Now that Comprehensive Immigration Reform is finally on the table, I thought I would discuss my own “wish list” for reforming the asylum and humanitarian relief system. Human Rights First is in the forefront of the effort to include asylum reform in any CIR package, and they–along with scores of other organizations and law professors–have submitted recommendations to Congress and the President. Below is my own take on asylum reform, including some thoughts on Withholding of Removal and relief under the United Nations Convention Against Torture:
– One Year Filing Deadline: The current law requires aliens to file for asylum within one year of their arrival in the United States. There are two exceptions to this rule: (1) changed circumstances (i.e., it was safe to return home when the alien arrived here, but something changed, and it is no longer safe to return home); and (2) extraordinary circumstances (i.e., something prevented the alien from filing for asylum–maybe she was a child and did not have the capacity to file, or maybe she was suffering from post traumatic stress disorder). Aliens who cannot demonstrate an exception to the rule will be denied asylum if they file more than one year after they arrive in the U.S.
Supposedly the original purpose of the one-year rule was to prevent fraud. However, the real-life effect of the rule is to block legitimate refugees from obtaining asylum. One group in particular that has been negatively affected are LGBT asylum seekers. In many cases such people are not “out” when they arrive in the U.S., and it takes them time–often more than one year–to understand their sexual orientation and then decide to seek asylum. Other people harmed by the one-year rule include those who are emotionally unable to prepare their cases due to the severe traumas they suffered, people who do not know about the one-year requirement, and people who wait to seek asylum in the hope that country conditions back home will improve.
Having litigated dozens of cases where the one-year rule was a factor, I don’t see how it ever prevented fraud. It is an arbitrary rule, which does nothing except block legitimate asylum seekers from obtaining relief. My number one hope for asylum reform is that the one-year rule will be eliminated.
– Asylum Clock: I have written previously about the Asylum Clock. When an alien files for asylum, DHS starts a “clock.” When the clock reaches 150 days, the applicant can file for a work permit. If the applicant does anything to delay her case, the clock stops. Theoretically, when the delay ends, the clock should re-start. But thanks to ambiguous rules governing the Asylum Clock, that does not always happen.
Although I really can’t stand the Asylum Clock, I suppose I recognize that it is a necessary evil. Prior to the clock, it was common for aliens to file frivolous asylum applications in order to obtain a work permit. In those days, cases took years to adjudicate, so anyone claiming asylum could work lawfully in the U.S. for years before their case was denied. The Asylum Clock, combined with the fact that asylum cases–at least at the Asylum Offices–are usually decided in a matter of months, have greatly reduced frivolous applications. Although it has helped to reduce fraud, the Asylum Clock is incredibly annoying.
The bottom line for me is that the presumption of the Asylum Clock should be in favor of keeping the clock moving. If an Asylum Officer or an Immigration Judge finds that the alien is purposefully delaying his case or that the case is frivolous, they should stop the clock. But the clock should not be stopped for legitimate delays (For example, sometimes an attorney must refuse an appointment date due to a conflict. When this happens, the clock stops. But why should the alien be penalized because the attorney is unavailable on a particular date?). My “wish” here is that the Asylum Clock rules will be re-written to make it easier and faster for asylum seekers to get their work permits.
– Withholding of Removal and Convention Against Torture (“CAT”): There are two distinct categories of people who receive Withholding or CAT instead of asylum. One group are people who are ineligible for asylum because they are criminals or human rights abusers. The other group are people who missed the one-year filing deadline for asylum (and receive Withholding) and people who face torture in their countries, but not on account of one of the protected grounds for asylum (they receive CAT). Aliens who receive Withholding or CAT receive a work permit, which must be renewed every year, but they can never become residents. Unlike asylees, they cannot petition to bring immediate family members to the U.S. and if they leave the U.S., they cannot return. Finally, because few people have these statuses, people with CAT or Withholding often have trouble obtaining a driver’s license and convincing employers that they are lawfully present in the United States.
Frankly, I am not in favor of giving more benefits to criminals or human rights abusers who receive Withholding or CAT. Some immigration rights advocates would disagree with this (and there are legitimate reasons to disagree), but I feel that there should be consequences for our bad actions, and people who do not qualify for asylum due to their own bad conduct should suffer those consequences.
On the other hand, it is unfair to penalize people who receive Withholding or CAT because they missed a filing deadline, or because they face torture for some reason other than race, religion, nationality, particular social group or political opinion. My “wish” here is that such people receive some or all of the benefits normally given to asylum seekers. These people have done nothing wrong, and often they have suffered serious abuse in their homelands.
