I recently prepared an asylum case for a married lesbian woman. The case was complicated by the fact that my client had multiple nationalities, and I was concerned about one country where she held citizenship, and where conditions were less bad for LGBT people (at least when compared with her other countries of nationality). My focus was on gathering evidence about country conditions to support her claim, and I forgot to look at another key aspect of the case–my client’s wife had a pending asylum application of her own.
As these things often go, I was reviewing the case prior to the Immigration Court hearing when I noticed the issue. I spoke to my client and learned that the wife’s case included information that would have been helpful for my client’s case. So now I had a dilemma: Should we amend our case at the last minute and risk harming my client’s credibility (when she tried to explain the change) or say nothing and forgo the opportunity to include helpful evidence?
To add to our difficulty, my client’s wife was listed as a witness in our case and we completed a form allowing DHS to access her asylum application. What if DHS (the prosecutor) obtained a copy of the wife’s case, saw the evidence we left out, and then attacked our credibility for failing to include this information?
Once I realized our omission, we had to decide what to do. Whatever our decision, I knew there would be risks.
Before we look a little closer at my case, I think it is important to know that mistakes like this are common. Asylum cases are complicated and contain many moving parts: The client’s story (which they may or may not remember accurately), witness letters, family documents, school and work records, police and medical reports, country condition evidence, legal issues, etc., etc. Also, no lawyer works in a vacuum. Most of us have many clients, not to mention families and other obligations. What’s more, you may be surprised to learn that lawyers are human beings, and human beings make mistakes–especially when they are working under pressure and have limited time to spend on each case.
Despite the obstacles, we do our best not to make mistakes. But at least in my experience, occasional mistakes are inevitable, and it is important to know how to deal with them.
In the case of the married lesbian, we (my client, her wife, and I) discussed the situation and decided not to amend her application. Ultimately, it seemed that the benefit of the additional evidence was not worth the risk to credibility inherent in making a last minute change. We also discussed how my client and her wife would respond if DHS asked about the missing evidence. With this plan in place, we went to court.
In the end, our preparation on this point was probably overkill. Before we started, DHS indicated that they only had a few questions and that they did not expect to contest the case. The judge also began the hearing by indicating that she felt the case was strong. Once we got started, testimony was brief and everyone agreed that my client should receive asylum. I was glad for the happy ending, but I wasn’t thrilled by my rookie mistake and I resolved to be more careful.
In dealing with the mistake in our case, we made the “right” decision, in the sense that we got the result we wanted. But each situation is different and there is no one-size-fits-all solution to correcting errors. That said, there are a few points worth mentioning.
First, our case–and any case–is helped by including sufficient evidence. We had a lot of evidence that my client and her wife were married and had been together for years. We also had significant country condition evidence showing that gay people could not live safely in any of her countries of nationality–and that would be doubly true for a married couple. If your case is well-supported by other evidence, you will be more likely to overcome any mistakes.
Second, we discussed the problem in advance. There is a tendency among lawyers (and humans) to ignore mistakes. I was tempted to do that in my case. I thought it was unlikely that DHS would discover the omission, and even if they did, they might not care. Also, I knew we had submitted strong evidence and I was pretty sure we could win the case even if our error came to light. That said, lawyers have a duty to our clients, and having discovered the error, I had a duty to tell my client, and so I did.
Finally, having told the client about the error, we prepared her and her wife to respond in the event that the omission came up in court. It is always important to think about problematic issues prior to the court date, particularly where there are errors or inconsistencies in the record. When you prepare in advance, you can better respond to difficult questions. In this sense, ignoring problems can be dangerous, as it sets you up for failure.
It’s obviously a good idea to do your best to avoid mistakes when preparing an asylum case, but sometimes, mistakes happen. If the case is otherwise well supported, and you make a plan to deal with any errors that come to light, you can mitigate the damage and increase the likelihood for a good outcome.
Hello Jason,
I really want to thank you for guiding my friend through the process. Happily, after filing for a motion to dismiss by himself, he received a letter from the Immigration court that his motion was ‘denied for being moot because the Court granted the Government’s motion to dismiss without prejudice.’
