Some Asylum Seekers Will Qualify for a Stimulus Payment

by Jason Dzubow

In response to the economic disaster caused by the coronavirus pandemic, Congress has passed a $2.2 trillion aid package. Part of that package includes direct payments to individuals. Most U.S. citizens and lawful permanent residents will receive a payment, but what about asylum seekers and asylees?

First, for all potential beneficiaries, the payment is dependent on your income. From the Washington Post—

Individuals with adjusted gross incomes up to $75,000 a year will be eligible for the full $1,200 check. Reduced checks will go out to individuals making up to $99,000 a year (the payment amount falls by $5 for every $100 in income above $75,000).

Married couples are eligible for a $2,400 check as long as their adjusted gross income is under $150,000 a year. Reduced checks, on a sliding scale, will go out to married couples who earn up to $198,000. Married couples also will receive an additional $500 for every child under 17.

People who file as a “head of household” (typically single parents with children) are eligible for a $1,200 check if they have an adjusted gross income up to $112,500 a year. Reduced checks on a sliding scale are available for heads of household earning up to $136,500 annually. Heads of household will also receive an additional $500 per child under 17.

You can calculate how much you and your family will receive here.

“Imagine how much TP I could buy with $1,200.00!”

Second, assuming you qualify for the payment based on your income, you must also have a valid Social Security number. For married couples, it seems that both spouses must have SSNs. According to the Tax Policy Center, “If one spouse has an SSN, but the other does not, the couple is ineligible for the payment (there is an exception for military families).”

Third, you would have had to file taxes for 2018 or 2019. If you did not file, you are ineligible for the payment. However, if you were not required to file taxes in those years, you can now file a “simple tax return” in order to establish your eligibility for the payment (presumably, this means filing the IRS form 1040 or the 1040-SR if you are over 65 years old). For those who should have filed taxes in 2018 or 2019, but failed to file, you can file now and still qualify for the payment. The IRS urges people who file to include direct deposit banking information on their tax return, in order to facilitate the payment.

Also, if you need help with issues related to back taxes and filing, you may be able to get assistance from your local Low Income Tax Clinic (many of which are apparently still operating in some capacity through the pandemic).

Fourth, to qualify for the payment, you must be a U.S. citizen or a lawful permanent resident (i.e., a Green Card holder) (though some LPRs who have spent significant time outside the U.S. might not qualify for the payment). Others who reside lawfully in the U.S., such as asylees and asylum seekers, may also be eligible for the payment, as long as they are not “nonresident aliens,” as defined (in a very confusing manner) by the IRS. According to the Internal Revenue Service—

An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test.

The Green Card Test states that an LPR is considered a resident of the United States for tax purposes (and is thus eligible for the stimulus payment) as long as he or she spent at least one day in the U.S. during the relevant tax year.

The Substantial Presence Test is a little trickier. For that, you need to have at least 31 days in the United States during the current year and 183 days in the U.S. during the three-year period that includes the current year and the two years immediately before that. However, when counting towards the 183 days, days in prior years count for less, according to the following formula—

A. Current year days in United States x 1 =_____days

B. First preceding year days in United States x 1/3 =_____days

C. Second preceding year days in United States x 1/6 =_____days

D. Total Days in United States =_____days (add lines A, B, and C)

If line D equals or exceeds 183 days, you have passed the183-day test.

So for example, let’s say you were physically present in the U.S. for 120 days in each of the years 2017, 2018, and 2019. To determine if you meet the substantial presence test for 2019, count the full 120 days of presence in 2019, 40 days in 2018 (1/3 of 120), and 20 days in 2017 (1/6 of 120). Since the total for the three-year period is 180 days, you are not considered a resident under the substantial presence test for 2019, and would likely not qualify for the stimulus payment. A word of caution here: I am not a tax lawyer (thankfully) and so there may be arguments to make here in order to qualify for the payment. If you do not receive the payment and feel you should have, you may want to seek help from a tax professional.

My sense from all this is that asylees and asylum seekers who have been here and paid taxes in 2018 and/or 2019 will likely qualify for the payment (unless they have spent substantial time outside the U.S., which is rare for such people). Asylum seekers and asylees who have been in the U.S. for a shorter period of time, or who did not have a work permit until recently (or who did not yet get a work permit) will likely not qualify for the payment.

If you do qualify, you should not have to do anything to receive the payment–it should be credited to your account or mailed directly to you. Some people–such as those who did not pay taxes in 2018 or 2019–may need to take action, as discussed above. Also, the IRS has created a webpage to provide updates and information about the stimulus payments. At present, the webpage is pretty sparse, but the IRS says it will be updated with additional information soon.

One final point, asylees and asylum seekers are not subject to the “public charge” rules that went into effect in February. Therefore, receiving this payment (or any other type of assistance, including unemployment benefits or means-tested aid) will have no effect on an asylum case, or on an asylee’s application for a Green Card. For non-asylees, it seems pretty clear that the stimulus payment and unemployment benefits would not impact the public charge analysis. Other types of benefits could create a public charge issue (again, this is for people who are not asylees or asylum seekers). Talk to a lawyer if you are not sure or need help with this.

To say the least, these are difficult times for everyone. But the situation is particularly hard on those who are most vulnerable, including many immigrants and asylum seekers. I hope that the stimulus program will provide help to those most in need, and that we will see better days ahead soon.

Continue reading

157 Comments

Incompetence and Reckless at EOIR Endanger Lives

by Jason Dzubow

The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

There’s a new dress code at the Boston Immigration Court (and yes, this photo really is from the Boston Immigration Court).

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear. 

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others. 

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”  

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

Continue reading

81 Comments

The Asylum Seekers’ Guide to Surviving Coronavirus

by Jason Dzubow

The current pandemic is unprecedented in modern American history. Maybe the closest analog is the influenza epidemic at the end of World War I. My grandmother was hospitalized during that affair–in 1919, when she was just six years old–and I remember a story she told me about looking out the window and watching nurses walk up and down the alleyway with soldiers who had been blinded by mustard gas during the war.

Our society has changed a lot since those antediluvian days, but fear, uncertainty, and misinformation seem as pervasive today as in accounts of those earlier times. For me, I draw inspiration from my grandmother, Evelyn Weiss, who lived to be 92. I also feel inspired by my asylum-seeker clients, many of whom have lived through difficult, dangerous, and stressful times, and gone on to build meaningful and successful lives.

For most of us, I daresay, this is a confusing and frightening time. But for non-citizens living in the U.S., far from their support systems and possibly with limited English, I imagine the situation is even more challenging. This is particularly true for people with pending cases, whose status in the U.S. is not secure.

A couple weeks at home with my family. What could go wrong?

Here, I want to provide some resources for asylum seekers and other non-citizens who are navigating life in the age of coronavirus. One word of caution–the situation with regards to the virus and the government’s response is rapidly evolving. For that reason, rather than post much about what is happening now (information that likely will be stale in a few hours), I have focused below on providing links to government websites and other resources, which may be of use. So check those pages, as they should provide up-to-date information about the ongoing crisis.

Immigration Court Cases: As of late last night, all non-detained hearings have been canceled through April 10, 2020. When those cases will be rescheduled, we do not know.

If you have a case scheduled after April 10, 2020, you can check whether your hearing will go forward online or by calling 800-898-7180 and entering your Alien number on the phone keypad. You can also check whether particular courts are closed or partially closed, here. If you are still unsure, you can call the court directly and try to talk to a clerk (this is not always easy). 

For detained cases or cases scheduled after April 10, 2020, you may be able to postpone your hearing, if necessary. To do that, you (or hopefully, your lawyer) would file a motion for a continuance. Normally, this is a burdensome and uncertain process, though presumably if the emergency persists, most Judges will be flexible about honoring such requests (though not all Judges are so cooperative).

If you are without an attorney and you need help with your case, there may be pro bono (free) assistance available. I wrote about that here. 

If you are interested in learning about the dangers facing detained asylum seekers (most of who have no criminal issues), here is a good piece from NPR.

Asylum Office Cases: As of this writing, Asylum Offices will be closed to the public until at least April 1, 2020. For interviews scheduled before that time, applicants will receive a cancellation notice, and the case should be rescheduled once normal operations resume (in normal times, rescheduled cases are given the highest priority for a new interview date, but I have not seen an announcement about how rescheduled cases will be handled during the emergency). In addition, there will be no in-person decision pick-ups. Instead, all decisions will be mailed out (so make sure that if you move, you update your address). If you need to inquire about your case status, you can do so by email–you can find the appropriate email address here. For any communication with the Asylum Office, make sure to include your name and Alien number. If you plan to submit additional evidence for a case, it is probably best to wait until normal operations resume, but if you must submit evidence, do so by mail (you can find the mailing addresses for the various offices here, but be careful, as some offices have different mailing and physical addresses).

