The U.S. Citizenship Act of 2021 and Asylum

by Jason Dzubow

The U.S. Citizenship Act of 2021 is finally here. It was unveiled last week by Senator Bob Menendez and Representative Linda Sanchez. The bill is very ambitious in scope, and aims to legalize about 11 million people, including “undocumented” immigrants, Dreamers, and people with Temporary Protected Status.

The odds-makers in the media seem to give the bill little chance of passing through the Senate, which requires at least ten Republicans to join with all the Democrats and Independents in order to overcome a filibuster. Some Senators (notably Lindsey Graham) have signaled a potential willingness to support a smaller bill–maybe one that would legalize Dreamers (also known as beneficiaries of DACA). This dilemma–which proponents of immigration reform have faced for decades–is nothing new: Go big and have more trouble passing a bill, or go small and help fewer people. We will have to see how things go, and certainly immigrant advocates need to be lobbying for a more comprehensive bill.

The bill itself is over 350 pages long and covers many different aspects of immigration. In this post, I will focus on a few points that directly affect asylum seekers. You can find basic summaries of the entire bill at Vox and Wikipedia, and a more comprehensive summary from blogger extraordinaire Greg Siskind. Here, though, we’ll stick to discussing only those provisions that relate most directly to asylum seekers. (more…)

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Torture Survivors Seeking Asylum Must be a Priority in Immigration Overhaul

by Jason Dzubow

This post is by Andrea Barron, the Advocacy Program Manager at the Torture Abolition and Survivors Support Coalition (TASSC International), based in Washington, DC.

President Biden has sent Congress a sweeping immigration bill that embraces America’s commitment to immigrants, a commitment the Trump Administration tried to destroy. The legislation outlines a pathway to citizenship for 11 million undocumented individuals and provides $4 billion to Central American countries to reduce the violence and poverty that push so many to emigrate. It also increases the number of judges in immigration courts. These are welcome proposals.

But the bill promises little to torture survivors and other affirmative asylum seekers. It fails to address a hidden asylum crisis in our country, a crisis not as visible as the migrants being detained by Immigration and Customs Enforcement (ICE). Many torture survivors and thousands of other affirmative asylum seekers have been waiting four, five, and even six years to have their cases heard in the Asylum Office, a division of the U.S. Citizenship and Immigration Services (USCIS). (more…)

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President Biden’s Immigration Bill

by Jason Dzubow

As you’ve probably heard, President Biden has proposed a comprehensive immigration reform bill, called the U.S. Citizenship Act of 2021. What does this proposal mean for asylum seekers? Who is included? When–if ever–will it go into effect? We’ll discuss those questions here. Spoiler alert: The answer to each question is “I don’t know.”

The first thing to know is that the bill is not yet public. All we have is a summary. Assuming the Biden Administration is being truthful (and I’m willing to grant them the benefit of the doubt, at least for Mr. Biden’s first week in office), a bill was sent to Congress on day one of the new Administration. Only a select few Congress people have the text of the bill, including New Jersey Senator Bob Menendez, who plans to introduce the bill in the Senate. Eventually. (more…)

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Teshuvah and the New Administration

by Jason Dzubow

There’s a concept in Judaism known as “teshuvah,” which means “returning.” The term implies a return to righteousness, and repenting for past sins. In Judaism, when we think of teshuvah during Rosh HaShana (the New Year) and Yom Kippur (the Day of Atonement), we think in terms of collective sin: We ask G-d to forgive us for the sins “we” committed, even if we did not personally commit those sins. We also pledge to right wrongs, even where we did not personally engage in wrongdoing. This is what I am thinking about as we inaugurate the Biden-Harris Administration after four years of President Trump.

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Fixing Asylum Part 4: Immigration Court

by Jason Dzubow

There are currently over 1.2 million cases pending before our nation’s Immigration Courts (how many of these cases involve asylum, we do not know). The average wait time for a case is 849 days. What has caused this large backlog, and what can be done to alleviate the long waits in Immigration Court?

There are a number of reasons for the Immigration Court backlog. As with the Asylum Office, the basic reason is that there are too many cases and not enough Immigration Judges (“IJs”) and support staff. But a significant aggravating factor is what Judge Schmidt calls “aimless docket reshuffling” or ADR, which he defines as “arbitrarily or maliciously moving cases around without actually deciding them.” In other words, different Administrations have different priorities, and when Administrations change (or change their priorities), cases get moved around in ways that do not result in their completion, but do result in significant delay. The Obama Administration was responsible for its share of ADR, but the Trump Administration–with its decision to make every case a priority–has turned ADR into high art. Other aggravating factors include increased resources for enforcement without a commensurate increase for the Immigration Courts and a significant influx of asylum seekers from Central America that began in about 2012. One last factor is EOIR leadership (EOIR is the Executive Office for Immigration Review – the agency that oversees the Immigration Courts), which under the Trump Administration has been composed of partisan loyalists who lack the competencies needed to run a large organization.

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Fixing Asylum Part 3: The Asylum Office

by Jason Dzubow

According to the most recent data, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications [about 348,691 cases] are awaiting an interview by an asylum officer.” The remaining cases–approximately 22,257–have been interviewed and are waiting for a decision.

