidence are unlawful and blatantly targeted to discourage asylum applications. This violates our obligations under the UN Refugee Convention as well as U.S. law.”

“The proposed rule proposes to make all evidence other than U.S. government reports presumptively unreliable. Such change would allow immigration judges to discount local and international news sources, reports by both local and international nongovernmental organizations and even United Nations reports. The only evidence under the new rule that would be presumed credible would be reports prepared by the U.S. Government, i.e., opposing counsel in an asylum case.”

“This rule is unjustified and must be withdrawn as local and international sources provide nuanced and expert analysis that the U.S Government reports often lack due to capacity, know-how and diplomatic pressures. Moreover, because U.S. Government reports will be prepared by the same branch as the opposing counsel in asylum cases, the rule violates basic understandings of due process rights by presumptively finding one side credible. And, the rule allows immigration judges to introduce their own evidence into the record, further violating due process by eliminating their role as a neutral arbiter.”

III. “The proposed 30-day timeframe for correcting errors will deny asylum to those who need protection, thereby contravening international and domestic law on nonrefoulment.”

“The proposed rule further violates asylum seekers’ rights by restricting their ability to file an application. The proposed rule, though espousing efficient processing of applications, removes the requirement that EOIR return an application within 30 days of filing or presume it properly filed. Yet, it then gives the asylum seeker only 30 days to correct any deficiencies and will deem abandoned and deny any application not corrected in that time. This rule is a clear attempt to allow the Government to deny bona fide asylum claims under the guise of procedural efficiencies. Moreover, it will violate our international nonrefoulment obligations by denying asylum applications due to procedural defects rather than substance and, therefore, returning people to countries in which they will be persecuted or tortured.”

IV. “The proposed 180-day case completion timeline and restrictions on continuances improperly penalizes asylum applicants for the court’s inefficiencies.”

 “The proposed rule passes-on to the applicant the inefficiencies and failure of EOIR to provide sufficient resources—while eliminating case management techniques such as administrative closure—by requiring applications be adjudicated within 180 days absent a very limited set of exceptional circumstances. The rule will mean in practice that bona fide asylum applicants are denied and removed to countries in which they will face persecution or torture because they will be foreclosed from requesting continuances to sufficiently prepare their case. By essentially barring continuances and demanding immigration judges adjudicate cases on impossible timelines given backlog and complexity of asylum cases—as well as the myriad new restrictions and processing requirements created over the past four years— the proposed rule will result in improperly decided cases, increasing the rate of appeals and threatening to deny those who truly need our protection. Such a timeline will also present immense challenges to attorneys and pro bono service providers who will be challenged to represent clients to the best of their abilities without the ability to request time to prepare. This infringes on the due process rights of asylum clients and should be withdrawn.”

V. “My Personal Experience As a Pro Bono Asylum Lawyer Demonstrates the Utter Insanity of this Proposed Regulation.”

“In the mid-1980s I was a partner in a major Minneapolis law firm with 20 years of experience representing fee-paying clients in business litigation. I had not studied immigration law in law school or thereafter and had no knowledge of that field in general or refugee and asylum law in particular. But for various professional and personal reasons, I decided that I wanted to be a pro bono lawyer for an asylum seeker from Central America.”

“Fortunately for me and many other Minnesota lawyers, then and now, a Minnesota non-profit organization—[Minnesota] Advocates for Human Rights—provided a course in refugee and asylum law for lawyers like me and the support of experienced immigration lawyers that enabled me and others, then and now, to become pro bono asylum lawyers.”

“With that support from this system and my law firm, I thus embarked in the mid-1980’s on my first pro bono case for a Salvadoran asylum seeker and tried the case in the Immigration Court with the assistance of an experienced immigration attorney. We lost the case, but filed an appeal to the Board of Immigration Appeals, and under the laws at that time our client maintained his work permit and continued to live and work in the Twin Cities.”

“Thereafter with the assistance of [Minnesota] Advocates for Human Rights I was a pro bono attorney for another Salvadoran asylum seeker, whose case prompted me in April 1989 to go to that country, at my own expense, to do some investigations in his case and learn more about that country more generally. This trip was during the Salvadoran Civil War and on the day that I arrived her attorney general was assassinated with a car bomb. That subsequent week, therefore, was tense and dangerous, but to my surprise turned out to be the most important religious experience of my life as I started to learn about the courageous work of Archbishop (now Saint) Oscar Romero, the Jesuit priests at the University of Central America (six of whom were murdered by the Salvadoran military later that same year), Bishop Menardo Gomez of the Lutheran Church of El Salvador and many others. Afterwards my second Salvadoran client was granted protection by the Immigration and Naturalization Service.”

“In the 1990s I was a successful pro bono lawyer for an Afghan’s affirmative application for asylum and later for U.S. citizenship. Thereafter until my retirement in 2001 I also had success as a pro bono attorney for asylum seekers from Colombia, Somalia and Burma. All of this was made possible by the assistance of Advocates for Human Rights and experienced immigration lawyers and by the support of my law firm.”

“As a result of this experience, I can testify that asylum seekers in the U.S. desperately need the assistance and guidance of able pro bono attorneys since almost all such individuals do not have the financial resources to retain fee-based attorneys.”

“Moreover, I can testify to the time constraints associated with such pro bono representation.”

“First, organizations like Advocates have procedures to screen potential asylum applicants and identify those who appear to have credible claims and then seek to find an a competent attorney who is willing to represent, pro bono, such applicants. These organizations also have to develop and produce at least annual programs to educate potential pro bono attorneys about refugee and asylum law and develop other ways to recruit such lawyers to volunteer their services to asylum seekers. That takes time and effort and financial support by charitable contributions from the community. Advocates for Human Rights continues to be successful in these efforts.”

“Second, once an attorney agrees to take such a case, pro bono, he or she needs to fit that case into his or her caseload and obligations to existing clients, especially fee-paying clients. Once the attorney starts working on the pro bono asylum case, he or she may identify documents that need to be obtained from another place in the U.S. or foreign country and/or need to be translated from a foreign language into English. An interpreter may be needed for conferences with the client or other witnesses. Eventually the attorney must prepare documents for the asylum application and appear with the client in Immigration Court or at interviews on affirmative claims. In addition, the case may require the attorney to travel to another location. All of these actions by an attorney are necessary to provide competent advice and service to the pro bono client and all have their time requirements.”

“Third, these time pressures on the relevant non-profit organizations and pro bono asylum attorneys are even more intense now in the midst of the COVID-19 Pandemic disruptions and complications.”

“In short, it would be impossible under the proposed regulation for asylum seekers to obtain the competent pro bono representation they so desperately need. The proposed regulation is utter insanity.”

Steven Thal’s Objection to the Proposed Rule[3]

“I have been practicing immigration law since 1982 in Minneapolis, Minnesota. I also am a past Chair of the Immigration Section of the Minnesota State Bar Association. I have served as a past Chair of the Minnesota/Dakotas American Immigration Lawyers Association (AILA) Chapter and previously served as its Vice Chair and Secretary/Treasurer. I have served on the AILA Essential Workers Committee, AILA Immigration Works Committee. The law firm I established currently has three full-time associate attorneys involved in our practice. (www.thalvisa.com.)”

“First, I endorse the comments on this proposed rule made by my friend and fellow Minnesota attorney, Duane W. Krohnke (Comment Tracking Number: kgl-2g3o-0vel.) “

“Second, although my two associates and I along with other full-time Minnesota immigration attorneys represent some asylum seekers on a pro bono basis, the demand for such services exceeds our collective ability to do so. Therefore, we need the assistance of non-immigration attorneys to be pro bono lawyers for other asylum seekers after these lawyers have obained education about asylum law from Advocates for Human Rights. In short, the only way that asylum applicants in the Twin Cities and Minnesota can obtain a pro bono attorney is through organizations like Advocates.”

“Third, I would add that it would be nearly impossible to meet the proposed deadlines in this proposed rule given the difficulty in reaching clients who are in detention in remotely held jail facilities, especially since ICE can move these individuals without prior notification. Just getting a G-28 Notice of Appearance of Attorney signed is a logistical nightmare. Gathering evidence, locating witnesses, obtaining supporting evidence cannot be accomplished effectively within the short times in the proposed rule.”

Conclusion

For the foregoing reasons, we call on the Department to withdraw the proposed rule in its entirety.

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[1] Executive Office for Immigration Review (EOIR), Procedures for Asylum and Withholding of Removal (Sept. 23, 2020).

[2] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Duane Krohnke) (Oct. 22, 2020), Comment ID: EOIR-2020-0005-1113;Tracking Number kgl-2g3o-Ovel.

[3] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Steven Thal) (Oct. 22, 2020) Comment ID: EOIR-2020-0005-????; Tracking Number: 1K4-0jny-mh2v.

 

U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021

On September 30, 2020, the U.S. State Department announced that President Trump will be submitting to Congress a report that he has determined that the U.S. will reduce its refugee admissions for Fiscal 2021 (October 1, 2020—September 30, 2021) to 15,000. [1]

It must be understood that the individuals who will be admitted to the U.S. under this quota already have been vetted and determined by a U.N. agency to have met the international and U.S. legal definition of “refugee:” someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[2]

The State Department attempted to reduce the adverse humanitarian consequences of this reduction by claiming, “The United States is committed to achieving the best humanitarian outcomes while advancing our foreign policy interests.  Given the dire situation of nearly 80 million displaced people around the world, the mission of American diplomacy is more important than ever.”

Other points of this attempt to reduce the adverse consequences of this decision are the following:

  • “In line with the U.S. National Security Strategy, we are working to assist refugees and other displaced people as close to their homes as possible until they can safely and voluntarily return to rebuild their lives, their communities, and their countries.  As part of our longstanding leadership in international humanitarian crisis response, the United States provided more than $9 billion in humanitarian assistance in Fiscal Year 2019 and nearly $70 billion in humanitarian assistance over the past decade.”
  • “The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.”
  • “Refugee resettlement is only one aspect of U.S. humanitarian-based immigration efforts.  Since 1980, America has welcomed almost 3.8 million refugees and asylees, and our country hosts hundreds of thousands more people under other humanitarian immigration categories.  This year’s proposed refugee resettlement program continues that legacy with specific allocations for people who have suffered or fear persecution on the basis of religion; for Iraqis whose assistance to the United States has put them in danger; for refugees from El Salvador, Guatemala, and Honduras; and for refugees from Hong Kong, Cuba, and Venezuela.” (Emphasis added.)