Aside from in-person appointments, USCIS is making an effort to continue normal operations, and so presumably, you can still file new asylum cases and receive receipts (but biometric appointments are not currently being scheduled). Also, if you are eligible to apply for a work permit based on a pending asylum case, you should be able to do so.

Once normal operations resume, note that the Asylum Offices have a liberal postponement policy, and you are urged to postpone your interview if you do not feel well or you believe you might have been exposed to coronavirus. At least for the time being, there is no penalty for postponing a scheduled asylum interview, and it will not stop the clock for purposes of work authorization.

Other USCIS Cases: All in-person appointments with USCIS are canceled until at least April 1, 2020. This includes interviews, biometric appointments, and naturalization oath ceremonies. However, USCIS is still operating, and so you can file new cases and receive receipts.

Once normal operations resume, you can cancel your appointment if that is necessary. For more information about canceling an appointment, see this link. USCIS states that there is no penalty for rescheduling, though we do not know the time frame for when cases might be rescheduled.

ICE Check-ins: For those required to check-in with ICE, the agency indicates that you should contact your local field office prior to your appointment. You can find that contact info here. It seems that different offices have different policies, and unless you can confirm in advance that reporting is not necessary, it is best to appear for any appointment. Hopefully, ICE will issue more useful guidance soon, as it is difficult to communicate with field offices, and they are endangering people (including their own workers) by failing to create a coherent plan.

Traveling Outside the United States: Advance Parole (“AP”) is a way for people with pending asylum cases to travel overseas and then return to the U.S. (I wrote about it here). Given the pandemic, you probably can’t get a flight out of the U.S. anyway, but if you can, it is probably a bad idea to travel with AP. Given the restrictions currently in place blocking people who have traveled through China, Iran, and the Schengen area, if you leave the U.S. with AP, you face the real possibility of being unable to return. If you are prevented from returning and your AP expires, there may be no way back to the country (except to apply for a new visa, and you know how hard that is).

For people who have asylum, you can get a Refugee Travel Document (“RTD”), which allows you to leave the U.S. and return. However, as I read the travel restrictions, I do not feel confident that people with an RTD will necessarily be able to return to the United States if they are coming from an affected area. There are exceptions to the travel restrictions–for U.S. citizens, lawful permanent residents, and several other categories of people–but there is no specific exception for asylees or refugees with an RTD. While it makes sense that such people can return to the United States, this Administration has taken a very hard line towards non-citizens, and without an explicit exception to the restriction, I think you have to be extremely cautious about leaving the country at this time, even with a valid RTD.

Healthcare: Healthcare for people without legal status in the U.S. has always been a challenge, but now the situation has become critical. If any one of us cannot get the health care we need, all of us are potentially affected. The fact is, there are resources available to everyone, even people who are not in lawful status or who have pending cases. If you need to find a health clinic, the National Association of Free and Charitable Clinics is a good place to start. On their website, you can find medical clinics based on your zip code. On a longer term basis, certain non-citizens–including asylum applicants–might be able to qualify for government-subsidized health insurance.

If you think you may have coronavirus, you can contact a government-funded health center. Such centers serve everyone, regardless of immigration status, and provide reduced-fee or free healthcare services. You can search here by zip code to find a health center near you.

If necessary, you can also go for help to the emergency room of your local hospital. From the National Immigration Law Center website–

Under federal law, hospitals with emergency rooms must screen and treat people who need emergency medical services regardless of whether they have insurance, how much money they have, or their immigration status. Similarly, anyone can seek primary and preventive health care at community health centers regardless of whether they are insured, their ability to pay, or their immigration status.

The NILC website has a list of additional resources for non-citizens in need of healthcare or assistance. Finally, the Center for Disease Control has advice about what to do if you are sick and about how to protect yourself from getting sick in the first place.

Unemployment Insurance and Other Assistance: If you are legally authorized to work and you lose your job, you may be eligible for unemployment insurance. Details about obtaining unemployment insurance vary by state, and you can learn more here. The federal government also provides helpful information about unemployment insurance.

In addition, some non-citizens may be eligible for other benefits, such as Supplemental Nutrition Assistance Program (SNAP, formerly known as the Food Stamp Program), nonemergency Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). You can learn more about the legal requirements for such benefits here. To get help obtaining such aid, you might start by reaching out to a local non-profit that assists immigrants. Such organizations might be able to point you in the right direction.

Staying Safe: I am no health expert, but given that those in the know recommend “social distancing” as a way to check the epidemic, it seems to me that (after much dithering) USCIS and EOIR made the right call to postpone in-person appointments and non-detained cases (and hopefully, ICE will follow suit). For many people waiting for their cases, this is another blow, and will be very painful. Once the crisis abates, you can try to expedite your asylum office case, your USCIS case or your court case. Until then, stay safe and if you find any toilet paper, send it my way!

Continue reading

129 Comments

New Immigration Court Online Portal: Convenient, but Not So Confidential

by Jason Dzubow

The Executive Office for Immigration Review (“EOIR”) recently announced a new way to check case status on-line. The system provides information about cases that are (or were) pending before the Immigration Courts and the Board of Immigration Appeals. According to the EOIR press release–

The automated case information application allows users to receive the most recent information about a case after inputting a unique alien registration number. Available information includes next scheduled hearings, decision information at the immigration court and Board of Immigration Appeals (BIA) levels, and court and BIA contact information. Immigration courts’ operating statuses are also included.

The new portal can be found here. By entering your Alien number, you can view your case information in English or Spanish. This new system is similar to the old EOIR telephone hotline (which still works–you can call 800-898-7180 to obtain information about your case). The online system provides similar information to the hotline, but in written format.

Easy access to court information is great, but maybe it could be a bit less public.

Overall, I like this online system better than the telephone hotline. It is more convenient and faster to use. It also includes some helpful information that the hotline does not provide, such as better court contact information and news about court closures (at the bottom of the portal home page). That said–and I hate to look a gift horse in the mouth–I do have a few quibbles with this shiny new toy (shocking, I know).

First, and maybe most significantly, when you enter your Alien number and go to the page with information about your case, you will see your full name displayed at the top. This makes me nervous. Maybe I am old fashioned, but I don’t like seeing my asylum-seeker clients’ names displayed for all the world to see (not to mention their A-numbers and information about their cases). I worry that information like this should not be so publicly available.

To be fair, you can’t access this information without the person’s A-number, and when you call the EOIR hotline, you can obtain essentially the same information already. It’s just that having this information available in written format somehow seems less secure. Also, because the online portal is so much faster than the telephone hotline, it’s not difficult to enter one A-number after another and get information about lots of random people. This is particularly easy since A-numbers are assign sequentially. So if you know one person’s number, you can change it slightly and find other (random) people’s names and numbers. Whether this information could be used for nefarious purposes, I do not know, but given the human capacity for mischief, I imagine it is a possibility.

Perhaps a partial solution here is to provide less information about the alien–maybe just the person’s initials. Whether that would provide much protection against bad actors, I am not sure, but it seems safer than displaying the full name. Another possibility would be to require users to enter their Alien number and their name in order to access the system. This would at least make it more difficult to gain access to random people’s information. 

A second quibble is that the portal does not distinguish between removal, Withholding of Removal, and relief under the Convention Against Torture (“CAT”). In each case, the decision information will indicate that the person has been denied relief (in contrast, where a person has been granted asylum or a Green Card, the system will indicate that the Immigration Judge “granted the application”). This is the same information that is provided through the telephone system. Having talked to some government techies, I know it is not always possible to obtain more specific information from existing databases, but it would be helpful to know whether a person has been denied all relief or has been granted Withholding or CAT.

A third issue is that the online system does not provide any information about the Asylum Clock. This is surprising, since the telephone hotline does give information about the clock. For some asylum applicants, it is possible to get clock information from USCIS by entering the asylum receipt number (not the Alien number) here. But given this fancy new online system, it’s too bad that clock data is not included as part of the package.

Finally, and this is perhaps an unfair criticism, it seems to me that EOIR could do a lot more with this website. For example, it could include contact information for the relevant DHS office (you can find that separately here). It could indicate whether biometrics are current. Each individual Immigration Court has its own webpage (which you can access here) with information about office hours, staff, parking, and more. It would be nice if the portal provided a link to the relevant court’s webpage. Maybe it could also include links to local pro bono resources and to the Immigration Court Practice Manual. And if we’re really ambitious, it could include information about how to submit a complaint against an adjudicator, other court personnel or an attorney. Dare to dream.