In terms of resources, the most recent information I could find is from May 2019. At that time, there were 763 Asylum Officers and 148 supervisory officers. While the majority of these staff members was devoted to interviewing affirmative asylum seekers, “over 200 officers” were assigned to conduct credible fear interviews at the border (a credible fear interview or CFI is an initial evaluation of asylum eligibility). Assuming everything remains the same (meaning that there are about 563 officers available for affirmative cases) and assuming each officer conducts eight interviews per week, it would take about 15 months to get through the entire backlog–if no new cases enter the system.

Realistically, though, new cases are continuously being filed, Asylum Officers probably can’t adjudicate eight cases per week for 52 weeks a year, and–given the mess at the Southern border and President Elect Biden’s plan to send more resources to that region–it is likely that many more than 200 officers will be assigned to CFIs (which will make them unavailable for “regular” affirmative asylum interviews). In short, even if the pandemic magically disappears, it seems unlikely that we can get through the backlog anytime soon. We are today facing the same problem that has dogged the asylum system since at least 2013: There are too many cases and not enough officers.

So what can be done?

Hire More Officers: One obvious solution is to hire more Asylum Officers. While the President Elect has not indicated whether or not he would hire more AOs, he has set forth an ambitious humanitarian agenda for the U.S.-Mexico border, and it seems impossible that he could fulfill that goal without hiring many more Asylum Officers. Of course, this would cost money, and it is unclear whether USCIS has the means to pay for more officers or whether Congress would be willing to increase the agency’s budget.

Even if there is no additional money available, there are steps Mr. Biden can take to improve the asylum system.  

More Efficient Scheduling and Shorter Interviews: The data I found (pre-pandemic) shows that roughly 8% of asylum applicants are “no shows” for their interviews and another 15% cancel their interviews (what percentage of these are rescheduled, I do not know). This makes sense, given the long gap between filing for asylum and attending an interview: People leave the U.S. or find other ways to obtain status here; others fail to update their address and so never receive notice of the interview. To mitigate this problem, Asylum Offices schedule more interviews than they have the capacity to conduct, with the expectation that some applicants will not appear. This seems to me a huge waste of energy. Why not call applicants a few weeks in advance to determine whether they intend to appear for their interview? This should be done after the interview notice is mailed out, and that notice should indicate that the applicant will receive a call from the Asylum Office. Applicants who fail to respond to the phone call can be rescheduled and sent a warning letter by mail. Those who still do not respond can then be referred directly to Immigration Court. Where possible, the calls and notices should be in the applicant’s native language.

There are other benefits to calling applicants prior to the interview: They can be reminded to submit all evidence in advance, and can be queried about what language they will speak at the interview. They can also be told to review the I-589 form and determine in advance what updates and corrections are needed. Better yet, the asylum interview notice can include a form to update the I-589, which is often submitted years before the interview. While not all applicants will be able to complete such a form on their own, many can, and this will save significant time at the interview.

Another way to save time at the interview would be to include a copy of the “bar” questions along with the interview notice. The “bar” questions determine whether a person is barred from receiving asylum (because they are criminals or terrorists, for example). Why not require applicants to review these questions ahead of time, and then certify at the interview that they read and understood each question? Most people will answer “no” to all the bar questions, and if the officer has specific concerns, she can raise those at the interview. Also, while we’re on the subject of bar questions, why do the officers need to ask these questions to children? I’ve seen officers question dependent children as young as three or four years old about whether they are terrorists. It’s just plain silly (though it can be entertaining). We would save a lot of time and trouble if parents could answer these questions for their minor children, or at least for children under a certain age–say 14 or 15.

LIFO vs. FIFO: Another issue related to scheduling is The Great LIFO-FIFO Debate–whether cases should be interviewed in the order received (first-in, first-out or FIFO) or whether the newest cases should receive priority (last-in, first-out or LIFO). All Asylum Offices are currently operating under the LIFO system. The logic is that interviewing new cases first will deter fraudulent asylum seekers, since they won’t be guaranteed a years-long wait for their interview (during which time they can live and work in the U.S.). The Asylum Division believes LIFO is working, as there was a 30% drop in new filings after it was implemented. However, I hope they will revisit this finding. My sense is that any decrease in filings was unrelated to the LIFO policy and instead came about for other reasons, such as fewer people arriving in the U.S. due to stricter visa requirements.

Also, from the perspective of asylum seekers, LIFO is very unfair. Old cases are given the lowest priority, meaning many people will (seemingly) never get to the front of the line. These applicants are facing severe hardships, including separation from family and endless uncertainty. At a minimum, a certain percentage of officers should be assigned to work on backlog cases, starting with the oldest. Better yet, we should return to FIFO and the Asylum Office Scheduling Bulletin, so we will have a more orderly and predictable process for scheduling interviews.

Create Rules for Expediting: One final point about scheduling interviews: We need a more formal system for expediting cases. Currently, it is possible to expedite, but there really are no rules about who is eligible to expedite or about what constitutes a valid reason to expedite. The predictable result is that many people try to expedite, which wastes Asylum Office staff time and also makes it more difficult for the most needy people to expedite their cases. There should be a national policy with publicized criteria about who is eligible for expedition. In my person opinion, the first priority should be people who are separated from their family members, especially minor children. For me, a distant second is a person with a documented mental or physical health issue. Until the Asylum Offices can expedite all the people in these two categories, I see no reason to allow for any other category of applicant to request expedited processing.

