In a Fox News interview with Vice President Kamala Harris, host Bret Baier played a clip of Alexis Nungaray, whose 12-year-old daughter Jocelyn was murdered this past June. Charged with the crime are two Venezuelan migrants who illegally entered the United States shortly before the murder. Both men were apprehended near the border and released with notices to appear in Immigration Court.
In the clip, Ms. Nungaray blames the “Biden-Harris Administration’s open border policies” for the death of her child. This same idea has long been promoted by Donald Trump, who accuses migrants of bringing crime and drugs into our country.
In reality, crime is down in the United States and migrants consistently commit fewer crimes than native-born Americans. Of course, statistics are cold comfort to anyone who has been victimized by “migrant crime.” But using Jocelyn’s death to justify further restrictions on asylum seekers would only compound the tragedy. That’s because our asylum system saves many lives each year. It also serves our national interests.
As an immigration attorney, I witness this every day in my clients, who are activists for democracy and peace and women’s rights. They are journalists who have stood up for free speech against tyrants, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, members of oppressed ethnic minorities, interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives to help their countries and in many cases, to help the United States.
Critics of our humanitarian immigration policies claim that asylum is a gift, given to needy people because Americans are nice. They say we offer this generous benefit and get nothing in return. However, since its beginning—during the Cold War in the 1950s—asylum was about advancing America’s strategic interests. In those early days, it was about demonstrating moral superiority to our Soviet adversaries. We celebrated famous dissidents, athletes, and artists who defected to the West.
Now, the Soviet Union is gone, but asylum remains an essential tool of U.S. foreign policy. We gain tangible benefits from asylum. And I am not talking only about the influx of talented, hard-working people who add to our nation’s strength and who make up a disproportionate share of our country’s healthcare workers, likely saving many American lives.
When we give asylum to interpreters who served with our soldiers in Iraq or Afghanistan, we demonstrate loyalty to our allies. When we grant asylum to women’s rights advocates, we show our support for gender equality. When we support journalists, we stand for free speech, and when we grant asylum to religious minorities, we reinforce our foundational principle of religious liberty.
Imagine for a moment what it would mean to deny asylum to interpreters, woman’s rights advocates, journalists or members of religious minorities. Imagine what that would say about us, about our country. Imagine what message it would send to those around the world who are working for the values that we, in our best moments, embody.
When we offer asylum to those who have stood with us, and who have risked their lives to advance the values we cherish, we send a powerful message: When you work with us, when you work for the values we believe in, America is with you. When activists around the world have confidence that America is on their side, it helps them continue their struggle for justice.
And it helps us too. If we want their cooperation and loyalty going forward, our allies need to know that we will protect them when they need our help. If they do not have confidence in us, they won’t support us. Our asylum and refugee system represents the manifestation of our loyalty to those who stand with us, and this helps us advance our national interests and moral values (not to mention our Biblical values that require us to treat the stranger as we treat the citizen). Our asylum system also encourages other countries to follow our example and offer protection to those in need.
All this does not mean we should throw open the gates and admit every migrant who comes knocking. But neither should we shut down a system that helps many worthy people and which greatly benefits our country. Like many policy issues, immigration requires balance. We allow people to own firearms, though many die each year from gun violence. We release criminals from prison despite the risk of recidivism. We fight wars, even though innocents are harmed.
In this spirit, we must honor people like Jocelyn Nungaray by working to secure and improve our asylum system. At the same time, we should recognize the value of asylum–to us and to non-citizens seeking protection–and not abandon that system due to its imperfections.
@Jason & @fellow asylum seekers:
How to spend the last week before election ? I am worried…but I don’t know what to do…I considered volunteering, but I am a very private person and don’t like to put myself out there…
If I don’t want to put myself out there…is there ANYTHING that I can do to help Kamala Harris ?
If I pray, will God listen ?
Encourage your US citizen friends to vote. Also, I did a post about this on August 21, 2024 that might give you some ideas. Take care, Jason
Hello, everyone!
Just a quick reminder—if you have friends and family who are U.S. citizens, please encourage them to go out and vote! And if you’re a former asylee who’s now a U.S. citizen- and remember that you have to be a U.S. citizen to vote in federal elections or do certain things that can influence elections- this is your chance to participate in shaping our nation’s future.
In many states, early voting is available, which can help avoid wait times on Election Day. This election is crucial for the future of our democracy and for immigrants in the country. We face a pivotal moment, and it’s important to make our voices heard to protect the values that define America.
