Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.
In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–
- In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr, 2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
- in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
- In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr, 2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr, 944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder, 745 F.3d 336 (8th Cir. 2014).
In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.
How can I prevent surprise in Immigration Court?
When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).
Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.
To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov
In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.
Hi Jason,
I have a question regarding USCIS online case status:
FOIA sequesters are always updated on the online status check by USCIS.
Your request is currently number 35437 of 40850 pending requests in track 2?”
Why the online case status not always updated by USCIS who filed form I-130? The case still continues to process even when the online status never updates.
Thank you.
I think the online updates are very general and not particularly reliable. I know USCIS was working on their online platform over the last couple years, and hopefully, they will keep working on it. Take care, Jason
If a principal applicant submitted application and included all his dependents, when request FOIA for the principal applicant, would it include all his dependents’ A file? For example, does it include all dependents’ passports, I-589 submitted to USICS before, etc.?
I think it will, but I am not sure. You can file FOIAs for each person – there is no harm in that, but it may be redundant. Or if you are not in a rush, wait to see what you get, and then if you need to file additional FOIAs, you can do that. Take care, Jason
I got partially denied for FOIA, and they withheld around 50 pages in full. The reasons are those pages contain no reasonably segregable portions of non-exempt information pursuant to 5 U.S.C. § 552 (b)(3), (b)(6), (b)(7)(c), and (b)(7)(e) of the FOIA. For example, (b)(6) allows the government to withhold all information would constitute invasion of personal privacy, drivers’ licenses, or information belonging to a third party, etc. At the time, I was given 90 days to file an appeal. Please help me to evaluate if it is possible to appeal successfully? How can I successfully do that? Any suggestions would be really appreciated.
Unfortunately, I do not know about that, as I have never litigated a FOIA denial. Some attorneys specialize in that, and you might want to contact them (maybe Dave Cleveland, who wrote the above article can assist). Take care, Jason
Hi Jason,
I have a question for you. I sent FOIA Request Appeal to FOIA Public Liaisons. May i know if they have a tracking number to check the status of my request?
Thank you!
I have never tracked a FOIA request, but when you send the request, the should send you a paper document with a pin number on it. This allows you to create an account, make your request and track it (you might also be able to do that here https://first.uscis.gov). What I do not know is whether non-lawyers can do this. I assume so, but I have not looked at it closely. Take care, Jason
Hi Jason,
I have a question for you. I sent FOIA Request Appeal to FOIA Public Liaisons through an email, may i know if they have a tracking to check the status of my request?
Thank you for your continued assistance!
I have never tracked a FOIA request, but when you send the request, the should send you a paper document with a pin number on it. This allows you to create an account, make your request and track it (you might also be able to do that here https://first.uscis.gov). What I do not know is whether non-lawyers can do this. I assume so, but I have not looked at it closely. Take care, Jason
Hi Jason, I did FOIA request for a copy of my entire file and was placed in Track Two, Unfortunately i was expecting to get a copy of my entire file but i have received few pages and many important pages has been deleted. Can i do FOIA Request again to request few important documents from my file that has been withheld? Please let me know if that is possible.
Thank you!
Usually, if they do not include certain pages, they print a section of the law, and this section explains why they do not need to give you that particular page. As far as I know, there is an appeals process for the FOIA through the Office of Government Information Services (OGIS). If that fails, I think your next step is a federal lawsuit. Take care, Jason
Dear Jason,
I got the first interview in January,2020 and due to time limitation, I was asked for the second interview. Now, I am still waiting for that. According to the situation I met, if it is possible to get a copy of the notes and assessment for the first interview? What’s your opinion? By the way, I’ve already request a copy of all the alien files I submitted to USCIS via my FOIA online account. If it is possible to give a try, do I have to email them to get these specific files (notes and assessment)? Or they won’t give it to me, right? Thank you so much.
Best,
Henry
You should specifically ask for the notes and the assessment (since your case is not done, I doubt there is an assessment). Also, in most cases when we file the FOIA, we do not get the notes, but you can try. Take care, Jason
I emailed FOIA to get a copy of the notes and assessment on May, 3. It’s already been 20 days passed, but I still haven’t got any responses from them except the automatic reply by system. It did not include the case control number. Usually, I would get a notify letter attached with a control number in several days by filing online FOIA account. Not sure, how they process the cases filed by email? What’s your opinion on it?
If I remember correctly, FOIA is slow now due to high demand and the pandemic shutdown. I thought I saw a notice about that somewhere recently. For us, before the pandemic, it took at least a couple months to get the FOIA documents. We also send the request by email. Take care, Jason
Hi Jonson
I hope your are great. I appreciate to your help for people like me.