My question is the ‘without prejudice’. Is that any issues to worry about?
It is not something to worry about – all such dismissals are without prejudice (at least all dismissals that I have seen). It just means that DHS can file a new case if it wants to, but it almost never does. Take care, Jason
Hello Jason,
I have one more question please.
If an I-130 is approved before a 485 is filed based on the approval of the 130. Would the 485 run a different life cycle? Put simple, will it be up to 12 months before the 485 will be approved?
Time frames for the I-485 are not that predictable. I do not know that it necessarily makes the I-485 faster if it is filed after the I-130 is approved or if the two forms are filed together (where that is allowed, for example, marriage to a US citizen). I have not filed an I-485 recently where the I-130 has already been approved, and so I do not have an example of that, but I would guess that it could be anywhere from 6 months to 1.5 years for most people. Take care, Jason
Hi Jason,
Recently, March 15/24 I filed an i485 application to four of my children and my wife. I included the 131 petition for travel document too. I have got all the i485 receipt notice except my wife. Two of my children both under14 were included in her(my wife) application AND they got their receipt too. They all have also got a bio metric appointment for both the green card and travel document except my wife. I am wondering what could happen for my wife’s receipt delay or where about. Do I need to file an inquiry or what ? Do anyone has such experience?
Thanks
It is common for a family to file together and have their cases processed at different times, and so I think it is too soon to worry. If there is nothing in a few more weeks, it may mean that the application got lost in the mail. If you paid the fee by check, you might see if the check was cashed, and that would indicate that USCIS has the case (and also, the receipt number should be printed on the back of the check). Hopefully, she will have the receipt soon. Take care, Jason
Jason,
I paid the fee by money order. And she has got her i131 application receipt to which the processing fee was included in her i485 application fee. That means uscis has got the money order. Beside that, the two under 14 kids payment is waved due to her application, and the only charged $750 each.
Thanks
That is a good sign, so hopefully, she gets the receipt soon. Take care, Jason
Hello Jason
I applied for asylum August 2016. Never got any communication from home office since then. I got married 2 years ago to a US Citizen and i got my GC basing on that in June 2023. I delayed applying for adjustment of status because i have been having issues with my partner. Eventually we did. However, things have been terrible. eg he withdraws money from our joint account until there is nothing remaining. He sold his car and lied it had a problem, his licence was suspended he never said a thing only to see mail summoning him to court… a lot more things. I am just done. I got mentally disturbed by his actions and i have been receiving mental health support since last year. He also is no longer living with me.
Questions
1. I did not cancel my pending asylum because I wasn’t so sure where we will end despite having a GC. Can i file for VAWA?
2. I am thinking of filing for divorce, funds permitting i will start the process this month. Do i need a lawyer to file for divorce or i can do it by myself? What would you recommend? I do not anticipate any challenges with him but who knows.
3. I got a letter from USCIS and now my asylum interview is scheduled in 2 weeks. From your experience, will there be any questions related to my GC?
4. What would you recommend, keep my asylum going and at the same time work on my divorce and apply for VAWA?
1 – If you have a GC, you would not need VAWA. If you have a two-year GC, you would need to file form I-751, and you can do that without your partner. It is more difficult and you would probably want a lawyer to help you, but it is certainly possible. Basically, you would need to prove that the marriage was true at the time you entered into it. 2 – Divorce lawyers are more expensive than immigration lawyers, at least that is how it seems. If there is no issues between you, you can try to do it yourself, but if there are problems, maybe you will want a lawyer. I recommend you call the local state court clerk’s office and tell them you need to file for divorce. They may have resources available to help you. 3 – If you have a GC, they may ask whether you want to cancel your interview. If you do not want to do that, you can inform them and explain why. If that is the plan, you should make sure you are all ready for the asylum interview and have submitted all the evidence for your asylum case. 4 – Since I am not quite sure I understand your situation in terms of the GC, I think you should talk to an immigration lawyer to determine what needs to happen with the GC, how strong your asylum case is, and whether there are any other immigration paths for you. Take care, Jason
Hi Jason
I have a great asylum case but i have not cancelled it since i got my marriage based GC. My question is, will i be able to renew my GC without my partner? We have since seized doing things together.