Thank you for doing your part to help shape a better future!
Amen.
I say this as someone who will not support him ever.
Because, inciting is an explicit ordering, right ? Trump never explicitly ordered his supporters to do something violent. I heard his Jan 6 speech and I, at the time, thought that he was just a sore loser and was just laying groundwork for 2024. And I wholeheartedly believe (obviously cannot verify) that Trump team themselves…didn’t expect/intend the violent aftermath.
So in my opinion, his behavior doesn’t seem to cross the high bar of inciting the insurrection…I bring this, because I am worried that…Democrats have been talking about how he incited an insurrection…he is not charged with insurrection by Jack Smith…and he is not convicted of insurrection anywhere, either in the senate or in the judicial bench…So…if eventually, Trump sues the Democratic Party for defamation…and the Supreme Court ruled that…all the Democratic Party did was…witch hunting/defaming Trump for “inciting an insurrection”…that would be a huge loss for the Democratic Party…and that could lose them future elections…Kamala Harris is going to give a speech in DC today…should she say something along the line of “Trump incited insurrection” ? of which the accuracy of the statement is up for debate ?
Hi,
There’s nothing in the definition of the word “incite” that requires an explicit order. Basing an argument on the necessity for explicit language, or action, in defining whether Trump incited the January 6 mob is misleading. Both legal precedent and dictionary definitions indicate that incitement can occur without direct commands.
For example, Merriam-Webster defines incite as “to move to action,” “to spur on,” and “urge on.” The Cambridge Dictionary defines it as “to encourage someone to do or feel something unpleasant or violent.” According to Dictionary.com, it means “to stir, encourage, or urge on; stimulate or prompt to action,” and the Britannica Dictionary defines it as “to cause (someone) to act in an angry, harmful, or violent way.” Nowhere in these definitions does incitement require explicit language. Indirect or suggestive statements can be enough to manipulate someone into action, qualifying as incitement, and therefore insurrection.
From a legal perspective, particularly under the U.S. Constitution (Fourteenth Amendment, Section 3) and legal tests for incitement, explicit language is not required. The Brandenburg v. Ohio (1969) standard outlines that for speech to qualify as incitement, it must be:
1) Directed at inciting or producing imminent lawless action.
2) Likely to incite or produce such action imminently.
While the courts haven’t explicitly ruled on whether suggestive language alone can qualify, courts can, and have historically, interpret phrases like “fight” or “take back” as incitement based on the speaker’s intent, the audience’s response, and the situational context. For instance, when directed at a ready or tense audience, even indirect language can be sufficient to meet the Brandenburg standard.
In Trump’s case, as a former president with a significant following that operates like a cult, his repeated false claims that the election was “stolen” or “rigged,” combined with pressure on officials and statements like “fight like hell” at a rally directly preceding the Capitol riot, could reasonably be seen as incitement. Testimonies and intelligence reports suggested that Trump was aware of the risk of violence yet proceeded without intervening. His statements, influence, and failure to act, especially in his capacity, as the Capitol was breached collectively support an argument that he incited insurrection against the United States.
Therefore, given his actions and influence, he can reasonably be regarded as having incited insurrection against the United States.
Hi Jason I have been granted asylum few months ago and saving some money to apply for greencard. Do you think if trump gets elected will I be having any troubles or issues?
Your thoughts and opinions are much appreciated.
We do not know, but last time under Trump, USCIS was basically gutted and the GC process slowed down. If you are eligible to apply, you could try to apply with a fee waiver, form I-912, available at http://www.uscis.gov. Also, for most people with asylum, they can apply 6 months or so after being granted asylum – I wrote about that on February 6, 2023. Take care, Jason
Hi Jason,
As Trump is getting nearer to the white house and is set to enforce strict immigration policies, including mass deportations of undocumented immigrants who have entered the country illegally, and even those on Temporary Protected Status (TPS), I’m wondering if we, as green card holders who have through approved asylum, are protected from his crazy and wild actions? Or are we at risk of facing consequences? I’m referring to someone who has no criminal record, always using a Refugee Travel Document (RTD), has never been to their country of origin and never used COP passport, and will never visit my home country until I become a citizen only to be under the protection of the US as a citizen. Should we feel secure under Trump’s administration?
