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Rethinking the Refugee and Immigration Systems: An Interview with Lenni Benson

Lenni Benson is the Distinguished Chair in Immigration and Human Rights Law at New York Law School. She founded the Safe Passage Project, a nonprofit organization that provides legal support to refugees and immigrants facing deportation. Benson has won multiple national awards for her service and leadership in immigration law teaching and reform. She has been involved in national task forces advocating for migrant youth and was a founding member of the American Immigration Representation Project, which works to increase pro bono representation for detained immigrants. She has published books on immigration law and migrant children, as well as numerous academic articles on immigration and the refugee crisis. She is also currently a Senior Fellow at Immigrant ARC, a nonprofit working to expand legal services to immigrants.

Maya Rackoff: What do you think are the biggest misconceptions that Americans hold about refugees and immigrants? 

Lenni Benson: There’s not a universally held definition of “refugee,” and people will use the term refugee in hopes that it will evoke emotional identification or empathy. Technically, as a matter of law, it’s a very specific and narrow definition. Sometimes, when people are trying to raise empathy for immigrants, they’ll call them refugees. One of the problems with this is that because they don’t really know much about the legal system, it’s very easy to label something as proper or improper immigration, or authorized or unauthorized migration. In political discourse, it’s usually either “illegal” or “legal.” So my biggest concern is that because Americans generally don’t have a good understanding of our own immigration system and its complexity, it’s difficult for the ordinary person to form a coherent policy view and political opinion about migration and refugee protections. Technically, people brought by our government to the United States as refugees are distinct from those who arrive at our border or are inside the country and ask for asylum. It is important for people to understand that under our domestic and international law, a person has the right to seek these protections.

MR: Do you think the legal definition of a refugee needs to be broadened? 

LB: Yes. Part of the current legal definition is a legacy of the aftermath of World War II and the Cold War. In the United States, we often focus on people displaced by fascism or by the Holocaust in Europe. But there were people displaced by war throughout the world, such as in the Philippines and Southeast Asia. The nations of the world really struggled with how to respond to this surge of refugees. They found a narrow definition of “refugee” that both the Soviet powers and the Western allies would find tolerable, which is now found in the Immigration and Nationality Act.

One of the key aspects of that definition is that it refers specifically to a person outside of their country of origin or nationality. Right away you think, “Well, what about all those people who were resisting totalitarian regimes inside their countries?” In the Cold War, in Cuba and other Communist countries, governments didn’t want their citizens to be able to seek refugee status while still inside national boundaries because it would create rebellion, insecurity, and chaos. Thus, the distinction of people inside versus outside their country of origin was made a key part of the definition. 

MR: What are the implications of having such a narrow definition of “refugee”?

LB: Why I think it needs to be broadened is that people will risk their lives to flee their countries, taking boats, leaving Libya, dying in the Mediterranean by the hundreds, dying in the deserts of the Southwest. We need to have a re-commitment of the nations of the world to more orderly resettlement of people and not always force people to leave their country of origin. 

In 2005, Congress passed the Real ID Act, a statute that implicates many areas of law and is not really focused on identification. In that law, Congress put the burden on the applicant for refugee preselection or asylum treatment to show that “one central reason” they are fleeing is the prosecutor’s attempt to harm them because of a protected ground. We call this the “nexus requirement.” For example, a woman who is trying to flee Taliban rule has to prove the regime is persecuting her because she’s an educated woman. To be able to prove that is a great burden. Or let’s say you’re someone who’s just politically opposed to the Taliban in general. You have to show that the persecutor knows you have that political opposition or that you have some behavior or characteristic that would have your persecutor “impute” that you hold a political view opposed to that regime. That’s not easy to do. In essence, we make each individual fit the requirements and do not have categorical protections. These individualized determinations are, in theory, equitable and fair, but the lack of legal representation and the complexity of the adjudication can distort the outcomes and create significant process barriers.

MR: When you look at graphs depicting the annual refugee quotas over time, you notice a huge fluctuation in the numbers that don’t at all reflect the scope of the refugee crisis. Given that it’s the president’s responsibility to set the United States’s annual refugee quota, these insufficient quotas seem more reflective of the president’s political agenda than the demands of the refugee crisis. Is the president’s sole ability to determine the quota part of the issue you’re describing? 