One last point–the new portal is only useful if people know that it exists. Instead of all the mumbo jumbo on the Notice to Appear and the Immigration Court scheduling order, why not include a prominent (and I mean **PROMINENT**) link to the new online system? This new system is not bad (despite my kvetching) and it would be great if more people learn about it.

These days, anything resembling a positive development in immigration world should be celebrated. EOIR’s online portal is a helpful tool for immigrants and their advocates. I hope EOIR will continue to upgrade this system to make it more secure and more useful for us all.

Continue reading

75 Comments

EOIR Proposes Huge Fee Increase

by Jason Dzubow

EOIR–the Executive Office for Immigration Review–has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals (“BIA”). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following–

  • Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
  • Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
  • Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
  • Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
  • Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
  • Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
  • Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,

Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).

EOIR hopes to revive the tradition of paying your executioner.

As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows–

The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.

As usual, Mr. McHenry’s comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not “marginal,” and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.

Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let’s take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today’s dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but “only” about four times the adjusted-for-inflation fee.

Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant’s income and expenses. It’s not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the “discretion” to grant a fee waiver. However, the regulations also indicate that, “if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.” Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It’s hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.

Finally, EOIR’s main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR’s expenses and protect tax payers–to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR’s expenses, I think that fee increases of this magnitude are unfair for two main reasons.

First, EOIR’s justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can’t separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).

Second, in its mission statement, EOIR indicates that it “is committed to providing fair, expeditious, and uniform application of the nation’s immigration laws in all cases.” How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts–civil courts, criminal courts, and immigration courts, among others. Our’s is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes—

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.

Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all. 

Continue reading

113 Comments

On Luck

by Jason Dzubow

For years, practitioners and academics have complained about inconsistent decisions at the Asylum Offices and the Immigration Courts, and there’s plenty of data to back up this concern. Recently, two sets of cases in my office brought this problem home, and illustrated how luck impacts who receives protection in the U.S. and who does not.

The first set of cases involves two siblings whose uncle was a well-known member of the political opposition. As a result of the uncle’s activities in the early 2000’s, his siblings–including my clients’ father–were all arrested and held in jail for years. Thus, for a good portion of their childhood, my clients grew up without their father. After he was released, the father resumed his life and his children (my clients) eventually came to the United States to study. While they were here, the father was re-arrested for seemingly pretextual reasons. Fearing for their own safety, the siblings filed for asylum. Both cases were referred to Immigration Court, and the siblings hired me for their cases. As far as I could tell, the cases were exactly the same. Neither sibling had engaged in political activity; both cases were based on the relationship with their high-profile uncle and the home government’s persecution of the entire family. Also, we submitted the same evidence in each case and both applicants were found credible. The only difference between the two cases is that the siblings had different Immigration Judges. The first case was before a judge with a 62% denial rate and the second case was before a judge with a 91% denial rate (according to TRAC Immigration). We won the first case and DHS did not appeal,. So in a sense, the second case was different in that one sibling had already been granted asylum. Unfortunately, that was not enough. DHS opposed asylum in the second case (even though they had not appealed the grant in the first case) and the IJ denied relief. The case is currently on appeal.

Sometimes, it may make sense to try to change venue.

The second set of cases involves members of a religious minority who faced persecution by their government and by extremists in their country. These cases were before the Asylum Office. The lead applicants were all related, either as siblings or in-laws, they were members of the same congregation back home, and they faced mostly the same persecution. Also, we submitted similar evidence in each case and all the applicants were deemed credible. Out of four cases in 2019 and 2020, we received three grants and one denial. The main difference between the four lead applicants was that the person who was denied had the strongest case due to past imprisonment in his country. Also, the denied case was the most recent decision, and so we had informed the Asylum Office that other family members were granted asylum on basically the same facts. In the denied case, the Asylum Office found that the applicant suffered past persecution, but found that country conditions had changed, such that the situation was now safe. It seems odd that the Asylum Office would find changed country conditions in one case, but not the others. The referred case is now before an Immigration Court.

So here we have two situations where the applicants presented nearly identical cases, but received different results. Why did this happen? As far as I can tell, the reason is luck: Some adjudicators are more likely to grant asylum than others, and this gives us inconsistent results. Also, some adjudicators seem to be inconsistent from one case to the next, in that their mood at a given moment may influence their decision. And so, the outcome of a case is dependent–at least in part–on the luck of the draw.

This is obviously not a good thing. While I agree with former Chief Immigration Judge MaryBeth Keller that we “don’t want decisions on asylum made according to mathematical formulas as if by computers,” I do think disparities are a serious problem, which should be addressed at the policy level. But what can individuals do about the problem of luck in asylum cases?

In thinking about this question, I am reminded of Reinhold Niebuhr’s Serenity Prayer–

G-d, grant me the serenity to accept the things I cannot change,
Courage to change the things I can,
And wisdom to know the difference.

But how do we know what we can change? Some things are obvious: We can gather the evidence needed for a case, make an appropriate legal argument, try to weed out inconsistencies, prepare testimony beforehand, dress appropriately for court, etc. For those who can afford it, having a competent attorney can make a big difference. For those who cannot afford legal help, securing pro bono (free) assistance is important (though finding pro bono help is often not easy).

Some things are harder to control. For Immigration Court, it is possible to get an idea about the asylum grant rate for your particular judge (for newer judges, data may not be available). If you find your judge has a particularly high denial rate, you might consider moving to a new jurisdiction in order to change venue to a different court, where you will hopefully get a better judge. I rarely recommend this option to my clients, as moving is largely a crap shoot–the IJ may refuse to transfer the case, you may end up with a worse judge despite the move (and a judge who may be “bad” for most applicants might be “good” for certain types of cases), and you may substantially delay the case. Also, of course, moving to a new state is disruptive and expensive. Despite all this, if you have a particularly difficult judge, it may make sense to try to move the case.

Forum shopping is even less useful for cases at the Asylum Office. While there is some data about the overall grant rates for the different offices, there is no information available about the individual Asylum Officers. Even if such data existed, it would be of little value, since you won’t know who your Officer is until the day of the interview, when it is too late to switch. While it is possible to move to a jurisdiction with an “easier” Asylum Office, given all the variables, this often makes little sense. On the other hand, if you have the flexibility to live anywhere, why not live somewhere with a good Asylum Office?

For the most part, then, you are stuck with your adjudicator, but you have a fair bit of control over the case you present. In my experience, it is more productive to focus on the case itself, rather than worry about who will decide that case. In the end, the absence of control is a fact of life for asylum seekers and for us all. Perhaps a quote from another of my favorite theologian–Saint Augustine–provides an appropriate conclusion here: Pray as though everything depends on G-d. Work as though everything depends on you. At least in this way, you cover all your bases.

Continue reading

87 Comments

The All-or-Nothing Problem

by Jason Dzubow

The debate over immigration–legal and illegal–has become more divisive and seemingly more intractable in the face of the current Administration’s hard-line policies. In a democracy, ideally, people with different views about immigration would talk to each other and reach some type of compromise solution. That is difficult with any issue, but it is particularly problematic when it comes to immigration. There are many reasons for this, but for me, one reason stands out: Immigration is an all-or-nothing proposition.

What I mean is, under the immigration law, either a person gets to stay in the U.S. or they get deported. There is no middle ground. Contrast this with the criminal law. If a person robs a bank, for example, there are a wide range of responses available under our system of justice. The person could be sentenced to jail (for a short time or a long time), or fined (a lot or a little), or given probation. Perhaps the bank robber is a good candidate for rehabilitation and can be placed into a program to obtain appropriate services. In short, a criminal judge has many options, and can–theoretically–tailor a solution to fit the particular circumstances of the case. Immigration Judges have far fewer options.

When a person is placed into Immigration Court, it is for one reason: The U.S. government believes that the person should be deported from the United States. The charging document, called a Notice to Appear (“NTA”), lists the reason(s) why the “respondent” (the non-citizen) can be deported. If you look at the allegations in a typical NTA, you will see: (1) You are not a citizen or national of the United States; (2) You are a citizen and national of country X; (3) You entered the United States on a particular date with a particular visa (or without a visa); (4) You overstayed your visa and no longer have permission to remain in the U.S., or you committed some act (such as a crime) that makes you ineligible to remain in the United States. Sometimes, respondents deny the allegations. Maybe the government got it wrong. Maybe the person is not deportable. Usually, though, the allegations in the NTA are correct, and the respondent concedes removablity, and proffers some type of defense to being removed. Common defenses include asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, and adjustment of status. There are also other, less common, options. At the end of the day, the respondent will either be granted relief based on one of these defenses, or he will be ordered to leave the United States.