I think it is unlikely you would have a problem. I do expect you will face delays getting citizenship, as a Trump Administration will likely gut USCIS. Also, they will be more on the lookout for fraud, and so they may review your case when you apply for citizenship. That said, I doubt you will have a problem, as there are many other people that are easier to go after, and so I expect people with green cards will be mostly ok. Take care, Jason
Hello Jason, I have one question since I have Tps the judge decide administration closure on my case. How possible to apply for EB2 since I qualify for it. Or I can’t apply EB2 self petition even if I qualify?
Thanks
I am not 100% sure, but I think if you entered the US lawfully and currently have TPS, you can benefit from an EB-2 or an EB-2 NIW self petition. You would need to talk to a lawyer about the specifics, but I think it may be possible. Take care, Jason
Hi Jason
Thanks for this forum. We appreciate you.
I am in a catch 22 situation. I have a pending asylum since 2017 and i am still waiting for an interview. I filed for the case before my F1 expired. The F1 expired in 2018 and I did not renew. Last year my employer agreed to sponsor my I-140. Unfortunately USCIS is not approving AOS EB green cards for people with pending asylum; unless they maintained their status after filing for asylum. My attorney is advising that we send the case to my COP and once the interview is scheduled, we withdraw the asylum case. The asylum case is not against the government but a social group. Withdrawing the case is making me uneasy. Will it bring issues when i file for citizenship?
You might want to look at a law called IN A 245(k), It is not so well known, even by USCIS, but it is supposed to allow a person who remained in lawful status until they filed for asylum to adjust status and get the GC inside the US. Maybe that would be possible for you. Alternatively, you could consular process. You can try to withdraw the asylum case and then consular process, but that may not be easy, and if you withdraw before you leave the US, they might send you to immigration court, which will make consular processing much more difficult (I wrote about withdrawing on December 7, 2022). Also, if you withdraw and then leave and the consular processing does not work, you will not be able to return to the US. To me, the best approach (if you can do it) is to keep the asylum case alive and get Advance Parole (I wrote about AP on September 11, 2017) and have AP as a back-up plan in case the consular processing does not work. Then you can leave the US, consular process, return to the US with the GC (or if the consular processing fails, return to the US with AP). Once you are back in the US with a GC, then you can withdraw the asylum case. I would explore all the options with a lawyer before withdrawing the asylum and leaving the US. I wrote a bit more about these issues in posts dated August 28, 2018 and September 6, 2018. Take care, Jason
Thanks for your response. If i decide to go to my COP for the consular processing while the asylum case is pending, will it affect my EB case?
It would be better to process the case in a third country, as that would avoid any possibility that you might be accused of filing a fraudulent asylum case. If that is not possible, you should be prepared to explain why you returned and how you stayed safe. As your fear is not from the government, that is easier to explain than if you feared the government. Nevertheless, you should be ready to explain if asked and have some evidence about that. If the consular officer concludes that your asylum case is fake, it would likely also block you from consular processing for a green card, so it is important to be ready on this issue. Take care, Jason
Thanks for your response. I appreciate it. The only challenge i see would be to have them grant me an AP to travel to my COP for the consular processing.
I think you have to list the countries you want to visit on the I-131 when you apply for AP. You should not lie, but it is better to not mention the COP (and of course, it is better to not go to the COP). I would try to find a third country to consular process and list that on the I-131. If it does not work out and you have to go to the COP, you could still do that – you are not limited to only visit the countries you list on the form. However, you do not want to be accused of fraud, and so you should have evidence that you attempted to consular process in the third country if you are ever asked about that. Take care, Jason
Hello Jason,
Thank you for your assistance in this journey. I am about to ask the congressman to follow up with the asylum office regarding my pending decision. I had my affirmative asylum interview in State A, but I moved to State B after the interview. Which congressman should I reach out to—the one in State A or the one in State B?
Thank you!
I would probably start the with Congressman who represents you now (State B). You can explain the situation and if they think you should talk to the Congressman from State A you can do that, but normally, you would reach out to the one who is your current representative. I also did a post on June 2, 2021 with more ideas about getting a decision after the interview. Take care, Jason
Hi Jason, I was paroled into the US.i wss I can apply for EAD based under category c11 without having to wait 150 days but have to pay filing fees as it’s not free like c8 ones. I wanted to ask if this is accurate
If you were paroled under c-11, you can file for an EAD immediately based on that category. I am not sure about the fee, but you ca see that if you look on the I-765 web page at http://www.uscis.gov under Filing Fee. If you have already waited the 150 days after filing for asylum, you may want to file based on asylum pending (c-8), as that is free and the EAD is valid for 5 years (under c-11, I think it is usually 1 or 2 years). Take care, Jason
Hi Jason,
I hope you’re doing well. I have a question regarding the DV lottery. I currently have a pending asylum application, and my country is eligible to apply for the lottery. However, I understand that my current status may not allow me to adjust status if I were to win. I’ve heard that being on Temporary Protected Status (TPS) might make me eligible for adjustment of status in this case. Is this true? If so, would I be able to apply for TPS while my asylum application is pending?