The State Department continued, The President’s proposal for refugee resettlement in Fiscal Year 2021 reflects the Administration’s continuing commitment to prioritize the safety and well-being of Americans, especially in light of the ongoing COVID-19 pandemic.  It accounts for the massive backlog in asylum cases – now more than 1.1 million individuals – by prioritizing those who are already in the country seeking humanitarian protection.  It also accounts for the arrival of refugees whose resettlement in the United States was delayed due to the COVID-19 pandemic.” (Emphasis added.)

According to the State Department, the U.S. anticipates receiving 285,000 asylum requests in the upcoming fiscal year. Such applications must meet the previously mentioned international and U.S. definition of “refugee.” However, the Department’s statement admits the U.S. has a  “massive backlog in asylum cases – now more than 1.1 million individuals.”

After criticisms of this decision emerged from various groups that are discussed below, Secretary of State Michael Pompeo from Rome tried to defend this decision. He said, “We continue to be the single greatest contributor to the relief of humanitarian crisis all around the world, and we will continue to do so. Certainly so long as President Donald Trump is in office, I can promise you this administration is deeply committed to that.”

Reactions [3]

This establishment of a 15,000 quota for refugees is a 3,000 reduction from last year’s quota of 18,000, which was the lowest since the introduction of the U.S. refugee program in 1980. In contrast, in Fiscal 2017, the last full year of the Obama Administration, the quota was 85,000 while the Trump Administration’s first two years (Fiscal 2018 and 2019) set the quotas at 53,000 and 30,000.

This further reduction is seen as another point of President Trump’s “anti-immigrant themes in the closing month of his re-election campaign.” It was done as the President was “unleashing a xenophobic tirade against one of the nation’s most prominent refugees, Representative Ilhan Oma, on Wednesday night at a rally in her home state of Minnesota.”

According to a Washington Post columnist, Catherine Rampell, this presidential decision “in one fell swoop, . . .managed  to betray his country’s humanitarian interests, its national security interests, its economic interests and even his own narrow political interests to boot. . . . The only constituency helped by Trump’s latest cruelty are the bigots and knee-jerk nationalists crafting his policies. For the rest of us, it represents an incalculable loss.”

As anticipated, refugee advocacy groups condemned this decision.

  • Krish O’Mara Vignarajah, CEO of Lutheran Immigration and Refugee Services, called the 15,000 cap an “abdication” of the nation’s humanitarian leadership role in the world. “This absurdly low number is based on nothing more than xenophobic political pandering, and it’s no surprise that this all-time low comes during an election year. We have shown as we have resettled thousands of refugees that there’s no evidence any of these arrivals have endangered Americans. Refugees come to this country after the most extreme vetting procedures, including medical-health checks.”
  • The Immigrant Law Center of Minnesota’s Executive Director, Veena Iyer, said, “Slashing refugee numbers and refusing admission to desperate people whose lives are in danger, especially those whose lives are in danger because of their service to U.S. soldiers and peacekeepers, is appalling. Instead of leading the world in protecting the persecuted, the actions of this administration are an abdication of leadership.”
  • Oxfam America’s Isra Chaker said, “This inexcusable new admissions ceiling is a mere fraction of the number of refugees the United States can and should resettle in a year. During the final year of the previous administration, the U.S. safely and successfully resettled an average of 15,000 refugees every two months.”

The same reaction came from faith-based groups.

  • Scott Arbeiter, president of World Relief, a global Christian aid agency, said Trump has reneged on his promise to protect persecuted Christians in the world. “Instead, we’ve seen the resettlement of refugees from countries known for persecution drop about 90% in some cases over the last four years. This is unconscionable.”
  • Rev. John L. McCullough, head of the Church World Service, which helps resettle refugees in the United States, “described the shrinking of refugee admissions as immoral and urged Congress to . . . recommend changes or seek to influence the decision through budgeting, but is largely powerless to alter the determination. . . .Our values as a nation and as people of faith demand that we take action when people’s lives are in danger.”
  • “The Council on American-Islamic Relations, the nation’s largest Muslim civil rights organization, denounced the chipping away of the refugee program as part of “the ongoing Trump administration effort to maintain systemic anti-Black racism and white supremacy.”
  • Isaiah, a Minnesota faith coalition stated, “We know that we are better off together and that all of us, no matter where we come from or how we pray, want our communities to thrive and our voices to be heard. Overcoming tremendous challenges, Somali Minnesotans bravely moved to Minnesota with their families and have helped make this state vibrant.”

Finally this Trump decision is impeached by recent praises of refugees for their contributions to the economy and culture of 29 states by their governors (both Democrat and Republican).

For example, Minnesota’s Governor Tim Walz’s letter to Secretary Pompeo stated, ““Minnesota has a strong moral tradition of welcoming those who seek refuge. Our state has always stepped forward to help those who are fleeing desperate situations and need a safe place to call home. Refugees strengthen our communities. Bringing new cultures and fresh perspectives, they contribute to the social fabric of our state. Opening businesses and supporting existing ones, they are critical to the success of our economy. Refugees are doctors and bus drivers. They are entrepreneurs and police officers. They are students and teachers. They are our neighbors.”

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[1] State Dep’t, Transmission of the President’s Report to Congress on the Proposed Refugee Admissions for Fiscal Year 2021 (Sept. 30, 2020). 

[2] Convention Relating to the Status of Refugees, Art. 1 (A)(2),189 U.N.T.S. 150, entered into force April 22, 1954; Protocol Relating to the Status of Refugees, Art. I(2), 606 U.N.T.S. 267, entered into force Oct. 4,, 1967; Refugee Act of 1980, 8 U.S.C. sec. 1101(a)(42), Refugee and Asylum Law: The Modern Era, dwkcommentaries.com (July 9, 2010).

[3] U.S. Sets 18,000 Quota for New Refugee Admissions to U.S., dwkcommentareis.com (Nov. 4, 2019); Kanno-Youngs & Shear, Trump Virtually Cuts Off Refugees as He Unleashes a Tirade on Immigrants, N.Y. Times (Oct. 1, 2020); Rampell, Trump’s refugee ceiling is bad for everyone except bigots, Wash. Post (Oct. 1, 2020);  Watson & Lee, Faith Groups decry Trump’s plans for record low refugee cap, Wash. Post (Oct. 1, 2020); Miroff, Trump cuts off refugee cap to lowest level ever, depicts them on campaign trail as a threat and burden, Wash. Post (Oct. 1, 2020);Smith, Trump administration again seeks to slash refugee numbers, StarTribune (Oct. 1, 2020); Rights groups appalled as Trump cuts US refugee admissions to record low, Guardian (Oct. 1, 2020); U.S. State Governments Celebrate Refugees’ Accomplishments, dwkcommentaries.com (Feb. 2, 2020). 

My Call Stories

Here are my call stories in response to Rev. Tim Hart-Andersen’s  sermon,“What Is Your Call Story?,” which was the subject of a prior post.  

The sermon drew from the Bible’s account of Isaiah receiving a direct call from God and Zacchae’us having one from Jesus. I never had such a direct call and doubt that I ever will. Instead, as will be discussed, I have responded to various requests by friends and colleagues to do something that upon reflection were calls to service. Such requests often can lead to personal reflection and conversations with pastors and friends to discern whether there has been a call and what your response should be.

The title of the sermon suggests that each of us only has one call story. Yet I have had multiple calls to service and believe that is or should be a common experience. After all the sermon mentions the pastor’s father, Rev. Dr. Henry William Andersen, who had a strong calling to Presbyterian ministry, but upon his retirement from that ministry was perplexed for a while before he discovered a calling to retire and be a friend and counselor to other retired people.

In other words, vocation “implies a dedication to a certain kind of work or service over a period of time. A one-time effort probably does not count. On the other hand, . . . vocation does not necessarily require a lifetime commitment to doing a certain thing. Indeed, an individual’s circumstances change over time and what was a vocation for one period of life may not be appropriate for other period. Thus, an individual may have several vocations over time, some of which might be simultaneous.” [1]

Before I joined Westminster in 1981 I had no religious calls to service.

My Calls to Service

Church Leadership [2]

Shortly after I joined the church, I was asked to be an elder of the church. At the time I was surprised that the church wanted someone to serve in that capacity with such limited experience in the church, but I said “Yes” and now regard that as a call to service. This led to service on various church committees—Spiritual Growth, Evangelism and Global Partnerships, the last of which I chaired for ten years. In the process I learned a lot about these different programs and helped shape their missions.

This call was expanded by an invitation I accepted to join the Board of Trustees of United Theological Seminary of the Twin Cities, an ecumenical Protestant institution, which I served, 1988-1998.

The Sanctuary Movement Lawsuit [3]

While serving as a church leader, I struggled with how I could integrate my new religious faith with an active legal practice as a corporate litigator.

The answer to that struggle emerged in 1985, when the senior partner at my law firm asked me to provide legal advice to a firm client and his church, the American Lutheran  Church (ALC), which was headquartered in Minneapolis and since merged into the Evangelical Lutheran Church in America (ELCA). The problem was to help ALC decide what it should do in response to the U.S. Government’s disclosure in a criminal case in Arizona that the Immigration and Naturalization Service (INS and now the (Immigration and Customs Enforcement Agency (ICE)) had sent undercover agents into worship services and Bible study meetings in ALC and Presbyterian churches in Arizona that were involved in the Sanctuary Movement.

The result was the ALC joined my denomination—Presbyterian Church U.S.A.—in suing the U.S. Government in federal court in Arizona over what we called “spies in the churches.” In preparation for that case, I had a trip to Phoenix to meet religious leaders involved in the Movement, including Rev. John Fife of Southside Presbyterian Church in Tucson, who in 1986 was convicted of harboring and transporting illegal aliens and served five years probation before being elected Moderator (the national leader) of my denomination. 