Premium Processing: A more radical idea to address the backlog–and one that I’ve been pushing for a while now–is premium processing for asylum seekers. Premium processing already exists for several USCIS forms, and allows an applicant to pay an additional fee (currently between $1,500 and $2,500) for faster processing of her case. Affirmative asylum seekers–in contrast to refugees–have paid their own way to the United States, and so presumably, many of them could afford an additional fee for premium processing. Also, while the idea of asylum seekers paying for their cases may seem unpalatable, the Trump Administration has already implemented a non-waivable $50 fee for all asylum applicants (as of now, that fee has been blocked by a federal court), and so the taboo of paying for humanitarian protection has already been broken. Thus, as I see it, there is no valid objection to implementing premium processing for asylum seekers, and–given the overwhelming humanitarian need–it is a solution whose time has come.

How would premium processing help? For those who pay, their cases would be interviewed more quickly. How quickly, I do not know, but premium processing for other USCIS forms is currently 15 days. I doubt that time frame would be realistic for an asylum case, but perhaps 60 or 90 days would be achievable. Even those who cannot pay would benefit, as the infusion of money into the system would benefit all applicants. An added benefit from the government’s viewpoint would be that faster processing would–if we accept the LIFO logic–help discourage fraudulent applications. So premium processing is a win all around: For the applicants who pay, for those who do not pay, and for the U.S. government.

Eliminate the Asylum Office: A final idea–perhaps the most radical of all–is to eliminate the Asylum Office altogether, at least for most cases. Under the current system, an applicant files an asylum case, and if he loses, his case is usually referred to Immigration Court where an Immigration Judge reviews the case de novo and issues a brand new decision. As an advocate, I am grateful for a second chance to present my clients’ cases. But in terms of “the system,” this type of redundancy is not very efficient. One solution might be to shift all asylum cases where the applicant is out-of-status to the Immigration Court. Or maybe just leave vulnerable applicants–such as minors–at the Asylum Office. While this idea has been floating around for years, it is still unclear whether it would result in more or less efficiency. In any event, given the current mess, nothing should be off the table, and the idea of (mostly) eliminating the Asylum Office might warrant further study.

For the sake of asylum seekers and their families, and for the integrity of our humanitarian immigration system, we need major changes to the affirmative asylum system. Perhaps some of these ideas can contribute to that effort.

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Fixing Asylum Part 2: USCIS Forms

by Jason Dzubow

Here’s a point that should be self-evidence, but isn’t: Bureaucracy exists to facilitate the implementation of the law. Congress passes a law, and then government agencies create a system of policies and procedures to put that law into effect. In principle, this system should be easy to use and efficient, and should allow people to obtain the benefits to which they are entitled. In other words, it should be the exact opposite of what we have with the USCIS.

There are many problems with the agency that adjudicates immigration benefits (including asylum), but here, I want to focus on one particular area of concern: USCIS forms. USCIS forms are poorly designed, confusing, inconsistent, culturally insensitive, and inefficient. Here, we’ll discuss these problems in a bit more detail, and I will make some suggestions for improvement.

Let’s start with the most basic question on every USCIS form–the applicant’s name. Almost every form has boxes for an applicant’s first, middle, and last name. The problem is that naming convention vary widely, depending on where you are from. Many cultures do not have a first-middle-last name format, and so the USCIS question does not make much sense. One solution might be to ask the question in a more specific way: “Write your name as it appears on your passport.” Of course, not everyone has a passport, so maybe a second question can ask: “Write your name as it appears on your birth certificate or other government-issued identity document.” In addition to these iterations, the name question would also need to ask about “all other names used” (as many USCIS forms currently do). The confusion surrounding this very basic question–What is your name?–illustrates the difficultly of creating one-size-fits-all forms.

Form a forum for reforming forms.

Another problem arises with regard to addresses and places of employment. One issue here is that address formats vary widely by country, and the forms generally only allow for addresses in the format that we use in the United States. Another issue is that different forms request address and employment histories in different ways. So for example, the I-589 form (application for asylum) allows you to list one address or one job per line, so that your address and job histories fit onto one page (with room to spare). The I-485 (application for permanent residency), by contrast, requires this information in a different format, so that less information takes up much more space. The N-400 (application for citizenship) requests the same information in a third format. Maybe this is a minor quibble, but the inconsistencies between the various forms is confusing, and it is not confined only to the applicant’s address and work histories.

One area where inter-form differences sometimes create problems is the issue of arrest history. Different forms ask about this in different ways. Sometimes, USCIS wants information about all arrests. Other times, they want only information about criminal arrests or convictions. In some questions, USCIS wants to know about arrests anywhere in the world; other times, they want only arrests that occurred in the United States. Indeed, if you look at the main forms a successful asylum applicant will complete over the course of their time with USCIS, there are probably dozens of questions about criminal activity, and those questions are inconsistent between forms, and–in many cases–confusing, even for someone trained in the law.

Speaking of confusing questions, if you look at the lists of questions on the I-485 and the N-400, you will see scores of yes/no questions about all sorts of activities. Some of these questions are not amenable to a yes-or-no answer. Others (many others) are poorly written and difficult to understand. In many cases, the two forms ask similar questions using different language. All this can easily trip up an applicant and can lead to unintentional inconsistencies where there really are none.