Can i abandon my asylum because i have the 2 yr GC or i can go for the interview and see the outcome. In case i will not be successful in renewing the GC without my partner then i have a backup plan.
What are the chances of being successful renewing the 2 yr GC without my partner. I have evidence of the reasons for the marriage failure.
Thanks
You should talk to a lawyer about this, but a person can file the I-751 without their spouse. If you are legally divorced, you only need to show that the marriage was true at the time you entered into it, which is usually not that difficult for true marriages. But if you are still legally married but separated at the time the I-751 is decided, the legal standard is much more difficult. That is why it is usually a good idea for people in this situation to get divorced as soon as possible, so they fall under the easier legal standard. In a situation like this, you might be wise to keep the asylum case pending until you have the 10 year GC, so you have a back-up plan if something goes wrong with the I-751. Also, keep in mind that the I-751 must be filed before the two-year card expires (I think the earliest it can be filed is 90 days before the card expires). Also, the I-751 process is very slow these days – it could easily take 2 years. Take care, Jason
Is it just me or is the asylum bar too high ? It seems that to be granted asylum, one has to suffer enough harm, the right kind of harm and the applicant has to fall in one of the 5 grounds…this I feel excludes a large swath of people who are seriously harmed but ineligible for asylum under current law…Shouldn’t these people’s right of safety also be respected by the INA ? Like for example, gang violence is a serious harm and threat to many. But I feel that these kind of cases, a lot of them are denied…but for like FGM cases…my opinion is that…if a woman is … harmed…she will no longer be harmed again based on that ground…right ? Cause she will no longer have that body part to be harmed…similar thing for coerced abortion…if a man/woman’s ability to give birth is taken away…that is persecution…but once its taken away…it wont happen again … Right ?
So how do these people fulfill the well-founded fear requirement ? There will not be future harm, right ? Shouldn’t these people be denied asylum ?
Hi Jason,
I was scheduled for immigration hearing tomorrow and EOIR Case Status today show my date is rescheduled. Is this common or any kind of error.
Thanks
It is common. I doubt it is an error, but you can call the court to ask – you can find their number if you follow the link under Resources called Immigration Court. You might also want to print or screen shot the new court date, so you have that if there are any issues. Take care, Jason
Hi Jason, thank you so much for your help. I have a question regarding expedite request for Refugee Travel Documents where we can file the expedite request? Only through Emma or we can mail the expedite request to?
I did a post about expediting in general on January 29, 2020 and maybe that would help, but if you have an online account, you can submit evidence there or you can mail it. I think ultimately, you will need to call and try to reach a human. Without expediting, the RTD probably takes 1 or 1.5 years for most people. Take care, Jason
Dear Jason,
Thank you so much for your response to my previous query. I had filed I-130 for my wife recently and the case status changed from petition received to “actively being reviewed by USCIS”. What does this update mean? I want to mention I applied this petition in the beginning of this month. Does it mean USCIS is working on my petition? Any response will be appreciated. Thanks
LPR
I don’t have much faith in those types of changes, as they seem to be meaningless. It would be nice if USCIS would provide more detail about what these different messages mean, but I have never seen that. In any event, maybe it is a sign that they are working on the case, though I doubt you would get a decision so quickly on an I-130 (though you never know, as wait times are very unpredictable. Take care, Jason
LOL Jason, you are absolutely right. It means absolutely nothing- I promise. USCIS just takes the application and puts it on their desk or among other applications that are gathering dust (that is until an actual person decides to take a look at the application). What the applicant should do is s/he should take note of the number of months left until a decision is made on the case (this can be found in the applicant’s online account), and the applicant should also pay attention to the processing time for the specific application s/he has pending. Those two things should give an idea as to when a decision should me made.