The courtroom work in this case was handed by two excellent lawyers—Peter Baird and Janet Napolitano of the Phoenix firm of Lewis and Roca (n/k/a Lewis Roca Rothgerber Christie)—and after a Ninth Circuit reversal of a judgment for the Government, the court in Arizona granted a declaratory judgment that the U.S. Constitution’s “freedom of religion” Claus of the First Amendment protected churches from unreasonable investigations. (Napolitano, of course, later became U.S. Attorney for the District of Arizona, the state’s Attorney General and Governor and Secretary of the U.S. Department of Homeland Security and now is the President of the University of California.)

Thus, I came to understand that my senior partner’s asking me to provide legal services to the ALC was a call to religious service.

Becoming a Pro Bono Asylum Lawyer [4]

Moreover, at the start of the Sanctuary Movement case, I knew very little about the Sanctuary Movement or refugee and asylum law or what had been going on in Central America. This led to my leaning about this area of the law through a refugee and asylum training program from Minnesota Advocates for Human rights (n/k/a Advocates for Human Rights) and then volunteering to be a pro bono (no fee) attorney for an asylum applicant from El Salvador. Simultaneously I engaged in research about the Sanctuary Movement and about what had been happening in that country. I then tried the case with an experienced immigration attorney in the Immigration Court in Minneapolis. As was typical at the time, we lost the case, but immediately filed an appeal to the Board of Immigration Appeals in Washington, D.C., which enabled our client to remain in the U.S. with a work permit.

My Pilgrimage to El Salvador [5]

In 1988 I volunteered to handle another Salvadoran asylum case, which was more complicated. As a result, I decided to go to that country in April 1989 with a group from the Washington, D.C. Synod of the ALC through the auspices of the Center for Global Education of Augsburg University of Minneapolis. My purpose was to conduct investigations for this new case and learn more about the country and those objectives were accomplished.

The day we arrived, the Salvadoran Attorney General was assassinated with a car bomb. This produced an intensely tense and dangerous time in the country with her security forces with their automatic rifles stationed throughout the capitol.

Unexpectedly this trip turned out to be the most intense religious experience of my life and a major call to faith and service.

I started to learn more about Archbishop Oscar Romero, who was assassinated while saying mass on March 24, 1980, because of his outspoken criticism of his government’s human rights violations. My group visited the beautiful, modern chapel on the grounds of a cancer hospital where he was killed. Across the street was his small apartment. No fancy archbishop’s palace for him. Another stop was at the capitol city’s Cathedral, which was still unfinished due to Romero’s refusal to spend money on the building while so many Salvadorans were being killed and persecuted. His tomb then in one of the transepts was very plain and covered with photographs of people and their written prayers. There were scraps of linoleum on the floor and plain wooden benches for worshippers. On the outdoor steps to the Cathedral women from COMADRES (Committee of Mothers of the Disappeared and Assassinated) with bullhorns were screaming protests against the latest round of repression by the government. Tears filled my eyes as the words of the Holy Communion or Eucharist echoed in my mind: “My body broken for you.” As a result, Romero became a self-appointed saint for this Protestant believer and I was overjoyed in October 2018 when the Roman Catholic Church canonized Romero as Saint Romero. [6]

Of the many other searing events of my week in El Salvador, another stands out. At the small Lutheran Church of El Salvador, we met an attorney, Salvador Ibarra, who was the one-person human rights office of the church. He spoke of his joy in his work even though such service put his own life at risk and thereby was calling me to continued work as a pro bono asylum lawyer.

Additional Pro Bono Asylum Work [7]

I accepted that call upon my return to the security and comforts of my office in a large law firm in downtown Minneapolis. I helped my second Salvadoran client to obtain asylum.

Thereafter until my retirement from the law firm in 2001, I was such an attorney for other Salvadorans, a young man from Afghanistan, two Somali men, a Burmese man, a young woman from Colombia and a Colombian family, all of whom obtained asylum and at least some of whom are now U.S. citizens.

Teaching International Human Rights Law [8]

In the Fall of 2001, after retiring from the practice of law, I audited the international human rights law course at the University of Minnesota Law School, which was taught by friends, Professors David Weissbrodt and Barbara Frey and by Professor Fionnuala Ní Aoláin, who became another friend. Thereafter David extended a surprise invitation to me to help them teach the course in the future. I accepted that invitation or call, and from 2002 through 2010 I was an Adjunct Professor at the UM where I taught the chapters on refugee and asylum law and U.S. federal court litigation over foreign human rights violations. Along the way I also learned a lot more about other aspects of this large area of law. I am grateful for this call.

Blogging About Law, Politics, Religion and History [9]

One of the reasons I had another retirement (this from teaching) was to research and write about law, politics, religion and history and stumbled onto blogging as a way to do just that. As a result, in April 2011 I started this blog.

My writing about religion has concentrated on the life and witness of Minneapolis’ Westminster Presbyterian Church. I have been enriched by reading the Biblical texts and sermons and then thinking and writing about them. I have come to see this as my way of doing evangelism by demonstrating how an intelligent person can have a religious, spiritual life, something I did not believe possible during my 24 years of religious and spiritual nothingness before I joined Westminster in 1981.

Another major subject of my blog is promoting U.S.-Cuba reconciliation, which grew out of my work on Westminster’s partnership with a Presbyterian-Reformed congregation in the City of Matanzas, Cuba, making three mission trips to the island and welcoming Cuban visitors to my church and city.

Thus, I have come to see blogging as another call that I have accepted.

Conclusion

I concur with Rev. Hart-Andersen when he said in his sermon, “ Christian vocation is less about a particular job and more about how we approach that job, less with what career we choose and more about the underlying purpose we sense in our lives and how that purpose manifests itself in whatever we do. . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”

Or as noted Presbyterian pastor and author, Frederick Buechner said, a calling is “work I need most to do and what the world needs most to have done. The place God calls you to is the place where your deep gladness and the world’s deep hunger meet.” [10]

I am eternally grateful to have received, and accepted, these calls to service. My life has been enriched!

==========================

[1] My General Thoughts on Vocation, dwkcommentaries.com (Feb. 6, 2014). 

[2] Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (April 6, 2011); My Vocations, dwkcommentaries.com (Feb. 23, 2014), 

[3] The Sanctuary Movement Case, dwkcommentaries.com (May 22, 2011) 

[4] Becoming a Pro Bono Asylum Lawyer, dwkcommentareis.com (May 24, 2011).

[5] My Pilgrimage to El Salvador, April 1989, dwkcommentariess.com  (May 25, 2011); Inspiration of a Christian Lawyer by the Martyred Jesuit Priests of El Salvador, dwkcommentaries.com (Dec. 14, 2014); posts listed in the “Archbishop Oscar Romero “ section of List of Posts to dwkcommentaries—-Topical: RELIGION.

[6] The Canonization of Oscar Romero, dwkcommentaries.com (Oct. 15, 2018). 

[7] See n. 4.

[8] Auditing the International Human Rights Law Course, dwkcommentaries.com (June 30, 2011); Teaching the International Human Rights Law Course, dwkcommentareis.com (July 1, 2011). 

[9] The Joy of Blogging, dwkcommentaries.com; List of Posts to dwkcommentaries—Topical: RELIGION

[10] My General Thoughts on Vocation, dwkcommentaries.com (Feb. 6, 2014). 

Trump’s Unfounded Fear of Refugees

We all know full too well about President Trump’s repeated assertions of fear of refugees killing and harming Americans as purported justifications for his proposed restrictions on admission of refugees into the U.S.

There are so many reasons to reject and oppose these assertions and restrictions. Here are just two.

First, as Nicolas Kristof, New York Times columnist, points out, the facts do not support the claimed fear. In the last 40 years, “terrorists born in the seven nations in Trump’s travel ban killed zero people in America” while Americans with guns killed 1.34 million. This includes 230,123 murders by Americans who were Muslims.  The latter set of murders is exceeded by murders with guns by American husbands.  (Kristof, Husbands Are Deadlier Than Terrorists, N.Y. Times (Feb. 12, 2017).)

Second, all of the scare tactics of Trump and his allies fail to mention that refugees are those individuals who have proved, under international and U.S. law, that they have a “well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.” Assembling the evidence and legal arguments for a claim to ‘refugee’ status is not easy by itself, and such a claim is subject to cross examination and vetting by representative of the United Nations High Commissioner for Refugees or the U.S. government.

It is not easy to persuade these officials as I can attest as a pro bono attorney for aliens who have sought asylum in the U.S. by proving that they were “refugees” under the previously mentioned laws. (Refugee and Asylum Law: Modern Era, dwkcommentaries.com (July 9, 2011); Multilateral Treaties Ratified by the U.S., dwkcommentaries.com (Feb. 9, 2013); Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).)

Indeed, a detailed review of the current, more elaborate, multi-year oUNHCR and U.S. procedures for reviewing and vetting applications for “refugee” status, especially from Syria and Iraq, has been provided by a former U.S. immigration officer. (Hall, Refugees are already vigorously vetted. I know because I vetted them, Wash. Post (Feb. 1, 2017).)

Given these legal requirements and the extensive vetting of claims for refugee status that exists today, it certainly always would be legitimate to consider in a calm and rational manner whether improvements could be made to U.S. procedures for evaluating such claims. But to scream or tweet an unspecified need for “extreme vetting” is hysterical poppycock.

Criticism of U.S.-Cuba Law Enforcement Agreement 

The head of New Jersey’s state police has criticized the two countries’ law enforcement agreement of January 16, 2017, because, he says, he has read the agreement and it does not require Cuba to extradite Joanne Chesimard (a/k/a Assata Shakur) to the U.S.[1]

After reviewing what we know about this woman, we will examine the police statement and provide commentary.

Chesimard/ Shakur

In the 1960s-1970s Chesimard, a U.S. citizen, was a member of the Black Panther Party and the Black Liberation Army in the U.S. In 1977 she was convicted in New Jersey state court for aiding and abetting first-degree murder, assault and battery of a police officer (New Jersey State Trooper Werner Foerster), assault with a dangerous weapon, assault with intent to kill, illegal possession of a weapon, and armed robbery during a gunfight on the New Jersey Turnpike in 1973.

