The Democratic Party has released its 2020 Party Platform, which represents the Democrats’ aspirations for the next four years. Separately, the Biden/Harris campaign has released its immigration plan. Both plans contain concrete policy suggestions (as well as plenty of hyperbole), and here I want to discuss the points that relate directly to asylum.
Before we get to that, let’s briefly look at the most important points related to immigration generally, since these proposals would also affect asylum seekers. In terms of immigration, the Democratic Party Platform seeks to accomplish the following–
Stop work on the border wall
End the Muslim ban
Protect Dreamers and parents of U.S. citizen children
End the public charge rule (form I-944)
Provide a path to citizenship for undocumented migrants living in the U.S.
Reduce immigration backlogs
Make it easier for spouses and children of Green Card holders to come to the United States
End the 3/10 year bar
Expand protections for victims of human trafficking and sex trafficking
Provide stronger work-place protections for non-citizen and undocumented workers
End workplace and community raids
Re-instate prosecutorial discretion in immigration cases
Prioritize alternatives to detention and end the practice of holding non-citizens for long periods
Consider expanding TPS (Temporary Protected Status) for people from war-torn countries
In terms of enforcement, prioritize criminals and others who threaten our national security
Reform employment-based visas for immigrant and non-immigrant workers
Provide more support services for new immigrants, so they can better integrate into U.S. society
End the use of for-profit detention centers
Increase the number of refugees admitted into the country
The Democratic Party Platform stands for the radical notion that non-citizens are human beings.
The Platform also contains a number of proposals that relate more specifically to asylum–
End policies that make it more difficult for victims of gang violence and domestic violence to receive asylum
End the criminal prosecution of asylum seekers at the border and stop separating families
End policies designed to force asylum seekers to apply for protection in a “safe third country”
End the Migrant Protection Protocols (the “wait in Mexico” policy)
Send humanitarian resources to the border to deal with the migration crisis
Send more Asylum Officers to the border, and for asylum seekers who “pass” a credible fear interview, have an Asylum Officer–as opposed to an Immigration Judge–review the full case
Double the number of Immigration Judges, court staff, and interpreters
This is an ambitious agenda, and it is certainly more pro-immigrant than what we saw during the Obama Administration. Whether these goals can realistically be implemented, I do not know.
As for the proposals related to asylum, you can see that they are largely designed to reverse policies of the Trump Administration, and they mainly apply to migrants arriving at our Southern border. Mr. Trump’s policies have been abhorrent and ineffective (and not always legal), and so we obviously need to do something different at the border. The risk is that by deploying more resources to the border, the government will be unable to interview affirmative asylum seekers, thus further increasing the backlog. Also, if Mr. Biden’s policies encourage more migrants to come here, that could further strain the system and result in a political backlash.
In terms of changing the asylum law, Mr. Biden’s only substantive proposal is to reverse Trump-era restrictions on asylum for victims of domestic violence and criminal gangs. This is an important issue, since so many asylum seekers (especially from Central America) are fleeing these types of harm. Persecution by criminals and domestic partners has not traditionally been a basis for asylum eligibility. Over years of litigation, the scope of asylum protection has expanded to include LGBT individuals, victims of female genital mutilation, and to a lesser extent, victims of domestic and gang violence (under the rubric of “particular social group”). But since President Trump came into office, his Administration has been rolling back these gains, particularly with regard to persecution by criminal gangs and domestic partners. If Mr. Biden is elected and reverses this trend, more people would qualify for protection and lives will be saved, but this could also encourage more people to seek protection in our country.
To deal with this concern, Mr. Biden’s plan includes an effort to address the root causes of migration from Central America (violence, lawlessness, impunity, and poverty). Hopefully that would help improve the situation in those countries and mitigate the number of people seeking protection in the U.S. But in terms of our immigration system, more needs to be done.
Specifically, we need an honest national conversation about who should be eligible for asylum and how many asylum seekers we should admit. Unfortunately, in the current environment, this seems impossible. But until we can have such a conversation, and reach some semblance of a consensus, asylum will remain a political wedge issue and asylum seekers will continue suffering from backlogs and shifting eligibility standards. In the event that Joe Biden takes office in January, I hope that this conversation will be part of his agenda, and that he will work with Congress and the public to reach a sustainable solution for asylum seekers.
Overall, Mr. Biden’s asylum plans seem largely reactive–he wants to reverse the damage caused by the Trump Administration. But he is also advocating for a broad immigration reform, which would benefit many non-citizens, including many asylum seekers. Even if all he did was speak truthfully about migration and respect the law, Mr. Biden would be a vast improvement over what we have now. Let us all resolve to do what we can to help Mr. Biden succeed in November and beyond.
The U.S. immigration system is a disaster. Hundreds of thousands of applicants are stuck in limbo, many cases are arbitrarily denied, and due process protections have been reduced or eliminated. While it is still possible to win individual cases, the Trump Administration has done everything possible–legal and illegal–to block asylum seekers and immigrants, and to undermine the fair implementation of our nation’s immigration laws. With the immigration system under attack, the only way to protect individual immigrants is to defend that system. But how?
Over the last 3½ years, non-citizens and their advocates have done their best to defend the immigration system. Lawsuits have sought to mitigate the Muslim ban, “remain in Mexico,” the public charge rules, and so on. Advocacy work has had some successes as well–allowing foreign students to remain in the U.S. and reducing the number of children in cages. All of these efforts have been something of a rear-guard action–trying to keep the retreat from becoming a route.
Now, with the election approaching, there is a chance to achieve real change. If Joe Biden and the Democrats take the White House, we can expect an end to many of the most egregious attacks on non-citizens. No one has a bigger stake in this election than asylum seekers and other non-citizens. But of course, as non-citizens, you are not permitted to vote or donate money to Mr. Biden or the Democrats. But that doesn’t mean you can’t participate in the election campaign. Here, we’ll talk about what you, as a non-U.S. citizen, can and cannot do. Let’s start with the cannots.
Before they can help us, we have to help them.
You cannot vote. It is illegal for anyone but a U.S. citizen to vote in a federal election. Non-citizens who vote can face fines, jail time, and deportation.
A “foreign national” cannot contribute money to a campaign, even if that contribution is indirect (for example, through a political action committee). “Foreign national” is defined as an “individual who is not a citizen of the United States… and who is not lawfully admitted for permanent residence.” Thus, if you are a non-citizen, but you have a Green Card, you are permitted to donate money to a political campaign. Note that if you have applied for a Green Card or asylum or any other immigration benefit, and you have not yet received that benefit, you cannot legally contribute money to a campaign. Even if you have an Employment Authorization Document (“EAD”), you are not eligible to make a contribution.
Also, foreign nationals cannot make “decisions concerning the administration of any political committee,” meaning basically that you cannot take a leadership or decision-making role in a campaign or an organization supporting a campaign or candidate.
Finally, foreign nationals cannot work for a candidate and receive compensation from anyone.
So much for the cannots. Now let’s look at what a non-citizen can do to help during the upcoming election.
The main thing you can do to participate in the election is to volunteer with a candidate. The Federal Election Commission (“FEC”) website provides guidance for foreign nationals who wish to volunteer during an election–
Generally, an individual (including a foreign national) may volunteer personal services to a federal candidate or federal political committee without making a contribution. The Act provides this volunteer “exemption” as long as the individual performing the service is not compensated by anyone.