I read I-944, Declaration of Self-Sufficiency. I don’t understand what is mean and how it dose affects me.
would you mind give a clarification how it could affect us. Because I use the Medicare even if I am a pending asylee.
Thank you
Good Bless!
That form does not apply to asylum seekers or asylees, so it sounds like it does not apply to you. If you get your green card some other way (family petition, job), then the form applies. Take care, Jason
Jason, can a pending Asylee use Medicare or Medicaid
I do not know about whether you are eligible for that (I think you need to check with the particular office), but if you do apply, it would have no effect on an asylum case (due to the new public charge rules, it could affect some other types of cases, for example if you try to get a green card based on a family relationship or a job). Take care, Jason
As if they can remember every detail, significant or insignificant, in their life! I feel like asylum applicants are unfairly targeted and required to have a higher burden of proof.
Denying an applicant asylum because s/he is inconsistent one or two times- perhaps because the individual is under pressure- is, unfortunately, sad and cruel! This is not to say that there are fraudulent asylum claims, or people don’t fabricate their stories; the government should look at the evidence presented and weigh it against the one or two inconsistencies. This is necessary as a decision could determine life or death for the applicant.
Further, aren’t asylum proceedings de novo? Why would so much weight- insofar as basing the decision on the asylum officer’s notes- given to the asylum officer’s notes?
“… that there AREN’T fraudulent…”
I agree with you on the first point. Also, court hearings are de novo, but that does not stop a DHS attorney from submitting the asylum officer notes to show inconsistencies. Take care, Jason
Hello Jason!
Did you see tweet from Trump? He will sign executive order to temporary stop immigration into US to save some jobs for citizens. Does it mean that USCIS will stop to process all cases, like Asylum, EAD renewal? Or is it just more about Immigration Visas? Can you please explain what he is saying?
We will have to see what the order says, but I do not see how it can be justified in terms of processing asylum cases or EAD or GC cases for people who are already here. It would not be the first time a dictator-wanna-be used a crisis as an excuse to implement his agenda, but it is unprecedented for our country. This are very sad and dangerous times. Take care, Jason
Dear Jason, how long before EAD expires I can apply to renew it?
Thanks.
You can apply up to 180 days before the old card expires (do not apply earlier than that or the application could be rejected as having been filed too early). Take care, Jason
Thank you Dear Jason.
Why is William Barr the plaintiff and not the U.S. government? I understand that he’s the attorney general, but he is bringing the case up not because he has personal issues with the defendant. Its the U.S. government that has the issue and that the A.G. is just a representative? Or am I wrong to think this way?
I think Mr. Barr is the Respondent – in federal litigation, the noncitizen is the Petitioner and the AG is the Respondent. He is listed on the case in his official role as AG. If we get a new AG, the name of any such pending case will change. Take care, Jason
Hi,
I applied for asylum back in May 2015
Asylum interview Sept 2017
Asylum Approved March 2018
Got Green card in Nov 2019
Family interviewed back home April 2019
Family Arrived March 2020
Never loose hope!!! It’s on your way…. I want to ask you all of someone has a knowledge whether I can claim my 2 kids n husband on previous tax returns of last three years. Also do u think my kids are entitled for Stimulus checks mind you I haven’t filed Tax of 2019. Your input will be highly appreciated!!!
Hi Sarah congrats. You’ve got a great timeline.
So did your green card take only 3 months? After waiting for one year from asylum approval.
Please let me know as mine has been pending for almost a year now. I got approved in aug 2018.
I do not know about these questions. I think it would depend on whether they were your dependents before they got to the U.S. You would have to ask a tax professional about that, sorry. Take care, Jason
Hi Jason,
Hope you well and thank you for always answering our questions, I have a question if your case is with the judge in the court can you still checking your status on line and if the clock will still running? Can you be able to check your case online?
Thank you God bless you
You can call the hotline or check your case status online. I did a post about that (with links to the appropriate website) on March 11, 2020. Take care, Jason
Dear Jason
I have a question!
Is RTD duration is one year?? Is it possible to apply for two year refugee travel documents?
And how soon one can receive a refugee travel documents once applied thank you?