Thank you for your guidance.
If you have TPS status, it may make you eligible, but it may depend on other factors as well. If your country has TPS and the window to apply is still open, you could apply for that. Also, if you have TPS, even if you cannot get the GC inside the US, it makes it easier to get permission to travel overseas. Depending on the timing of all this, you could apply for the DV lottery, as that is free, and then if you win, explore your options. I wrote more about the DV lottery and asylum in a post dated October 5, 2015. Take care, Jason
Thank you so much for your prompt reply Jason,
I am from Ethiopia, can I apply for TPS? If the answer is yes, do I need a lawyer to apply? What is the drawback of having a TPS status?
Not being able to adjust my status is also holding me from applying to NIW as well (I believe I qualify for such visa).
I think you can, but you need to check the requirements at the USCIS TPS web page (Google “USCIS TPS Ethiopia”) and you will see that. You can apply yourself using form I-821, available at http://www.uscis.gov. You can also file for a TPS work permit, but I doubt you need that. If you have TPS, it has no effect on asylum, except that if you are denied asylum and you have TPS, you would probably not be referred to court (the asylum offices are not always consistent on this point). Asylum may allow you to adjust status in the US (i.e., get a green card), but it depends on different factors and so if you think you might qualify for an EB2 NIW (or if you win the DV lottery), talk to a lawyer about that to see what can be done. Take care, Jason
Hey Dan, it is easy to apply for TPS! I did by myself and got approved.
Hi Jason
The new rule for adjusting status through Asylum said you can submit the application before 1 year, I know they can’t approve until you in fact have 1 years as asylee, how long do you think is appropriate with the new rule send the application?
Can my husband and I send both application same package?
How probably is they send RFE asking for a full year presence after granted asylum?
You can send two applications in the same package, as long as each package is complete. You should also make it clear in a cover letter that these are two cases – for a married couple. Take care, Jason
Hi Jason
The new rule for adjusting status through Asylum said you can submit the application before 1 year, I know they can’t approve until you in fact have 1 years as asylee, how long do you think is appropriate with the new rule send the application?
Can my husband and I send
I am recommending 6 months and that seems to be what most lawyers are saying. I explain the reasoning in a post I did on February 8, 2023. Take care, Jason
Hi Jason,
Today I received NOID regarding my I-485 application as derivative Asylee due to my husband’s naturalization I’m no longer meet the definition of a refugee. Can I apply for green card again based on my husband’s citizenship ? From I 130 and from I 485 ? Also, USCIS consider the eligibility at the time of filling or time of adjudication ?
Thank you
When the principal naturalizes, any derivative who does not yet have a green card loses the ability to get a green card until they file their own “nunc pro tunc” asylum application and it is approved. So maybe the RFE is a request to file a nunc pro tunc asylum (this is basically a formality where all you need to prove is the relationship to the principal applicant – your husband; you do not need to show that you face persecution). Whether this will be faster than getting the GC based on your marriage through an I-130, I do not know, but if you file based on the marriage, you would need to pay for the I-130 and the I-485, so it would be more expensive. You can also file both ways and see what is faster. Take care, Jason
Do you really think she will change her mind because of what you said ?
This is not to annoy you but I am genuinely curious…
I feel trump supporters are very, very difficult to peel off from him…So…in the last few days, I am not sure whether energy should be spent on encouraging turn outs…rather than persuade minds…
People like Alexis Nungaray, in my opinion, will be decidedly anti-immigrant for the rest of her life…
Look what I have got in return after being good…It’s a double standard that I have to be nice but the other side doesn’t have to…
So I will be bad…I wish something bad could happen to Alexis Nungaray…so that she could stop lying on Fox News everyday…promoting trump to hurt other asylum seekers.
You are a piece of trash. I live in North Houston and lived this story each day. My husband is a legal immigrant and guess what he did it the right way. So maybe instead of bashing a mother that lost her daughter you should go to H E you can finish the rest.
I don’t know what you mean by legal.
A person can pass credible fear interview and seek asylum from border’s port of entry, without a visa.