What do volunteers do? The most important activity for volunteers is to encourage people to register and vote. You can do this by making phone calls to potential voters. Here, the ability to speak different languages might be very useful. There are many new Americans, who are eligible to vote, but who might be more comfortable speaking in their native language. The phone calls can be made from your own home (using an app, which does not reveal your personal phone number) and the people you are calling tend to be happy to hear from you, as they have been selected because they are predisposed to vote for a Democrat. The purpose of the call is to ensure that they are registered to vote, and that they know how to vote when the time comes.
You can also participate by sending text messages to prospective voters. Again, you can do this from home, and it really does help.
There are other volunteer opportunities available as well, not only for Joe Biden and Kamala Harris, but for “down ballot” candidates, whose election is also very important for protecting non-citizens (and all of us). For calling and texting, and other types of volunteer work, the Biden campaign provides training and support. To learn more, and get in touch with a volunteer coordinator, contact the Biden campaign here. Make sure they understand your immigration status, so they can put you to work in an appropriate capacity.
Finally, according to a federal court decision (penned by now-Supreme Court Justice Brett Kavanaugh no less), the foreign national ban–
does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.
Bluman v. FEC, 800 F. Supp. 2d 281, 290 (D.D.C. 2011), aff’d 132 S. Ct. 1087 (2012). Thus, it may be possible to make financial contributions to non-political “issue” organizations that do not mention candidates, political offices, political parties, incumbent federal officeholders or any past or future election. See AO 1984-41 (National Conservative Foundation). If you plan to contribute financially, check with the beneficiary organization to be sure that your immigration status is not a bar (and remember that Green Card holders may freely engage in political activity and make donations, as long as they do not vote).
There is a lot riding on the November election. Unfortunately, President Trump has used fear and division to mobilize many people. He has also attacked the rule of law, due process, and democracy itself. We need everyone–including non-citizens waiting to officially join our nation–to help elect Joe Biden and to preserve the republic for us all.
The Trump Administration came into office with the express goal of tightening rules related to asylum eligibility. Their efforts have resulted in reduced due process protections for asylum seekers, along with increased evidentiary burdens. Since the advent of the COVID-19 pandemic, the Administration’s anti-asylum rule making has gone into overdrive. If recently proposed regulations go into effect, asylum seekers could be denied protection simply for having passed through a third country or for having failed to pay taxes. Worse, these new rules will likely apply retroactively, thus potentially disqualifying some asylum seekers for choices they made years ago. While the asylum process was never easy, all these recent changes have made it much more difficult to successfully navigate the system, especially for those without legal representation. Here, we’ll review some data about asylum grant rates, discuss the process of seeking asylum, and talk about how a lawyer can help.
Data on Asylum Seekers
Unfortunately, it has never been easy to obtain solid statistics about asylum grant rates. One problem is that different asylum cases are adjudicated by different agencies. “Affirmative” asylum cases (where the applicant is inside the United States and initiates a case by submitting an asylum form) and “credible fear” cases (where the applicant presents at the border and requests asylum) are adjudicated by the Department of Homeland Security, by an asylum officer. “Defensive” cases (where the applicant requests asylum as a defense to being deported) are adjudicated by an immigration judge at the Department of Justice. Different agencies track data differently, so we do not have solid statistical information about overall grant rates. But we do have some pretty good data demonstrating that asylum grant rates are trending down and that having a lawyer helps.
According to TRAC Immigration, a nonprofit that collects and analyzes data from our nation’s immigration courts, pro se asylum applicants in 2019 and 2020 were granted asylum in about 13 percent of cases. During the same period, represented applicants received asylum in about 30 percent of cases. So, having a lawyer more than doubles the likelihood of a positive outcome. Also, the data indicates that it is getting more difficult to win asylum. In 2012, about 55 percent of asylum cases (represented and pro se) were granted. Since then, grant rates have dropped—to 41 percent at the beginning of President Donald Trump’s term and to about 25 percent by March 2020.
The world’s most powerful superheroes (pro bono attorney, second from right).
The Asylum Process
As noted above, there are two basic paths to asylum: affirmative and defensive. In addition, asylum seekers who arrive at the border or an airport and request protection undergo a credible fear interview, which is an initial evaluation of eligibility for asylum.
In an affirmative case, the applicant completes a form and an affidavit describing his fear of harm, gathers and submits evidence in support of the claim, and is eventually interviewed by an asylum officer. For a defensive case, the applicant typically appears before an immigration judge two times. The first appearance is called a master calendar hearing, which only takes a few minutes. At that stage, the judge determines whether the applicant is “removable” from the United States and what relief she is seeking (asylum and/or other types of relief). The judge then sets a date for the individual hearing (the trial), where the applicant presents her claim for asylum through evidence and testimony. Neither process is fast, and it is common for an asylum case to take several years.
A credible fear interview is more truncated. Most applicants have little or no evidence when they first arrive, and so their testimony becomes more important. If they demonstrate a “credible fear” of persecution in their home country, they are referred to an immigration judge to present a defensive asylum case. If they do not demonstrate a credible fear, they are usually quickly deported from the United States.
Preparing an asylum case—affirmative or defensive—can be challenging. The attorney needs to work with the client to write a detailed affidavit describing the asylum claim. This often involves discussing painful events from the client’s past. Obtaining evidence from other countries can also be difficult, as witnesses are overseas and may be reluctant to risk their safety by writing a letter or sending documents. In preparing a case, the attorney needs to resolve any inconsistencies between the affidavit, evidence, and country conditions, since inconsistencies can lead to a finding that the applicant is “not credible.” Also, the attorney must articulate a legal theory for the case; not everyone who fears harm in the home country is eligible for asylum, and so the attorney must examine the facts and determine the basis for eligibility. Finally, some applicants may be barred from asylum—for example, because they failed to timely file their application—and so the attorney must identify and address any legal bars to asylum.
How Pro Bono Lawyers Can Help
All this can be daunting, even for a lawyer who specializes in asylum. So, how can a pro bono attorney—who may not be familiar with this area of the law—help?
On this front, the news is good. Most asylum cases are relatively straightforward, and anyone with legal training and a bit of guidance can make a positive difference in the outcome. Also, excellent support and mentoring is available for lawyers who decide to take on a case pro bono. In representing asylum seekers, most pro bono lawyers work with a nonprofit organization, and these organizations are expert at identifying compelling cases and providing support to attorneys who do not specialize in asylum. (For some ideas about where to volunteer, check out these immigration nonprofits). Finally, while asylum cases can take years (due to government delay), the amount of attorney time needed to properly prepare and litigate a case is quite reasonable. Total prep time for a case is usually between 15 and 30 hours. For an affirmative case, applicants have only one interview, and those usually take three to five hours. Court cases usually involve two hearings: The master calendar hearing might involve waiting around for an hour or two, but the hearing itself requires only about five minutes with the immigration judge. The individual hearing (the trial) typically takes two to four hours. So, all together, the time investment is not terribly burdensome.
As for credible fear interviews, because they are not full cases and because they take place within a day or two of the applicant’s arrival in the United States, they require even less attorney time. In some cases, there is no time to prepare in advance, and the attorney’s role is simply to make sure that the asylum seeker’s interview is fair. Other times, it is possible to gather country condition evidence or other evidence in advance of the interview.