As far as I, you can only get an RTD for one year, which is quite annoying. Even before the pandemic, things slowed down in terms of processing times. We were seeing cases take maybe 6 months (whereas a year or two ago, they took maybe 2 or 3 months). How processing times are affected by the pandemic, I am not sure, as we have not filed for an RTD recently. Take care, Jason
Dear jason when filing for adjustment of status based on asylum , can I include my travel permit form in the same envelope as the other form ? Or does it have to be separate . I wish you had a post about how to file adjustment of status and the steps . I’m unemployed and have no money to pay a lawyer and have no instructions on how to fill out the form and what to include . Thx u
You have to follow the instructions for the I-485 found at http://www.uscis.gov, but they are not super helpful. You can file the I-131 along with the I-485 and if you pay the fee for the I-485, that includes a Refugee Travel Document. You can send them in the same envelope. Also, I did at least one post on applying for a GC – it is not about the whole procedure, but maybe it would be useful. It is from November 13, 2017. Finally, if you cannot afford the government fee, you might look into a fee waiver, form I-912. Take care, Jason
Hi Jason. i am Asylee. whaen i applied last year for my GC,i applied for Travel Document too.But uscis sent me aI-512L Authorization for parole of an alien into the unites states valid for one year. i wanted Travel Document like a passport shape but they sent different one. Now i want to apply for RTD like passport shame. Kindly guide me that which is the exact form for RTD? how much is fees? which documents i should sent with application? Thanks.
Maybe you checked the wrong box on the form? The RTD is form I-131, available at http://www.uscis.gov. That form is used for more than one thing, so make sure to fill the parts related to the RTD. For the mailing address, fee, and needed documents, check the form webpage. If I remember, the fee is $220, but double check the webpage. Maybe you could use the I-485 receipt in lieu of payment, but I am not sure about that, since it seems you already did that but got the wrong form. Also, you need to submit proof of your asylum case, a copy of your passport, and 2 passport photos. Check the instructions to make sure you do not need any other documents, as I do not know the details of your case and whether anything else might be needed. Take care, Jason
Dear jason
Im about to apply for citizenship in near future- we are five family members ? Is there anyway to waive the application fees? If so what are the are the step because i dont have income with current situation?
Please guide me
Take a look at form I-912, available at http://www.uscis.gov. That is the fee waiver form, and the instructions describe who is eligible for a fee waiver. Take care, Jason
I checked on IRS and I got this message : “ According to information that we have on file, we cannot determine your eligibility for a payment at this time.”
Anyone ? I filled for 2018 but added my bank info recently on IRS
Because you haven’t file your 2019 tax you got that message.
You don’t have to file for 2019 to get it . It says 2018 is sufficient but regardless I filed as none filer for 2019 on IRS ,
Same with me. I filed my 2019 on April 4 so its in processing. My address is changed this year and also I added bank information in 2019, I asked a professional who told me that it is happening because my 2019 is under process. Once my 2019 fully processed, IRS will have my updated address and bank information automatically. If you filed your 2018 and did not provide your bank information, you will get a paper check in the mail at the address available to them. Paper checks will be mailed at the end of this month.
Hi Jason
Hope you doing well in this time of lockdown covid- 19, I have a question I always check my application on line and it was saying that your next step is the interview but I’m suprise today when I check my status it say ” my application was closed ” we closed your application and notified you of the reason in the decision letter we mailed to the address we have on file for you. You must contact the office that has been handling your application if you believe your application should not have been closed.
My question is: what’s the meaning of it
Have you ever had similar case like this
Please Jason I need your answer….
Thank you
just re enter the right number again I am prety sure You entered wrong number ZNK
I am not sure what that means. You should try emailing the asylum office directly. You can find their email if you follow the link at right called Asylum Office Locator. Now, they seem to be mostly closed, and so you might not get a response, but you can try (they are still periodically responding). Take care, Jason
Hello,everybody! I have been waiting for my decision for 21 months now. For those who already contacted an Ombudsman.Do you guys think that they can really help me to get this decision? Why delay a decision for 21 months for unknown reason? I am so desperate.
I have helped my clients . But the best way if for you to constantly send the asylum office letter and ask them that you need a response , ask the what is happening , ask them that it has been too long , ask them if the background check is ready . Send a letter every two weeks . Don’t be scared to make them do their job .
I agree – sometimes, persistence pays off. Take care, Jason
Hello,Jason
I had my asylum interview in Montana,when I was living in Idaho.I moved to New Jersey one year after the interview,but I changed my address online with USCIS.I have been waiting for the decision for 20 months now. I am thinking about contacting a congressman about my case.I have a few questions:
Will the decision come from Montana or New Jersey where I am living now?
Which state congressman should I contact?
If you handle delayed cases too please let me know.