Agreed, and they should also keep in mind that each case is different, and while it is helpful to have an idea about when to expect a decision, results may vary. Take care, Jason
Dear Jason,
My asylum case was dismissed by IJ in Nov 2022 and I filed appeal with BIA and its still pending. My question is can I still file my asylum case with USCIS? I came without inspection through border. I should have better filed with USCIS once my case was dismissed but was not sure because it was new practice by government in 2022. Please let me know if it’s still possible to apply with USCOS affirmatively?
Thanks
If the appeal is still pending, you cannot file at the asylum office. You could probably ask DHS (the prosecutor) if they would agree to dismiss now, and if so, you (and maybe DHS together) can ask the BIA to dismiss the appeal. Once the case is dismissed, you can file at the asylum office, but you would need to do that as soon as possible due to the one year filing deadline (I wrote about that on January 18, 2018), and as long as you have a pending case with the BIA, you meet an exception to the one-year filing rule, but once the case is dismissed from the BIA, you need to file as soon as possible. When you do file, check the Special Instructions on the I-589 web page at http://www.uscis.gov for where to file. Take care, Jason
Hello, question should i attach photo for applying RTD (131)?, thank you.
I always send two photos. It may no longer be needed, but that is how I do it. You can check the I-131 instructions at http://www.uscis.gov to be sure. Take care, Jason
Hi Jason,
Thank you for your continued assistance. My friend filed the motion to terminate based in a pending I-130 at immigration court by himself because his wife is a citizen. Two weeks later, he received a decision from the court that ‘the xourt was unable to approve the application this time because the Homeland Security was not properly served, and that their opinion is necessary on the matter’. The court further added that the decision on the matter was final, but that he could appeal to the Board of Appeals.
Meanwhile, he has just prepared a new motion and re-filed, askig the judge to also take judicial notice of the fact that he is a Victim of Crime, and attached police evidence and a letter where the government was giving him an update on the robbery case, telling him that he may be subpoenaed when necessary in the case.
Question:
1. Was he right to have refiled the motion and served the DHS properly, or was his only option an appeal, since the reason for the denial was because of improper service?
2. Will being a victim of crime, a fact he has brought forward in his new motion avail him?
3. Will the court reconsider the case, since the defect was only on technicality ‘improper service?’ Please help as always. Tnx
1 – See my prior message. 2 – I think this is not relevant and I would not bother to include it. He may be able to request a U visa based on this situation, but if he is getting his GC based on marriage, that is a much faster and more reliable way to get status. 3 – See prior message. Take care, Jason
Hi Jason,
Thank you for your continued assistance. My friend filed the motion to terminate based in a pending I-130 at immigration court by himself because his wife is a citizen. Two weeks later, he received a decision from the court that ‘the xourt was unable to approve the application this time because the Homeland Security was not properly served, and that their opinion is necessary on the matter’. The court further added that the decision on the matter was final, but that he could appeal to the Board of Appeals.
Question:
1. Can he refile the motion and serve the DHS properly, or can only appeal the decision since te reason for the debial was because of improper service. Please help as always. Tnx
He can file again and serve a copy to DHS properly (and provide a “proof of service” to the court indicating that DHS received the filing. He should not appeal, as that is a waste of money and will not work. Also, I would recommend that he contact DHS before he files this. You can find their contact info if you follow the link under Resources called DHS Office of the Chief Counsel. He can ask them whether they would agree to the motion. Sometimes they do, but other times, they want to see an approved I-130, and sometimes they even want to see that he paid for the I-485. Unless DHS agrees to dismiss, it is unlikely that the judge will dismiss, so it is probably better to contact them first. Also, in some cases, if they agree to dismiss, they will file the motion to dismiss themselves, which will save your friend the trouble. Take care, Jason
Hello Jason,
I hope you are doing well. My husband applied for asylum in 2015 and he had his interview in 2018 , his decision is still pending and he passed away last week . I was with him , he was the main applicant . Now his asylum is going to be cancelled as I know . Do I have to contact the asylum office and what is my asylum status . There is still fear to go back to my home country . I have TPS , to be honest this immigration system is not humane , he was severely depressed waiting for his asylum decision for years . I wish I could sue this broken system for the pain they caused for him and for my family .