Another problem is the large number of yes-or-no questions on many forms (the I-485, for example, has over 100 yes/no questions). These questions relate to everything from criminal and immigration violations, to national security, to persecution of others, to membership in totalitarian political parties, to prostitution and illegal gambling. Most people check almost all the boxes “no,” but periodically, they may need to check “yes.” Given the vast number of questions, the fact that almost all are “no,” and the fact that many of the questions are confusing, it is easy to slip up and miss a “yes” answer. This can lead to big trouble, including having your application denied.

These examples represent just a few of the problems with USCIS forms, and every immigration lawyer can cite many more. The short answer is that all USCIS forms need a major overhaul. This should be done with an eye towards making the forms shorter (the I-485 and the N-400 are each 20 pages long). The forms should be made consistent with each other in terms of format and the substance of questions asked. They should accommodate different naming and address conventions.

Also, USCIS needs to do something about the overwhelming number of yes/no questions. There are too many questions, many are difficult to understand or redundant (or both), and many are irrelevant (do we really need three questions about Nazi activity between 1933 and 1945?). The number of questions should be reduced and the questions themselves should be simplified so that you don’t need a law degree to understand what the heck USCIS is asking about.

One final point on forms: Why are we still printing forms and mailing paper copies to the agency (to a plethora of different mailing addresses)? A limited number of forms can be filed online, and USCIS should expand e-filing, so that all forms and evidence can be filed online. E-filing would also solve the problem of USCIS rejecting forms for simple mistakes or for not writing “N/A” in every empty box. 

To reform its forms, USCIS needs help. It needs to hear from immigration advocates, immigrants, and other stakeholders. Forms should be more understandable and more able to accommodate cultural differences. Questions should be standardized across different forms, and the format of the forms should be made more consistent. All forms should be available for online filing. 

Improving USCIS forms is long overdue. Fixing the forms will make USCIS more efficient, and will ultimately save everyone time, trouble, and money. The purpose of USCIS forms is to facilitate the application process and to help USCIS determine who is–and is not–eligible for an immigration benefit. More efficient forms will help move USCIS towards these goals.

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USCIS Receipt Delays – An Update

by Jason Dzubow

If you’ve filed an application or petition with USCIS lately, you’ve probably noticed that receipts have been substantially delayed. Many people are waiting six, seven, eight weeks or more for receipts. Below is an announcement from USCIS about the delays at their Lockbox facilities, along with some tips about filing. Hopefully, once we have new leadership at the agency, we will start to see some improvement. Also, of course, if we turn the corner on the pandemic, that should help as well. Anyway, below is the USCIS announcement, and I have added relevant links, for your enjoyment–

USCIS Updates: USCIS Lockbox

The USCIS lockbox facilities have received a significant increase in filings in recent weeks. This increase, along with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic, is causing significant delays for processing receipt notices. We continue to work to minimize delays. Once we process your submission, we will review your package.

Your USCIS receipt will arrive. Eventually…

If you properly filed your form, we will send a receipt notice to the mailing address provided on your form, normally within 30 days. If your submission is incomplete or improperly filed, we will reject it per current procedures.

You can take steps to decrease the time it takes us to process and send your receipt notice or find out the status of your case:

· File online (if this option is available for your form type) and receive immediate confirmation that we have received your form instead of waiting for the mail;

· Create a free USCIS online account and check the status of your case from your mobile device, anywhere, anytime using our case status online tool; or

· Complete Form G-1145, E-Notification of Application/Petition Acceptance, and clip it to the front of your form to request a text message and/or email when we accept your form.

We also encourage you to follow the tips below when submitting evidence with your application package:

· Review the form instructions and checklist of required initial evidence on the form webpage (if this option is available for your form);

· Submit single-sided photocopies of requested documents, unless the form instructions specifically state you must submit an original document;

· With the exception of passport photos, please copy photographs to an 8.5”x11” sheet of paper instead of sending originals. Always send in original passport photos where requested;

· Submit only the required evidence and supporting documentation listed in the form instructions. If we need additional information, we will request it from you; and

· If you cannot provide the required primary evidence when filing a form, review the form instructions for appropriate secondary evidence.

For more information about USCIS filing tips, please visit our Form Filing Tips webpage.

Here’s a couple bonus tips from me (Jason – not USCIS). Sign up for informed delivery with the U.S. post office. With this service, you will get an email with photos of all the mail that is coming to your house. That way, if USCIS sends something important (and I suppose most USCIS mail is important), you will know in advance to expect it. Also, when you send your application to USCIS, send it by certified mail (we generally use flat rate mail through the U.S. postal service, which costs $7.75), so you will be able to track whether it was received. Finally, if you have to pay a fee, use a personal check, if possible. That way, you will know when the check is cashed and if you get a copy of the check from your bank, it should have the USCIS receipt number stamped onto it.

Hopefully, we will soon have a new Administration that will do a better job managing USCIS. Regardless of that, the more you can do to track and monitor your applications, the better.

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Attention Asylum Seekers! File Your Case Before January 11, 2021

by Jason Dzubow

This post is by Lindsay M. Harris, asylum attorney extraordinaire–

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the general public and immigrant advocates submitted close to 90,000 public comments. After receiving the comments, the government changed some of the proposed rules (slightly), but the new rules are set to go into effect on January 11, 2021.