She was sentenced to life in New Jersey state prison, but in 1979 she escaped and in 1984 traveled to Cuba. At some time thereafter President Fidel Castro granted her asylum, and she has been living there under the name Assata Shakur. She is now around 70 years old. The FBI has listed her as one of its “Most Wanted” and offered a reward of $1 million for her apprehension; the New Jersey Attorney General has offered to match that reward.

Since at least 1997 there have been various unsuccessful attempts by the U.S. government and others to obtain her extradition to the U.S.

Statement by New Jersey State Police Superintendent

The Superintendent Rick Fuentes’ January 18 statement reads as follows:

  • “On Monday, January 16, 2017, the White House signed a law enforcement pact with the government of Cuba that included the sharing of national security information on matters related to fighting terrorism and the scourge of the international narcotics trade. I have read this pact with great interest, as any aspect of the continued negotiations to normalize relations with Cuba impacts our continued advocacy to seek the return of Joanne Chesimard. Chesimard executed New Jersey State Trooper Werner Foerster in 1973 and fled to Cuba after escaping a New Jersey prison in 1979. She is most prominent among a rogue’s gallery of cop killers and domestic terrorists that have been given sanctuary by the Castro regime these past thirty years.”
  • With a continued sense of bewilderment and confusion not uncommon to the course of these negotiations, the pact does not address the return of: Joanne Chesimard; Victor Manuel Gerena, a member of Los Macheteros who was removed from the FBI Top Ten list one month ago; Charlie Hill, a member of the Republic of New Afrika, alleged to have killed a New Mexico state trooper in 1971; or, William Guillermo Morales, the murderous bomb-maker for the Puerto Rican separatist group, FALN.”
  • “Their omission from this agreement and from the negotiations-at-large is so glaring as to signal a clear intent by the Obama Administration to ignore these fugitives. By burning the last bridge to this Administration’s opportunity to gain their negotiated return, families who have long suffered the consequences of their terrorist acts and law enforcement everywhere in this country have been shown the back of the hand. An ignominious torch has been passed to the next president.”
  • “We are not deterred. I can say, unequivocally, that Governor Chris Christie, State Attorney General Chris Porrino and I remain resolute in our efforts to follow every political course leading to the return of Joanne Chesimard and the other remaining terrorist fugitives. We approach the next presidential administration with a renewed sense of optimism and moral superiority that justice will prevail.”

Comments

The Superintendent’s statements regarding Chesimard/Shakur are believed to be basically correct, and it is most understandable that the New Jersey State Police want her extradited to the U.S. and returned to New Jersey state prison.

The Superintendent says he has read the recent MOU in question and that it does not require Cuba to make that extradition. I have not been able to locate that MOU so cannot independently verify the validity of his statement. But for present purposes I will assume that his statement about the MOU is basically correct.

I assume, on the other hand, that the MOU does not contain a U.S. agreement to not continue to seek her extradition or a Cuban statement or promise not to extradite her. If it had, I am confident that the Superintendent would have so stated and raised the ante for his protest.

He also asserts that the subject of this requested extradition has not been raised by the U.S. in “the negotiations-at-large.” Although I have not been personally involved in those negotiations, I believe this to be a false statement. As noted in earlier posts, public reports indicate that the two countries’ respective requests for extraditions of criminals or suspects, which I believe includes the U.S. request regarding Chesimard/Shakur, have been the subjects of several such bilateral negotiating sessions since December 17, 2014.

As a result, I conclude that the parties have not been able to come to an agreement about such extraditions or about a judicial procedure for resolving any such disputes. Therefore, there apparently was no mention of the subject in the MOU in question.

Moreover, the Superintendent also fails to recognize a major legal issue regarding the requested Chesimard/Shakur extradition because of an extradition treaty between the two countries. Therefore, we will look at that treaty and the issue it raises regarding this possible extradition.

U.S.-Cuba Extradition Treaty.

As explained in an earlier post,[2] on March 2, 1905, the two countries entered into such a treaty, the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice.” Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926.

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” This obviously covers Chesimard/Shakur, who does not fall within the exception under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty,” unless she has been granted Cuban citizenship.

The long list of crimes covered by Article II, as amended, includes (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” This obviously covers the requested extradition discussed here.

Under Article VI of the original treaty, however, the requested country (Here, Cuba) is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” This exception, however, is not applicable to the case under consideration here.

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) This exception seems to cover Chesimard/Shakur as discussed next.

The Treaty Issue Regarding Chesimard/Shakur

After fleeing to Cuba in 1984, at date unknown the Cuban government apparently granted her political asylum and perhaps Cuban citizenship. Assuming that to be the case, that appears to negate Cuba’s obligation under the treaty to extradite her to the U.S.

It is not known whether the Cuban government has the legal authority to revoke that grant of asylum (and of citizenship?) and whether it would do so in this case. However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”[3]

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation, the subject of the January 16, 2017, MOU. Outsiders speculated that the meeting may have included discussions about a possible high-profile prisoner swap: U.S.-jailed Cuban spy Ana Belén Montes in exchange for Chesimard/Shakur). The State Department, however, has refused to confirm that such an exchange was being discussed. Instead the Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the State Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.” [4]

Therefore, unless there is some error in my analysis, the strong desire by many in New Jersey and elsewhere in the U.S. for this extradition appears to be a lost cause unless the Cuban government has the authority under its own laws to revoke the grant of asylum (and citizenship?) and chooses to exercise it. Or the Cuban government just decides to extradite her without changing her asylee or citizenship status.

====================================

[1] Assoc. Press, With No Deal on Convicted Killer, Police Slam US-Cuba Pact, N.Y. Times (Jan. 20, 2017),‘Goodbye, Obama! NJ State Police slams president on the way out (Jan. 18?, 2017); New Jersey State Police, Colonel Rick Fuentes’ Response to the Recently Signed U.S./Cuban Law Enforcement Pact (Jan. 18?, 2017).

[2] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015). Moreover, the “political offense” provision of the U.S.-Cuba treaty is not sui generis, but in fact is a common provision in other U.S. extradition treaties. (Ibid.; Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 25, 2016).

[3] U.S. and Cuba Hold Productive Second Round of Negotiations, dwkcommentaries.com (Mar. 6, 2015).

[4] U.S. and Cuba Discuss Counterterrorism Cooperation, dwkcommentaries.com (June 10, 2016).

Other Current Developments Regarding Cuban Migrants to U.S

When the U.S. decided on January 12 to end immediately the “dry foot/wet foot” immigration policy, as discussed in a prior post, two groups of Cubans faced immediate consequences.

First, many Cubans are stranded in Mexico or Central America unable to be allowed into the U.S. without a visa. Now many of them are waiting in place on the hope that Donald Trump after his January 20 inauguration will reverse the January 12 cancellation of that policy or make an exception for those in limbo.[1]

Alternatively if any of them are fleeing “persecution” in Cuba, they first must satisfy a “credible fear” test at the U.S. border and then subsequently apply for asylum in the U.S. They, however, will generally be held in immigration detention for potentially months and success is far from guaranteed. It can take years for asylum to be granted given the crushing caseloads for U.S. asylum officers and immigration judges.

Second, also affected is a group of Cubans known as Marielitos who are in the U.S., and whose situation requires a historical explanation.[2]

From April through October 1980, pursuant to Fidel Castro’s decision, nearly 125,000 Cubans were allowed to leave the island by boat from the port of Mariel on the north coast of the island west of Havana. Most were law-abiding, but some had just been released, by Fidel’s orders, from Cuban prisons and mental institutions. Within a few years after their arrival in the U.S. almost 3,000 of the “Marielitos” were in U.S. prisons after convictions for committing new and serious crimes in the U.S.

The Cuban government in 1984 agreed to take back 2,746 of these criminal Marielitos. But the U.S. deportations were slow and in some years did not take place at all. At one point, Marielitos who had been awaiting deportation for years rioted in several cities.

Now nearly 250 of this group of 2,746 have died, and, by June of last year, 478 of the original 2,746 remained in the U.S., but some of this smaller group are elderly or very ill, and the U.S. government has lost interest in deporting some of them.

The January 12, 2017, agreement between the U.S. and Cuba allows the U.S. to deport or remove up to 500 of the 2,746 Marielitos and send them back to Cuba, which agreed to accept them. Moreover, Cuba has agreed to accept other Marielitos who have been convicted of crimes in the U.S. as part of this group of 500, but were not part of the original group of 2,746.

I have a personal connection to one of the Marielitos. Before I retired from practicing law in June 2001, I was appointed by Minnesota’s federal court to represent, pro bono, one of them who was in immigration detention at the federal government’s medical facility in Rochester, Minnesota (the site of the famous Mayo Clinic). He had been convicted of a serious crime in Rhode Island, as I recall, and after completion of his criminal incarceration, the U.S. put him in immigration detention for deportation or removal to Cuba, but Cuba would not accept him back. Although he was not an attorney, he had filed, pro se, a habeas corpus petition with Minnesota’s federal court, and my task, as his pro bono attorney, was to analyze and submit a legal brief in support of that petition. I did so.

Before the government submitted a response to my legal brief and before the court had to make a decision on the petition, the U.S. government decided to permit my client’s release from immigration detention. At the Rochester medical facility, he was suffering from a terminal disease, and I believed the government’s decision for his release was not based on the quality of my legal arguments, but on its desire to reduce its costs of keeping him in that facility.

Not long after my “successful” representation of this Marielito and his release from the Rochester facility, my legal argument was upheld by the U.S. Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), holding that the Constitution did not permit the U.S. to detain indefinitely immigrants under order of deportation whom no other country will accept. To justify detention of immigrants for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances.

Four years later, the U.S. Supreme Court decided, 7-2, in Clark v. Martinez, 543 U.S. 371 (2005), that the Zadvydas decision applied to Marielitos, whose return Cuba would not permit.

========================================

[1] Assoc. Press, Cuban Migrants Steps From US Border Hope for Trump Solution, N.Y. times (Jan. 14, 2017); Assoc. Press, US Policy Change on Cuban Migrants Leaves Many Stranded, N.Y. Times (Jan. 13, 2017).

