The Return of Prosecutorial Discretion

by Jason Dzubow

The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.

When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.

The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”

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Dealing with Delayed Decisions

by Jason Dzubow

Based on the latest data (from July 2020), there are more than 22,000 asylum cases that have been interviewed, but where the Asylum Office has not yet issued a decision. Some of these cases have been pending decisions for months or even years. What’s the reason for this post-interview delay, and what can you do if you were interviewed, but have not received a decision?

First, let’s talk about some reasons for delayed decisions. One common reasons is the security background check. Before a case can be granted, each applicant is subject to a background check. This somewhat mysterious process involves reviewing multiple government databases to determine whether there are any “hits,” meaning that the person’s name or information raises a security concern. Such checks are largely outside the control of the Asylum Office, and can cause significant delay. At least in my experience, the delay tends to be worse for people (especially men) from majority Muslim countries. While background check delays are common for Asylum Office cases, they are almost non-existent for Immigration Court cases. Why this should be, I do not know. I once asked a prior Asylum Division Director about the discrepancy, and the only explanation I received was that the background checks are different at the two different agencies.

Another reason for delay is that each case needs to be reviewed by a supervisor, and the Asylum Offices are apparently short of supervisors. Related to this is the high turnover rate for Asylum Officers. When officers leave without completing a case, this seems to cause additional delay (since another officer has to review the case, get up to speed, and then complete the work). (more…)

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Praise for the Asylumist (the Book)

by Jason Dzubow

We’ll return to our regularly-scheduled content next week, but here, I wanted to share some (mostly) positive reviews I’ve received for my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity. Proceeds from the book will benefit asylum-related charities, and you can purchase copies here. Without further ado–

Jason Dzubow is a leader in the new due process army and part of the “gold standard” for practicing asylum aficionados. For over ten years, his blog “The Asylumist” has been providing “practice tips” and sage advice for asylum seekers, attorneys, and even Immigration Judges. Now, in his new book, Jason collects “The Asylumist’s Greatest Hits”—his best and most useful blog posts—and updates them to reflect the current state (or dystopia) of the law. Understanding the process is essential for protecting your rights! The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity provides clear, accessible, practical, useful guidance, with a touch of humor, to help you navigate the asylum system. It’s an essential “problem-solving tool” for asylum applicants, attorneys, policy makers, and anyone interested in ensuring that asylum seekers obtain the protection that they need and deserve and in restoring due process and best practices to our now sadly and badly broken, dysfunctional, and intentionally unfair asylum system. Due Process Forever!  —  Paul Wickham Schmidt, Former Chair, Board of Immigration Appeals, and blogger at ImmigrationCourtside.com

Jason Dzubow is a thoughtful and balanced voice in the often highly charged world of immigration. He cares deeply about the law and the people it impacts, from those seeking refuge to those tasked with administering the processes for delivering both relief and justice. In his new book, The Asylumist: How to Seek Asylum and Keep Your Sanity, he offers pragmatic advice and valuable insights on asylum and many other issues in the immigration arena.  —  MaryBeth Keller, Former Chief Immigration Judge of the United States

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Introducing The Asylumist: The Book!

by Jason Dzubow

When I started The Asylumist over 11 years ago, I hoped to create a forum for discussing the U.S. asylum system. I didn’t know whether anyone would actually read the blog or whether I had the time and energy to maintain it (and truth be told, when I started, I really wasn’t even sure what a blog was). But here we are more than a decade later, still going.

During those years, much has changed with the asylum system: The Immigration Court backlog has increased from 243,000 to over 1.3 million; the Asylum Office backlog has grown from less than 32,000 to more than 386,000; we’ve seen the border “surge” (a couple times). the hostility of the Trump Administration, and the pandemic. The population of asylum seekers has changed as well. The Syrian civil war, the Arab Spring, increased instability in Venezuela, and a further breakdown of law and order in Central America all contributed to new waves of applicants seeking protection in the United States. 