There will likely be legal challenges (lawsuits) to try to stop these regulations from going into effect. But, it’s always hard to tell what will happen. For that reason, if you plan to file for asylum, it is best to do so before January 11, when the new rules go into effect.

President Trump’s parting gift to the asylum system.

One of the changes made between July 15, 2020 (the proposed rule) and December 2020 (the final rule) is that the new rules will not be retroactive. This means that they will not apply to anyone who has filed their I-589 application for asylum before January 11, 2021. The government has stated that the new rules will apply now, despite any legal challenges to any sections that the government views as simply codifying existing case law–

Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases, independent of the prospective application of the rule. Accordingly, the statutory authority and case law incorporated into the rule, as reflected in both the [notice of proposed rulemaking] and the final rule, would continue to apply if the rule itself does not go into effect as scheduled.

Regardless of retroactivity issues, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially true for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the United States.

If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out, and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021.

If you are an asylum seeker in need of assistance, please contact Lindsay.Harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

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Fixing Asylum Part 1: Politics

by Jason Dzubow

The President and his allies are doing everything in their power to subvert the result of last month’s election. So far, their efforts have not changed the outcome, but we are still in a very dangerous place. Hopefully, the system and our country will withstand this unprecedented assault on democracy and the rule of law. If so, and if Joe Biden assumes office in January, he will face a number of daunting challenges: The pandemic and healthcare, the economy, climate change, divisiveness and decaying faith in democracy, racial justice, and immigration reform, to name the most obvious. How much attention immigration–and specifically asylum–will receive in this mix remains to be seen.

Prior to the election, the Democratic Party and the Biden campaign set forth their proposals for immigration reform, which are quite sweeping. Many of Mr. Biden’s ideas can only be enacted with the cooperation of Congress. Others could be put into effect without Congressional action, just as President Trump implemented his immigration agenda through agency rulemaking and executive orders.

A minority of the immigration policy changes proposed by Mr. Biden relate specifically to asylum, and most of these concern asylum seekers at the Southern border. This is not surprising, as the border is a disaster, but my concern is that applicants at the Asylum Office and in Immigration Court–which together represent close to two million people–will be overlooked.

Kudos for Biden; Coup Don’ts for Trump.

In this series of posts, I hope to set forth my ideas for reforming and improving our nation’s asylum system.

Before we discuss substance, however, I want to talk politics, since any reform will take place in the context of the current political crisis where, even in the best case, millions of Americans will view Mr. Biden’s Administration as illegitimate and where many Republican leaders will be vying to outdo each other in obstructing the new President’s agenda. The divisive political climate will potentially limit Mr. Biden’s ability to make changes, and in turn, any changes he manages to implement could lead to further division. This begs the question: Should the new Administration follow the Trump game plan, and do all within its power to achieve its goals? Or is it better to focus on areas of bipartisan agreement (if any can be found)?

I’m of two minds about this dilemma. On the one hand, non-citizens in our country have been treated unfairly and cruelly. They have been lied about (and to), terrorized, exploited, and in many cases, forced to wait for years for status to which they are legally entitled. Also, when President Obama tried to take a middle road on immigration (remember when he was referred to as the “Deporter-in-Chief”?), it did nothing to move the other side towards compromise. Perhaps that’s because there is a stark partisan divide over illegal immigration: Only 23% of Democrats view it as a “big problem,” while 67% of Republicans see it that way. So if compromise is impossible, maybe the Biden Administration’s better approach is to implement whatever reforms it can manage regardless of the political consequences.

On the other hand, what is most needed now is to try to heal the divisions in our nation. Pushing through partisan immigration reforms (legislatively or administratively) will likely exacerbate the divide. Further, if President Biden overplays his hand on immigration, it could result in a backlash that advantages Republicans and other immigration restrictionists. Of course, the same predicament exists for other issues–like climate change–and the idea of waiting for a broader consensus when action is needed imminently makes little sense. Immigrants and asylum seekers urgently need relief and protection. So while ideally I believe it would be best to reach out to moderate Republicans and to continue working to educate the public about immigration, I also believe that we need to start enacting changes immediately.

That said, I think the Biden Administration needs to move with caution. Some immigration issues–such as DACA and (surprisingly) refugee resettlement–have broader bipartisan support than others, such as border security and deporting people who are here illegally. Certainly, the new Administration can focus on areas where it will encounter less resistance and face fewer negative repercussions.

The proposals I will make in this series fall, I think, on the more bipartisan side of the spectrum. I plan to discuss ideas for improving efficiency and fairness at the Asylum Office, the Immigration Court, and at USCIS.

In contrast to Mr. Biden’s pre-election policy agenda, my focus in this series will not be the Southern border. Protecting asylum seekers at the border is a more divisive issue than most other areas of immigration law, and I believe that advocates and policy-makers need to lay a political foundation before enacting successful change there. I’ve written about this in more detail before, but unless we build a more bipartisan consensus about who is eligible for asylum, we risk a severe backlash by easing restrictions at the Southern border. Indeed, one could argue that President Trump was elected largely as a reaction against perceived porous borders.

While the politics of border reform is a crucial concern, the situation along the U.S.-Mexico border is clearly untenable–people are dying and something needs to be done. How the Biden Administration will navigate that political minefield, I do not know, but I worry that the political capital required for improving conditions at the border will make it more difficult to enact needed changes in other, less politically-charged regions of the immigration system, such as USCIS, the Asylum Office, and the Immigration Court. In any event, those three areas will be the subject of the next several posts on this blog.