They will be lawfully present when they are in.
In my opinion, innocent until proven guilty. Unless an IJ issued a removal order, a person should be presumed to be having the appropriate right to remain…
I can’t imagine that she will read what I write, but it is not really for her. We as a country need to make policy decisions, and to make those decisions, we cannot only look at one side of the equation. In Trump’s view, all asylum seekers are bad and harm our country. In the real world, that is simply false, and we need to say that. Will this convince anyone at all? I have no idea, but if people are willing to engage with other people’s ideas in an honest way, they can learn new things and change (or maybe learn new things and not change). Unfortunately, there is not much in the way of honest discussion or listening to others in our current political climate. Take care, Jason
Also, these two men haven’t been convicted yet.
They are considered innocent immigrants at this point…right ?
So for Alexis to say something negative that is unproven, unadjudicated yet about other people, should she be sued for defamation/libel ?
Like, technically, she could say “my daughter was dead, I am so sad” but she couldn’t say “these two illegals did that”, at this point, right ? She doesn’t have the authority to prematurely convict other people
Innocent until proven guilty, and I suppose technically a libel case may be possible, but I think there is a lot of evidence against them and so in practical terms, I doubt a libel case would have any chance of success. Take care, Jason
I guess I just wanted to point out the double standard that is favoring this Alexis woman.
Like she thinks her daughter and herself are more important than others simply because they were born here. But other people struggling in other countries ? nope, don’t give a damn. My daughter is dead, all the rest of you need to suffer.
She is not the only woman who lost her child. It’s just a reality of life that she needs to accept, the fact that some people do kill other people, and sometimes that victims could be you or your family, it’s just the natural, law of large number…It has been mentioned here that Americans commit more crimes than immigrants…so her daughter could very well be killed by a natural-born American citizen…This woman needs to get a life and raises another child, and stop blaming Biden-Harris administration’s policy. If she doesn’t get pregnant in 14, maybe she can provide a better environment for her child. She is a failed mother and she wants to blame immigrants and Biden/Harris for this. (and btw, the media is not criticizing her at all) The nature of this killing doesn’t have anything to do with citizenship or immigration status. But the biased Republican media wants to make it a political issue.
Of course, if I say this, which is the fact btw, Republicans and people supporting them (like this woman) will cancel me…What’s our best counter move to Republicans using some illegal aliens committing crimes to attack the border/immigration policy…I want to let you know that I am with you on this issue…but you wrote a whole article…I plan to use it …but I am worried that Donald Trump could invalidate me with just one sentence…to my
I don’t think it is fair to criticize her in this way. She suffered a terrible loss and it is natural to look for causes and to assign blame. The alleged murderers did enter under Biden’s watch. My issue is (like you say), the law of large numbers. We implement all sorts of policies that are generally good, but that have bad consequences for some – gun control (or lack thereof) comes immediately to mind. But even a speed limit on a road could be reduced, which would save lives. We recognize this, but we balance it with the need for people to get where they are going. We need to have a balance in immigration as well, and I think her argument is worth considering, but it is not the only argument to consider. We have to also consider all the positive benefits that we receive from immigrants and refugees, and my point is that there are many such benefits. Take care, Jason
As she should. Her daughter was killed by two illegal immigrants who should not have been in the US.
Many people are killed in human history, by different kind of perpetrators. It’s not something remarkable.
Yes, if they are not in the U.S., her daughter will not be killed. But that doesn’t mean her daughter will live long…right ?
She could got hit by a car, suffer plane crash, killed by natural born American citizens…like…seriously…It’s more about she being a bad mother. If she is not so promiscuous to get pregnant at 14…I believe that her daughter will be able to grow up in a rich neighborhood and not get into contact with the two men that killed her.
The killing of the daughter is contributed by multiple factors, any of the factor removed could be preventing the killing…so it’s unfair to say…the two men single-handedly ended the kid’s life.
Assuming they are proven guilty, I think all those other factors are irrelevant. Take care, Jason
The point – at least my point – is not that the mother is doing something wrong. But her view of the overall situation is incorrect. She is only seeing the negative side, which is understandable, but there is a very large positive side that she is discounting. I understand her perspective, but from a policy standpoint, we should not only look at the negative. Finally, those Venezuelans are not “illegal immigrants.” They applied at the border for asylum and were admitted under the law (INA 208). In the layman sense, they might be considered “illegal,” but that is not a term in the law. Take care, Jason