What’s It Like to Do an Asylum Case?
Having myself represented hundreds of asylum seekers, what keeps me interested are the clients’ stories. Of course, many of these stories are sad, but they are also hopeful. Asylum seekers are survivors. They have escaped danger in order to build a better life. Many asylum seekers are well-educated, successful people: politicians; activists for democracy, women’s rights, or LGBTQ rights; interpreters who’ve served with the U.S. military; members of religious or ethnic minorities; journalists. Asylum seekers I have known tend to be very patriotic towards the United States, and my clients’ faith in the American Dream is a source of constant inspiration for me.
The asylum process today is more difficult than ever. Many applicants with valid claims will be denied and deported unless they have help from an attorney. Equally important, applicants need someone in their corner to answer questions and provide moral support. Representing an asylum seeker pro bono can help change your client’s life. It can also be one of the most rewarding experiences of your legal career.
This article is by Jason Dzubow and was originally published in GPS Solo, Volume 9, Number 12, July 2020. Copyright 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.
Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.
Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.
MCHs are no more efficient today than they were in olden times.
While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–
e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.
An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.
Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.
Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.
All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.
What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.
So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.
According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.
You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.
The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–
Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.
According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–
Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).
If you are waiting for a Green Card or an EAD, what can you do?
First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”
For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).
If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.
If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.
Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.
Way back in 2010, I did a blog post about the Board of Immigration Appeals, where I complained that the Board issues too few decisions and does not provide enough guidance to Immigration Judges. Ten years later, things are no better. In fact, based on the available data, the Board is publishing even fewer decisions these days than it did back in the late aughts. Here, we’ll take a look at the situation in 2010, and then review where things stand now.
Before we get to that, we have to answer a preliminary question: What is the Board of Immigration Appeals? According to the BIA Practice Manual—
The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws. The Board is responsible for applying the immigration and nationality laws uniformly throughout the United States. Accordingly, the Board has been given nationwide jurisdiction to review the orders of Immigration Judges and certain decisions made by the Department of Homeland Security (DHS), and to provide guidance to the Immigration Judges, DHS, and others, through published decisions. The Board is tasked with resolving the questions before it in a manner that is timely, impartial, and consistent with the Immigration and Nationality Act and regulations, and to provide clear and uniform guidance to Immigration Judges, DHS, and the general public on the proper interpretation and administration of the Immigration and Nationality Act and its implementing regulations.
Having completed their one published decision for the year, some BIA Board Members take a well-earned rest.
In essence, the BIA is supposed to be the Supreme Court of immigration law. But because the Board issues so few published decisions, it is not fulfilling its duties to provide guidance or ensure that laws are applied uniformly throughout the country. This is not a recent problem.
If you look back at the data from a decade ago, you will see that in 2007, the BIA decide a total of 35,394 cases and had 45 published decisions. In 2008, it decided 38,369 cases and published 33 decisions, and in 2009, it decided 33,103 cases and published 34 decisions. This means that for every 1,000 cases the Board decides, it publishes about 1 case. Looked at another way, during 2007, 2008, and 2009, the Board had about 15 Members (judges on the BIA are called Board Members). This means that in its most prolific year (2007), each Board Member would have had to publish three cases. I’m told that publishing a case is a real production, but even so, three cases per year? That seems pretty weak. The not-very-surprising result is that the Board is not providing the guidance that Immigration Judges need, and this contributes to a situation where different adjudicators are interpreting the law in widely inconsistent ways.
Fast forward 10 year and the situation is no better. In FY2016, the Board decided 33,241 cases and in FY2017, it decided 31,820 cases. In each year, the Board published just 27 decisions. In FY2018, the Board decided 29,788 cases and published 38 decisions, and in FY2019, the BIA published 22 decisions (EOIR has not released data about the number of cases adjudicated by the Board in FY2019). Indeed, in 2018 and 2019, the situation is even worse than these numbers suggest. That’s because in 2018, of the 38 published BIA decisions, 15 were actually decided by the Attorney General (meaning only 23 were decided by the BIA). In 2019, the AG published six cases, meaning that the Board itself published a paltry 16 decision, or–given the expanded number of Board Members–less than one published decision per Member.
Let’s digress for one moment to discuss the difference between an Attorney General decision and a BIA decision. The BIA derives its decision-making authority from the Attorney General. This means that the AG has power to decide immigration appeals, but he has given that authority to the specialists on the Board, who presumably know more about immigration law than their boss. However, because decision-making power ultimately comes from the AG, he can “certify” a case to himself and then issue a decision, which has precedential authority over Immigration Judges and over the Board itself. This means that if the Board issues a decision that the AG does not like, he can change it. Prior to the Trump Administration, AGs generally deferred to the Board and rarely certified cases to themselves for decisions. In the last two years of the Obama Administration, for example, the AG issued a total of three published decisions, two in 2015 and one in 2016, as compared to 21 AG decisions in 2018 and 2019 (to be fair, the Trump Administration did not issue any AG decisions in 2017). The main reason for the AG to issue decisions is to more forcefully implement the current Administration’s immigration agenda. Many who work in the field oppose this type of politicization of the immigration law, and organizations such as the National Association of Immigration Judges (the judges’ union) have been pushing for an independent court system.
Aside from politicization of the law, one result of the AG’s more active role in issuing decisions has been to sideline the BIA. I imagine this is not good for morale. Essentially, the “Supreme Court of Immigration Law” has been relegated to deciding unpublished decisions, which contribute little to improving the overall practice of law.
In any event, it has always surprised me how few decisions the BIA publishes. Chapter 1 of the BIA Practice Manual provides: “Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.” Frankly, it is difficult to believe that fewer than one case in one thousand satisfies these criteria. As I wrote in 2010–
Although it might be more work over the short term, if the Board published more frequently, Immigration Judge decisions would become more consistent–creating less work for the BIA over the long term. It would also make life easier for the federal courts of appeals, saving government resources. Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families.
All this remains true. But after three years of the Trump Administration appointing Board Members, many of whom are considered hostile to immigrants, perhaps now is not the time to complain about too few published decisions. Maybe. But I still think there exists a desperate need for guidance and consistency, and even the “unfriendly” Board Members are more inclined to follow the law than our current AG. In addition, there are many mundane, non-political issues that simply need deciding (such as this recent BIA decision). Despite the more hostile make-up of the Board, I still believe–as I believed ten years ago–that the BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.
Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.
Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture.
Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”
Gesundheit! That’s German for “Asylum Denied.”
Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal).
Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.
While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected.
Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.
One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–
If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.
In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.
The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.
Let’s say I give you a million dollars (which I can easily do, given my lucrative earnings as an asylum lawyer). Let’s also say I put that money on the moon. Even though its yours, you can’t get it, and so it won’t do you any good. That’s basically what the Trump Administration is trying to do with asylum.
Under U.S. law, non-citizens in our country have a right to seek asylum. But that right is meaningless unless applicants have the means to live here during the lengthy asylum process. On August 25, 2020, the Trump Administration plans to implement a new regulation, which denies Employment Authorization Documents (“EADs”) to some asylum applicants and delays the issuance of EADs to everyone else. The pretextual (lawyer-speak for bullshit) reason for the new rule is to prevent fraud. The real reason is to deter people from seeking asylum in the United States. Here, we’ll discuss the major provisions in this new regulation.