[2] Robles, ‘Marielitos’ Face Long-Delayed Reckoning: Expulsion to Cuba, N.Y. times (Jan. 14, 2017); Mariel boatlift, Wikipedia; Greenhouse, Supreme Court Rejects Mariel Cubans Detention, N.Y. Times (Jan. 13, 2005); Zadvydas v. Davis, Wikipedia; Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, Wikipedia; Clark v. Martinez, 543 U.S. 371 (2005).

 

 

 

Additional Reactions to End of U.S. Immigration Benefits for Cubans

There have been extensive White House comments as well as others’ reactions to the January 12 end of special U.S. immigration benefits for Cubans–“dry foot/wet foot” and the Cuban Medical Professional Parole Program—that was discussed in a prior post. Now we look at additional White House comments and the extensive reactions—positive and negative—regarding this change.

White House Comments[1]

There were two additional sets of White House comments about the change. On the early evening of January 12 and hours after the announcement of the change, Department of Homeland Security (DHS) Secretary Jeh Johnson, an unidentified senior DHS official and Benjamin Rhodes, Deputy National Security Advisor, conducted a lengthy conference call with the press on the subject. At the next day’s press briefing White House Press Secretary Josh Earnest made comments on the subject. Here is a summary of new points that were made at these events.

Press Conference Call

Johnson: “Going forward, if a Cuban migrants arrives here illegally, the Cuban government has agreed to accept that person back . . . if . . . the time [between] a Cuban migrant leaves Cuba . . . and the time that we commence a deportation proceeding against the individual is less than four years.”

The “reason for the four-year period is . . . a law in Cuba (enacted in response to the [U.S.] Cuban Adjustment Act) that essentially says that if a person has left Cuba, after two years they are considered to have effectively migrated from Cuba.  In the course of our negotiations, the Cuban government agreed [to change that period from two to four years].” In addition, Cuba has agreed to accept other Cubans “on a case-by-case basis.”

“Ultimately, we seek to get to a place fully consistent with the international law under which the Cubans will agree to accept everyone back who is ordered deported by our country.”

“This is the ending of a policy that was put in place 20 years ago.  This is not the enactment of a policy that can be repealed by a subsequent administration. So I wouldn’t characterize it as creating a policy that could be repealed [by the Trump administration].”

Rhodes: “What we’ve seen in recent years is a continued uptick in Cuban migrants coming to the [U.S.].  We attribute that to a variety of factors — one, that Cuba has liberalized its own exit policies with respect to Cubans leaving the country; two, the change in our policy — the normalization of relations that began on December 17, 2014 — I think created an expectation in Cuba that this change might take place and therefore people were motivated to migrate.  Also, though, the increase in resources available to the Cuban people, particularly through our remittance policies, also made it more possible for Cubans to travel.”

“There has been a steady increase to some 40,000 Cubans granted parole in fiscal year 2015; 54,000 roughly in fiscal year 2016.  And what we had also seen is a growing number of Cubans who had begun a journey to try to reach the United States who were in a variety of Central American countries . . . creating both humanitarian challenges and strains within those countries as large numbers of Cubans were essentially stuck there and then facing a very difficult and dangerous — journey to our southern border in some cases.”

“Ultimately . . . we’d like to see people be able to increase their economic prospects within Cuba.  That is why we have taken steps to open up a greater commercial and people-to-people relationship, and have encouraged the Cuban government to pursue economic reforms.  That, ultimately, is the best way to ensure opportunity for the Cuban people going forward.”

“The Cuban Adjustment Act is the legislative architecture around these policies.  That provides preferences including adjusted status, green card status, and certain benefits to Cubans who are paroled into the country. . . . We do believe it would be the appropriate step for Congress to repeal the Cuban Adjustment Act.”

“We did not want to speculate publicly about the likelihood of this change for fear of inviting even greater migration flows.”

“On the congressional point, while we did not have regular updates on what were very sensitive negotiations, we have over the course of the last year or so, frankly, heard from members of Congress, from both parties, who were expressing increasing concern about the migration flows.  In fact, in some cases, we were being urged to do something about it.  And we’ve also heard increasing interest and even pieces of legislation being introduced that seek to amend or repeal the Cuban Adjustment Act, whether it’s the benefits provided under the Cuban Adjustment Act or the act itself.  So this is an issue that we’ve discussed with members of Congress from both parties, and around this announcement of course we’re doing many notifications to those interested members. . . . It was clear to us that Congress was taking a greater interest in this issue, given the uptick in migration flows and the strain that was placing on certain communities.”

“[E]arly in the post-revolution history, it was very clear that the overwhelming number of Cubans who came to the [U.S.] and ended up doing incredible things here in the [U.S.] absolutely had to leave for political purposes, or very much were leaving for political purposes.  I think increasingly over time, the balance has tilted towards people leaving for more traditional reasons in terms of seeking economic opportunity and, frankly, having not just the benefits of “wet foot, dry foot” and the adjusted status, but also literal benefits under the Cuban Adjustment Act.  That’s not to say that they’re not still people who have political cause to leave Cuba.  And as we do with any other country, political asylum continues to be an option for those individuals.  But we have seen the balance shift to more similar reasons in terms of people pursuing economic opportunity.”

“[U]ltimately the best future for Cuba is one that is determined by the Cuban people, both in terms of their economic livelihoods and in terms of their political future. . . . [It is] important that Cuba continue to have a young, dynamic population that are clearly serving as agents of change and becoming entrepreneurs, and being more connected to the rest of the world. . . . [We] believe that this change is in service of creating more incentive for there to be the economic reforms that need to be pursued on the island in terms of opening up more space for the private sector, allowing foreign firms to hire Cubans, so that they can be responsive to the economic aspirations of their people. So in the long run, the best way for Cubans to have this opportunity is for them to be able to pursue it at home through an economy that has continued to pursue market-based reforms.”

We “believe very strongly, in this administration, of course, that our Cuba opening is the best way to incentivize that economic reform; that as more Americans travel, as more Americans do business, as there are greater commercial ties, that ultimately is going to create more opportunity for people in Cuba, as well as creating opportunities for Americans.  And so that’s very much the approach we’d like to see continued going forward, and ultimately the one that has the best opportunity to deliver results to the Cuban people.”

The “Cubans will be treated like everybody else.  People from anywhere can issue a claim of asylum; that does happen frequently. There’s not going to be a separate queue for Cubans.  So just like any other migrant who reaches our border, they have certain claims that they can pursue, but they’ll be treated as other individuals from other countries are.”

Press Briefing

At the January 13 press briefing, White House Press Secretary Josh Earnest made the following extensive comments about the change:

“This policy change was codified in an executive agreement between the U.S. government and the government in Cuba.  As even some of the incoming administration’s nominees have noted, there’s a tradition of subsequent Presidents observing and adhering to the executive agreements that were put in place by the previous President unless, of course, a specific decision is made to change the policy.”

“President-elect Trump . . . on January 20th . . . [will] be able to exercise all of the executive authority that are invested in the presidency at his discretion.  We believe that there is a strong case to be made about normalizing relations between our two countries, and this is just the latest step in that process to ensure that we are treating Cuban migrants the same way that we treat migrants from other countries.”

The “response to this announcement . . . is indicative of how public opinion is changing on these issues, including in the Cuban-American community.” There is “a growing majority of Americans who agree about the direction that the President [Obaama] has moved the relationship between the [U.S.] and Cuba.”

“[T]he migrants from Cuba will be treated in the same way that migrants from other countries are, which is to say legitimate claims for refugee status or for asylum will be subject to due process, which means that their claims will be evaluated.  And if they have legitimate claims for asylum, then that will be granted. But that will be adjudicated through the regular process . . . that migrants from other countries go through as well.”

“There was . . . a successful effort to brief the incoming administration shortly before this policy change was made public.”

It “takes time to negotiate these kinds of executive agreements, particularly with a country like Cuba that does not have a long history of negotiating these kinds of agreements with the United States.  For more than 50 years, the United States pursued a policy of diplomatic isolation with Cuba.  And so it’s only over the course of the last year or so that we’ve had the kind of diplomatic opening that will allow us to have these kinds of conversations.  So, negotiating these kinds of executive agreements takes time, but as soon as this agreement was completed, we announced it right away.”

Mr. Trump “certainly seems to be motivated by financial interests in some pretty important ways; he has over his professional career.  So I think he’ll find . . . [the economic argument for normalization] persuasive, particularly when you consider that there were reports that his company was negotiating with Cuba for exactly those kinds of agreements.  So he obviously recognizes the economic opportunity that’s there.  There’s more than a hundred flights every day between the [U.S.] and Cuba.  That’s cancelling a lot of flights if he wants to roll back this policy.  And I can’t imagine that the U.S. airline industry is going to be particularly pleased by that kind of development.”

“There are thousands of Americans that have an opportunity to travel to Cuba, and they’ve had an opportunity to enjoy their time there, learn a little bit more about the country, enhance ties between our two countries, and they’ve been able to return to the United States with all of the cigars and rum that they could pack into their suitcase if they choose to.  I don’t think those Americans are going to be particularly pleased to see that policy rolled back.”

For “more than 50 years, there was a policy of diplomatic isolation in place that had no material impact in improving the human rights situation in Cuba.  If anything, it got worse.  This policy has been in place for about a year.  And is there more that we would like to see the Cuban government do with regard to protecting human rights?  We absolutely would.  But our view is that the ability of the United States to advocate for those kinds of improvements is enhanced when we deepen the ties between our two countries.  When there are more Americans that are traveling to Cuba, when there is more communication going back and forth between Cuba and the United States, when there are more Cuban Americans that have an opportunity to visit family and send money to family in Cuba, all that is going to promote freedom.  That’s going to promote our values.”

“There has not been nearly as much an improvement in human rights in Cuba as we would like to see.  But the [normalization] policy has been in place for a little over [two years].”