LB: We want to give the president some flexibility, but I think it would be good if we had a blue ribbon, multi-party commission that set that quota instead. We have other instances in the law where we try to insulate certain decisions from heavy political influence. For example, we try to keep our banking system insulated from direct political influence. We have both Democratic and Republican appointees in the Federal Reserve who set monetary policies like interest rates. And while presidents appoint those people to get confirmed by the Senate, there’s a tradition of independence. I think we could have a similar kind of federal agency for refugees with input from the United Nations. 

Another thing we could think about is the temporary relocation of people. Many refugees will tell you dislocation is not their desire or their choice. They didn’t want to leave their country, they’re not looking “for a better life in a new place,” and they would love to go back. There are some positive examples where many people have returned to their home countries, namely Uganda, Rwanda, and Lebanon, after the civil wars there. So, maybe another approach could be to help those temporarily displaced return with some capital. For example, if you are leaving and have been working in the United States lawfully, you would be allowed a return of your social security contributions to help you return home. Using some economic incentives could help make receiving countries more generous and help people returning home after conflicts end to rebuild their country.

MR: A major issue with international humanitarian law is that it’s really hard to get people to vote for policies that they don’t understand will directly benefit them. How do you reconcile this as a refugee and immigrant advocate? 

LB: I grew up in Arizona and was surrounded by predominantly Republicans. I learned to make economic arguments first. A lot of very respected economists have shown that immigrants, at every education level, contribute more than they take out in public benefits. Even unauthorized migrants contribute through sales and real estate taxes paid as part of home ownership or passed on by landlords. Many also pay personal income tax even though they don’t have formal  authorization to work. Lawful immigrants pay into our systems as well, of course. Additionally, people don’t realize that few benefits are available to even lawfully residing immigrants. They might get emergency medical treatment, but they are not going to qualify to buy insurance in a health exchange. Congress has put severe restrictions on being able to buy into the health care exchanges created with the Affordable Care Act.

One of the arguments for increasing our quota for employment-based visas is that one out of two businesses in the tech industry are created by immigrants. 60 percent of the people doing graduate degrees in STEM are foreign-born and are on student visas. One million foreign students attend US educational institutions, and in many places, they pay full tuition and subsidize the cost of going to college for the local students. Places like Northern Kentucky and Indiana, which you never would think about as being immigrant centers, have huge populations of foreign students recruited by these institutions because it helps to keep the cost of education down in that state. 

MR: What particular challenges do children face in the immigration system? 

LB: Throughout the centuries, parents have often made tough choices for their children. My own great-grandfather sent his daughter to the United States when she was nine in the care of two people who were pretending to be her parents. What was he fearing? Well, in Russia, Jewish children were being targeted by the Pogroms. In the modern world, people in the poor rural regions of Haiti will similarly send their child to live with a family in the city to be their household servant in the hopes that they’ll have access to more regular food, fresh water, and schooling. 

Other problems are traffickers and smugglers. They target the concern parents have, saying they will care for the children and get them good jobs or education. This happens throughout the world. Our law has a few, fairly new statutory provisions to deal with unaccompanied children. They didn’t really come into the law until 2008, with the reauthorization of the anti-trafficking statute. So now, the Customs and Border Protection officer has a duty to interview children to make sure that they’re not victims of severe forms of trafficking if they find them at the border alone. 

Last year, over 122,000 children were at the southwest border. That is the biggest number I’ve ever seen. What’s leading to the surge from El Salvador, Guatemala, Haiti, Iran, India, etc., is a combination of decaying of civil society, governments that don’t have effective child protection, and targeted abuse by organized criminal syndicates, which we call gangs, although that’s a weak label for what are very sophisticated criminal syndicates. Gang members are in need of foot soldiers, so they recruit boys or sometimes girls. Girls they usually harass to get the family to pay the rent or to enslave them sexually as their girlfriend. Families don’t want this to happen to their children, so they try to send the children north to be safer. 