Making a reasonable argument in the immigration debate is like bringing a flower to a gun fight.

Under this legal regime, there is basically no opportunity for compromise. The respondent wins everything or loses everything. One exception (sort of) is the asylum applicant who receives the “lesser relief” of Withholding of Removal or protection under the United Nations Convention Against Torture (“CAT”). An applicant will receive “lesser relief” where she is ineligible for asylum. Committing a crime could render a person ineligible. So could missing the asylum-filing deadline. Asylum is the better form of relief, since asylees can bring immediate family members to the U.S., can travel, and can eventually get their green cards and become U.S. citizens. People who receive Withholding or CAT can stay in the country with a work permit, but they cannot bring their family members here, travel or obtain their green cards or citizenship. This type of “compromise” (if it can be called that) leaves the respondent in a strange limbo: Here, but not here. Unable to feel secure in their status or stable and safe in the U.S. It also seems unfair, at least to me, to “punish” asylum seekers with lesser relief when their only mistake was to file late for asylum. Why should such people be treated the same way as criminals under the asylum law? So for me, if “lesser relief” in an asylum case is a compromise, it is a poorly thought out compromise, which has little basis in equity or justice.

I wonder if there could be another model. Is there a moral middle ground that allows qualified respondents to stay and feel secure here, but that does not completely ignore past immigration misdeeds? In other words, is there a way to satisfy Americans who don’t want the government to grant amnesty to law-breakers, but at the same time, to provide a viable path for respondents seeking relief in Immigration Court?

One could argue–convincingly in my opinion–that the existing immigration system does not give immigrants a pass, even if they do receive relief. For one thing, it’s not cheap to obtain a green card or citizenship ($1,225 and $725, respectively, if you only consider direct fees to the government). Also, most immigration applications (with USCIS or with the Immigration Court) take a long time. If you do receive relief and then want your family members to join you here, that process will usually take additional years. So even in the best case, immigration to the U.S. is not easy and not cheap.

Although respondents pay a price (in money and time), the current immigration system does not provide the type of flexibility available to judges in criminal or civil cases. So what can be done?

One possibility is to impose fines on respondents who violate the immigration law. If relief is granted, the Immigration Judge can determine whether a law was broken, and if so, whether a fine is appropriate, and how much. Relief would then be conditioned on completing payment of the fine. Of course, a major criticism of fines (in civil and criminal cases) is that they are a tax on the poor, and that they prevent people from achieving financial stability. In the asylum context, fines would likely be inappropriate, since it is perfectly lawful for anyone–even people who do not have permission to enter the country–to seek asylum. But in other contexts, fines might make sense.

Another possibility is to impose a waiting or probationary period on people who are granted relief. This already happens in certain cases (and indeed, the green card itself might be viewed as a type of probation, since it can be lost for not following the rules). For example, there are only a limited number of green cards available through Cancellation of Removal, and so if such relief is granted, the applicant usually has to wait (for a year or two) before a green card is available. This is akin to “waiting your turn,” which seems so important to people concerned about immigrants “jumping the line.”

Finally, in some cases, it may be appropriate to impose certain conditions on people who receive relief in court. For example, if an applicant has a prior conviction for DUI, perhaps the Judge could require the applicant to attend AA meetings or complete community service. For people with other criminal issues, maybe anger management classes would be appropriate. In some cases, maybe English classes or job training would be important. Final relief could be contingent on fulfilling your court-imposed obligations.

All these ideas are imperfect and preliminary. Perhaps it’s a fool’s errand to try to satisfy those who oppose “amnesty” for non-citizens. Maybe the lesson of the Trump Administration is that policy is made by imposing our ideas on others and eschewing compromise. Maybe. But for me, I still have hope that we can reach a point where civil discourse and reasonable compromise are possible. And certainly, as the political landscape continues to change (hopefully, at some point, for the better), we should be thinking about ways to re-work our immigration system so that more Americans have a stake in that system and feel that it serves their needs. Giving Immigration Judges more flexibility may be one path towards that goal.

Continue reading

136 Comments

New Data Shows that Most (But Not All) Asylum Offices Are Getting Tougher

by Jason Dzubow

Last fall, the Asylum Division cancelled its quarterly stakeholder engagement meeting and postponed the release of data about the various Asylum Offices. Now, finally, that information has been released. The news is generally bad (who would have guessed?), but the data contains some bright spots and surprises–as well as a few mysteries. Here, we’ll take a look at the most recent news from our nation’s Asylum Offices.

First, the data. The Asylum Division has released statistics for FY2019, which ended on September 30, 2019. The data shows that despite the Trump Administration’s hostility towards asylum seekers, many people continue to seek protection in the United States–through the fiscal year, a total of 82,807 new affirmative asylum applications were filed (and remember that some of these cases include dependents, so I imagine the total number of people filing for asylum in FY2019 is well over 100,000). Case completions are still not keeping up with new filings, and the overall asylum backlog continues to grow: From 323,389 at the beginning of the fiscal year, to 339,836 at the end. Throughout the year, the number one source country for new asylum cases was Venezuela. China was number two for most of the year, followed by Guatemala, Honduras, El Salvador, and Mexico.

In terms of grant rates, the news is fairly negative, but not uniformly so. As an arbitrary base-line, I will use a post I did in February 2016 about Asylum Office data from the second half of FY2015 (April to September 2015). I calculated the percentage of cases granted at each Asylum Office. In crunching the numbers, I discounted cases that were denied because the applicant failed to appear for an interview, but I included cases that were denied solely because the applicant failed to meet the one-year asylum filing deadline. I’ve made the same calculations for the period April to September 2019, and compared the grant rates for both time periods in the chart below. 

Whenever a lawyer does math: Beware!

As I mentioned, I did not include “no shows” in my data. For this reason, government statistics about the asylum grant rate will be lower than my numbers, since they include people who failed to appear for their interviews. If I had included “no-shows,” the FY2019 grant rate in Arlington would be only 19.5% (instead of 26.5%, as shown in the chart). The New York grant rate would drop to a paltry 7.1%, and the grant rate in San Francisco–the “best” asylum office–would fall to a still-respectable 54.0%. Arguably, it makes sense to include “no shows,” since some people may not appear due to no fault of their own. However, I chose to leave them out, since I suspect most have either found other relief or have left the country, and I don’t think it is useful to evaluate Asylum Offices based on denials where the applicant never appeared for an interview.

One problem with my comparison is that there are more asylum offices today than there were in 2015. The two new offices are Boston and New Orleans. The Boston office was previously a sub-office of Newark, and the New Orleans office was part of the Houston office (though in truth, I am not sure whether all of New Orleans’s jurisdiction was covered by Houston, or whether some was covered by Arlington). To account for this, the first numbers listed for Houston and Newark for FY2019 is the percentage of cases granted in that office. The numbers in parenthesis for Houston and Newark include cases that would have been within the jurisdictions of those offices in FY2015 (i.e., the New Orleans cases are included with Houston and the Boston cases with Newark). Thus, the parentheticals are useful only for comparison with the FY2015 numbers; if you are just interested in the percentage of cases granted in Houston and New Orleans in FY2019, look only at the first number.

The same chart, but here, I have removed one-year bar denials (reminder: Beware!!).

As you can see, there is an overall decline in the grant rate at most offices. In some cases, this decline is quite significant. One office–Houston–bucked the trend and actually granted a higher percentage of cases than in FY2015.

But perhaps things are not quite as bad as they appear. The numbers in the first chart include cases denied solely because the applicant failed to file asylum on time (remember that you are barred from asylum unless you file within one year of arriving in the U.S. or you meet an exception to that rule). In the second chart, I factored out cases that were denied solely because they were untimely (the Asylum Offices have been identifying late-filed cases and interviewing them; unless the applicant overcomes the one-year bar, the case is referred to Immigration Court without considering the merits of the asylum claim; since they are interviewing many such cases, this is pushing overall denial rates up). Comparing the two fiscal years in chart two, the decline in grant rates is much less severe. Indeed, three offices granted a higher percentage of timely-filed cases in FY2019 than in FY2015.

So what’s happening here? Why did grant rates generally decline? Why did some offices improve? What does all this mean for asylum seekers?

