Refugee and Asylum Adjudication Needs a 'Devil's Advocate'

By Dan Cadman on August 29, 2018

My colleague Nayla Rush has posted a compelling blog that serially outlines — and questions — the systemic flaws in our nation's refugee admissions system. The flaws make a mockery of "extreme vetting" and permit the likes of Omar Ameen to gain entry into the United States, despite multiple warning signs that should have caught the attention of every person involved in his selection and admission to the United States. Yet they did not.

The Ameen case once again raises questions about the adequacy of government vetting processes, and his case isn't the only egregiously bad decision to surface recently. At just about the same time that Ameen was being arrested as a murderous terrorist, media outlets were also reporting the case of Mergia Negussie Habteyes, an Ethiopian implicated in systematic human rights abuse and torture during the "Red Terror" that enveloped Ethiopia after the communist takeover in the mid 1970s.

The Justice Department announcement made clear that Negussie's arrest and indictment were for fraudulently procuring naturalization by withholding the facts of his past participation in systematic human rights abuses. But clearly the original offense went further back, because naturalization was simply the last step in a process that began when Negussie entered the United States as either a refugee or asylee, having successfully concealed his involvement with the Mengistu government's prison and death machine. So in fact, he was able to conceal his past at least three times: when first granted refuge or asylum, a second time when he obtained his lawful resident alien status, and a third time when he was granted citizenship.

Here is the problem in a nutshell: Nowhere in the entire complex system involving refugees or asylees is there a devil's advocate; one whose duty is to doubt and to question the propriety of approving any applicant for either status before it is granted (or, for that matter, afterward during the serial applications in the march toward naturalization).

The entire bureaucracy of the United Nations High Commissioner for Refugees (UNHCR), plus its adjunct agencies, is in the business of moving bodies, en masse, to sheltering nations, prime among them the United States. They do not conceive it as their business to engage in questions of fitness or security where their "clientele" is concerned, and leave such matters to the sovereign entities being asked to take them.

Moving to the next level down, the regional agencies funded by the State Department (resettlement support centers, or RSCs) that do the "pre-screeing" of applicants prior to actual interview by refugee officers don't see it as their job to screen out security risks either and, being in the main foreign nationals who are often themselves from the affected region, tend to look on applicants in a highly sympathetic manner.

What's more, because they are not a part of the U.S. security or intelligence apparatus, they have no access to classified systems that might help in culling refugee applicants out of the pipeline at an early state. And, although they could be a wealth of information on many of the individuals who appear before them if they so chose — being so much closer to the affected population in every sense than U.S. officers are likely to be — doing so would inevitably come with risk, since individuals engaged in serious terrorist or criminal activity would not take kindly to having their interlocutors "dropping a dime" on them with U.S. officials.

There is also the pecuniary reality. Maintaining a lively inflow of applicants assures continued financial viability for each of the agencies staffing the resettlement support centers. Keeping the sausage-making operation at full capacity serves both the organization and each of its employees.

Finally, the culmination of this poorly considered, completely lopsided process comes at the adjudication stage. In refugee or asylum cases, assuming that the person's name doesn't show up on some government list of bad people — if adjudicators even understand the naming conventions of the person's home country — then the outcome turns on whether or not the asylum (or refugee) officer believes the applicant. It's that simple. Keep in mind that asylum and refugee officers are selected precisely because of their capacities of sympathy and empathy; they aren't as a rule skeptical when they conduct case reviews and adjudications. In fact, they're carefully instructed not to treat interviews as adversarial. Thus, there is no counterbalance toward an adjudicating officer's innate desire to believe and help; to be the key that opens the door to the magic kingdom.

This brings us back to the notion of a designated devil's advocate. As the Merriam-Webster dictionary tells us, the notion of a devil's advocate arose within the Catholic Church centuries ago, a devil's advocate is a "Roman Catholic official whose duty is to examine critically the evidence on which a demand for beatification or canonization rests." This was how the church instilled critical thinking into the process of whether to declare someone a saint — it was a rigorous examination that permitted the weeding out of charlatans.

In an article published in the New York Times on April 3 of this year, Nitsuh Abebe posed the question, "Why Have We Soured on the 'Devil's Advocate'?" Abebe goes on to note:

That name dates back to the 17th century, when the Roman Catholic Church created an office popularly known as the advocatus diaboli — a person tasked with making the case against the canonization of new saints, scrutinizing every report of their miracles and virtue. How could a claim be trusted, the thinking went, if it hadn't been rigorously tested? Plenty of educators will still tell you that devil's advocacy isn't just useful as a practical matter but also as an intellectual exercise: Imagining other perspectives and plumbing their workings is essential to critical thinking.

In refugee and asylum cases, there is particular value to be derived from deliberately introducing a method of questioning impending approvals that is designed to express doubt and put decisions to the rigorous test of reason before those approvals are finalized.

Doing so doesn't require legislation; it can be done by amending the regulations and standard operating procedures used by U.S. Citizenship and Immigration Services, the agency in the Department of Homeland Security responsible for administering the refugee and asylum systems.

Indeed, in this era of asymmetric warfare and terror — and given the multiplicity of cases that have come to the fore in recent years evincing serious errors of judgment, some of which have resulted in horrific loss of lives — one has to wonder why such a methodology hasn't been introduced in the name of homeland security.

A final observation: in her blog post, Rush suggests that, instead of being granted lawful permanent resident status after a year as a refugee, all refugees should instead by law be given conditional resident status (assuming no new facts are adduced rendering them ineligible at the time they apply, such as commission of crimes after entry as a refugee, or which reveal that they were not legitimate refugees to begin with).

While this would require a statutory amendment, it would greatly assist the government in being able to take one final look at refugee entrants before they ascend the ladder to lawful permanent residence and thereafter naturalization. The recommendation should, in fact, also be adopted for asylees as well. It's clear that even with enhanced vetting procedures in place, all too many con artists, terrorists, human rights abusers, and criminals are able to game the system.