We also have removed “an impediment to our relationship with countries throughout Latin America that have important relationships with Cuba.  For most of the last 50 years, those countries in Latin America didn’t apply that much pressure to Cuba about their human rights situation, and [instead] were focused on the [U.S.] and our failed policy of trying to isolate them.  Now that that impediment has been removed, it’s not just the [U.S.] that’s encouraging the Cuban government to improve their human rights situation, but you’ve got countries throughout the Western Hemisphere that are making the same argument.  So all we have done is to increase pressure on the Cuban government to improve the human rights situation there, and, at the same time, the American people have enjoyed a number of material benefits, including monetary benefits, that I do think will be persuasive to the incoming President as he determines what policy he believes is best with regard to the [U.S.] and Cuba.”

Positive Reactions[2]

 A New York Times editorial applauded the ending of this policy, which was “misguided for several reasons. It encouraged Cubans to embark on perilous, and often deadly, journeys on rafts across the Florida straits and across borders in South and Central America. It exacerbated Cuba’s brain drain, particularly after 2006 when Washington created a pathway for medical professionals abroad to defect by applying for visas at American embassies. And it unjustifiably gave Cubans preferential treatment while Haitians and Central Americans who were fleeing far more desperate circumstances were deported.”

This policy, says the Times, “has served as an escape valve, giving a way out to tens of thousands of Cubans who were frustrated by the island’s authoritarian government. Young Cubans have grown up regarding immigration to the [U.S.] as an option that has become a core part of the Cuban psyche.”

Now, the Times continues, there probably will be “pent-up dissatisfaction [that may] embolden more Cubans to press for economic changes and political freedoms as the era of rule by Raúl Castro draws to an end [in early 2018]. This would be hard and risky in a police state that stifles dissent by rewarding loyalists, punishing critics and sowing division among groups agitating for change. Eliécer Ávila, a prominent opposition leader, said, ““In the long run, I feel this will be beneficial by putting pressure on us to take responsibility for our homeland. The fundamental problem here is not the laws of other countries but the reality we live with.”

The Times concluded,  “should be clear to . . . [President-elect Trump’s] team that rolling back the recent progress would be foolish.”

A Washington Post editorial reached the same conclusion as the Times while emphasizing that the “dry foot/wet foot” policy “not only induced discontented Cubans to make a dangerous journey, but also relieved pressure on the regime to meet their legitimate demands at home. In recent years, the policy has also led to various scams, such as Medicare fraud perpetrated by Cubans who quickly settled in South Florida and then returned to the island with ill-gotten money.”

The incoming Trump administration was urged by the Washington Post “to treat [Cuban asylum] claims with the generosity they deserve while noting that the U.S. continuing “to set aside 20,000 immigrant visas per year to Cubans [was] an unusually high number properly reflective of Cuba’s unusually repressive system.”

Jon Anderson in the New Yorker points out that the change “should also help curtail a gruesome people-trafficking network that, over the past two years, has bled tens of thousands of Cubans of what little money they have in order to make it to the United States. Many of the migrants have sold their homes to obtain the cash to pay the traffickers who smuggle them through different countries before they reach the United States. One of the networks funnels people through a Mafia-controlled section of Colombia on an arduous and dangerous trek, sometimes lasting as much as three weeks, through the Darién jungle into Panama. Numerous Cubans, as well as other nationalities, have been robbed, raped, and killed along the way. In Mexico, an unavoidable part of any overland journey to the U.S. border from the south, Cubans fall prey to traffickers linked to the violent drug gangs there, at times with corrupt police involvement.”

Representative Albio Sires (Dem., NJ), a Cuban-American, said that “in recent years [some Cubans] used [the dry foot/wet foot policy] to reap economic rewards by sending money back to the island or even going back themselves to visit. While I am sympathetic to the plight of all the Cuban people, this program was designed for those asylees and refugees that were forced to flee. Money sent back to the island has no choice but to pass through the hands of the regime that for years has been using this program to fill their coffers.” He, however, questioned the timing of this change with an incoming president who has made many “hateful and disparaging remarks about refugees, minorities and immigrants.”

Negative Reactions[3]

Cuban-American representatives in Congress registered their typical negative reactions to U.S. normalization with Cuba: Ileana Ros-Lehtinen (Rep., FL); Carlos Curbello (Rep., FL); and Mario Diaz-Balart. Representative Curbello, however, admitted that the old wet-foot/dry-foot policy had been “grossly abused and exploited by many Cuban nationals, while also inadvertently bolstering the Cuban regime. A change to this policy was inevitable. I remain firmly committed to supporting the victims of persecution in Cuba while ending all abuses of America’s generosity.”

 A negative opinion also was registered by Carlos Eire, a Cuban-American who arrived in the early 1960’s as a “Peter Pan” kid and who now is an author and the T.L. Riggs Professor of History and Religious Studies at Yale University.He argues that many Cubans saw the December 17, 2014 announcement of rapprochement . . . [as] new support from the [U.S. that] could prolong the life of the Castro regime indefinitely and allow it to rule despotically; and . . . [as a sign] how Cubans would no longer continue to be viewed by the [U.S.] as an oppressed people.” The January 12 termination of ‘dry foot/wet foot’ “has completed . . . [Obama’s] utter betrayal of the Cuban people — a legacy move set in motion two years ago [and] has burdened Trump with a no-win situation with the potential to seriously tarnish or weaken his presidency right from the start.”

The U.S. Conference of Catholic Bishops on January 12 released a statement from the Chair of its Migration Committee, Bishop Joe Vasquez of Austin, Texas. Expressing disappointment over the “sudden policy change,” he said, “While we have welcomed normalizing relations with Cuba, the violation of basic human rights remains a reality for some Cubans and the Wet Foot/Dry Foot policy helped to afford them a way to seek refuge in the United States.”

The Bishop added, “Cuban Americans have been one of the most successful immigrant groups in U.S. history. The protections afforded them were a model of humane treatment.” This change “will make it more difficult for vulnerable populations in Cuba, such as asylum seekers, children, and trafficking victims, to seek protection. . . . My brother Bishops and I pledge to work with the outgoing and incoming administrations to ensure humane treatment for vulnerable populations, from Cuba and elsewhere, seeking refuge in the United States.”

The Cuban Observatory on Human Rights (OCDH), criticizing the change, said thatmany Cubans do not want or can not live in their own country” and that Cuba has not guaranteed “there will be no reprimand or violations of the human rights of” the Cubans the U.S. returns to the island.

Ramón Saúl Sánchez, leader of the Miami-based Democracy Movement, believes the change “will not stop the Cubans leaving the island, because in Cuba ‘there is a tyranny’ that will create more deaths (of rafters) in the Florida Straits.”

Jose Basulto, founder of Brothers to the Rescue: “Freedom is going to have to be sought now inside Cuba.” It is “sad” that Cubans have always bet on escaping from Cuba rather than fighting for freedom within their country.

Conclusion

This blogger remains persuaded that the “dry foot/wet foot policy is not justified, at least in recent years. Now many, if not most, Cubans wanting to come to the U.S. are motivated by an entirely understandable desire to improve their financial circumstances. That same desire exists in many people from many countries throughout the world. There is no special reason why Cubans should be preferred over all these other people.

As Secretary Johnson, Deputy National Security Advisor Rhodes and Press Secretary Earnest emphasized, if the Cubans are fleeing Cuban persecution for their political opinions, then they may and should submit an application, under U.S. and international law, for political asylum.

The U.S. parole program for Cuban medical personnel is also unjustified. Cuban students receive their medical education without any tuition. As a result, it is only reasonable to require such students, after receiving their medical degrees, to “give back” by serving on a Cuban foreign medical mission for which they are paid more than they would have earned in Cuba. Yes, the Cuban government is paid more for their services on such missions by foreign governments than the medical personnel are paid by the Cuban government, but that also is reasonable and appropriate. The contention that such service is illegal forced labor or semi-slavery is absurd.[4]

============================================

[1] White House, On-the-Record Press Call [by Jeh Johnson and Benjamin Rhodes] on Cuba Policy Announcement (Jan. 12, 2017); White House, Press Briefing by Press Secretary Josh Earnest, 1/13/17.

[2] Editorial, Ending a Misguided Cuban Migration Policy, N.Y. Times (Jan. 13, 2017); Editorial, Obama’s latest step on Cuba actually seems necessary and proper, Wash. Post (Jan. 13, 2017); Anderson, Obama’s Last Big Cuba Move, New Yorker (Jan. 13, 2017); Congressman Sires Statement on the Administration’s Decision to End “Wet Foot, Dry Foot” (Jan. 12, 2017).

[3] Ros-Lehtinen Statement on Latest Obama Concession to Castro Regime: Elimination of Wet Foot/Dry Foot and Cuban Medical Professional Parole Program (Jan. 12, 2017); Diaz-Balart, Have You No Shame, President Obama? (Jan. 12, 2017); Curbelo Comments on DHS Announcement Regarding End of Wet-Foot Dry-Foot Policy (Jan. 12, 2917); Eire, Wet foot, dry foot, wrong foot, Wash. Post (Jan. 13, 2017); USCCB Migration Chairman Expresses Disappointment over Abrupt End of “Wet Foot/Dry Foot Policy—Policy Has Long Benefited Cuban Migrants and Refugees (Jan. 12, 2017); OCDH Position on the Elimination of the Policy of “Dry Feet/Wet Feet (Jan. 13, 2017);Reactions: Obama’s policies have been ‘a betrayal of Cubans,’ says Mario Díaz-Balart, Diario de Cuba (Jan. 13, 2017).

[4] See posts listed in the “Cuban Medical Personnel & U.S.” section of List of Posts to dwkcommentaries.com—Topical (CUBA).

Reflections on Learning and Teaching

As a student of history, economics, political science, law and other humanities courses at six colleges and universities[1] and as an instructor at three such institutions,[2] I have participated in different ways of instructing and learning such bodies of knowledge and skills: college and university lectures, other lectures; seminars, research and writing; tutorials; the Socratic method; and role-playing. Similar methods were used in my practice as a litigating attorney and now as a blogger and ordinary citizen. Underlying all of them, of course, are reading and studying. Here are a septuagenarian’s lessons in life-long learning.