First of all, these numbers must be taken with a big grain of salt (and not just because I am an incompetent mathematician). A lot is going on at each Asylum Office. Different offices have different types of cases, including different source countries, greater or fewer numbers of unaccompanied alien children (“UAC”) cases, and different policies in terms of interviewing untimely applicants. As a result, some offices may be interviewing more “difficult” cases, while other offices are interviewing more “easy” cases. Offices that interview many Central American cases, or many UAC cases, for instance, will likely have lower grant rates than other offices. This is because Central American cases and UAC cases are more likely to be denied than many other types of asylum cases. Also, some offices are more aggressive than others in terms of identifying and interviewing untimely asylum cases. Offices that interview more late-filed cases will likely have a higher denial rate than offices that interview fewer late-filed cases.

Despite all this, it is fairly clear that the overall trend is negative. One obvious reason for this is a series of precedential cases and policy changes during the Trump Administration that have made it more difficult for certain asylum seekers, particularly victims of domestic violence and people who fear harm from Central American gangs. In addition–and I think this is probably less of a factor–the leadership at DHS and DOJ has repeatedly expressed hostility towards asylum seekers and encouraged the rank-and-file to identify and deny fraudulent applications.

Finally, as my colleague Victoria Slatton points out, it’s possible that the negative trend is worse than what the numbers above reflect. In FY2015, the Asylum Division gave priority to UAC cases. Since such cases are more likely to be denied, interviewing more of them may have pushed the overall grant rates down. In FY2019, UAC cases were not given priority, meaning that (probably) fewer UACs were interviewed. All things being equal, fewer UAC cases should mean a higher overall approval rate, but that is not what happened at most Asylum Offices. This may mean that more non-UAC cases are being denied today than in FY2015.

As you can see, there are a lot of moving parts, and a lot is going on behind these numbers. In one important sense, though, things have not changed much in the last four years. Strong cases still usually win; weak cases often fail. For asylum seekers (and their lawyers), we can only control so much of the process. Submitting a case that is well prepared, consistent, and supported by evidence will maximize your chances of success. And as the numbers above show, success is still possible even in these difficult times.  

Continue reading

232 Comments

Expediting Your Case with USCIS

by Jason Dzubow

It’s rare that you’ll find the words “USCIS” and “fast” in the same sentence, unless there’s a “not” in there somewhere. The agency that processes U.S. immigration benefits is not known for its lightning speed. But if you’re in a hurry, it is possible to expedite your case. USCIS does not always agree to expedite requests, but there is usually nothing to lose by trying.

In fact, USCIS has an entire web page devoted to expedite requests. Note that this page is not for asylum cases. I wrote about expediting asylum cases here. Also, the web page does not provide information about expediting cases outside the United States. For refugees (not asylees) outside the U.S., there is some limited information about expediting here. And for humanitarian parole applications for people outside the country, there is some information about expediting available here. Finally, if a case has already been processed by USCIS and is now with the U.S. Department of State, you can find some information about expediting here. Also, you can contact the relevant U.S. Embassy directly to ask for help.

For cases being processed inside the country, the USCIS web page provides guidance for how to make an expedite request. Such cases include Employment Authorization Documents (“EAD”), I-730 petitions, Advance Parole, Refugee Travel Documents, applications for Lawful Permanent Residency (the green card), and applications for citizenship.  

Regular USCIS processing.

USCIS considers all expedite requests on a case-by-case basis, and has sole discretion to decide to grant or deny such a request. This basically means that you are asking USCIS to do you a favor (expedite), and if they refuse, there is usually not much to be done. Also, in making an expedite request, USCIS requires documentation to support your claim. USCIS will not expedite any case where premium processing is available (usually, these are cases involving employment-based applications where you pay an extra fee for fast processing).

USCIS lists the following criteria for expediting a case–

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: (1) File the benefit request or the expedite request in a reasonable time frame, or (2) Respond to any requests for additional evidence in a reasonably timely manner;
  • Urgent humanitarian reasons;
  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
  • Clear USCIS error.

USCIS indicates that “severe financial loss to a company,” means that the company is at risk of failure. For an EAD, you would want to show an equivalent level of difficulty for the individual. Maybe the person will become homeless or be unable to cover medical bills. Whatever the reason, you must show that you are not able to “withstand the temporary financial loss that is the natural result of normal processing times.”

Cases can also be expedited based on “urgent humanitarian reasons.” The most common examples are health problems (mental or physical, for you or a family member) and safety issues (maybe you are petitioning for a relative who is in danger in his home country).

If you can link your case to a “compelling U.S. government interest,” that could be another reason to expedite. Maybe you are involved with U.S. national security work, for example, and you need to expedite on that basis.

Finally, if USCIS has made a clear error, you can ask them to expedite a case to correct the error, or maybe even a subsequent case that has been delayed due to the previous error.

Whatever the reason for the expedite request, you would want to provide documentation: A letter from the doctor or your employer, medical records, evidence that your family members are living in unsafe circumstances (letters from your relatives or others who know about the problem, police reports, medical reports, country condition evidence), evidence of financial hardship, a USCIS letter admitting to their error, etc.

Expedited USCIS processing.

You can make a request to expedite at the time you file your case or anytime after you receive the receipt.

The better approach is probably to make the expedite request when you file. Include a cover letter that clearly indicates that you want to expedite (you can highlight or underline the fact that you are requesting expedition). In the cover letter, include an explanation about why you need to expedite. I prefer to keep my explanations short. In part, this is because I am lazy, but also, I think busy people at USCIS are more likely to read a short and to-the-point explanation than a long, involved explanation. Finally, along with the other evidence required for your application, include documentation supporting your request to expedite. 

If you have already filed your application and now seek to expedite, the best approach is to call USCIS at 800-375-5283 (they also have a TTY line at 800-767-1833). To make this call, you will need the receipt number for your application. It is not so easy to reach a real person, but once you do, USCIS will create a service request and forwarded it to the appropriate office. After that, USCIS may request additional evidence in support of your request.

If, after making the expedite request at the time of filing or later on, you do not receive a timely response, you can call USCIS to follow up.

USCIS will (hopefully) agree to expedite the case. For applications that are completed in one step (EAD, Advance Parole, Refugee Travel Document), you should receive a decision in the case and–if all goes well–the requested document. For applications involving more than one step (an I-730 for a relative abroad, for example), the first step will be expedited, but subsequent steps will not necessarily be expedited. So for the I-730, you might still need to contact the State Department or the appropriate U.S. Embassy in order to keep things moving.

If USCIS denies the expedite request, it does not mean that they will deny the application. It only means that they will not reach a decision in an expedited time-frame (conversely, just because USCIS agrees to expedite a case does not mean that they will approve the application). 

In our office, we sometimes make expedite requests for our clients. It does not always work, but sometimes it does (this always surprises me), and it can save significant time. For asylum seekers and asylees, many of whom have urgent needs, this can be a real life saver. To maximize your chances for success, you need a strong reason to expedite and documents to support your request. For such cases, USCIS will evaluate the request and–sometimes–expedite your case.

Continue reading

199 Comments

New Immigration Court Statistics: The Good, The Bad, and The Unknown

by Jason Dzubow

The latest data on asylum grant rates in Immigration Court is out, and as expected, the news is not great. Overall asylum grant rates in court continued to decline in FY 2019, but the news is not all bad. Courts adjudicated a record number of asylum cases this past year: 67,406, up from 42,224 last year and 19,779 in FY2015. Many cases are still being granted. Indeed, even though grant rates are down, in absolute numbers, more asylum cases are being approved than ever (this is because the total number of asylum cases adjudicated is way up). Also, the percentage of applicants represented by attorneys continues to climb (slowly). Here, we’ll take a look at the newest data and what it means for asylum applicants.

Let’s start with the bad news (so no one can accuse me of being an optimist). In FY2019, 69% of asylum seekers were denied asylum or other relief in Immigration Court. This continues a negative trend that began in FY2012, when the overall denial rate was at an all time low–only about 42% of asylum applicants were denied in that glorious year. Since then, denial rates have been steadily climbing. Last year (FY2018), the overall denial rate was 65%. Despite the general negative trend, if we break down the reasons behind the high denial rate, perhaps we can find a silver lining.

On a positive note, courts granted asylum to 19,831 people in FY2019. They are pictured above, celebrating.