As I was observing and writing about asylum during these turbulent years, I was also thinking about turning some of my blog posts into a book. And for maybe the last two years, I’ve been actively working to get that done. Given my other obligations–family, job, blogging–I was not sure I would ever complete the work. But somehow, with the help and support of many people, the book is now done and available for sale. You can check it out here: The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity.

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My Friend Got an Asylum Interview, But I Never Did

by Jason Dzubow

Here’s a question that I often hear: My friend filed for asylum after me and she already had her interview. Why didn’t I get my interview yet? As with most asylum-related questions, the answer is, it’s complicated.

As you probably know, the Asylum Office is operating under the LIFO–Last-in, First-out–system. This means that new cases get priority over old cases. LIFO was implemented in January 2018 with the hope that it would reduce fraudulent asylum filings. The idea is that if the Asylum Office can quickly interview and deny fake cases, it will reduce people’s incentive to file such cases. In turn, this will lead to fewer new asylum applications, which will reduce the backlog and help legitimate asylum applicants.

Of course, things did not work out as planned. The first problem is that the premise of LIFO is simply wrong: The system is not being overwhelmed by fake asylum cases. Even if it were, LIFO provides no real disincentive for applicants to file fraudulent cases. That’s because from nearly the moment it was implemented, LIFO didn’t work. There were always too many new cases to interview. As a result, some new cases got fast, LIFO interviews; others did not. Since there was never a very high probability of receiving a quick interview, LIFO did little to dissuade the hordes of supposedly-fraudulent asylum seekers from filing their cases.

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PTSD (Post Trump Stress Disorder)

by Jason Dzubow

It’s been more than 100 days since President Biden took office, and I have to say, I don’t think my clients or my fellow lawyers are feeling a whole lot better about the U.S. immigration system. This gut feeling is now backed up by data, thanks to a new report from the American Immigration Council (“AIC”), which shows the slow pace of improvement at USCIS.

As you may recall, the Trump Administration spent four years trying to dismantle the U.S. immigration system. And while certain immigrants (from Norway, for example) were theoretically welcome, most were not. The Administration never managed to amend the immigration law, but it did implement a number of rule-making, personnel, and policy changes designed to block non-citizens from obtaining legal status in our country.

For asylum seekers, these changes included making it more difficult and much slower to obtain a work permit, rejecting asylum applications for nonsensical reasons, focusing resources on fraud rather than adjudication, lengthening the Green Card process for asylees, and dramatically slowing the follow-to-join process for overseas family members of people granted asylum. The Administration made other changes that increased the backlogs in Immigration Court (where we recently passed 1.3 million pending cases) and the Asylum Office (386,000+ pending cases). Also, overall processing times at USCIS increased by 61% between FY2016 and FY2020. On top of the bureaucratic barriers, Mr. Trump’s Attorneys General issued decisions narrowly interpreting the asylum law, thus making it more difficult for applicants to obtain protection.  (more…)

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An Interview with Harvey Finkle: Documenting the New Sanctuary Movement

by Jason Dzubow

Photographer Harvey Finkle has documented immigration to the city of Philadelphia since the 1970s. His work has been hailed as “visual anthropology” that records successive waves of settlement, mostly in South Philadelphia, by European Jews, Vietnamese, Cambodians, Burmese, Mexicans, Central Americans, and other immigrants and refugees.

In his new book, Faces of Courage: Ten years of Building Sanctuary, Mr. Finkle chronicles the first ten years of the New Sanctuary Movement of Philadelphia—a coalition of twenty-eight congregations that works to build community across religious, ethnic, and class lines to end injustices against all immigrants, documented or otherwise.

The Asylumist recently caught up with Mr. Finkle, to ask about his career, his book, and the New Sanctuary Movement. (more…)

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Celebrate Mother’s Day by Helping Asylum-Seeker Moms

by Jason Dzubow

Mother’s Day is coming up – on May 9, 2021. If you need a nice gift idea for the mother(s) in your life, and you’d like to support a worthy cause at the same time, check out this “gift of goodness” from AsylumWorks, a Washington, DC-area non-profit that provides support for asylum seekers while they wait for resolution of their cases.