President Trump’s (hoped for) departure will open up some space to improve the situation for non-citizens: By reversing many of his Administration’s damaging immigration policies, but also–hopefully–by bringing long-needed improvements to the immigration system. The trick will be to balance that change with the current political realities, to minimize the inevitable counter-reaction, and to avoid doing further damage to the cohesion of our nation. 

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U.S. Citizenship for Asylees

by Jason Dzubow

The final step in the asylum journey is U.S. citizenship. When an asylee applies for citizenship, there are some unique issues to be aware of, and we’ll discuss those here.

First, let’s talk about the time frame. If you are a regular reader of this blog, you probably already know that the wait time for an asylum case is unpredictable. Some (lucky few) people file a case and complete it within a few months, but the large majority of asylum applicants wait years for a decision. If you win your asylum case at the Asylum Office or in Immigration Court, you have asylum status, and are eligible to file for your Green Card after one year of physical presence in the U.S. This means that if you leave the United States during this period, you have to wait additional time to apply for the Green Card. For example, if you leave the country for two weeks, you have to wait one year and two weeks from the date you received asylum before you are eligible to apply for a Green Card.

The time frame to process a Green Card is also unpredictable. If you check the USCIS processing times, you will see that wait times range from under one year to over 3½ years. In my practice, most asylees seem to get their Green Cards in one or two years. When an asylee receives a Green Card, the card is back-dated one year. Meaning, if you receive your Green Card on December 1, 2020, the card will indicate that you have been a lawful permanent resident (a Green Card holder) since December 1, 2019. Most people will be eligible to file for citizenship five years after the date listed on the Green Card (so in this example, December 1, 2024). And in fact, you are allowed to mail the citizenship form (the N-400) up to 90 days before the five-year anniversary (in our example, this would be about September 2, 2024). That said, if you leave the United States for significant periods of time, or for any one trip of six months or more, or if you’ve recently moved to a new state, you might have to wait longer than five years to apply for citizenship.

If you apply for asylum now, you should be a U.S. citizen by the time Barron Trump runs for President.

Processing times for the N-400 are also all over the map, but most offices seem to complete their cases between six months and two years after filing. So overall, from filing for asylum to becoming a U.S. citizen, most applicants are looking at a wait time of between eight and 13 years.

Now let’s talk about some of the challenges asylum seekers face on the path to becoming U.S. citizens.

First is the Green Card form, the I-485, itself. The problem here is that this form contains dozens of questions, many of which are quite confusing. Mistakes on this form can lead to issues during the naturalization process. I’ve written previously about some of the pitfalls on the I-485. The problem is compounded by the fact that most principal asylees are not interviewed during the Green Card process, and so a USCIS officer never asks you to clarify or correct your answers on the I-485 (dependent asylees are supposed to all be interviewed during the Green Card process, but this does not always happen). Thus, if you make a mistake on the I-485, or if your answers between the I-589 (the asylum form) and the I-485 are inconsistent, this could cause problems at the naturalization stage, and could even cause USCIS to deny your application for citizenship.

The best way to protect yourself here is to make sure that the I-485, the I-589, and any other forms or visa applications you submitted are consistent–in terms of addresses, jobs, family members, membership in organizations, arrests (including political arrests), lies to the U.S. government (including when you applied for a visa), etc. If there are inconsistencies, you should explain those on the I-485 supplement page or in the cover letter. Also, make sure to keep a copy of all the forms and documents you submit to USCIS, so you will have those when you prepare for naturalization. If you do not have copies of your forms and documents, you can obtain them from the government through a Freedom of Information Act request.

A second challenge is the N-400, the naturalization form. This form also contains dozens of confusing questions, and the answers must be consistent with the answers you gave on your prior applications (forms I-589 and I-485). If not, you should explain the inconsistencies. During the naturalization process, USCIS looks closely at your entire history, and so issues that may have been overlooked during the I-485 process (where most people do not receive an interview) often come to light after the N-400 is filed.

One question that sometimes causes problems on the N-400 is whether you have ever given false or misleading information to the U.S. government. Say, for example, you listed your membership in a church on your I-589, but forgot to list that membership on the I-485. USCIS could–and I have seen this–accuse you of lying on the forms, since there is an inconsistency between the I-589 and the I-485, and you failed to mention this “misrepresentation” in response to the question on form N-400. The best way to avoid a problem is to be sure that all your forms are consistent, but if you do make a mistake, you can explain what happened and hopefully overcome the problem (in my experience, when you explain the inconsistencies, USCIS will generally approve the application).

Another challenge is the naturalization interview. Sometimes, asylees are asked about their asylum case during this interview. Of course, by the time you naturalize, many years may have passed since the events of your asylum case, and so you may not remember all the details. For this reason, it is a good idea to review your asylum case prior to the naturalization interview. Also, if you are asked a question and do not remember the answer, it is better to say that you do not know, rather than to guess and risk making an inconsistent statement. For the most part, officers rarely ask detailed questions about the old asylum case, but they could, and so you should prepare accordingly.