One factor affecting the overall denial rate was the large number of decisions for cases where the applicant was not represented by an attorney. For unrepresented applicants, the denial rate was 84%. Interestingly, unrepresented cases move much more quickly than represented cases: 45.3% of unrepresented cases that started in FY2019 were resolved in FY2019. In contrast, only 9.7% of represented cases that began in FY2019 have been decided. I suspect that many of the unrepresented cases are for detained applicants, as such cases tend to go much faster than non-detained cases (since the government does not like to pay for incarceration). Also, it may be that some unrepresented applicants who are recent arrivals in the U.S. have their cases adjudicated on an expedited basis.

Another major factor affecting denial rates is country of origin. Four of the top five source countries for asylum seekers are El Salvador, Guatemala, Mexico, and Honduras. Together, these countries represented about 22% of all asylum cases decided in Immigration Court in FY2019. But for various reasons (harsh U.S. laws, difficulty proving nexus), these countries tend to have higher-than-average asylum denial rates–in the range of 80% denials. So if you factor out these four countries, the overall denial rate would be lower (if you are from one of these countries, it is very helpful to talk to a lawyer and think through the most effective way to present your case). You can look up the success rate for people from your country here (this data can be broken down by court, but not by individual judge).

Other factors that contribute to the high denial rate include detained cases and one-year-bar cases, which are both harder to win than non-detained cases and cases filed on time. A final–and unexpected–factor in the high denial rate is the government shut-down of January 2019. During that period, only detained cases were adjudicated, and since such cases are more difficult to win, the denial rate during the shut-down shot up to nearly 75%. This in turn pushed up the overall denial rate for the year.

For asylum seekers who are wondering about the likelihood of success in court, all these variables must be considered. If you are represented by an attorney, if you are not from Central America or Mexico, if you are not detained, and if you file your case on time, the overall asylum denial rate should be significantly better than 69%. So I guess that is good news, sort-of.

But of course, overall denial rates are of little consequence given that grant rates vary by judge (sometimes quite dramatically). To find the name of your Immigration Judge (“IJ”), call 800-898-7180. When the machine answers, follow the instructions and enter your Alien number. You can then press “1” and hear your next court date and–hopefully–the name of your IJ. If your IJ is not listed in the system, it may mean that no one is yet assigned to the case, but you can double check by calling the Immigration Court directly and asking the receptionist whether your case is assigned to a judge. Once you know your judge’s name, you can look here to find asylum denial rates for your particular IJ (for new judges, there may be no data available).

A few points about the individual IJ data: First, it is probably best to look at the most current denial rate (FY2019), since recent (negative) changes in the law may have affected the percentage of cases judges approve. Thus, the older data may be less relevant to a case today. Second, as we discussed, representation rates and country of origin affect overall grant rates. If you scroll to the bottom of the IJ’s page, you can get some idea of the representation rate before that judge, as well as the source countries for asylum seekers that the judge sees. If the IJ adjudicates many unrepresented cases, and/or many cases from Central America and Mexico, this may increase that IJ’s denial rate. Finally, some IJs decide large numbers of detained cases and this would also negatively affect the judge’s grant rate (the data that I see does not list the percentage of detained cases decided by each judge).

Having said all this, I am not sure how useful it is. Unless you move, you have basically no control over who will be your judge. It is better, I think, to focus on what you can control: Gathering evidence and witnesses, preparing your case, and finding a competent attorney. In my experience, most IJs are fair and will listen to your case. The biggest factor in determining whether you win is usually the case itself, and the most productive thing you can do is focus on the variables you can control, and present the strongest case possible.

Finally, I would be remiss not to thank TRAC Immigration for their continued superb work gathering Immigration Court data (often under difficult circumstances). So thank you, TRAC, and keep up the good work.

Continue reading

132 Comments

Asylum in a Time of War

by Jason Dzubow

With the escalating tension between the U.S. and Iran, DHS has been detaining Iranian Americans and Iranian nationals at the border and questioning them about their ties to Iran, their background, their family members, and their opinion about the Iranian government.

On the one hand, it’s perfectly reasonable to question people entering our country, particularly during wartime (and when was the last time we were not at war?). It’s also reasonable to apply additional scrutiny to people from “enemy nations.” And so, on one level, it makes sense to look more closely at Iranian Americans and Iranian nationals who are seeking entry into the United States.

On the other hand, it’s difficult to accept anything the Trump Administration does without feeling that there is an ulterior motive. At this point, we have been subject to so many lies, in the service of such bad policies, that nothing the Administration does can be viewed at face value. Is there any intelligence that indicates Iran is planning to retaliate by sending agents to our country? Is there any reason to suspect the particular people stopped and questioned at the border? Or does the Administration just want to scare us, in order to further justify its xenophobic policies? Or maybe to distract from the impeachment? There is no way to know, and when you can’t trust what your own government tells you, it is impossible to evaluate whether its actions are warranted.

Enrico Fermi (left) also invented the Photo Bomb.

In any event, here I want to talk about asylum during wartime. I suppose one response to war would be to shut down the border completely, block all nationals from the enemy country from coming to the U.S., and take measures against any of those nationals (or their decedents) living in the United States. We did the latter during the Second World War, when we detained Americans of Japanese decent. Notably, we did not detain Germans or Italians, even though we were also at war with those countries. But what about granting asylum to “enemy aliens” during wartime? Welcoming them to our country, even though we are at war with their homeland?

There certainly is precedent for giving refuge to “enemy aliens.” Probably the most famous examples are the scientists who fled fascism and anti-Semitism during the Second World War. People like Albert Einstein and Enrico Fermi found refuge in the United States and made important contributions to our efforts during the War (I’m not a fan of the Bomb, but I’m glad we got it before the Nazis). Another well-known example is the Cubans who fled Communism after Fidel Castro took power on their native island. For the past six decades, those same Cubans have been fierce opponents of the Castro regime. A third example is the Iranians who came to the United States after the 1979 revolution. While they generally oppose military intervention against their homeland, most Iranian Americans support democracy and human rights in Iran.

I encountered a less well-known example when I lived in Philadelphia in the mid-1990’s. I met an old man at my synagogue who had been a refugee during WWII. He was Jewish, born in Germany. During the 1930’s, he fled to Britain as a refugee. When the War started, he was detained as an enemy alien and shipped (by boat) to Australia. He was stuck down under for a while, until the Brits realized that he spoke German, and so they shipped him all the way back to England to serve in an intelligence unit. He assisted the Allies during the War, and then later immigrated to the United States.

Also, in my job, I meet people every day who are working to bring democracy and human rights to their countries of origin. Once they get their bearings in the U.S., many of my clients work directly or indirectly to assist the United States with diplomacy and national security. My client from Iran, for instance, is a computer expert who works to overcome censorship in his home country (and in other authoritarian countries), so people can access websites blocked by the government. Another client, from Afghanistan, organizes conferences, bringing high-level American and foreign experts together to discuss national security challenges. A third client advocates for democracy in Cambodia, and is regularly in contact with important U.S. government officials. And a number of my clients work for Voice of American (on and off the air), bringing news and promoting American values in their home countries. You get the point: Foreign nationals who have obtained refuge in the United States, often from hostile regimes, are working to advance U.S. interests and to educate U.S. decision-makers and the public, so we can better respond to national security challenges.

And herein lies the rub: How do we obtain the benefits of this expertise while minimizing the risk to our security? The answer, I think, is asylum. Remember, we do not offer asylum to just anyone who fears harm. Asylum is for people who face persecution on account of their race, religion, nationality, political opinion or particular social group. These “protected grounds” reflect our national values, and thus, asylum is basically set up to benefit people who will benefit us. Asylum seekers are also subject to rigorous security background checks. And so if the system is working properly, we will receive refugees from hostile regimes who will be well-vetted and will present minimal risk to our national security, and who are well-positioned to assist our country vis-a-vis their homelands.

Of course, when a conflict exists between our nation and another nation, we must exercise caution in dealing with citizens of the hostile power. We should use all the tools at our disposal to advance our interests and to keep ourselves safe. Asylum is one of those tools. Rather than discard the asylum system during wartime, we should use it as it was intended–to benefit those who support our values, and to benefit ourselves.

Continue reading

82 Comments

Ten Immigration Predictions for 2020

by Jason Dzubow

As you may have noticed, it’s 2020. I don’t have high hopes that this year will be any better than the last, at least in terms of immigration and asylum, but I do have some predictions for what to expect in the coming annum. While I am no Joan Quigley, I do expect that at least some of my prognostications will come true. If so, remember, you heard it here first. And now, without further ado, here are ten predictions for 2020–

1. All asylum grant letters will now feature a photo of Donald Trump giving you the finger.

2. Every 36 hours, USCIS will issue an updated version of form I-589. The new form will be exactly the same as the old form, except for the edition date. Old versions of the form will not be accepted.