My thinking about this subject and writing this blog post were prompted by a recent article about the lecture as a mode of instructing and learning. That article by Molly Worthen, an Assistant Professor of History at the University of North Carolina, Chapel Hill, was put into a broader context by her quoting John Henry Newman’s “The Idea of a University,” where he said the humanities taught a student “to disentangle a skein of thought, to detect what is sophistical, and to discard what is irrelevant.” Such a student learns “when to speak and when to be silent. He is able to converse, he is able to listen.”[3]

College and University Lectures

“A good lecture class,” Worthen says, teaches “comprehension and reasoning” by keeping “students’ minds in energetic and simultaneous action.” It does so by emphasizing “the art of attention, the crucial first step in … ‘critical thinking.’” She quotes Monessa Cummins, the Chair of the Classics Department at Grinnell College, my alma mater, as saying the lecture places “a premium on the connections between individual facts . . . [and] the building of an argument.”

This is “hard work” for the students, Worthen adds, requiring them “to synthesize, organize and react as they listen.” Indeed, students need to be taught how to listen, and lecture courses are exercises in “mindfulness and attention building.” This skill cannot be assumed, but must be taught. One way of doing so, in Professor Cummins’ classes, is to assign one student in each session to present a critique of her argument at the subsequent small discussion section.

Such a lecture course teaches that “listening is not the same thing as thinking about what you plan to say next–and that critical thinking depends on mastery of facts, not knee-jerk opinions.“

This is enhanced, Worthen argues, by requiring the students to take notes by hand, not by typing them into a computer. The former makes it impossible for them to make verbatim transcripts of the lecture, but instead to synthesize as they listen. That may be true, in my opinion, when the lecturer does not provide the students or audience with an outline of the lecture.

Lecturing, on the other hand, with a PowerPoint outline and providing the students or audience members with the Notes Page version of the outline enables the student to glance at the entire presentation in advance and see how the individual points fit into the entire lecture or presentation and then add his or her notes to individual pages as the lecture proceeds. PowerPoint also facilitates the use of graphs, maps and photographs in the lecture. [4]

Worthen also recognizes the utility of combining a large lecture session with small discussions sections and thereby obtain the reactions and comments of the students.

My memories of my first exposure as a student to lecturing 58 years ago as a freshman at Grinnell College are fuzzy at best, but I do not recall being provided with tips on how to take full advantage of this form of instruction. I now wish I had been told how to listen, to be mindful and to synthesize as I listened. I wish I had had a professor assign one student in each session to present a critique of the lecture’s argument at the next class session. Of course, then all notes of a lecture were handwritten.

As a student of Philosophy, Politics and Economics (PPE) at the University of Oxford, 1961-1963, attendance at university lectures on these subjects, often by world-famous scholars, was optional. I attended some primarily to see and hear such people as philosophers A. J. Ayer and Gilbert Ryle, economist J. R. Hicks and legal philosopher H. L. A. Hart, but regrettably I did not regularly do so. (Instead my attention was focused on tutorials as discussed below.)

As a law student at the University of Chicago, 1963-1966, the Socratic method was the dominant form of instruction, not lectures. The latter instead were formal occasions for all the students and faculty, usually provided by visiting scholars and judges. (The Socratic method also will be discussed below.)

In addition, I was a lecturer when I taught a course on the American Civil Law System at Grinnell while on sabbatical leave from my law firm, when I was a Practitioner in Residence at the University of Iowa College of Law, when I was an Adjunct Professor at the University of Minnesota Law School and when I was on the faculty of various continuing legal education courses while I was a practicing lawyer. That experience required me to review the material to be covered, to conduct any additional research I deemed necessary, to determine the main points to emphasize, to construct an outline for what I wanted to cover in the lecture and, in some cases, to prepare a PowerPoint presentation for use at the lecture.

Other Lectures

All of us obtain information and are educated, or not, in other oral presentations throughout our lives. I think of major political speeches like the State of the Union and Inaugural Addresses; other speeches at public events; and sermons at churches.

When, for example, I listen to speeches or presentations at the Westminster Town Hall Forum, I sometimes take handwritten notes and submit proposed questions for the moderator to ask the speaker. Later I also can go to the Forum’s website to re-listen to the speech. I also have written blog posts about some of these presentations. Another recent source of lectures for me is those offered by the Osher Lifelong Learning Institute (OLLI) of the University of Minnesota.

For sermons at Westminster Presbyterian Church, I sometimes make handwritten notes of some of the points on the church bulletin in my hands while the morning prayer, hymns and choral anthems usually emphasize some of the sermon’s main points. I also have found that I learn more about the sermon’s lesson by reading its text when it is subsequently posted on the church’s website and by reading and reflecting on the Scripture passages for the sermon; additional insight is often providing by writing a blog post about a sermon.

Seminars

My best educational experience at Grinnell College was taking the Political Economy Seminar my senior year with nine other students and with faculty from the economics, history and political science departments. We read important books in the field, not textbooks, and wrote and presented our papers on the former for discussion by all.

The Washington Semester at American University in the Fall of 1959 provided another type of seminar experience as a group of students from all over the U.S. met with politicians, government officials and others to learn about the operations of the U.S. government and political process.

I also organized and led a liberal arts seminar for lawyers at Grinnell in 1984. After reading various materials, we gathered at the College to discuss American legal history, alternative dispute resolution (ADR), jurisprudence and the lives and challenges of being humane judges and lawyers. Our leaders were a federal appellate judge, a national ADR scholar, an American history professor, a jurisprudence professor and a practicing lawyer.

Being in a book group, for me at Westminster Presbyterian Church, is another seminar experience for groups of 12 or smaller. Reading an assigned book and then gathering for a discussion of the book led by one of the group usually leads to a greater understanding of the book and its issues. For example, I recently led my group in discussing David Brooks’ “The Road to Character” after I had written about the book in this blog.[5]

Research and Writing

During my student years I conducted factual and other research about various subjects and in the process learned a lot about those subjects as well as research skills. The task of then reducing that research into a paper on the subject provided more learning about the subject plus the process of writing such papers. Later as a practicing lawyer these skills were further developed with the aid of the legal process for obtaining evidence in lawsuits, including the examination of witnesses, and the writing of briefs and other legal papers under rules for their contents and length.

The student research paper I best recall was at American University. The topic was how political interest groups participate in important cases in the U.S. Supreme Court and more specifically in contempt-of-congress cases in that court. I identified such cases, read the Court’s opinions in the cases, interviewed staffers at the relevant congressional committees (especially the House Un-American Activities Committee) and at the relevant political interest groups (especially the American Civil Liberties Union and the American Association of University Professors) and then spent a lot of time at the Supreme Court’s Library reading the briefs in the case, including those from the ACLU and the AAUP as amici curiae (friends of the court). The paper summarized this research and conclusions.

My enjoyment of research and writing continued as a practicing lawyer, both in my work as a lawyer and as a putative scholar. For example while at Harvard Law School for a short summer course, I spent time in its library doing research about Joseph Welch and Edward Burling, both prominent attorneys who were graduates of that Law School and of Grinnell College, and interviewing attorneys at Welch’s Boston law firm, about his representation of the U.S. Army in the McCarthy hearings of 1954. Later I wrote articles about both of them for the Grinnell Magazine [6] and even later with excerpts from the Welch article in this blog.[7]

A similar process was involved as a law student in researching and writing comments for the law review and as a lawyer in writing briefs.

Grinnell College recently has enhanced its use of research and writing as an educational method by adding a public website, The Grinnell Post, that hosts student essays about current events, public debates, and issues of interest to the Grinnell community. Its mission is to allow students to share their work in a public forum and foster conversations with a diverse readership and solicit their comments and criticism.

Another Grinnell effort to incorporate digital technology in the liberal arts is a website, Ashplan, initially devoted to James Joyce’s Ulysses. It seeks to foster the inheritance of classroom culture; that is, it forges connections among students studying the same material at different times, allowing new students to benefit from, remix, and add to the work of their predecessors.

Tutorials

As discussed in a prior post, the tutorial was the primary mode of undergraduate education at Oxford. During each week of the three terms of the academic year, I would have two tutorials, usually with only one other student and the tutor and sometimes only by myself with the tutor. The assignment was always in the form of a question with the tutor’s suggestions of books and articles one should read.

As a result, most of my time each week at Oxford was spent in the university libraries reading those sources and other relevant materials, figuring out how I would answer the assigned question and writing an essay setting forth that answer and analysis. Then I would see the tutor again and read my essay for critiquing and discussion.

I loved the independence of this system and being “forced” to come to a conclusion on an issue and to construct my own analysis and documentation for my conclusion. This was exactly the skill that was tested in Oxford’s university-wide examinations at the conclusion of my student-years, as also discussed in a prior post.

Grinnell College now has a First-Year Tutorial for all freshmen in groups of about 12 students that are led by “faculty members . . . from all academic departments . . . in more than 35 topics.” For the Fall of 2015 these include “Crisis, Liberation, Justice, and Leadership;“ “Racism: Color, Culture, Class; “ and “The Origins of Capitalism.” Every tutorial emphasizes writing, critical thinking and analysis, and oral presentation and discussion skills. The tutorial professors also serve as the advisers to their tutorial students until they declare a major field of study.

Socratic Method

After the treasured independence of the Oxford undergraduate experience, I initially was shocked in my first weeks in the Fall of 1963 as a student at the University of Chicago Law School. Now I was in large classes with daily assignments of certain pages in our large casebooks. The professors did not lecture. Instead they cross-examined individual students, one-by-one, about what the holding of a particular case was and what the result should be in a hypothetical case. We were being taught, we were told, how to think like a lawyer.

This method clearly taught you how to read a judicial opinion very carefully (and very painfully and slowly during that first semester of law school), to analyze that opinion to determine what its holding was and to think about the arguments that could be raised in similar, but different, hypothetical cases. Then in class you had to learn how to think on your feet and respond to questions from the professor as you would later do as a lawyer when questioned by a judge.

Reading and analyzing constitutions, statutes and regulations are also important for a lawyer, but I do not have clear memories of how that was done in my law student years. Of course, many judicial opinions concern judicial interpretations of such materials, and the overall law-school emphasis on reading and analyzing judicial opinions covered that methodology.

Learning how to do legal research and write legal briefs is another important part of law school. In addition, being a member of a law review staff and editorial board gives experience in writing and editing articles about legal topics.