The first major change is the waiting period for an EAD. Until now, the regulations allowed asylum seekers to file their EAD application (form I-765) 150 days after their asylum application (form I-589) was received. Processing the I-765 usually took a few months, and so most asylum seekers would have their EAD card in hand within seven or eight months of filing for asylum. Under the new rule, asylum applicants must wait 365 days before filing for their EAD, and then wait a few more months for processing. This means that most applicants probably won’t have their EAD until at least 14 months after submitting the I-589. This new rule seems to apply to everyone who files for an EAD on or after August 25, 2020, even people who filed for asylum before that date. So if you are eligible for the initial EAD prior to August 25, you should file before that date. Otherwise, you will face an additional six months (or more) of delay.
No EAD? No problem. You can live off your trust account until you receive asylum.
The second major change is that people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing” or unless the applicant is an unaccompanied child. Sine the one-year bar will usually not be adjudicated until the asylum case is adjudicated, this new rule effectively means that people who do not file for asylum within one year of arriving in the country will not get an EAD. Again, this provision applies only to people who file for asylum on or after August 25, 2020. Also, even if you clearly meet an exception to the one-year rule, you would not be eligible for an EAD if you were in the U.S. for more than one year before filing for asylum (examples of people who are ineligible for an EAD include those who have maintained lawful status during their entire stay in the U.S. before filing, and people who decide to seek asylum after circumstances in the home country changed, causing them to fear return).
Third, applicants who “entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after August 25, 2020” are not eligible for an EAD. There are rare exceptions enumerated in the rule, but for the most part, people who enter the U.S. unlawfully and file for asylum will be barred from obtaining an EAD.
Fourth, it seems that people who move before they get an EAD are considered to have “delayed” their case if the move transfers their case to a different Asylum Office. They thus become ineligible for an EAD (“Delay” includes “A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address”). For this reason, you should try not to move out of your Asylum Office’s jurisdiction from the time of filing until you get the EAD (you can see your office’s jurisdiction here).
Also, previously, asylum seekers who were paroled into the United States after “passing” a credible fear interview were eligible for an EAD based on category c-11. The new rule eliminates this basis of EAD eligibility, though such parolees could still apply for asylum and then file for an EAD after the 365-day waiting period.
Other provisions of the new rule basically codify existing practice. For instance, people who cause delay in their asylum cases and people who have criminal issues will likely be denied an EAD.
The new EAD rules are particularly damaging when considered along side another proposed rule, which would deny asylum to people who work unlawfully and fail to pay taxes. The combined effect of these new regulations will be that asylum seekers are either forced to work illegally, thus jeopardizing their asylum claims, or they are forced to find some way of surviving in the U.S. for 1+ years without the ability to earn money.
On the positive side (and these days, we sorely need positive news), people who have EADs can continue to renew them in two-year increments, even if their asylum case is referred to Immigration Court or if they lose their case in court and appeal to the Board of Immigration Appeals.
Given these changes, if you are planning to file for asylum and you entered unlawfully or have a one-year bar issue, you should file before August 25, 2020, when these rules are scheduled to go into effect. Also, if you are planning to seek asylum, you should file your application within one year of arriving in the United States, even if you would qualify for an exception to the one-year bar (again, to be clear, you can still overcome the one-year bar and receive asylum, but you will not receive an EAD while you are waiting for a decision in your case).
One remaining question is whether these new regulations might be blocked by a federal court. I suspect that there will be a court challenge to the rules. If such a challenge succeeds, my guess is that it will succeed on procedural grounds–in other words, that the Trump Administration failed to adequately justify the new rule (this is the basic reason that the Administration’s efforts to end DACA failed). Asylum seekers have no right to an EAD. See INA § 208(d)(2). However, given that it is impossible to obtain asylum unless you have the ability to survive in this country during the pendency of your case, there may be a basis to challenge this new rule. Let’s hope so.
As you probably know, the Trump Administration recently proposed regulations to make it much more difficult to obtain asylum in the United States. That’s the bad news. The good news is that there is something you can do to try to reduce the damage: Submit a comment opposing the regulation. Submitting a comment is easy, free, and safe, even for people with no lawful status in the U.S. You can do it from the comfort of your own home. Right now. And best of all, it really can help. Here, we’ll talk about how to submit an effective comment.
Before we get to that, let’s talk a bit about the proposed regulation, which you can see here. The purpose of this regulation (and every regulation) is to interpret the law, as created by Congress. Regulations are created by government agencies (in our case, by the Department of Justice, Executive Office for Immigration Review) because agencies have specialized knowledge about how to implement (or in our case, subvert) the law. The regulations cannot violate the law or they will be invalidated by courts. Also, regulations cannot be “arbitrary and capricious,” meaning the agency must provide a rational reason for the regulation. While there is a lot of bad stuff in the proposed regulation, I wanted to focus here on the points that people might be most interested to comment about–
The definition of “particular social group” is narrowed, so that it is more difficult to get asylum if you fear harm from gang members or criminals, or based on domestic violence or an interpersonal dispute
The definition of “political opinion” is narrowed to exclude people who have a generalized opposition to criminals or terrorists
The level of harm required to demonstrate “persecution” is increased, and so asylum applicants will need to show a “severe level of harm”
The categories of people eligible for asylum are reduced, and people who fear persecution on account of “gender” are excluded from asylum
The new rule encourages decision-makers to deny otherwise-eligible applicants based on “discretion” and lists several “significant adverse discretionary factors,” including–
unlawful entry into the U.S. or use of fraudulent documents
the failure to seek protection in any third country the alien “transited” through, unless that country denied protection to the alien, the alien was a victim of human trafficking or the country was not a party to the Refugee Convention of 1951, the Protocol of 1967 or the United Nations Convention Against Torture
remained unlawfully in the U.S. for more than one year before seeking asylum
failed to file or pay taxes, if required
failed to report income to the IRS (i.e., worked without authorization and did not pay tax – this one will be a particular problem if the plan to delay and deny work permits for asylum seekers goes into effect)
Otherwise-eligible applicants will be denied asylum as a matter of discretion where they spent more than 14 days in a third country before coming to the U.S. or where they transited through more than one third country before coming to the U.S. (there are some exceptions to this rule, similar to those listed for the prior bullet point about “transit” through a third country)
Applicants will be denied asylum where they “either resided or could have resided in any permanent legal immigration status or any non-permanent, potentially indefinitely renewable legal immigration status… in a country through which the alien transited prior to arriving in or entering the United States, regardless of whether the alien applied for or was offered such status”
Torture Convention relief is not available where the torturer is a “rogue” official
Finally, it is not clear, but as the regulations are written, they could be applied to people who already have asylum cases pending. Obviously, this would be unfair, as it would punish applicants for choices they made years ago (if the rules are applied retroactively, they might very well be blocked by a legal challenge)
Other significant adverse discretionary factors include filing for asylum, fearing persecution, and not being an American citizen.
If there are things here you don’t like, you can comment about them. How to do that?