Finally, if the N-400 is approved, you will be scheduled for an oath ceremony and sworn in as a United States citizen. The whole affair is a long and often stressful process, but once the asylum case is approved, there is far less uncertainty and it is mainly a question of navigating the bureaucracy. If you keep copies of all your forms and documents, and you are careful that each application is consistent with prior applications, you should have little trouble moving through the process and–finally–becoming a U.S. citizen.

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On Appeal at the BIA

by Jason Dzubow

If you lose your case in Immigration Court, you can appeal to the Board of Immigration Appeals (“BIA”). Conversely, if you win your case and the DHS attorney (the prosecutor) is unhappy with that outcome, DHS can appeal. Here, we’ll talk about what happens during an appeal to the BIA.

Once the Immigration Judge (“IJ”) makes a decision, the parties have 30 days to file an appeal to the BIA. The IJ should indicate on his decision when the appeal is due, meaning the appeal must be received by the BIA on or before the due date. Otherwise, the IJ’s decision is final and the case is over. Appeals are filed using Form EOIR-26. The fee is currently $110 (check to “United States Department of Justice”) or you can request a fee waiver.

The EOIR-26 is the notice of appeal. On the form, you must indicate the reason(s) why you are appealing. Here, you have to be specific, as indicated in the form instructions. If not, the BIA could dismiss your appeal on that basis alone. When I file an EOIR-26, I list the reasons for the appeal and I also note that we “reserve the right to raise additional arguments in our brief.” Next, you have to check a box indicating whether or not you want oral argument. The BIA rarely holds oral arguments (where the attorneys come before Board Members to discuss the case), and so whether you check yes or no probably doesn’t make much difference. But if you have a burning desire to present your case in person, check “yes” and maybe you’ll be invited to Falls Church for an oral argument. The EOIR-26 also requires you to indicate whether you will file a brief. A “brief” is a legal argument explaining why the IJ’s decision should be overturned. While you can file the brief and the Notice of Appeal together, it is more common to file the brief later on. Be aware that if you check “yes” to the brief, you will be required to file a brief, and if you fail to do so, your appeal will be dismissed.

BIA Board Members listen to a rare oral argument.

The EOIR-26 should be mailed to the BIA at the address specified in the instructions. Include with the appeal a copy of the IJ’s decision. If you have a lawyer, the lawyer should include an EOIR-27, appearance of counsel form. You have to send a copy of the entire packet to the DHS attorney’s office (the office of the “prosecutor” who litigated your case before the IJ). You can find their address here.

After the EOIR-26 is filed, you will receive a receipt. You are allowed to remain in the United States while the appeal is pending. You can also renew your Employment Authorization Document (“EAD”) while the appeal is pending.

If you indicated on the EOIR-26 that you plan to file a brief, the BIA will send a briefing schedule. How long it takes to get the briefing schedule is hard to predict. For a detained case, it may take a month or two, but for a non-detained case, it probably takes anywhere from six to 18 months. Along with the briefing schedule, you will receive a transcript of the Immigration Court case. This document contains all the discussions that took place at each appearance before the IJ. Depending on the case, it is usually very helpful to have the transcript, as oral statements made in court are often relevant to the argument you will make on appeal. For this reason, we do not submit a brief when we file the EOIR-26. We wait until we have the transcript and can then submit a more complete–and hopefully more convincing–argument.

Once the briefing schedule arrives, you have 21 days to file the brief (why they give so little time to write the brief, I do not know, but I complained about it here). You can ask for an additional 21 days, but you have to articulate a reason why you need more time.

The brief is the heart of the appeal. In it, you explain why the IJ erred and ask the BIA to overrule the court’s decision. You can see a sample brief here. 

Some types of IJ decisions are easier to overturn than others. If the judge denied your case based on credibility (in other words, because the IJ thinks you lied), the BIA will only overturn the decision if it is clearly erroneous. On the other hand, if the IJ found you credible, but determined that you did not meet the legal standard for asylum, the BIA reviews the decision “de novo,” meaning that the Board will make its own decision and will not defer to the reasoning of the IJ. Put another way, the standard of review for factual errors is high and for legal errors is lower, and so in general, it is easier to win an appeal where you are arguing that the IJ made an error in interpreting the law rather than an error assessing credibility.

All that said, it is difficult to win any appeal at the BIA. That has always been the case, but the situation got worse in 2019, when the Trump Administration elevated six Immigration Judges known for their high denial rates to the Board. As a result, the Board is even more unlikely to overturn an IJ’s negative decision. Nevertheless, it can sometimes happen, and if you are not satisfied with the results in Immigration Court, you have the right to appeal. 

After you file the brief, the wait time for a decision is unpredictable. Cases where the non-citizen is detained are faster–maybe another one to three months (on top of the time you already waited before the briefing schedule was issued). Non-detained cases are much slower, and can take anywhere from six months to a year or more.

Finally, you will receive a decision. Typically, either the BIA dismisses the appeal, meaning that the IJ’s decision stands, or remands the case back to the judge to remedy any errors and correct the decision (and hopefully grant relief, but this is not guaranteed and varies by case).

If you do not like the BIA’s decision, you can file a petition for review to the federal appeals court with jurisdiction over your case. Filing such a petition does not stop ICE from deporting you, though you can (and should) ask the federal court to issue an order “staying” (preventing) your removal while the federal appeal is pending. Such cases are usually difficult to win, and they are procedurally complicated. You can learn more about litigating an immigration case in federal court here. From the federal appeals court, the next–and final–step is the United State Supreme Court. Very few cases reach that level, and so usually if the BIA is not the end of the road, the federal appeals court is.