In 2020, DHS will adopt a new logo, which more accurately reflects its current mission.

3. Having re-written The New Collosus, Ken Cuccinelli will set to work on other popular pieces of Americana: America, the Beautiful will be changed to America the Brutal Is Full. Hail to the Chief becomes Sieg Heil to the Chief. And My Country Tis of Thee will become My country, Muslim free, Sweet land for whites only, Of thee I sing.

4. The Board of Immigration Appeals will be replaced by the 1985 Chicago Bears defense.

5. The abbreviation EAD will be changed from “Employment Authorization Document” to “Employment Americans Detest.” The new EAD will only allow non-citizens to work in jobs that Americans won’t do, such as picking watermelons, washing old people, and serving in the Trump Administration.

6. The Correction Corporation of America will issue a new child-friendly cage. Each cage will be equipped with a tin cup for drinking, a week’s supply of gruel, and a doll to play with–Oliver for boys and Annie for girls.

7. To better track aliens in the U.S., the Trump Administration will require all non-citizens to tattoo their A-number to their forearm.

8. Continuing a trend from last year, in 2020, I-589 forms will be rejected unless all boxes are filled. If there is no answer to a question, you must write “n/a”. If “n/a” is not written correctly, the form will be rejected. Incorrect versions of “n/a” include “N/a”, “n\a”, “NA”, and “n/a”.

9. The wait time for an asylum-pending EAD will be increased to one year. After sending the receipt, biometric letter, and approval letter to your correct address, USCIS will mail the card to the wrong address. After it is returned by the post office, you can re-file and start the process over again.

10. In 2020, the fee for asylum will be $50.00. But fear not. For those who do not have the money, the new form I-666 allows USCIS to harvest your organs in lieu of payment. You really didn’t need that extra kidney anyway, did you?

So that’s it. As you can see, it looks like 2020 is shaping up to be a banner year for immigrants and for us all. On the bright side, it’s already January 7th. That means we only have 359 days left to go… 

Continue reading

133 Comments

The I-730 Process: Bringing Family Members Together

by Jason Dzubow

Winning asylum is becoming harder, but it still happens. One of the great benefits of receiving asylum in the United States is that you can file for certain family members to either come to the United States or–if they are already here but do not have status–obtain their lawful status in our country. The process of filing for a family member can be complicated, but a new resource can help: The I-730 Refugee/Asylee Family Reunification Practice Manual.

The first thing to know about this manual is that it is designed for attorneys and accredited representatives; it is not designed for lay people. In other words, it’s not really designed to assist asylees and refugees themselves. It’s important to understand this, as the manual does include some legal jargon and lots of legal references, which are more easily understood by people with legal training. However, overall, the manual is clear and well-written, and it might also be of use to people who are not represented by attorneys (I fear that the authors might cringe if they read this, but these days, low cost legal help is not easy to find, and for those who cannot secure assistance, the manual could be a real life-saver).

Nothing is better than family reunification. Except family reunification with cake!

The second thing to know about this manual is that it is terrific. It covers all the basics, and provides ideas to assist in many problematic situations. It also doesn’t hurt that it is available for free. So kudos to authors Rebecca R. Schaeffer and Katherine Reynolds, and to the organizations who helped make the manual possible: CLINIC, Church World Service, Elon University, and UNHCR.

In this post, I obviously cannot cover or even summarize the material contained in the family reunification manual. Instead, I want to give an overview of the I-730 process for asylees (as opposed to refugees) and to talk about what to expect when you file an I-730 Asylee Relative Petition for a family member.

First, only spouses and children can benefit from an I-730 petition. For spouses, the marriage must have existed prior to the approval of the asylum application. Also, there are certain restrictions about who is considered a spouse: Proxy marriages and polygamous marriages generally do not count. Children generally include biological children, step-children, adopted children, children born out of wedlock, and even unborn children. The child must have been under 21 at the time the principal’s I-589 was filed. Also, the child must remain unmarried until the I-730 is approved and the child/beneficiary is in the United States. There are exceptions to all these rules–and exceptions to some of the exceptions. The manual covers a number of different situations, but if you are not sure, talk to a lawyer. Aside from spouses and children, no other relatives can benefit from an I-730.

The I-730 cannot be filed until asylum is granted, and it must be filed within two years of the date asylum is approved (again, there are exceptions). A separate I-730 must be filed for each family member.

When we file an I-730 for one of our asylee clients, we generally include proof of asylum status (copy of the approval letter or Immigration Judge’s order), proof of identity (copy of passport or other identity document), evidence of the relationship (copy of marriage certificate or birth certificate), evidence of the beneficiary’s identity (copy of passport), and two passport-style photos of the beneficiary. Depending on the case, evidentiary requirements vary, so talk to a lawyer to be sure.

Beneficiaries who are inside the U.S. will receive an interview at their local USCIS office and, if approved, they will receive asylum status. It is possible to file for a family member who is in the United States even if the person entered the country illegally or overstayed a visa, or if the person has criminal or immigration issues, including people with a final order of removal. However, such cases are complicated, and starting the I-730 process for such a person could cause more harm than good. So if a potential I-730 beneficiary has criminal or immigration issues, it is important to consult with a lawyer before you start the I-730 process.

Where the beneficiary is overseas, USCIS will forward the I-730 (via the National Visa Center) to the appropriate embassy. The embassy will contact the beneficiary about a medical exam and other required evidence (which varies from embassy to embassy), and to schedule an interview. If the case is approved, the beneficiary will receive a travel packet, which acts like a visa and allows her to come to the United States as long as the “visa” is valid. Upon arrival, the person will undergo another inspection at the airport, and–if all goes well–enter the U.S. as an asylee.

As the manual points out, the processing time for an I-730 is not predictable. Most cases where the beneficiary is inside the U.S. take at least a year. Cases where the beneficiary is overseas take longer–a two year wait is not uncommon. In my office, we have seen cases go more quickly, but that is not the norm, especially these days. For cases outside the normal processing time, it is possible to make an inquiry. Pages 57 to 60 of the manual give some helpful advice on that score.

A few final points: For the interview, adult beneficiaries should have some awareness of the principal’s asylum case. Beneficiaries are often not questioned about the principal’s case, but if they are, it is better to know the basics (and if you do not know the answer, don’t guess; say “I don’t know“). Also, any documents not in English that are submitted with the I-730 should include certified English translations. Original documents are generally expected at the interview, so try to make sure the beneficiary has those. Lastly, remember that if a principal asylee becomes a U.S. citizen, or if the relationship ends through death or divorce, and the dependent is still an asylee (as opposed to a lawful permanent resident), the dependent will lose his status (and have to apply for nunc pro tunc asylum). For this reason, it is best for dependents to apply for residency as soon as they are eligible. 

So I guess that is a wrap for 2019. I wanted to end on a positive note–and there is nothing more positive in asylum-land than family reunification. I wish you all a Happy New Year, and I hope to see you in the 2020’s.

Continue reading

257 Comments

A Light in Dark Times

by Jason Dzubow

In the immortal words of Adam Sandler, “It’s time to celebrate Hanukkah!” But what exactly is Hanukkah, and why is it relevant to us today?

About 22 hundred years ago, a Seleucid king occupied Jerusalem, looted the Temple, and outlawed Judaism. The Seleucids had inherited part of Alexander the Great’s empire, and they were culturally Greek or “Hellenized.” It seems the Seleucids were egged on by a group of assimilated Jews who opposed the more traditional Jews of Jerusalem. As a result of the Seleucid invasion and the sacking of their Temple, the Jewish population revolted, led by Judah Maccabee (a/k/a The Hammer) and his family. The Maccabees ultimately liberated Jerusalem and re-dedicated the Temple. But they found that there was only enough oil to light the eternal flame and keep it burning for one day. It would take eight days to get a new supply of oil. The miracle of Hanukkah is that one day of oil lasted for eight days.

Today, we celebrate Hanukkah by lighting a menorah (candelabra) that holds eight candles, plus an additional candle called the shamash, which is used to light the other eight. On the first night, we light one candle, and on each subsequent night of the holiday, we add another candle until the last night, when we light all eight candles plus the shamash. I suppose to keep up with our Christian neighbors, we also give presents on each night of the holiday (growing up, my presents were usually socks or underwear, but these days, standards have improved!). To remember the oil, we also eat food cooked with oil, primarily latkes (potato pancakes) and sufganiyot (donuts).

Technically, this represents an improper use of Hanukkah candles.