AsylumWorks offers a host of services to asylum seekers (whether they are mothers or not), including help with employment, referrals for social services, legal assistance, trauma recovery, and housing and food needs. The organization also helps connect asylum seekers to the wider community and to each other. Through their Mother’s Day Campaign (which ends on April 30), you can send a tin of alfajores, delicious sandwich cookies filled with dulce de leche and rolled in coconut flakes to a mother in your life, or to an asylum-seeking mom. (more…)

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FY2022 Budget Wish List Mentions the Asylum Backlog!

by Jason Dzubow

When you were in middle school, did you ever have a crush on a classmate? Did you analyze every stray glance and dissect every off-hand comment for signs that your crush liked you too?  I feel like that’s what we’ve come to as observers of the asylum system. The mere mention of the words “asylum” and “backlog” by a government bureaucrat in the same sentence has become cause for celebration. My crush knows I exist! Woo Hoo!

Such a momentous event came to pass last week, when the Acting Director of the Office of Management and Budget (“OMB”) included the following paragraph in a letter to the Chairman of the Senate Appropriations Committee, summarizing President Biden’s “Discretionary Funding Request” for FY2022–

Supports a Humane and Efficient Immigration System. The discretionary request supports the promise of a fair and equitable immigration system that welcomes immigrants and reflects the Nation’s values. The discretionary request provides $345 million for the United States Citizenship and Immigration Services to address naturalization and asylum backlogs, support up to 125,000 refugee admissions in 2022, and allow for systems and operations modernization. The discretionary request supports expanded access to the Alternatives to Detention program and provides enhanced case management services, particularly for families seeking asylum. (more…)

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Lobbying Congress to Reduce the Asylum Backlog

by Jason Dzubow

President Joe Biden sent the U.S. Citizenship Act of 2021 to Congress on January 20, his first day in office. This bill provides a roadmap to citizenship for undocumented individuals, prioritizes family reunification, addresses the root causes of migration from Central America, modernizes border security, and aims to reduce the Immigration Court backlog.

But even if the U.S. Citizenship Act becomes law (which seems increasingly unlikely), it does not address the backlog of over 373,000 affirmative asylum cases–these are mostly individuals who entered the United States legally with visas, and who then applied for asylum. They include democracy and human rights advocates, journalists, religious minorities, and members of the LGBT community, among others. Many in the backlog are torture survivors and others who have suffered severe persecution. Since one case sometimes contains several family members, the total number of people waiting in the affirmative asylum backlog is something like 600,000 individuals. Many of those in the backlog have already been waiting four, five or even six years for an interview. These individuals represent a “Hidden Asylum Crisis” because their suffering is invisible to the general public and has thus far been ignored by lawmakers. (more…)

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My Client Committed Suicide

by Jason Dzubow

Recently, I learned that one of my clients committed suicide. The client was a young man who filed his asylum case in 2015. He had been waiting for an interview ever since. I did not know this client very well. He started his case with a “helper” who did a poor job of helping. Later, he hired me, but since the case was stuck in backlog limbo, there was not much for me to do. Because I am busy, I have little time to check in with clients waiting in the backlog, and so I had not heard from this person for some time.

I mention all this because, the fact is, I do not know whether the long delay in his asylum case or the underlying issues that caused him to leave his country were contributing factors in his death. Very possibly, there were other issues as well. That said, I can’t imagine that the delay and uncertainty, and the other issues related to his asylum case, improved my client’s mental health. (more…)

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Is It Time to Close the Border?

by Jason Dzubow

The number of migrants arriving at the U.S. Southern border has been increasing since President Biden took office. According to one DHS official, “We are on pace to encounter more individuals on the southwest border than we have in the last 20 years.” Border agents have been turning away most adults and families based on a Trump-era public health rule. But unaccompanied minors are being admitted, and the Biden Administration is ramping up efforts to accommodate them.