First, go to this web page, where the proposed regulations are posted. If you look in the upper right part of the page, you will see a dark blue box that says “Comment Now!” Click on that, and you will be taken to a page where you can type your comment. If you want to be fancy, you can even attach files to your comment. You also have to type a name. You can type your own name, but you can also write “anonymous.” The name you type will be included when the comment is posted publicly. There is an option to include your contact information, but this information will not be displayed publicly. Once you are done, check the box indicating that you “read and understand” your statement and hit “Submit Comment.” That’s it. Easy peasy.
While you are on the regulation web page, you can look to see what other people wrote (on the right side of the page). When I last checked, there were more than 1,300 comments.
What should you say?
It is best to write an individualized statement, rather than use a pre-made template. If you are an asylum applicant, maybe think about any parts of the new regulation that might harm you and explain how you will be harmed. You might also write about why you chose to seek asylum in the U.S. (if, indeed, you had a choice) and what is your impression of the U.S. asylum system. Remember, as an asylum applicant, you have something important to say and your voice should be part of this conversation. One important point: All comments must be submitted prior to 11:59 PM Eastern time on July 15, 2020. Also, if you post a comment, and you don’t mind, please copy and paste what you write into the comments section of this blog (below).
If you’d like some additional advice about what to write, check out these postings by Tahirih Justice Center and the American Immigration Lawyers Association (AILA), or just read the comments already posted on the regulation. The federal government also provides general, but helpful, advice about writing a comment.
Finally, you might ask, Does posting a comment matter?
Apparently, it does. According to AILA, “The administration will review and address those comments before the rule becomes finalized, so it is critical for us to submit as many unique comments as possible.” More comments = a longer review process. This will buy more time before these draconian new rules are implemented. Also, the “government gives more weight to each comment if it is unique from others,” and so it is important to personalize your submission.
Since its inception, the Trump Administration has been waging war against the rule of law in our country. Immigrants and asylum seekers have always been the first target in this war, but they are far from the only target. In this particular battle, asylum seekers have a crucial role to play, and so I hope you will consider making a comment in opposition to the proposed regulations. Together, we can protect our asylum system and our country.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
For years, advocates for asylum seekers have been discussing the degradation of our nation’s immigration system: Due process protections have been eroded (or eliminated), non-violent aliens have been detained (sometimes for years), and asylum applicants and other immigrants have been subject to humiliating and cruel treatment. Why should this be so? Our immigration laws and our Constitution are far from perfect, but they provide certain rights to non-citizens, including the right to due process of law, the right not to be denied immigration benefits for reasons that are arbitrary and capricious, and the right to humanitarian protection for those who qualify. Unfortunately, the government often fails to fulfill its obligations (repeat: obligations) under the law, and as a result, immigrants are being denied their rights–including their right to life-saving humanitarian protection.
Immigrants, of course, are not the only people whose legal rights have been violated by the government. The pattern of mistreating and disenfranchising minority groups goes back to the founding of our country (and before). In many cases, discrimination has been sanctioned by law–against African Americans, Native Americans, Chinese Americans, and women, to name the most obvious groups. Slowly, painfully, over time, laws have changed. The law now provides for much greater equality than it did at the founding of our Republic, and in practice, the situation has improved. But as we know, there is much more work to be done.
Trump: “I am your law and order President. I make the law and you follow my orders!” Bible: “Owww! Stop touching me – it burns!”
The Black Lives Matter movement is a part of that work. All Americans should listen to what BLM has to say. Even those who disagree or who think they know better should listen to the lived experience of people who feel threatened by our government. No Americans should have to feel this way. Something clearly needs to change. But why should immigrants and asylum seekers care?
For one thing, many immigrants are people of color, and so the issues BLM is addressing should be of concern to non-citizens, who might one day face similar problems themselves.
Also, when the government mistreats one minority group, no minority group is truly safe. If the government has the power and the willingness to take away rights for one of us, it can take away the rights of any of us. Indeed, the whole idea of “rights” is that they are inviolable; the government cannot take them away unless we are afforded due process of law. When a government agent kills an unarmed Black man without justification or when it deports an asylum seeker without due process of law, it is violating those people’s sacrosanct rights. It stands to reason then, that if we wish to support the rights of one person, we must support the rights of all.
The above arguments are based on self interest (I will help you because it helps me). But there is another reason for immigrants to support the BLM movement–it is the right thing to do. The asylum seekers and immigrants that I have known tend to be very patriotic people. They believe in the American ideal. That is why they came here in the first place. Part of that ideal is that we are all equal in the eyes of the law. No group should face harm or discrimination due to their race or ethnicity or religion or sexual orientation. It is un-American. And it is wrong. As citizens (or would-be citizens), it is incumbent upon each of us to help our nation move towards a more perfect union.
So what can be done to help?
Education: Learn about BLM’s goals and methods from leaders of the movement, rather than from secondary sources. Good starting points are the Black Lives Matter and Movement for Black Lives websites. There are also many movies, documentaries, and books that are worth checking out.
Protest: The ongoing protests are important, and will hopefully drive legislative and policy changes. Non-citizens can attend protests, and have a right to Freedom of Speech, the same as U.S. citizens. However, you should be aware that ICE agents have been deployed in response to protests and civil unrest. While these agents are (supposedly) not tasked with immigration enforcement, that is their raison d’etre, and so if you go to a protest, make sure to have evidence about your immigration status (such as a green card, work permit, I-94, filing receipt, etc.). If you have no status, make sure to have a plan in place in case you are detained (every non-citizen without status should have such a plan, whether or not they attend a protest).
Elections: As President Obama recently said, we have to mobilize to raise awareness and we have to vote for candidates who will enact reform. Non-citizens cannot vote. Indeed, such people can be deported for voting. So if you are not a U.S. citizen, please don’t try to vote. But this does not mean that you cannot participate in the upcoming elections. There is a lot you can do: Voter registration, canvasing, text-banking, phone-banking, etc. All this is important, as the outcome of the election will have life and death consequences for many people.
Contact Your Representatives: There is currently a bill pending in the House to condemn police brutality and racial profiling. The bill makes some good suggestions, including that the Justice Department should take a more active role investigating instances of police violence and discrimination, and for the creation of civilian review boards to provide community-based oversight of local police departments. Review the bill, and if you are so moved, contact your Congressional representatives and let them know. There is another bill pending in the Senate that aims to prevent discrimination by police and provide additional training. You can contact your Senators about this bill. Also, you can take action at the state and local level to push for reform.
Donate: For many of us, money is tight these days, but if you are able to make a donation, there are many worthy civil rights organizations that could use the support.
One last point, and I think this is important, as I often hear objections about BLM in the media and in conversation: It is not necessary to support every aspect of a movement in order to support that movement. I personally do not support all the goals of the Black Lives Matter movement. I do not support all their tactics, and I do not support all their rhetoric. This does not mean that I do not support the movement. I strongly believe that our country should focus far less on incarceration and far more on providing opportunities for all people to live safe, healthy, and productive lives. I also strongly believe that our country has not properly reconciled with its past and ongoing sins against African Americans and other racial minorities. Most of all, I believe that our nation has an obligation to listen to marginalized people and to respond to their needs. Thus, even if you do not believe in all aspects of BLM, I do not think that absolves you from listening to members of that movement and of working for a better society. All of us have an obligation to help bend the arc of history towards Justice. The Black Lives Matter movement is doing just that, and its success is our nation’s success.
