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jurisprudence: The law, lawyers, and the court.

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

By Emily Bazelon
Posted Monday, May 5, 2008, at 12:51 PM ET

(Continued from page 1)

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.