The border situation represents three different crises. First is the crisis of violence and poverty in Central America and Mexico, which is pushing people to flee those countries.

Second, is the border “crisis” itself. I put crisis in quotes, since the influx of migrants is very manageable. Last month, for example, about 9,500 unaccompanied minors arrived at the border. Our country has the resources to humanely process this many young people. Indeed, when compared with historic trends, the overall number of arrivals during the last decade is significantly lower than what we’ve seen in the 1980s and 1990s. And so if there is a crisis at the Southern border, it is more about our willingness to deal with the influx, rather than our capacity.

The third crisis–and the one I want to discuss here–is the political crisis. New polling from Populace illustrates the crux of the problem: There is a sharp partisan divide on the issue of immigration. Trump voters rank “severely restricting immigration” as the #3 most important issue facing America. In contrast, Biden voters rank this as the #46 most important issue (out of 55 issues surveyed). For the question of whether America “is open to immigration,” Trump voters rank this as # 52 and Biden voters rank it as # 27. In short, Trump voters have strongly negative feelings about immigration, while Biden voters have moderately positive views towards immigration. There are a few lessons we can draw from this survey. (more…)

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The Other Family Separation Crisis

by Jason Dzubow

Under President Trump, the Department of Homeland Security engaged in a systematic campaign to separate families at the United States-Mexico border. The victims of that policy are still grappling with its traumatic effects. But the Trump Administration’s cruel approach towards migrants is not the only example of family separation that continues to affect people in the U.S. immigration system.

Hundreds of thousands of asylum seekers have fled their home countries and come to the United States for protection. These include democracy activists, journalists, religious minorities, women’s rights advocates, sexual minorities, and interpreters who served with U.S. troops.

In many cases, these people have been forced to leave family members behind, often in difficult and dangerous conditions. If they are granted asylum, applicants can file to bring their immediate relatives–spouse and minor children–to the United States. However, the process is very lengthy. Many applicants wait five, six or more years for a decision in their case. For those who finally receive asylum, the process of bringing family members to the U.S. can take another one to two years. Because of all these delays, most asylum seekers can expect to be separated from their loved ones for the better part of a decade. (more…)

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To Solve the Border Crises, We Need to Decide Who Qualifies for Asylum

by Jason Dzubow

It’s less than two months since President Biden took office, and already it seems we are facing a new surge of arrivals at our Southern border. The increase is being attributed to the continuing dire conditions in Mexico and Central America, Mr. Biden’s promise to treat asylum seekers humanely, and pent up demand among migrants who were deterred by the Trump Administration’s harsh policies. Republican strategists are (predictably) teeing up Latin American migration as a “wedge issue” for the 2022 midterm elections, and so the situation at the border is not only a humanitarian crisis, but also a political crisis.

To address the problem, Mr. Biden is sending more resources to the border, expanding shelter capacity, and continuing a policy of the Trump Administration to turn away most adults and families based on the public health emergency (under Title 42 of the U.S. Code). His Administration is also trying to encourage would-be migrants to stay home. It seems pretty obvious that none of these measures will end the crisis. So what can be done? (more…)

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What Asylum Seekers and Their Lawyers Need from President Biden: Predictability

by Jason Dzubow

Just before Christmas 2020 and without any advance warning, the Trump Administration changed the deadline for submitting documents to Immigration Court. Previously, documents were due 15 days before the Individual Hearing. The new rule requires that documents now be submitted 30 days before the Individual Hearing. For busy lawyers, who have many cases and many different deadlines, this was equivalent to throwing a wrench into the gears of the immigration machine. Changing a deadline like this has a ripple effect, and–more than two months later–we are still adjusting to the new rule.

Of course, this was not the first (or worst) effort by the prior Administration to sabotage the immigration system, but it does illustrate how a small procedural change can have an outsized impact: When a lawyer is struggling to adjust to a new rule, it affects the lawyer’s ability to do his best work, and this in turn has potential negative consequences for a client’s case. (more…)

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