As you might have noticed, USCIS offices have been closed for all in-person appointments–including asylum interviews and biometric appointments–since March 18, 2020. Now, USCIS has announced that it “is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.” What does this mean? What will the “new normal” look like at USCIS? Are we all going to die?
The first thing I notice about the USCIS announcement is that it is kind-of vague. “Some domestic offices” will reopen? I am not sure what this means. I suppose we will have to wait and see which offices actually reopen. Also, “on or after June 4” could be next week or it could be in 2099. In any event, it seems clear that USCIS is trying to get things moving again. Indeed, one of my clients is scheduled for an interview on June 29 in the Arlington Asylum Office and I have heard of other applicants receiving notices for interviews there as well.
An Asylum Division manager explains how they will reopen their offices.
Second, it seems that the new interview process will be a bit different than what we are used to–
In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter and representative can fully and safely participate in the interview while maintaining social distancing.
This short description raises a few concerns related to (1) safety, (2) due process, and (3) security. In terms of safety, if the Asylum Officer is in his own room, that seems relatively safe, at least for the officer (though the officers still need to get to work and stay healthy in an environment with many coworkers). For the applicants, the situation is less clear. Presumably, they will have to wait in a waiting room. In normal times, we often spend considerable time waiting, as interviews are often delayed–sometimes for hours. I suppose applicants could be sent outside (to wander aimlessly?) and then contacted by phone when the officer is ready to see them. This would at least avoid overcrowding in the waiting area. Also, normally, asylum applicants have their fingerprints and photo taken when they check in to the interview. This often entails waiting in line while a staff member struggles with a fussy computer. Whether the offices have sufficient space to “social distance” while waiting to check in, I do not know.
During the interview, applicants are entitled to bring an interpreter and a lawyer. Will all those people share a room? No offense to my clients, but this is not very comforting. Will each of us have our own room? That seems to be the plan, at least in Virginia. Due to security concerns, Asylum Officers never left us unattended during interviews, even for a second, and so I am guessing that they will need empty rooms to put us into. But the rooms won’t be completely empty, since we will need video equipment (and hopefully chairs), and so I am not sure how that will work. Also, what stops us from leaving the room and wandering the halls of the Asylum Office (I myself might go in search of the mythical room where all my lost files are located). And where are they going to get all those empty rooms? My guess is that the “new normal” will involve far fewer interviews than the old normal, but I suppose the powers-that-be figure some interviews are better than none.
Another concern is due process. Asylum seekers are entitled to a fair procedure. I know from my experience in Immigration Court that video hearings are more difficult and less fair than in-person hearings, and I imagine the same will be true of asylum interviews. There is much that is easier in person. For example, at the beginning of the interview, the officer reviews the I-589 form and makes corrections. Sometimes, the officer wants to look at documents with the applicant. These things will be difficult to do if the officer and the applicant are in two different places. Also, if the lawyer, interpreter, and applicant are in different rooms, communication between them will be more challenging. Aside from this, it is simply more difficult to talk to a person by video (as we all now know from innumerable, interminable Zoom chats). This difficulty will be compounded if the applicant is wearing a mask, which may be necessary in the event she shares a room with her attorney or interpreter. All these protective measures will make it more difficult to interact with the Asylum Officer and will make an already stressful situation worse. In short, under the current circumstances, there will be significant barriers to receiving a fair adjudication.
An additional concern is security. Will the video equipment be secure, or might it be hacked by nefarious actors who want to harm asylum seekers? I do not know, but the federal government’s track record here is mixed, and for people seeking asylum, confidentiality is an important concern.
How does USCIS plan to keep asylum applicants safe? The agency has issued the following guidelines for entering USCIS facilities–
Visitors may not enter a USCIS facility if they:
Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
Hand sanitizer will be provided for visitors at entry points.
Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
Individuals are encouraged to bring their own black or blue ink pens.
My local office (Arlington) announced that telephonic appearances are not permitted for applicants because the Asylum Office must check identification. Also, the Asylum Office does not have any procedures for attorneys to appear telephonically (strange, since they do have telephones). All documents must be submit at least 72 hours before the interview, as there is apparently a new policy that requires 72 hours to pass before anyone can touch incoming mail. Finally, the Asylum Office will have a “very liberal” rescheduling policy, and so applicants can reschedule by email. Whether these same changes will apply at other offices, I do not know, but I imagine that all offices will follow similar procedures.
Like every other organization trying to reopen, USCIS is engaged in a difficult balancing act. How can they fulfill their mission and keep people safe? In my opinion, at the moment, they cannot do both. Given all the restrictions and contortions needed to make interviews happen, I expect they will only be able to interview a token few applicants. Under those circumstances, I do not see how it is worthwhile to endanger their staff and clientele (and anyone who comes into contact with them).
On the other hand, I know that many asylum seekers would be willing to take the risk. Not because they are reckless, but because they are so desperate to have their cases resolved and to reunite with family members. I can’t blame them for this.
There is no easy resolution to the dilemma. I hope USCIS will move cautiously, and I hope they will be able to keep people safe and provide them with fair interviews. We shall see.
Due to the coronavirus pandemic and the Trump Administration’s harsh anti-immigration policies, USCIS–the agency that oversees much of the nation’s immigration and asylum system–expects that “application and petition receipts will drop by approximately 61 percent” through the end of the current fiscal year (September 30, 2020). As a result, the agency is seeking a “one-time emergency request for funding” from Congress for $1.2 billion “to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people.” The agency plans to pay back this money by “imposing a 10 percent surcharge to USCIS application fees.” Presumably, this is on top of the dramatically increased fees the agency announced late last year (but which have yet to be implemented).
Unlike most government agencies, USCIS is largely user-funded. Indeed, the agency derives 97% of its budget from fees paid by its “customers” (immigrants and petitioners). These fees also largely cover the cost of the asylum system, which is currently free to applicants (though USCIS’s recent fee proposal includes a $50 fee for asylum). According to a USCIS spokesperson, without the injection of cash from Congress, the agency “would be unable to fund its operations in a matter of months.” This could result in “drastic actions,” which might include staff reductions. Already, USCIS employees have been notified that the agency is “severely strapped for cash due to the low number of new applications being filed,” and overtime, travel, and purchases have been put on hold.
In short, things don’t look good for USCIS. So what can be done?
There are lots of ways USCIS can increase revenue without raising fees.
USCIS is seeking additional funding from Congress and plans to pay back the money by increasing fees. But it seems to me there are better and more equitable ways raise money.
One idea is to expand the use of premium processing. Currently, certain forms for employment-based immigration allow the petitioner to pay an additional fee ($1,440) and have their case processed more expeditiously. Cases that ordinarily take many months are processed within 15 calendar days (this is the equivalent of strapping a warp drive engine to a Conestoga wagon). Paying for premium processing does not necessarily mean you receive a final decision in 15 days, but at least you get a response–either an approval, a denial or a request for additional evidence. In my experience, even if you receive a request for evidence and your case takes longer than 15 days, it is still adjudicated much more quickly than if you did not use premium processing.
I have long advocated that premium processing should be available to asylum seekers, but why limit this service to certain types of cases? Why not make it available to all USCIS applications and petitions? The agency does not have to stick with its 15-day time frame or the current fee. Maybe there could be different levels of premium processing with different time frames and different fees. Maybe some types of applications are simply not amenable to premium processing. It seems to me that these things are knowable and could be explored.