Well, that’s enough for now. I have a few more wishes, but I will cover those in a future post.
Hi Jason
I do have a political asylum case with the status of pending and on hold for more than 8 years
I see the Immigration office before 8 years for 2 interviews
me and my family are living in 2 worlds now my children they don’t know me who I am their father they grow alone and I became old here
would you pleas any thing good to solve this matter
thanks
It is very tragic – I did a post on February 26, 2015 with some ideas. You can try the Ombudsman or a mandamus lawsuit. Good luck, Jason
Hi Jason on oct 2013, I was granted withholding of removal and had my asylum case denied only but the IJ said I was firmly resettled but she said I established past presuction of my home country and im eligible asylum for that. Though I did not give up and want to reopen my case , is there any good hope for me about this new immigration bill that you know of?
The have not yet issued the regulations for the new immigration reform (or at least I have not seen them), so you will need to wait for that. Here is a link that may be helpful: http://www.uscis.gov/immigrationaction.
Hi Jason I was granted withholding of removal and had my asylum case denied only but the IJ said I was firmly resettled but she said I established past presuction of my home country and im eligible asylum for that. Though I did not give up and want to reopen my case , is there any good hope for me about this new immigration bill that you know of?
Hi Jason.
I want to know how does the reform affect people like me, I did my interview about 6months back, I applied for EAD a month, I have not heard anything, not even a receipt for the EAD case. How does the reform help me?
I don’t know about the reform, but if you applied for an EAD and did not get a receipt, something is wrong. Maybe you need to re-apply. Also, I would contact your asylum office to make sure your case is pending.
my brother his name sayed akbar s/o gul shereen 21june 2012 boat in christmas island he does not contact home please help us we are very in trouble for god sake
Maybe I am an optimist, but Leahy has introduced his Refugee Protection Act yet again.
http://enewspf.com/latest-news/latest-national/latest-national-news/41462-sen-leahy-and-rep-lofgren-lead-bicameral-introduction-of-refugee-protection-act.html
So we’ll see. It probably stands a better chance overall as a stand alone bill, but if Congress is really serious about CIR they will tack it on to the comprehensive bill. Something’s gotta give.
I doubt that refugees/asylees will be left out of CIR and whatever they start out with will probably track the Pat Leahy Refugee Protection Act pretty closely.
Key provisions of the Refugee Protection Act include:
Increased Protections for Asylum Seekers:
Eliminates the requirement that asylum applicants file their claim within one year of arrival.
Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even where their persecution was not socially visible.
Ensures fair process by requiring an immigration judge to give notice and an opportunity to respond when the judge requires corroborating evidence of the asylum claim.
Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
Enables minors who seek asylum to have an initial interview with an asylum officer in a non-adversarial setting.
Allows the Attorney General to appoint counsel where fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.
Reforms to the Expedited Removal Process:
Requires the referral of asylum seekers to an asylum officer for a credible fear interview, and, if credible fear is found, for an asylum interview.
Authorizes the United States Commission on International Religious Freedom to conduct a new study on the effects of expedited removal authority on asylum seekers.
Parole of Asylum Seekers:
Codifies the current DHS policy that asylum seekers be considered for release (“parole”) and requires DHS to issue regulations establishing criteria for parole.
Establishes a nation-wide, secure “alternatives to detention” program.
Requires changes in the immigration detention system to ensure asylum seekers and others have access to counsel, medical care, religious practice, and visits from family.
Terrorism Bar to Admissibility:
Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars in the law, while ensuring that those with legitimate ties to terrorist activity will continue to be denied entry to the United States.
Protection for Refugees and Asylees:
Eliminates the one year waiting period for refugees and asylees to apply for a green card.
Allows certain children and family members of refugees to be considered as derivative applicants for refugee status. All such applicants must pass standard security checks.
Authorizes the Secretary of State to designate certain groups as eligible for expedited adjudication as refugees.
Prevents newly resettled refugees from slipping into poverty by adjusting the per capita refugee resettlement grant level annually for inflation and the cost of living.
Ditching the OYFD and Matter of C-A-, and modifying material support bar all work for me. The other stuff is just gravy.
Thank you for the comment. I think you are more of an optimist than me. I guess we will see what happens.
Great thoughts! Here’s our recent editorial on similar topic.
http://www.statesman.com/news/news/opinion/holston-mansour-dont-lose-asylum-seekers-in-immigr/nWMqc/
Nice op ed – you guys are doing amazing work over there…