There are a few important rules about the Hanukkah candles. For one, they cannot be used for any purpose other than observing the holiday, so we cannot use them as lights for reading, for example. Also, the menorah is meant to be displayed publicly, and is often placed so that it is visible through a window (being careful not to set the curtains on fire, of course). Also, the miracle of Hanukkah is a funny sort-of thing. The Jewish people defeated the powerful Seleucid empire, cleaned up and restored the Temple, and found enough oil to light the flame for one night. The “miracle” that largely defines the holiday is that G-d kept that flame burning for seven extra nights. Of all the events in the Hanukkah story, keeping the flame lit for an extra week doesn’t seem like such a big deal.

Amidst the celebration of Hanukkah and the deluge of presents, we sometimes give short shrift to the story of our ancestors’ struggle for freedom, and certainly the basis of the holiday is not well known outside the Jewish community. But the lessons of Hanukkah are important, and are relevant to our time.

For one thing, there is the fight itself–a rag tag group of warriors defeated a powerful empire. Perhaps this is the less obvious miracle of Hanukkah, as the victory might not have been possible without divine intervention. But even if we attribute the Maccabees’ success to G-d, they still earned their win through tenacity and faith in Jewish values. It reminds me of the old adage from St. Augustine: Pray like everything depends on G-d; act like everything depends on you. The lesson for our own time (and all times) is clear–despite the powerful forces arrayed against us, we must continue to fight for Justice. That is what our ancestors did, and it requires hard work. It also requires faith: Faith in G-d or humanity, or simply faith that right will ultimately defeat might, as long as we stay true to our cause. Put more eloquently, by Rocky Balboa, the patron saint of Philadelphia–

It ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. How much you can take and keep moving forward. That’s how winning is done!

There is also symbolism in the Hanukkah candles. They provide a light, which reminds us of the eternal flame and the miracle of the oil, of course. But what about the idea that the candle light cannot be used for other activities, like reading? To me, this represents a singularity of purpose. We have to keep our eyes on the prize, as it were. One criticism of the Left is that we tend to lack focus. Go to a rally for immigrant rights and you might see protest signs related to gun control, choice, and gay rights. I get the idea of intersectionality. But I think we need to be better about forming alliances to get things done, even if sometimes those alliances are with people we might otherwise find unpalatable (in typical Jewish fashion, I’ve also argued the other side of this point, but as they say, consistency is the hobgoblin of small minds). 

Finally, there is the idea that the menorah should be displayed in a window. This one makes me nervous. I don’t really want passerby to know that I am Jewish. Maybe it’s because I grew up at a time when the Holocaust dominated our religious school curriculum, but the idea of advertising my religion to the whole neighborhood–which may include neo-Nazis for all I know–seems risky, even irresponsible. Here, though, I think the point is that we should not be afraid to state our values publicly. While there may be some risk in doing so, it is important to stand up for what we believe.

We live at a time when many of our leaders encourage us to hate people perceived as different; to hold “the other” in contempt. They want to divide us with lies and turn us away from the better angels of our nature. It’s easy and self-indulgent to hate, especially when we’ve been given permission to do so. Hanukkah reminds us to keep the light of goodness alive inside ourselves, and to show that light to the world. Living the message of Hanukkah is not easy, and it is not always safe. But it is important. And these days, it is a message we need more than ever.

Continue reading

106 Comments

The Bureaucracy vs. Asylum Seekers, Part 3: Fees for Asylum

by Jason Dzubow

USCIS recently announced plans to dramatically increase fees for most immigration applications. The fee increase includes a dubious first for the United States–a fee for asylum.

If the rule goes into effect as is, the fee for an affirmative asylum application will be $50.00. For defensive applications (asylum applications filed in Immigration Court), there is no proposed fee–at least not yet. Also, for aliens who are unaccompanied minors, there is no asylum fee. For everyone else, the fee is mandatory and cannot be waived. This means that applicants who cannot come up with the fifty smackers cannot file for asylum. Fees will also go up indirectly, since USCIS will now charge asylum applicants for the initial Employment Authorization Document (“EAD”), which has been free. The proposed fee for an EAD is $490.00. People who are granted asylum will still receive their first EAD for free.

USCIS offers a number of justifications for the new fee. First, DHS has the statutory authority to charge a fee for asylum, as long as “Such fees [do] not exceed the Attorney General’s costs in adjudicating the applications.” See INA § 208(d)(3). The $50.00 fee is well below the cost of adjudicating an asylum application, and so DHS posits that they are within their power to impose the fee.

“I’ll save you! Bur first, I need my fifty bucks.”

Second, DHS notes that other countries which are party to the Refugee Convention, charge comparable fees. This is technically true. Of the 147 countries that have signed the treaty, three (Australia, Fiji, and Iran) charge a similar fee for asylum. Of those three countries, however, two (Fiji and Iran) allow applicants to waive the fee.

Third, DHS apparently wants to cut other immigrants a break. Currently, asylum is funded through USCIS user fees, so when an applicant pays for her green card, part of that fee supports the asylum system. DHS claims that the agency “is exploring ways to alleviate the pressure that the asylum workload places on the administration of other immigration benefits.” DHS calculates that “the proposed $50 fee for Form I-589 mitigates the proposed fee increase of other immigration benefit requests by approximately $5 or $10.” Looked at another way, the asylum fee will “generate an estimated $8.15 million in annual revenue” for USCIS. This represents less than 0.2% of total fees earned by USCIS from users.

Fourth, DHS views the fee as another way to “discourage frivolous filings.” Of course, this is the justification for every action taken by DHS (and other agencies) against asylum seekers, and to me, it is not at all convincing. If our goal is to administer the system fairly, we should look for ways to protect legitimate asylum seekers and discourage fraudulent claims. The Trump Administration’s only solution here is to punish every asylum seeker equally, as if they are all fraudsters. This approach defeats the whole purpose of having an asylum law (or any law) and should be antithetical to any country that values Justice.

Why is the fee mandatory? According to the agency, “If DHS permits fee waiver requests, it assumes that the costs of administering the fee waiver request review process may exceed the revenue, thereby offsetting any cost recovery achieved from the fee.” In other words, the cost of adjudicating fee waivers will exceed the revenue generated by the asylum fee. Hence, everyone–with the exception of unaccompanied minors and people in Immigration Court–must pay the fee.

What about those who cannot afford the fee? Or those who need more than a year to raise the money (remember, if an asylum application is not filed within one year of the alien’s arrival in the U.S., the alien is generally barred from asylum)? “DHS acknowledges that an alien who is not placed in removal proceedings will have no means of applying for recognition as a person in need of refugee protection and its attendant benefits such as asylum or withholding-based employment authorization, travel documents, or documentation of immigration status, if they do not pay the proposed $50 fee.” However, DHS believes that the $50.00 fee is “not… so high as to be unaffordable to even an indigent alien.” For that same reason, DHS would not consider the inability to raise the fee within a year of arrival as an exception to the one-year asylum bar.

What to make of all this? On the one hand, the fee is not so great that many people will be blocked from filing for asylum. Unlike refugees who are waiting (mostly in vain) overseas for resettlement and who are often without any resources, affirmative asylum seekers have managed to reach the U.S. on their own. Whether they paid for a plane ticket or a smuggler, or just traveled here by themselves, most such people needed resources to get here, and probably have the money to pay $50.00 to file for asylum.

On the other hand, to me at least, DHS’s justifications ring hollow. Is the agency really so concerned about saving other immigrants five or ten bucks per form? Do they really think charging $50.00 will somehow discourage fraudulent applicants? Is the $8.15 million in estimated revenue really needed, especially given the $4.69 billion that USCIS expects to earn from all user fees? And, by the way, according to DHS’s own estimate, user fees will exceed costs by over $42 million per year. Heck, with a surplus like that, DHS could actually pay each asylum seeker $250.00 as a bonus for joining our great country!

I simply don’t believe that this new fee is about saving money or discouraging fraud. Instead, I think it’s meant to send yet another message to asylum seekers: You are not welcome here. It’s petty and it’s mean. It’s kicking people who are already down. I suspect it’s also designed to harm non-profits, some of which will pay these new fees for their clients. In short, the Trump Administration is doing everything it can to stop asylum seekers from coming to our country. This new fee is just one more piece of that effort. 

If you’d like to submit a comment to the U.S. government about the new fee for asylum, or the new rules to delay and block work permits for asylum seekers, you can do so here (enter “asylum” in the search bar and you will find a link indicating where to submit your comment – comments can be submitted anonymously).

Continue reading

122 Comments