The broader use of premium processing would benefit not just those aliens who can afford it (though they would benefit the most). The injection of additional money into the system would ultimately benefit everyone. Also, by removing premium-processing cases from the mix, USCIS would have fewer “regular” cases to deal with, which would presumably allow them to move more quickly through those cases.
The way I see it, premium processing is an all around win: It helps those who pay for it, provides an option for those who need it (since some people have very good reasons to expedite their cases), improves processing times even for those who do not pay for it, and brings more money into the system, which could help keep costs down for all of USCIS’s customers.
Another idea to raise funds would be to create an online legal aid service within USCIS. There are currently private, internet-based organizations that provide fee-based assistance filling forms, filing applications, and in some cases, providing legal advice. Lawyers (such as myself) tend to be wary of these organizations, as some seem less-than legitimate and because they often cannot provide the comprehensive help needed to identify problems and resolve complex cases (also, of course, they undercut our fees, which most of us find less than endearing). But for ordinary cases, without undue complications, such services can provide cost-effective assistance to people who otherwise might not be able to afford a lawyer or secure pro bono counsel.
If private organizations can provide this type of limited legal assistance, why can’t USCIS? They certainly have the expertise. Also, it is not unprecedented for government agencies to provide help to their constituents. For example, the Department of Veterans Affairs maintains a list of accredited representatives who help veterans and their family members for no fee or a low fee. If the VA can offer this service for free, why can’t USCIS offer a similar service for a reasonable fee? The assistance could take the form of “smart” fill-able forms that provide comprehensive advice about how to do it yourself, and maybe a hot-line or in-person office, where the applicant could obtain help. Fees would vary–automated assistance might be inexpensive (or at least comparable to the existing private agencies that provide this service), while “live” help would be more expensive. If this model is economically viable for private organizations, I imagine it would turn a profit for the federal government as well.
Like premium processing, an in-house legal aid program would benefit everyone. It would directly help the people who could afford it, but it would also help reduce the burden on existing non-profit legal aid organizations, and so they could serve more people in need.
There are plenty of other ideas as well. For example, USCIS could re-instate adjustment of status based on INA § 245(i), where a person who entered the U.S. illegally can pay a penalty and obtain their residency based on a family or employment petition (currently, and with rare exceptions, people who entered illegally need to leave the U.S. to obtain residency). Also, USCIS could also stop wasting manpower and postage by arbitrarily returning applications for minor mistakes (which previously were addressed at the interview).
As you can see, USCIS has different options for increasing revenue. But given the Administration’s hostility towards immigrants, it is not surprising that they are choosing to raise fees, which is the least equitable and most damaging path available to them. With a minimum of creativity, they could come up with alternative solutions that would raise money, improve efficiency, and benefit migrants. Unfortunately, the primary concern of USCIS is not really the agency’s economic well-being. Rather, USCIS wants to weaponize fees in the same way it has weaponized bureaucratic procedures–to reduce immigration and prevent eligible people from obtaining status in the United States.
In 1993, Tara Reade was a legislative aid for then-Senator Joe Biden. In 2019, she went public with an allegation that Mr. Biden “used to put his hand on my shoulder and run his finger up my neck.” She says she complained about the behavior after it happened, but then faced retaliation, which caused her to leave her job. In March of this year, Ms. Reade stated that on one occasion, when she was alone with Senator Biden, he pushed her against the wall “and then his hands were on me and underneath my clothes. And then he went down my skirt, but then up inside it and he penetrated me with his fingers. And he was kissing me….” In her 2020 statement, Ms. Reade indicated that she made a contemporaneous complaint alleging sexual harassment, but not sexual assault. Several people–including Ms. Reade’s brother and a friend–have stated that she told them about the assault years ago, and there is some evidence that Ms. Reade made a complaint during her time in the Senate.
Ms. Reade’s allegations got me thinking: How would her testimony and evidence be evaluated under the standard applied to asylum seekers testifying in Immigration Court? Let’s start with the legal standard, as set forth in INA § 208(b)(1)(B)(iii)—
[A] trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record… and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
For-Biden touching or Reade-iculous allegation? You decide.
So right away, we can see an issue: Ms. Reade states that she complained about sexual harassment in 1993 and she publicly claimed sexual harassment in 2019, but then in 2020, she stated that she was also the victim of a sexual assault. This is an inconsistency.
But an inconsistent statement is not necessarily fatal to a credibility determination. Applicants must be given an opportunity to explain any inconsistencies. In our case, Ms. Reade stated that she did not disclose the assault in 1993 because she was traumatized, and that she did not mention it in 2019 because she was uncomfortable with the interviewer’s questions and fearful of a backlash against her. She decided to reveal the full story in 2020 because she felt she needed to do so for her daughter and for other victims of sexual assault, and because she felt Joe Biden should apologize.
Once a witness provides an explanation, the decision-maker has a certain amount of leeway to evaluate that explanation. According to the Board of Immigration Appeals, “An Immigration Judge is not required to accept a respondent’s assertions, even if plausible, where there are other permissible views of the evidence based on the record.” Where does this leave us? Nowhere too helpful, I would submit.
On the one hand, we could find Ms. Reade’s testimony incredible, since it has changed over time and her most recent (and most serious) allegations are different from what she allegedly claimed in 1993 and what she described in 2019. On the other hand, she has presented an explanation for the inconsistency, which is based on the trauma and shame she suffered, as well as on her fear of further harm. Given this evidence, a reasonable fact-finder could decide either way on credibility, and such a decision would likely survive an appeal (where factual findings are subject to a “clearly erroneous” standard of review).
Since the decision-maker could go either way, what would account for a particular decision? In Ms. Reade’s case, the decider’s view of sexual assault in general would be one factor. Do victims make false accusations? Do perpetrators deny their guilt? How much evidence is enough? In this particular case, I imagine partisan loyalty would also be a factor for many decision-makers, especially in such a hot political environment where an allegation of sexual assault could impact the upcoming election. And speaking of partisan loyalty, what about Ms. Reade’s political views? Are they relevant to impugning or bolstering her claim? What about the fact that she is exposing herself to terrible harassment (and maybe worse). How do we weigh these factors in terms of evaluating her motive? Also, how do we account for other women accusing Joe Biden of inappropriate touching? Do these allegations weigh against him (because he engaged in inappropriate conduct) or in his favor (since that conduct seems not to have risen to assault)? In short, it seems to me that the decision about Ms. Reade’s credibility tells us more about the fact-finder’s views than about the facts of her case.
If I am correct about Ms. Reade’s claim, what does this mean for credibility in asylum cases? In some ways, the situations are analogous. We have to listen to a witness and evaluate credibility. It’s also fairly common for asylum applicants to change their stories over time. This may be legitimate (it often takes time and trust to extract painful details from a traumatized person) or not (some applicants seek to bolster their claims by lying). As with Ms. Reade’s case, there is often additional evidence, which also needs to be evaluated for credibility and evidentiary value, and in cases where this evidence is strong, it may be determinative of credibility. In other cases, the credibility determination will depend largely on the decision-maker’s inherent biases. I suspect this is largely what accounts for the arbitrariness of asylum adjudication.