Unfortunately, the entire immigration system is legally complex, and that is particularly true of BIA cases, where legal arguments may not be apparent to a non-lawyer. If you have a case before the Board, your best bet is to find a decent lawyer to help you. You can learn more about the whole process in the BIA Practice Manual. You may also be interested in the BIA Pro Bono Project, which matches attorneys with BIA cases (usually for noncitizens who are detained). Finally, there is this website, which helps non-represented applicants find a pro bono (free) lawyer. Despite all the difficulties, it is still possible to win at the BIA, and if you are not satisfied with the IJ’s decision, you can appeal and seek a better result.

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Book Review: My Trials by Judge Paul Grussendorf

by Jason Dzubow

Let’s take a break from the doom and gloom associated with the President’s ongoing effort to subvert our democracy and look at something a bit more cheery–A new edition of the book My Trials: Inside America’s Deportation Factories by Paul Grussendorf. Judge Grussendorf’s 35-year career has spanned the gamut in the asylum law field: Immigration attorney, clinical professor, Immigration Judge, Supervisory Asylum Officer, Refugee Officer. His book, styled a “legal memoir,” discusses his time as an advocate and adjudicator and gives an insider’s perspective on our nation’s very dysfunctional immigration system.

While this book is generally targeted at people in the profession, law students, and policy-makers, it would also be useful for asylum seekers themselves. In many respects, Immigration Judges, DHS attorneys (the “prosecutors” in Immigration Court), and Asylum Officers are an inscrutable bunch. What are they thinking about when they interact with applicants and make decisions? How do they relate to each other? What are their outside interests? Judge Grussendorf’s book shines a light on the world behind the façade, and somehow, seeing government adjudicators as human beings is comforting.

That said, the overall picture painted by Judge Grussendorf ain’t pretty. He lays bare an immigration system that is a mess, where many prosecutors are unyielding and out of control, families are ripped apart for no logical reason (other than arbitrary laws that require it), politicians intervene to deny due process and treat immigrants as tools in a partisan game, and where training for judges and DHS attorneys is completely inadequate. The Judge has particular scorn for those DHS attorneys who do not know the law or care about “doing justice,” but who instead simply seek to deport anyone who comes into their crosshairs.

One aspect of the book that held particular interest for me was Judge Grussendorf’s discussions of cases he denied when he was on the bench. Such cases help illustrate how most deportations do nothing to make our country safer or better. Instead, they result in families being separated and good, hard-working people being ripped from their homes. Our harsh and unforgiving immigration laws often prevent judges–including well-meaning judges like the author–from granting relief even when that is clearly the better outcome. Other times, the applicant simply does not qualify for relief. In such cases, Judge Grussendorf did as most judges do: He denied the case and went on with his daily business. On reflection, it is striking that a judge can order someone deported in the afternoon and then go for a pleasant jog in the evening, but that’s the job, and good Immigration Judges can separate their job from their life.

The new edition of My Trials is timely, in that it has come out when Joe Biden is (hopefully) about to take office. While the Democratic Platform laid out a bold agenda, it is unclear whether a President Biden would be able (given Congressional resistance) or willing (given Mr. Biden’s more cautious nature) to pursue that agenda. Judge Grussendorf weighs in with a number of his own ideas for reform–some will require Congressional action; others will not.

A page from My Trials, chosen completely at random.

One of his proposals that I found interesting was the idea of granting Mexico some type of most favored nation status and essentially legalizing all Mexicans in the United States (except for those with criminal issues). Given that so many Mexican nationals are currently in the Immigration Court system, if this group were legalized, it would go a long way toward relieving the overburdened courts.

Judge Grussendorf also proposes removing asylum cases from the court system and delegating them to “Special Hearing Officers,” which are essentially better trained and better paid Asylum Officers. This would allow asylum cases to be adjudicated in a non-adversarial manner while freeing up the Immigration Courts to deal with other types of removal cases and eliminating the current redundant situation where the same asylum case is heard by both an Asylum Officer and an Immigration Judge.

A final proposal that I’ll mention here is the Judge’s idea to greatly reduce the use of pre-trial detention in immigration cases. This proposal is not unique to Judge Grussendorf. However, his real-world experience adds weight to arguments that the practice is dramatically over-used and illogical, and helps illustrate how devastating incarceration is for the non-citizen and the non-citizen’s family (and on the non-citizen’s ability to prepare for his Immigration Court hearing).

I hope that Judge Grussendorf’s book–and particularly his policy proposals–get some attention as we try to reform our immigration system. It seems like too often in this debate we hear from policy advocates and politicians, but not from people who have worked in the trenches. We need voices like Judge Grussendorf’s as we hopefully enter an era where immigration reform is a possibility. 

My Trials sheds needed light on the absurd, cruel, dysfunctional, and unfair American asylum system. We are left with the impression that despite the systematic failures, justice in asylum cases is sometimes accomplished. When that happens, it is because individuals working within the system allow their humanity, decency, and respect for the rule of law to shine through and overcome the institutional barriers designed to prevent qualified applicants from receiving the protection they need and deserve. Judge Grussendorf is to be commended for his book, and for his effort to improve our nation’s asylum system.

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