Dear EF,
MY heart is broken for you and your family.
My condolences and I hope that USCIS sorts you out ASAP ☹️
Thank you so much for your words
@Tina
Heyyy tina long time no see!!!! Did u get your GC yet?
Hey, Adam.
Trust all is well.
Yes, we did😊
Hi Tina – I hope all is well, Jason
Hi, Jason.
All is well and thanks for asking.
I got exhausted from discussing USCIS and immigration, so I became a silent reader😊.
I don’t blame you – I think I would run as far away from the asylum system as possible. Take care, Jason
I am very sorry for your loss. This is terrible and it has been made more terrible by the asylum system, which is a disaster. In your case, if you are still afraid to return, I would recommend that you file your own asylum application. You should do that as soon as possible, just to be safe, but given that you have TPS, you should be fine even if it takes a few months to file (all you need to file is the form, copy of your passport, copy of your husband’s asylum receipts and your biometric notice, plus proof that he has passed away – you can file substantive evidence later). Because you are a dependent on his case, you would probably have to file at the Asylum Vetting Center in Atlanta, GA. Look at the I-589 web page at http://www.USCIS.gov under the “Special Instructions” to learn more (and to double check that there is nothing else you need to file aside from what I listed above). If you have dependent children who were on your husband’s case, you can include them in your case (you should include their birth certificate and a copy of the passport). If they are 21 or older, they would need to file their own case, the same as you (at the Vetting Center). I wish the best for you and your family at this difficult time. Take care, Jason
Hello.I am Asylee and My son is Asylee and he married in my home country last year. He filed i130 for his wife 7 months ago. He wants to move to another state this year. My question is that will that case move to that state? and will it effect on case as doing late or delay?
I presume he has a green card, as only a person with a green card can file for a spouse. If so, he can move and that has no effect on the I-130. However, he does need to file a change of address with USCIS, which he can do online using form AR-11, available at http://www.uscis.gov. Take care, Jason
Hi Jason. I am Asylee. My Daughter got a Ticket for over speeding and ran red light. Police officer told him to pay online fine 250$. My question is that if she pays fine,will it effect on her citizenship? or what else she should do?. Thank you.
Unless there is a criminal charge, such as reckless driving, it would have no effect. If she is not sure, she may want to talk to a lawyer to make sure there is no crime, but typically, a traffic ticket is not a criminal offense and would have no effect on an immigration application. Take care, Jason
Hi Jason,
May I ask how much do you think your cases’ victory is contributed by the weakness of OPLA lawyer and friendliness of IJ ? Like I feel like, from your own description, you seem to be able to pull off a win because the OPLA lawyer and IJ give it to you and didn’t give you too much of a hard time on an issue you and your client were worried about.
Have you had the nightmare combination (tough OPLA lawyer and pro-DHS IJ) ? and in those cases, were you able to win ? and if you were able to win, what did you think helped ?
I, as a cautionary person…always prepare as if it’s the worst case scenario (that is, I will face tough OPLA lawyer and pro-DHS IJ) but when I was checking asylum cases. I somehow feel that, even the strongest asylum cases could be denied if the OPLA lawyer litigates it through and is determined to make that asylum applicant lose asylum…All OPLA lawyers are experts in immigration law and probably good lawyers…if they make good arguments in front of IJ…the IJ could very well rule against the immigrant…So…how worried should I be ? I feel like no matter how much evidence I prepare…the OPLA lawyer has all the government resources and can prepare strong counter-evidence…how are we able to win then ?
Thanks
I think if you prepare the best possible case that you can, it is more likely to result in the IJ and DHS being “friendly” towards the claim. In most cases, however, DHS opposes my applications and we litigate the case. If the client is credible (and credibility is bolstered by evidence) and there is a basis for the claim, we can usually win and the DHS will usually not bother to appeal. Take care, Jason
Thanks Jason for your opinion.