In Ms. Reade’s case, I doubt we will ever see a definitive answer about her claims. They are too old and too subsumed by partisanship to be resolved with much confidence. Many asylum claims are also not amenable to a definitive conclusion due largely to limited resources (of the applicant and the adjudicator). In both situations, we are left with our own biases, which are a poor substitute for knowing the truth.
This article is by Aldis Petriceks of Harvard Medical School, Erin Shortell of Harvard Law School, and Dr. Francis X. Shen, JD, PhD. Executive Director, Massachusetts General Hospital Center for Law, Brain, and Behavior; Instructor in Psychology, Harvard Medical School; Senior Fellow in Law and Applied Neuroscience, Harvard Law School Petrie-Flom Center.
The success of an asylum claim relies, to a large degree, on the perceived credibility of an asylum seeker’s memory. The Real ID Act of 2005 states that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” (emphasis added). Asylum officers and immigration judges are told, in a sense, to act as mind readers, subjectively deciding whether or not to believe the narratives of asylum seekers.
But how do judges and asylum officers assess credibility? Additional evidence, such as physical signs of abuse or country-level evidence of systematic torture, can bolster credibility in this context. But such evidence may not be available, and even if it is, credibility assessments still turn on asylum adjudicators’ subjective perceptions of asylum seekers’ memories.
Introducing your authors: Aldis Petriceks, Erin Shortell, and Francis X. Shen.
Credibility determinations thus often rest on the consistency (or lack thereof) in an asylum seeker’s story. The REAL ID Act provides that “ … a trier of fact may base a credibility determination on … the consistency between the applicant’s or witness’s written and oral statements … , the internal consistency of each such statement, the consistency of such statements with other evidence of record … , and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
Asylum applicants will often recount their stories at multiple points in the legal journey, including immediately upon entry into the U.S.; in a subsequent written affidavit; and before an asylum officer or immigration judge. If inconsistencies or inaccuracies emerge, the asylum adjudicator often infers that the asylum seeker intends to deliberately mislead him or her.
There is, of course, a logic to this inference. If the story changes, one might reasonably infer that the storyteller is purposely crafting a narrative more favorable to a preferred legal outcome.
Intuition is important, but decades of research into the neuroscience of memory suggest that such intuitions need to be carefully examined. Research conclusively shows that memory is not a digital recording of our lives, and thus changes in asylum seekers’ narratives over time may not be due to deliberate deception but rather to the nature of human memory itself.
Autobiographical memories are not accessed as one might re-watch a scene from a movie. Rather, memories are “dynamically reconstructed mental representations,” and they change every time they are retrieved and recounted.
Memory scientists typically talk about three phases of a memory: Encoding (when the sensory systems first register the sights, sounds, smells and more of an event); storage (when that memory gets tucked away in the brain for later use); and retrieval (when the memory is consciously recalled). Context affects each of these stages. Of great relevance to asylum seekers’ credibility is the well-known finding that trauma and stress affect how memories are initially encoded, whether and how they are stored, and how we consciously recall them.
The bottom line for credibility is that inconsistencies in autobiographical recall may not reflect a willful attempt to bend the truth, but rather the biological reality that recalling memories usually involves modification of those memories in ways of which most people are not fully aware.
Do asylum adjudicators take notice of this neuroscience? In theory, they could. The Refugee, Asylum, and International Operations Directorate (“RAIO”) Manual for Officer Training tells officers that it is “[their] job to determine whether those inconsistencies and/or contradictions are due to a lack of credibility or may be explained by other factors.” One of these “other factors” is the basic neurobiology of trauma and memory. But in practice, it is difficult to gauge the extent to which asylum officers abide by this instruction.
What would it mean for asylum adjudicators to better understand the relationship between memory, narrative inconsistency, credibility, and the human brain? To begin, it would entail the realization that many asylum seekers have endured tremendous trauma, and that this trauma often has documented effects on memory. Asylum seekers who have experienced trauma in their home countries, on the way to the U.S., or upon entry into the U.S., are often burdened by these effects. Brain scan research on individuals with PTSD, for instance, finds decreased activity in the brain networks associated with autobiographical memory, and an associated decrease in specific autobiographical recall. Given the prevalence of PTSD among asylum seekers, it is likely that many otherwise credible refugees will fail to describe their journeys, fears, and traumas in a detailed, coherent manner across multiple interviews. This failure, however, does not necessarily indicate a lack of credibility.
Acute stress often interferes with autobiographical memory. People perform more poorly on memory tests after injections of hydrocortisone, a compound which mimics the effects of cortisol on the body. When faced with significant trauma, children often recount memories in a vaguer, less detailed manner, regardless of the presence or extent of primary psychological conditions.
It remains unknown exactly how trauma and memory are related in the brain. Some researchers believe that trauma leads to an over-general mode of autobiographical memory largely because the exclusion of detail might prevent re-traumatization. Others argue that trauma directly alters the activity of certain neurological networks, changing one’s ability to retrieve and recall specific memories. Regardless of the particular theory embraced, however, there is general agreement that people with histories of trauma have more altered capacities to remember specific details of events in their lives, and that those alterations are at least associated with measurable changes in neurological structure, function, and physiology.
So far, this neuroscientific knowledge has not been widely introduced to asylum officers or immigration judges. When these adjudicators determine that an applicant is not credible, “they overwhelmingly rely on inconsistencies within or among the various versions of the applicant’s story.” Can this gap between scientific understanding of memory and legal practice be bridged? At the MGH Center for Law, Brain, and Behavior, we think the answer is yes—with sustained effort and input from multiple disciplines.
Three areas are ripe for exploration. First, attorneys and judges need an improved understanding of how autobiographical memory works. To be sure, memory neuroscience cannot provide an asylum officer or immigration judge with an individualized “credibility detector.” But neuroscience can provide evidence for re-examining default presumptions that tend to equate inconsistency with deliberate falsehood.
Second, scientific articles standing alone are not sufficient to inform legal doctrine and practice. Actionable neuroscience requires the development of materials that can be readily adapted by lawyers to put forth arguments related to neuroscience, memory, trauma, and credibility.
Third, extended dialogue is required to explore both the promise and pitfalls of introducing neuroscience into asylum case law. For instance, might neuroscience memory research allow government lawyers to challenge otherwise consistent recollections? Just as a criminal defense attorney might call a “false memory” expert to aid his or her client’s defense, could similar arguments be made in the asylum context to undercut genuine claims of persecution? These and other concerns must be adequately addressed as part of an on-going law and neuroscience dialogue.
As with any new endeavor, the path for neuroscience and law in asylum cases is not clear. But there is much promise, and we hope there will be much more dialogue in the future.
About the MGH Center for Law, Brain, and Behavior: The Center for Law, Brain, and Behavior works at the vanguard of applied neuroscience, making neuroscience actionable for the legal community in order to ensure just and positive outcomes for all those affected by the law. Though the brain and the law are both complex, our work is quite simple: helping judges, lawyers, case workers, enforcement agents and many other actors across the legal ecosystem determine the right solutions for the right people and cases. We promote and enable the sound application of accurate neuroscience to critical areas of the legal process: criminal trials and sentencing, juvenile justice, elder protection and immigration enforcement and asylum. For more, see clbb.org.
