Israel's African refugee problem.

Israel's African refugee problem.

Israel's African refugee problem.

The law, lawyers, and the court.
May 5 2008 12:51 PM

Little Sudan

What should Israel do with its thousands of Christian and Muslim African refugees?

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Israeli Prime Minister Ehud Olmert recently referred grumpily to a "tsunami" that "we need to take every measure in order to stop." He was speaking not about Palestinian terrorists but about a wave of more than 7,000 African asylum seekers who have crossed the Egyptian border into Israel over the last year, at least 2,000 of them since January. The Africans crossing into Israel are Muslims and Christians. They come mostly from Sudan and Eritrea but also from Nigeria, Côte d'Ivoire, and Congo. They are refugees looking for a safe haven and legal asylum. And Israel has absolutely no idea what to do with them.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Israel loves to be the first on the scene when there's a humanitarian crisis: In 1977, Menachem Begin welcomed 66 Vietnamese boat people spotted by an Israeli cargo ship near Japan; more recently, Israel sent medical teams to India after the 2001 earthquake and arrived in Asia with emergency aid after the tsunami in 2004. But if Israel embraces thousands of African refugees, millions in Egypt alone could try to follow. All developed countries worry about the effects of an influx of poor refugees. But the problem is especially delicate for Israel, which worries about someday losing its Jewish majority to the growing Palestinian population (especially if it does not relinquish control of the West Bank). And then there's the country's location: It's not as if there are other prosperous democracies in the region for refugees to choose among. Maybe it was only a matter of time before Africans decided to opt for this shorter trek over the long voyages to Europe and North America.

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And so for now, the Israeli government stands on shifting and uneasy middle ground. The country has given one-year temporary residency (which comes with medical benefits) to up to 600 Darfurians fleeing genocide and six-month working visas to about 2,000 Eritreans. Meanwhile, it has held thousands of others in desert detention centers while still others live in makeshift, slumlike quarters around the Tel Aviv bus station. Mark Hetfield of the Hebrew Immigrant Aid Society says that conditions in Tel Aviv are worse than any he has seen in visits to dozens of refugee camps in Africa and East Asia. "There are 150 people using one bathroom. There is rotting food. There is no discipline or taking of ownership, because everything is so temporary," he said. (For photographs, click on the accompanying slideshow. More images here.)

Olmert is talking both about erecting a border fence and establishing clear asylum procedures for assessing cases individually, which Israel currently doesn't really have. The systems of the United States and Canada are good models that civil rights lawyers in Israel say they'd love to follow. But it won't be easy to do so. And if Israel's asylum procedures get fairer, will that just encourage more refugees to come?

Like more than 140 other countries, Israel is a party to the 1951 Convention Relating to the Status of Refugees, which forbids expelling or returning a refugee to a country where his or her life or freedom would be threatened. The convention also says that refugees should not be punished for entering another country illegally. It's up to individual countries to put these principles into law. In Israel, those seeking asylum used to turn to the office of the U.N. High Commissioner on Refugees, which heard their stories and made a recommendation about whether Israel should grant temporary residence. The governmental committee that reviewed UNHCR recommendations almost always followed them and granted residency in about 11 percent of cases.

In the last two years, because of the overwhelming numbers, these minimal procedures have broken down. Instead, UNHCR and Israel have made group designations based on refugee nationality: Roughly speaking, Darfurians have gotten residency, blocks of Eritreans have gotten work permits, and other refugees have been out of luck. They generally haven't been deported, but they're not in the country legally, either. Often, the country's approach seems entirely "ad hoc and arbitrary," says Anat Ben-Dor, a clinical law professor at Tel Aviv University who represents the immigrants. If there is room at a detention center when the police pick up refugees at the border, they can be jailed for many months. If not, they can end up, right away, on a bus bound for Tel Aviv.

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To Alexander Aleinikoff, who worked on immigration for the Clinton administration and is now Georgetown's law school dean, Israel is fumbling as the United States did 15 years ago, when thousands of pending cases were swamping the Immigration and Naturalization Services (since absorbed into a different alphabet soup, the Department of Homeland Security). The INS needed a fair and efficient procedure, and Aleinikoff thinks it devised one. Asylum applicants go before an asylum officer (and often an immigration judge as well) and plead their case. Refugees have a chance to tell their stories, and they're allowed to bring lawyers to their hearings. About 35 percent of asylum requests are granted by the asylum officers, who conduct a relatively informal interview. Of the remaining claims forwarded on to immigration judges, the approval rate is about 40 percent for those decided on the merits. Asylum applications can appeal an initial ruling if it goes against them.

Which isn't to say that the American asylum process couldn't be improved upon. The United States doesn't pay for lawyers for asylum petitioners, and as Adam Liptak noted in the New York Times, refugees with lawyers succeed 46 percent of the time, compared with 16 percent of those without lawyers. Those statistics come from a 2007 Stanford Law Review article, which also found that the rate of asylum grants varied wildly by the region of the United States in which one applies—from 62 percent to 26 percent between 1999 and 2005. The grant rate for Chinese asylum seekers, for example, ranged from 7 percent to 60 percent in different immigration offices across the United States. On another front, the group Human Rights First criticizes U.S. asylum policy for broadly barring refugees who are believed to have provided material aid to terrorists—so broadly that people fleeing terrorists are sometimes caught in this net.

Still, the immigration lawyers I talked to generally credited America's asylum procedures, and Canada's, as an improvement on those in Europe, where the approval rates for persecuted refugees is far lower. Ideally, from the lawyers' point of view, Israel would do the United States one better by paying for representation, for the sake of the system as well as the seekers. "Most immigration judges will tell you that they're much more effective and efficient if they have competent counsel on both sides," said Andrew Schoenholtz, one of the authors of the Stanford article and the deputy director of Georgetown's Institute for the Study of International Migration.

Where are the Israeli courts in all of this? The country's Supreme Court has been presented twice with aspects the immigrants' plight: In 2006, the government agreed before the court to review the detention of 300 Sudanese, which led to their release (a result the government did not foresee). And in 2007, the court instructed the government to initiate border procedures, which in effect ended the Olmert administration's policy of "hot return," or sending refugees back to Egypt if they were caught within 48 hours. Ben-Dor said that the court has so far been hesitant to interfere beyond establishing these basic principles, because the government invokes national security and executive prerogative on its side. Then there's the sensitive matter of the long term: So far, the Africans have received only temporary status, without a route to naturalization and citizenship. Given the sensitivity of allowing a potentially sizeable group of non-Jews to settle in Israel permanently, the Supreme Court may want to stay out of that one, too. Instead, Ben-Dor said, she and other lawyers need to bring the kinds of incremental cases that will frame the refugees' problems in terms of administrative law and fairness. Those are grounds on which the court might be more comfortable taking a stand.

The tricky part is that the release of the 300 Sudanese from detention (as well as threats of mass deportation from Egypt to Sudan around the same time) may have played a significant part in increasing the immigrants' numbers. The more effort it puts into handling cases fairly, the more hospitable Israel may seem, despite the refugees' poor living conditions.

But in the end, the notion that no law is best seems untenable. If anything, Israel may have more reason than the United States or other developed countries to handle asylum seekers with fairness and decency for the sake of its international reputation. It's not clear that the country can afford to act as the United States does when it ships home truckloads of Mexicans. The uncertain plight of the Africans has already prompted protest and bad press in the Arab world. And if Israel eventually refuses to admit incoming Africans because it can't handle the numbers, the government will want to point to an established set of asylum procedures to justify itself. Olmert might be happier talking about a border fence. But he's probably better off lining up a whole bunch of asylum lawyers and immigration judges.