Who's Illegal Now?: Obama's Aunt Disclosure May Be Illegal

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The way the mainstream "progressive" netroots have handled the story of Obama's Aunt is a complete embarrassment.  I wrote about it earlier this morning.  First, I was told several times by commenters on Daily Kos that "this is a non-story".  Wrong.  It has been on the front page of memeorandum all day.  If you have turned on your TV, it has been blaring all over the 24-hour cable news networks.

The silence is deafening on the front pages of major "progressive" blogs like Daily Kos and Firedoglake.  My only conclusion can be that they agree that this is a non-story.  It's to be expected from blogs that exist to elect "more and better Democrats."  If it helps Democrats to be silent on one of the most important social justice issues of our time, U.S. migration policy, you can expect that the "progressive" blogs will follow.  It's to be expected from those that have called migration a "pet issue.

The few that have covered the story, like, Matt Stoller of Open Left, Digby, and Josh Marshall and Zachary Roth of Talking Points Memo, have completely ceded the U.S. migration debate to nativists.  The debate over this story has devolved into one of Republican nativism and Democrats and their allies either describing this as smear or running as far away from this as they can. If having an unauthorized migrant relative is a smear, than smear me too.
Josh Marshall is on the right track when he titles his post, "Breaking The Law For McCain," but he doesn't describe what law was broken, and why it's important.  We just get a general sense that this leak was meant to influence the election, and that it  was wrong to disclose Obama's Aunt's immigration status at this time. 

The fact of the matter is that a very specific and important law might have been broken when, according to the Associated Press, the "deportation case was disclosed...[by a] federal law enforcement official."  Obama's Kenyan Aunt, Zeituni Onyango, had applied for asylum years ago.  There are very specific confidentiality laws around asylum cases.  Why? Because it could be dangerous to disclose information about potential asylee.  It could result in their further persecution.  This is true, of course, even after an asylum case is closed because then there would be a huge disincentive not to apply for asylum. 

The specific law that this anonymous "federal law enforcement official" likely broke is in in the Code of Federal Regulations:

8 C.F.R. 208.6 - Disclosure To Third Parties:

(a) Information contained in or pertaining to any asylum application, records pertaining to any credible fear determination conducted pursuant to 208.30, and records pertaining to any reasonable fear determination conducted pursuant to 208.31, shall not be disclosed without the written consent of the applicant, except as permitted by this section or at the discretion of the Attorney General.

(b) The confidentiality of other records kept by the Service and the Executive Office for Immigration Review that indicate that a specific alien has applied for asylum, received a credible fear or reasonable fear interview, or received a credible fear or reasonable fear review shall also be protected from disclosure. The Service will coordinate with the Department of State to ensure that the confidentiality of those records is maintained if they are transmitted to Department of State offices in other countries.

(c) This section shall not apply to any disclosure to:

(1) Any United States Government official or contractor having a need to examine information in connection with:

(i) The adjudication of asylum applications;

(ii) The consideration of a request for a credible fear or reasonable fear interview, or a credible fear or reasonable fear review;

(iii) The defense of any legal action arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear determination or reasonable fear determination under 208.30 or 208.31;

(iv) The defense of any legal action of which the asylum application, credible fear determination, or reasonable fear determination is a part; or

(v) Any United States Government investigation concerning any criminal or civil matter; or

(2) Any Federal, State, or local court in the United States considering any legal action:

(i) Arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear or reasonable fear determination under 208.30 or 208.31; or

(ii) Arising from the proceedings of which the asylum application, credible fear determination, or reasonable fear determination is a part.

Too much legal mumbo-jumbo?  Thank goodness we have a pro-migrant immigration lawyer blogging for the sanctuarysphere.  David Bennion explains it on Change.org:

Reading between the lines here, it seems that someone in EOIR or DHS leaked this information to the AP.  It is not accurate that "no one" is authorized to discuss the case.  I can discuss it.  You can discuss it.  Onyango can discuss it.  The people who can't discuss it publicly are Onyango's attorney and the government lawyers, judge, and law enforcement officials involved with the case.  But some government employee violated the rules that govern their conduct by disclosing confidential information to the press.
David Bennion - Change.org (1 November 2008)
In other words, while nativists are screaming "ILLEGAL" at the top of their lungs and "progressives" are refusing to defend unauthorized migrants, it appears that everyone's lost sight of who the real "ILLEGAL" is.  That "federal law enforcement agent" broke U.S. immigration law.  Perhaps the anonymous source should be deported?

This incident makes clear that it's time "progressives" leave the U.S. migration debate to the sanctuarysphere.  In pointing fingers no one even thought to protect the rights of Obama's aunt as an asylee.  This disclosure could possible result in great harm for Obama's aunt, especially as the situation in Kenya has deteriorated.  I won't even mention the fact that Obama's family identifies with the Luo tribe which has had tensions with the Kikuyu tribe in Kenya.

UPDATE: Stace Medellin responds over at Dos Centavos and reminds me to include John Conyer's call for an investigation into this.  Still though, the investigation is on the "timing" of this release and not Onyango's asylee rights which were trampled on. 

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janna said:

Excellent call, Kyle. This is truly what it's all about - protecting migrants' rights, and here in particular, the rights of someone who has sought asylum in the U.S. The politics surrounding this news were blinding, and I admit when I first heard of it, my first reaction was "SHHHHH! Don't say anything!" Cringing and seeing this as a smear is the wrong way to look at it. Thank you for calling it as it is - a serious infringement of her rights as an asylee.

MRH said:

Thank you! Let's be clear about where the illegality was -- The person who manifestly broke the law is the one who publicized ZO's migration status.

There are lots of people caught in various pockets of administrative limbo in the immigration appeals process. It happens to the most careful of people, in the most routine of processes. Asylum is tricker than most, and our government is disgracefully mingy about it.

I hope that the political operative who carried out this sleaze attack, and the person who authorized it, are both deeply buried in the mire of history, with their locations amply marked: lawbreakers.

As for ZO I hope that she gets asylum sorted out. She sounds as if she deserves it.

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This page contains a single entry by kyledeb published on November 1, 2008 7:09 PM.

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