In your practice, have you ever encountered a scenario where an OPLA lawyer is particularly hostile to an immigrant ? Like the OPLA is determined to have the immigrant removed ? Because I understand that even though sometimes the OPLA lawyer doesn’t want the immigrant to get the relief… They sometimes agree to have the removal case dismissed or administratively closed or continued indefinitely…that’s their use of discretion…have you ever had people denied such prosecutorial discretion by DHS ? And in your practice, what are some of the common traits of such clients ? Like Criminal record ? single men unmarried no child ? Sth
It happens, and usually I ask why. It could be a criminal issue or human rights/persecutor concern. They also sometimes deny PD for these reasons. Take care, Jason
Recently, a question has been lingering in my mind…
The republicans and trump are once again hammering Biden on immigration…I am worried…
Because I want to think of a way that can have biden pro-asylum and win support…I am worried that if expressing negative attitude towards asylum/immigration proves to be garnering votes for democratic candidates…then…every democratic candidates in the future will see it as a recipe for victory and will outdo each other in terms of restricting asylum…that’s not something I want, I don’t think that’s something the asylum community wants…
But if Biden publicly declares that he supports asylum seekers and credible fear screening…I can see his intention being twisted by the republicans…and will lose support and lose the election…Any curtailment of asylum will also trigger dissatisfaction from the progressive wing of the democratic party… like ACLU and AILA might sue Biden administration…and will also cost him support and lose him the re-election…It makes me have headaches…Like I want to have a president that is lenient on asylum and immigration, grant more people who need protections the protections they need……and I want him to win…but I am worried that these two cannot co-exist…can a person be both explicitly pro-asylum and win re-election in America today ?
Dear Jason,
I filed for asylum in 2015 and have been waiting for an interview. Over these 9 years, I’ve sent several emails to the ombudsman office and USCIS itself, but unfortunately no positive results. I want to try again but this time by emailing Congressman or Senator. I read some people’s experiences here that they got lucky getting an interview after sending these emails. But what would you recommend – emailing to a Congressman or Senator? Who has more power over or deals with such requests/issues? Thank you
Hi Ivette. I’m not Jason but can drop my 5 cents here.
Waiting approximately the same amount of time as you. Messaged Senators/Congressmens for the last 4 years. No one helped even after (15) requests.
From information on the internet, the only people who got interviews through Senator/Congressmen, knew them directly or had legitimate reasons to expedite their cases(aligned with USCIS list).
I do think if you know a representative personally, that can help. But I also think there is no harm in trying different approaches. I have seen cases where the client asked their representative for help and then USCIS processed the case. It may have been coincidence, but maybe they actually helped and I think it is worth a try. Take care, Jason
I did a blog post about expediting on March 23, 2022 and maybe that would be of interest. I do not know if there is any difference between using a Congressperson or a Senator, and you can contact more than one office and see who is the most responsive. There are links to both (House of Representatives and Senate) under Resources. Mostly, none of these efforts work and people are filing mandamus lawsuits. You might consider that as well. Take care, Jason
Google your congressman by your zip code and contact them. Usually, there’s a release form available online that you fill out and provide necessary documents. The Republican congressman helped me get my interview, and I found him through Google. I applied in 2016 and got my interview in 2020.
Hello Jason,
Two days ago, the status of my Asylum based I-485 changed to “Case is ready to be schedule for an interview”
Previous case status indicated my case is been handled by the National Benefit Center, My question is, does it technically means an interview has been scheduled for me or in the process? Also from your experience have you encountered a case with similar status and case proceeded without an interview? Thanks for your help always.
I don’t have a lot of faith in those messages, but I do think it shows signs of progress. Some asylee I-485 cases have interviews and others do not, so you will have to wait and see about that. I think if they actually schedule an interview, there is a different message indicating that an interview has been scheduled, so you might keep an eye out for that change. Take care, Jason