Role-Playing

Participating in moot courts and playing the role of a lawyer making an argument to a court is another prominent method of legal education. I did not take advantage of this opportunity in law school as I was busy working on the law review doing legal research and writing and editing articles for the journal.

I, however, employed this method when I taught for one semester at Grinnell while on sabbatical leave from my law firm. I acted as a trial court judge hearing arguments by students as lawyers on a motion to compel production of a college tenure committee records in a hypothetical lawsuit brought by a professor against a college for denial of tenure. A different kind of role playing in that course was having the students, in lieu of a final examination, play the role of a justice of the Iowa Supreme Court and write an opinion deciding a case after reading the briefs in the case along with my memoranda summarizing some of the legal issues and after hearing the case argued before the actual Court.

I also used the moot-court method when I was an adjunct professor at the University of Minnesota Law School; I acted as a federal district court judge hearing arguments on a motion to dismiss a complaint under U.S. federal statutes (the Alien Tort Statute and the Torture Victims Protection Act) alleging a corporate defendant’s violations of human rights in other countries. I also acted as a judge of an immigration court to hear arguments on whether the court should grant an application for asylum by someone who allegedly had a well-founded fear of persecution in his or her home country due to political opinion or other protected ground.

I used a different kind of role-playing when I was a Practitioner in Residence at the University of Iowa College of Law. In a first-year civil procedure class, I played the role of a law firm partner while the students played the roles of associate attorneys working for me as we collectively identified issues, potential arguments and additional legal research needed for preparing a civil complaint under the strictures of Rule 11’s requiring such a pleading to be warranted by existing law or a non-frivolous argument for changing the law and by evidentiary support.

In such role-playing exercises, the student learns about procedural and substantive law, identification of legal and evidentiary issues and how to write and analyze briefs and make oral arguments.

In my experience, this is an effective way of learning several areas of law plus the skills of advocacy, and most students appreciate these opportunities to have a taste of what it is like to be a lawyer.

Conclusion

I am fortunate to have experienced different methods of teaching and learning from able practitioners of the different methods. I have learned in each of these settings and cannot say one is better than another. A lot depends on the size of the audience and the stage of your educational career. Seminars and tutorials require a small number of students while lectures are more appropriate, if not required, for a large number of students. I hope that I have been able to convey the same excitement of learning when I have been the instructor.

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[1] Grinnell College, 1957-1961; American University (Washington Semester), 1959; University of Oxford, 1961-1963; University of Chicago Law School, 1963-1966; Harvard Law School (Summer Program), 1986; and University of Minnesota Law School, 2001.

[2] Grinnell College, 1982, 1984; University of Iowa College of Law, 1986; and University of Minnesota Law School, 2002-2010.

[3] Worthen, Lecture Me. Really, N.Y. Times Sunday Review (Oct. 18, 2015).

[4] Aaron Fichtelberg, an associate professor of criminal justice at the University of Delaware, strongly disagrees on the value of PowerPoint. Indeed, he argues that it “turns good teachers into mediocre ones and mediocre lectures into a sludge of unengaging facts.” According to him, it “forces rigidity on the content of the course and passivity onto the students.” I agree that sometimes such use is boring. But as with all of these modes of teaching, there are the good and the bad. Other opinions?

[5] The Important Moral Virtues in David Brooks’ “The Road to Character” (May 1, 2015); David Brooks’ Moral Exemplar (May 2, 2015); David Brooks Speaks on the Role of Character in Creating an Excellent Life (May 16, 2015).

[6] Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch, Grinnell Magazine, Summer 2006, at 12; Edward Burnham Burling, Grinnell’s Quiet Benefactor, Grinnell Magazine, Summer 2009, at 21.

[7] Joseph Welch Before the Army-McCarthy Hearings (June 14, 2012); The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings (June 8, 2012); Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (June 6, 2012); U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012); President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (June 10, 2012); Joseph Welch After the Army-McCarthy Hearings (June 12, 2012); Legal Ethics Issues in the “Anatomy of a Murder” Movie (June 12, 2012).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Inspiration of a Christian Lawyer by the Martyred Jesuit Priests of El Salvador

In my first visit to El Salvador in April 1989 I did not know anything about the University of Central America (Universidad de Centro America or UCA) or about its Jesuit professors.

UCA's Romero Chapel
UCA’s Romero Chapel

Fr.  Jon Sobrino
Fr. Jon Sobrino

 

 

 

 

 

 

 

 

That started to change when the other members of my delegation and I visited UCA’s beautiful, peaceful campus, in contrast to the noisy bustle of the rest of San Salvador, and when we had an hour’s calm, reasoned conversation with one of its professors, Fr. Jon Sobrino, S.J., a noted liberation theologian. I came away impressed with UCA and with Sobrino.

I, therefore, was shocked six months later to hear the news of the November 16, 1989, murder of six of UCA’s Jesuit professors and their housekeeper and daughter. How could such a horrible crime happen to such intelligent, peaceful human beings in that tranquil, academic setting?

Martyred Jesuits, Housekeeper & Daughter
Martyred Jesuits, Housekeeper & Daughter

I was even more appalled when I learned about the selfless, courageous lives of the murdered Jesuits who used their minds, education and spirits to help the poor people of that country and to work for bringing about a negotiated end to its horrible civil war.

Their deaths were repetitions of the horrible assassination of Archbishop Oscar Romero on March 24, 1980, who like the Jesuits had used his mind, education and spirit to help the poor people of his country and to condemn violent violations of human rights. The same was true of another Salvadoran Roman Catholic priest, Rutilio Grande, who was murdered in 1977 because of his protests against the regime’s persecution of the poor people, and of the 1980 murders of the four American churchwomen, who worked with the poor in that country.

Thus, Romero, Grande, the four American churchwomen and the murdered Jesuits are forever linked in my mind as profound Christian witnesses and martyrs. Their examples have strengthened my Christian faith to love God with all your heart, mind and soul and your neighbor as yourself.

UCA's Romero Chapel
UCA’s Romero Chapel

Capilla de Hospital de la Divina Providencia
Capilla de Hospital de la Divina Providencia

 

All of these experiences have inspired me to learn more about El Salvador, Romero, Grande, the churchwomen and the Jesuits’ Christian witness in the midst of violence and threats to their own lives. On my subsequent five trips to that country, I always visit UCA for prayer in the Romero Chapel where the Jesuits’ bodies are buried and in the beautiful chapel of a cancer hospital where Romero was assassinated.

On my 2000 visit to El Salvador for the 20th anniversary of Oscar Romero’s assassination, my group visited UCA to spend time with its then Rector, Dean Brackley, a Jesuit priest from the U.S. who went to El Salvador to help UCA after the murders of his brother priests. He impressed me as a calm voice of reason and passion in UCA’s ministry of helping the poor and the country.

In 2010 I returned to El Salvador for the 30th anniversary of Romero’s assassination. On my delegation’s visit to UCA, we spent time with its then Rector, José Maria Tojeira, S.J.. He was an amazingly serene and soft-spoken man. He told us he was a new “church bureaucrat” (the Jesuit Provincial for Central America) at UCA in November 1989 and lived nearby, but not on the campus. During the night of November 15th-16th he heard gunfire and thought there must have been a skirmish between the Salvadoran security forces and the guerrillas. The next morning he went to the campus and was one of the first people to see the dead bodies of his six fellow Jesuits and their cook and her daughter. He nonchalantly said to our group, “That morning I thought I was the next one to be killed.” Later that day he went to his office and found faxed messages of support and solidarity from people all over the world. Then in the same casual manner, he said he thought, “Well, maybe I am not the next to be killed.”

As a result, my cloud of Salvadoran witnesses includes Oscar Romero; Rutilio Grande; the American churchwomen; the Jesuit priests; Fr. Brackley; Fr. Tojeira; Bishop Menardo Gomez of the Salvadoran Lutheran Church, who escaped a death squad on the night the Jesuits were murdered; Salvador Ibarra, who in 1989 was a lawyer for the Salvadoran Lutheran human rights office; and my Salvadoran asylum clients. Outside of El Salvador, of course, I am impressed by another Jesuit, Pope Francis.

I have been humbled to learn about the incredible courage and minds of the Jesuits, not just at UCA, but at other Jesuit universities that are generally regarded as the best of Roman Catholic institutions of higher learning. Simultaneously I am puzzled how such a marvelous group of religious men could have emerged from the Jesuits who were the shock-troops of the Counter-Reformation and did so many horrible things during the Spanish Inquisition.

All of this also inspired me to become a pro bono lawyer for Salvadorans and later others (an Afghani, a Burmese man, two Somali men and two Colombian families) who were seeking asylum or other legal status that would enable them to remain in the U.S. and escape persecution in their own countries. I always have regarded this as the most important and spiritually rewarding thing I have ever done. As I did so, I often reflected that I was able to do this in the secure and comfortable legal office of a large Minneapolis law firm. I did not have to risk my life to help others as did my Salvadoran saints.

After I had retired from practicing law in 2001, the Jesuits along with Archbishop Oscar Romero continued to inspire me to learn more about international human rights law as I co-taught a course in that subject at the University of Minnesota Law School from 2002 through 2010. In the process, I was amazed to discover the array of inter-related ways the international community had created to seek to enforce international human rights norms in a world still based essentially on the sovereignty of nation states.

I then was inspired to use my legal research and writing skills to investigate how these various ways had been used to attempt to bring to justice the perpetrators of the assassination of Archbishop Romero, the rapes and murders of the American churchwomen and the murderers of the Jesuit priests and then to share the results of that research with others on this blog. Many posts have been written about Romero, including the various unsuccessful legal proceedings to identify and punish those responsible for that crime. Other posts have discussed the criminal case still pending in Spain over the murders of the Jesuits and their housekeeper and daughter while another post summarized other legal proceedings that unsuccessfully sought to assign criminal responsibility for the murders of the Jesuit priests other than the brief imprisonment in El Salvador of two military officers.

I also have written the following other posts prompted by the 25th anniversary celebration of the lives of the priests and commemoration of their murders:

I give thanks to God for leading me in this path of discovery and inspiration.