Posted by Eugene Volokh:
Miami Is Worth a Mass?
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249674476
In [1]Kazemzadeh v. U.S. Attorney General (11th Cir. Aug. 6),
Kazemzadeh -- an Iranian citizen -- claimed asylum because he had
converted to Christianity, and said he faced persecution in Iran. The
Board of Immigration Appeals rejected the claim, largely because it
concluded that Iranian persecution of converts away from Islam was in
fact very rare (though in theory apostasy could carry the death
penalty). The panel reversed, on the grounds that "the Board did not
consider whether enforcement is rare because apostates practice
underground and suffer instead that form of persecution to avoid
detection and punishment." And being forced to practice underground,
the panel concluded, is itself a form of prosecution.
What is particularly interesting to me, though, isn't that legal
question (on which I think the panel was correct), but the broader
policy issue raised by the risk that many people might pretend to
convert in order to stay in the U.S. The majority stressed that there
was no finding that Kazemzadeh was insincere, but the dissenting judge
pointed out that there was a dispute about his sincerity, and that the
Board needs to consider it:
In this case, although the Immigration Judge never directly
addressed the issue of credibility, she commented throughout her
order on the numerous questionable aspects of Kazemzadeh�s
religious conversion. First, she stated that his �inability to
explain what communion is ... seemed inconsistent with any
significant involvement with the religion� since communion is a
�central aspect of Christianity.� She also noted that he attended
weekly Bible classes less than once per month, and opined that he
should be making �the effort to attend as many of those classes as
possible in order to learn a religion for which he alleges that
he�s willing to risk his life.� After noting that Kazemzadeh
decided to become a Christian approximately two months after he
began attending church, the Immigration Judge stated that �it was[]
[not] clear how much he knew in those two months that [led] him to
make a life-time commitment that would put him at odds with his
family and with his country.� She also pointed out factual
inconsistencies between Kazemzadeh�s testimony and that of his
pastor, and she expressed suspicion about the authenticity of
documents he provided as evidence of his conviction and his
expulsion from the university he attended in Iran. Finally, in her
conclusion, the Immigration Judge noted that the swiftness of
Kazemzadeh�s acceptance of Christianity �does not evidence a
lifetime commitment.�
And whether or not Kazemzadeh is sincere, there does seem to me to be
a serious risk that the availability of asylum for Iranian converts
away from Christianity will lead some people to pretend to become
Christians. The right to live and (in several months) work in the
United States is a very valuable benefit, even if it means that one
can never safely return to one's home country.
([2]Show the rest of the post.)
I'm sure that really devout Muslims won't pretend to abandon their
faith just for that benefit -- but I take it that quite a few people
who have already fallen away from the faith might well claim to accept
Christianity in order to get something this valuable. We know, for
instance, that it's not unusual for people to convert to a different
religion in order to get married; I suspect that quite a few of them
aren't really motivated by genuine belief in their new religion,
though I take it that most of them must not be that committed to their
old religion. I would think that quite a few people would likewise
convert to get the right to live and work in America.
On top of that, I expect that telling a genuine convert to
Christianity from a fake convert is not that easy, and might itself
pose substantial problems. A judge could grill the person on theology
(consider Kazemzadeh's inability to explain what communion is), but
lots of people sincerely believe without much real grasp of theology,
and lots of people can learn the theology (especially if they know
they'll be grilled on it) without much belief. Frequency of weekly
Bible classes is also a poor proxy for sincerity, especially since
different sincere Christians attach different levels of importance on
knowing the details of the Bible as opposed to a big picture
understanding; and, of course, someone could learn the Bible without
taking weekly Bible classes. (Also, unless I'm mistaken, individual
reading of the Bible has long been more of a Protestant religious
commitment rather than a Catholic one.)
The speed of conversion is also not terribly telling, at least in a
faith-centered model such as Christianity. Certainly conversion
flowing from a perception that one has "seen the light" and heard
God's word is firmly entrenched as permissible in Christian theology
(consider Paul on the road to Damascus); and I suspect that at least
some people do indeed accept a new religion this way. Some people may
choose a religion based on a long and deep course of study, but that
needn't be all sincere converts' approach to religiosity.
On top of that, as I understand the panel decision, there's not much
beyond simply the statement of conversion that's required for an
asylum claim. Quite sensibly, the panel doesn't require that one
actually return and face persecution. The panel does suggest that
Kazemzadeh's case is particularly strong because there's evidence that
the regime has already taken an interest him and might therefore learn
of his religion; but I don't read that as a necessary condition, given
the logic of the majority opinion and the conclusion that having to
worship underground is itself a form of religious prosecution. Again,
I'm not saying that the panel should have required more evidence of
likely future persecution. But given the panel decision, there doesn't
seem to be much constraint on false claims of conversion other than
the asylum-seeker's individual conscience and the immigration judge's
imperfect ability to tell who has really become a Christian.
In principle, this risk of false claims is present in many other
contexts, such as religious exemptions from generally applicable laws.
But since the abolition of the draft, relatively few of the benefits
that one can get from the exemption are nearly as valuable as the
benefit of being able to live and work in America. Few people will
pretend to be Muslim just to get [3]an exemption from a no-beard rule.
A few more people might pretend to be observantly Jewish to get
Saturdays off, when such an exemption is available. But I suspect that
the incentive to pretend a conversion to Christianity in order to get
to live in America rather than as a Muslim in Iran is for many people
far greater, and the risk of false claims is therefore far higher.
So we have a substantial risk of false conversions. And we have a huge
benefit being given to Iranians (and likely citizens of some other
Muslim countries) who become Christian that is not given to Iranians
who stay Muslim. Of course, this benefit is a consequence of Iran's
discrimination against converts, not any deliberate American statutory
decision to prefer Christians over Muslims. But this sort of benefit
that is given only to those who convert to Christianity -- and the
result incentive to convert -- is nonetheless the sort of thing that
American law normally tries to avoid, even if the benefit could
sometimes be limited solely to sincere converts and not fraudulent
ones.
At the same time, there is very good reason to protect people from
religious persecution, and doubtless many Iranians do sincerely
convert to Christianity and thus deserve our protection. A policy of
rejecting the claims of converts, simply because of the risk of false
conversion and a desire to avoid giving people an incentive to
convert, would pose serious problems of its own.
My point is simply that the Eleventh Circuit decision might lead to
there being a lot of false positives, especially once it's publicized
-- and a lot of pressure to convert, or at least to claim conversion.
How the law should deal with this risk is a difficult question; but it
struck me as worth raising.
(I set aside Kazemzadeh political asylum claim, which was rejected
both by the Board of Immigration Appeals and the Eleventh Circuit
panel. I also set aside the possible arguments for broader immigration
regardless of asylum status. One could, for instance, argue that all
Iranians deserve asylum in the U.S., just as all Soviet immigrants --
like my family -- were given asylum. And one could generally argue
that we should have presumptively open borders. But my post here
operates against the current legal scheme under which most Iranians
aren't entitled to come to the U.S. to live and work, unless they
really are facing a risk of persecution at home. Finally, thanks to
[4]How Appealing for the pointer.)
([5]Hide most of the post.)
References
1. http://www.ca11.uscourts.gov/opinions/ops/200812857.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1249674476.html
3.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=docket&no=975542p
4. http://howappealing.law.com/
5. file://localhost/var/www/powerblogs/volokh/posts/1249674476.html
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