These problems are not [able to be solved with] simple solutions. Yet, we put millions and millions of dollars into incarcerating these children, putting them all into a deportation proceeding without providing them with free lawyers. We, volunteer or nonprofit lawyers, are successful in helping these children seek various forms of protection beyond asylum, but what a waste of energy and resources as opposed to creating a more orderly system that gets to the root of the problems. I have written several articles and books about the flaws in the design of our system.

MR: This semester you’ve been on leave from New York Law School to work full time on Afghan resettlement and evacuation. Can you talk about the work you’re doing? 

LB: When the president announced the Afghan evacuation, I began to see concerns by a number of human rights groups, military veterans, and current military people about needing to evacuate our allies. Really, there was a remarkable evacuation. It wasn’t 100 percent successful at all, but the estimates are that about 70,000 people were brought out in less than a month’s time. Congress responded positively with funding and support to help these people as well. 

I graduated law school in 1983, not long after the Iranian Revolution of 1979, and then began practicing corporate law. In 1984, my law firm had a partner that did immigration work for businesses. I began to work with some Iranian business people who were sponsoring colleagues or relatives using our employment-based system. We were able to do this even though the United States no longer had an Embassy or consulate in Iran. This is now the case in Afghanistan. I am trying to expand the approaches beyond refugee processing to aid those Afghans left behind. I began with lecturing, preparing webinars, and going to meetings with other organizations. What I’m trying to do is build a network of experienced business and family immigration lawyers who will mentor other lawyers, nonlawyers, and students who are stepping forward to volunteer. You and students at Brown could go to your international student office or your provost and say, “Do we have any open positions?” Let’s say right now, looking on Brown’s job board, you see that there’s a position open for an accountant. That could be an Afghan accountant. And those are the people the Taliban might want to target due to their past employment in the public or NGO sector or due to their education.

In a seven months to one-year period, any business could do what’s called the labor market test or labor certification process to sponsor an immigrant. Many industries have a short supply of workers right now. There are Afghan people in danger who could fill those jobs. Women don’t have as much freedom in Afghan society, but they might be cooking for 20, 30, 40 people at a time, and so they could be a cook in a restaurant. A sponsoring US business owner could sponsor an Afghan, rescuing the cook, her spouse, and her minor children. While it has to be a good faith future job offer, there is no obligation to employ the person forever. However, once the person is sponsored through employment based immigration, she or he has permanent residence and can work lawfully in the United States. 

MR: Given your experience with founding the Safe Passage Project, a nonprofit that provides refugee and immigrant children with lawyers, what’s some advice you could give to students who intend to enter the nonprofit world? 

LB: The longer I’m out of school, the more I wish school did a better job of tying us to the real world. Let’s say you’re taking a course on women’s rights. As a professor, I would ask you to read broadly but also to go interview a person who created a women’s domestic violence shelter and ask them to let you read with them their annual report. Ideally, you would learn about the ways they fund their work and raise funds, learning about the nonprofit organization’s challenges in maintaining the health of their mission. You would learn that it takes a lot of professionalism to build a board, make sure there are sufficient funds, and to properly maintain nonprofit accounting records and meet tax rules.

Some people have parents who want them to go into finance, but they really want to do human rights work. I think people can do both and should. Go into finance for a few years, but give pro bono time to a nonprofit organization and help them organize their finances. I disdained all business courses in school, but actually, when I became a lawyer, the skill I hungered for the most was to be able to read a financial statement. I know that to some advocates it sounds boring, but it’s really important. 

The other thing is that what you do doesn’t have to be big, amazing things. I actually had a full-time job with a salary and benefits and took my free time to create the Safe Passage Project. I originally had no money to fund the Project. But as the work grew and I needed help to mentor the attorneys working with children, then I went to my dean and I got a $30,000 stipend from New York Law School to hire a part time adjunct professor who joined me in mentoring students and attorneys. Pretty soon, we had over 200 cases. Most law schools have excellent small clinics but I wanted to build capacity in both the student and legal community beyond a traditional clinic. Today, Safe Passage Project has a staff of 40 and is aiding more than 1,200 youth with over 500 participating pro bono attorneys. You can do a tremendous amount with very little if you have some expertise and knowledge. You just have to step forward and start small.

*This interview has been edited for length and clarity.