God bless you
You may want to email them first. That is normally the best way to communicate, though these days, they are less responsive as I guess they are partly shut down. You can find their email address if you follow the link at right called Asylum Office Locator. Send it to the office where you were interviewed (I think Montana is the Chicago office, but the Asylum Office Locator will tell you). If the case was moved, they should tell you that. Normally, if you have already been interviewed, the office that interviewed you will issue the decision. You can also try your Congressperson. I would try the Congressperson where you currently live. Take care, Jason
In my experience, the Ombudsman is not so helpful, but it is free and so it is worth a try. You can also contact your Congressperson. Usually, the delays are caused by the security background check, but there is no way to know for sure. If you decide you have waited too long, you can try a mandamus lawsuit – we wrote about that on October 2, 2018. But you might at least want to wait until things reopen. Take care, Jason
Jason if there world was ending tomorrow would you dance in the final rain ? And if I asked you to dance , would you dance with me ? Jason will you dance ? 🙂 . Dance with dance me oh oh oh
If you saw my dancing, you might not say this. Otherwise, I am happy to dance…
Thank you for taking time to write this, truly informative and helpful as usual.
Please do confirm:
1). how long does it take to get a response for FOIA request?
2)Can I request a personal copy when indeed my lawyer had put in a request but no response yet?
3). Is the FOIA office open during at this time?
Regards
Jason, how much normally does it take to get the asylum interview notes under FOIA act ?
I think Dave has had more luck with those than me. Normally, we do not get them, but sometimes we do. In terms of the time, it is maybe 3 to 6 months, but it is not very predictable. Take care, Jason
1 – Unpredictable, but anywhere from 3 to 6 months is normal. 2 – You can request your own file, even if your lawyer requested it too. 3 – I think so, but I am not sure, as we have not received a response for one of our FOIAs recently. Take care, Jason
Hi Jason,
Thank you for this information. I have a question regarding EAD renewal. I’m going to apply for renewal next week and so I reached out to my lawyer. The lawyer is charging me a fees to submit EAD renewal. I have the option to file for renewal on my own. I just want to understand if there is any benefit to do the renewal with a lawyer? If I do the renewal with lawyer, will I have good chances of getting my EAD on time? Or it doesn’t matter. Please advise.
We also charge a fee for preparing the EAD. Whether you do it or a lawyer does it, it is no faster. The main advantage of using a lawyer is that the lawyer hopefully knows how to do it. But if you prepare everything correctly and send it to the correct address, it should make no difference whether or not you have a lawyer. Take care, Jason
Hello Jason,
May i ask how much you charge for the EAD renewal, please? Thank you!
For our clients, we charge $200 for cases that hired us prior to this year. For new cases, we charge $300, but that is only for clients who have hired us for other cases (such as asylum cases) and generally, we encourage people to do the EAD on their own, as it is not very difficult. Take care, Jason
thank you so much for your helpful information
our lawyer said we could take any thing from asylum officer except our case plus documents we put in our file what do think
you are right I forgot what I said in my interview sine 2016
what do you advice us please I really appreciate it
does it work if I email them ?
You can submit a FOIA by email. Sometimes, they send the notes and assessment, but in my experience, they usually do not. Anyway, there is no harm in trying. Take care, Jason
Hi Jason
Thank you once again for great post. I got my transcript of asylum interview through FOIA and then appeal. But they didn’t give me asylum officer notes or his assessment. Should i go further for OGIS ? I am waiting for individual hearing.
They do not always give the notes or the assessment. I think Dave has had better luck with that than me. Sometimes, we do get the notes and assessments, but most times, we do not. I am not sure what OGIS means, sorry. Take care, Jason
Hey Jason , I just wanna know if asylees are part of the stimulus package or if anyone here as asylee received the money .
If you have a social security, you definitely qualify for sure.
I entered my SS on the IRS website yesterday evening and it said I am eligible. It asked me to enter some additional details about my 2019 filing, then I entered the bank account number, chose savings and routing number and it went through.
Would you please share the link where you put the SS and details. I am trying to find that but couldn’t
I did a post on April 2, 2020 where I discuss this. Maybe that post would help. Some asylees and asylum seekers are receiving payments. Take care, Jason
Yes, we are. I received mine yesterday and think that if the US immigration laws were as tax laws, the US would be the better place to live
Correct @Desperate!
Thank you for this valuable information. I’ll be ready if my case gets referred to the court(NY)
Thanks for this Jason. It is really helpful.
Dear Jason, a silly question
Do you think our work permit extension [based on pending asylum] be in jeopardy due to this pandemic [invisible enemy as the President said]? Thank you,
I do not see why. One area of concern might be that renewals will take longer than usual. The only thing you can do about that is apply to renew as early as possible – up to 180 days before the old card expires (do not apply earlier than that or the application could be rejected as having been filed too early). Take care, Jason