In an act that has unleashed both shock and outrage, David Leopold, Past President and [past] General Counsel of AILA, characterized the courageous acts of the #DREAM9 protesters as a “publicity stunt” that hinders reform. He explained that he was “bothered” by the #DREAM9’s protests because they were “being flippant about U.S. law and U.S. policy.” In essence, that they should move to the back of the bus, sit there quietly, and enjoy the ride.

He then took it a step farther, stating that [at least 3 of] the #DREAM9 have little chance of obtaining asylum in the United States because: “it is only granted to people who can prove well-founded fear of persecution based on several traits such as gender, sexual orientation, political opinion, religion or nationality.”

Leopold’s statements [do not not necessarily paint a complete picture of the law of asylum]. Specifically, asylum may be granted in the absence of a well-founded fear of persecution if an individual is able to demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,” or there is a reasonable possibility the individual may suffer other serious harm upon removal to that country. 8 C.F.R. § 208.13(b)(1)(iii)(A) and (B).

It should be noted that the other serious harm standard does not require a prospective fear to be based on a protected ground for asylum, and provides an immigration judge with the authority to take a look at the totality of the circumstances in determining whether a favorable exercise of discretion is warranted on a case-by-case basis. In determining whether an applicant has established a reasonable possibility of other serious harm, adjudicators should focus on current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the potential for new physical or psychological harm that the applicant might suffer. Matter of L-S-, 25 I. & N. Dec. 705 (BIA 2012).

So that clears that up.

Now, although Leopold has every right under our constitution to form and communicate an opinion, it is inexcusable for any competent immigration lawyer to make sweeping generalizations about the merits of an individual's asylum claim without first having command of ALL of the facts. As former Board of Immigration Appeals Judge Lory D. Rosenberg has articulately stated: “it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed. Shame on any immigration attorney whose desire to make a political point would belie the complexity and variability of these necessarily case-by-case asylum determinations.”

Moreover, Leopold's statements are dangerous as they may serve to poison these kids' ability to present an application for asylum, or to receive a favorable exercise of discretion regarding humanitarian parole, as the public relations war is as significant a battle as the legal one.

Which brings me to the next question, did Leopold make these statements out of an innocent ignorance of the law, or did he have more deviant motivations: to provide political cover for an administration that he has a propensity to defend at all costs?

I’ll let you be the judge.

Author's note (July 29, 2013 @ 7:15 pm): A second edit was made out of professional courtesy to amend the qualifying adverb "patently" from the qualification of Mr. Leopold's statements relating to his interpretation of law.

Author's note (July 29, 2013 @ 4:02 pm): David Leopold has contacted with objections to this post.

His first objection is stylistic, as he wishes to have the word "former" included before his former position as General Counsel. It should be noted that my use of the word "Past" attached to both his former position as President of AILA, as well as to his recently vacated position as General Counsel.

His second objection is that my reference to his assessment of the viability of the #DREAM9's chances for asylum only applies to three of the nine individuals. It should be noted that a fair interpretation of the article is that Mr. Leopold made a general appraisal of the law of asylum, and his assessment was not case specific.

The third objection relates to the author's use of the adverb "patently" to qualify the word "false." The author employed the common usage of the word "patently" which is: openly, plainly, or clearly: i.e., a patently false statement. The author was not inferring specific intent.