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.
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…
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.
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.
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).
The law governing asylum states that, “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.” Up until now, the regulations implementing this law allowed most asylum applicants to file for their Employment Authorization Document (“EAD”) 150 days after their asylum application was received by the U.S. government. Now, DHS has proposed regulations to delay EADs for all new applicants and to block EADs for some people.
Probably the most significant proposed change would be to increase the wait time before an asylum applicant can file for an EAD–from 150 days after the asylum form is filed to 365 days (and then the applicant would have to wait a few more months while USCIS processes the EAD). The rationale proffered by the government for delaying the EAD is to deter aliens from filing “frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization.” DHS also wants to reduce incentives for aliens to enter the country illegally and to deliberately delay their cases in order to gain more time in the U.S. As with many recent changes to asylum procedures, there is little evidence that asylum seekers are coming here for work permits, or that most do not have a real fear of harm in their home countries. Also, there is already a significant waiting period to obtain an EAD, and of course further delaying the EAD will impact meritorious and non-meritorious applicants alike.
According to DHS, the length of this new waiting period is not arbitrary, rather–
The 365-day period was based on the average of the current processing times for asylum applications which can range anywhere from six months to 2 years, before there is an initial decision…
DHS envisions asylum seekers enjoying a year of leisure before their EAD arrives.
Huh? So asylum applicants are being punished because the U.S. government–largely through mismanagement–has a slow asylum system? If the average wait time increases to 10 years, must asylum applicants wait a decade before they can file for their EADs. Maybe a better method to calculate the wait time is to figure out how long asylum applicants can survive without jobs. Will applicants starve to death in three weeks? Six months? A year? I suppose from DHS’s perspective, if applicants are dropping dead, that will at least reduce the backlog.
Another significant change in the proposed rule is to deny an EAD to any applicant who files for asylum more than one year after arriving in the U.S. Unlike the 365-day rule, this proposal applies to all asylum applicants, not just to people who file after the rule goes into effect. And so if you filed for asylum after one year in the U.S., and you currently have an EAD, USCIS might refuse to renew it when the time comes. Such unlucky soles would only become eligible for an EAD if an Asylum Officer or an Immigration Judge “determines that an exception to the statutory requirement to file for asylum within one year applies.” Of course, by the time that happens, the case will already be decided, and so the large majority of late filers will not get an EAD until–and unless–they win asylum.
A third important proposed change applies to people who entered or attempted to enter the United States unlawfully. Under the new regulation, such people would not be entitled to an EAD at all. This provision seems to apply prospectively, meaning that if you entered the country illegally and you already have an EAD, you should be able to renew it. Asylum seekers who arrived unlawfully (or who attempted to enter unlawfully) and who file after the rule goes into effect will not be eligible for an EAD.
Finally, asylum seekers with a criminal conviction that is an aggravated felony under immigration law, a felony under state law, a serious non-political crime overseas, or related to domestic violence, child abuse or neglect, or driving under the influence of alcohol or drugs, will be barred from obtaining an EAD. This rule applies even to people who already have an EAD, and so some asylum seekers with criminal convictions may be unable to renew their work permits. More disturbing to those who care about such things as due process of law, asylum applicants who have “unresolved domestic charges or arrests” for crimes involving domestic violence, child abuse or neglect, illegal drugs, and DUI can be refused an EAD unless USCIS determines that the EAD applicant is entitled to a favorable exercise of discretion. So much for innocent until proven guilty.
Another change in the rule, which will only affect a limited number of people, is that DHS proposes to eliminate recommended approvals in asylum cases. Applicants receive a recommended approval where they are deemed to qualify for asylum, but background checks are not yet complete. Once a person received a recommended approval, she becomes immediately eligible for an EAD, and so by eliminating recommended approvals, some applicants will have to wait longer for their EADs.
One significant change that is a bit buried in the new rule is that affirmative asylum applicants will now be required to submit all their evidence 14 days before their interview. The problem here is that over 330,000 people are waiting for interviews, and many of those people will have to supplement and update their applications before the interview. The Asylum Office usually only gives two or three weeks notice of an interview, and so if evidence is required 14 days early, there will be little or no time to submit that evidence after the interview is scheduled. This will force applicants to reschedule their interviews and will cause further chaos at the Asylum Offices. Also, this new rules seems utterly pointless, since most Asylum Officers do not have time to review documents until the day of the interview, or maybe a day or two before, at best. So like other parts of this new rule, the 14-day provision seems designed for one purpose only–to make it more difficult for asylum seekers to present their cases.
For the budget conscious, an interesting element of the proposed rule is the summary of its costs. According to DHS, the estimated maximum cost of the new rule to our nation’s economy is $4.4 billion annually, and a loss of tax revenue to the federal government of up to $683 million per year. The regulation notes that if other workers can be found to fill the jobs currently held by asylum seekers, the loss would be less–as low as zero, if all lost jobs are filled. The idea that all the jobs held by asylum seekers would be filled by American workers seems dubious, especially given that our economy is currently close to full employment, and so this new regulation will likely have a significant negative impact on our nation’s economy. This cost estimate only considers affirmative asylum applicants; not defensive applicants, and so the cost will likely be more than the estimate predicts.
There is also another cost, which DHS does not seem to consider here. If asylum seekers are not permitted to work, their overall economic situation will be worse (duh!), and so if they are ultimately granted asylum, they will be much further behind economically than if they had been able to work while they were waiting for their cases to be processed. I imagine that this economic handicap will remain long after an applicant’s case is granted. Also, since an EAD allows asylum applicants to study at university, delaying or blocking the applicant’s EAD will put them further behind in terms of their education, and cause universities to lose tuition fees.
So to sum up, what we have here are new regulations that will cost our government money, and which will harm many asylum seekers and reduce their ability to contribute to our country. Rather than assist asylum seekers who have come to us for help, the Trump Administration is so intent on deterring them, that it is willing to harm all of us in the process.
Way back in the summer of 2015, immigration lawyers started to notice that EOIR was scheduling hundreds, maybe thousands, of Immigration Court cases for a single date: November 29, 2019. Supposedly, this was a holding date, and all those cases would be rescheduled. Now, November 29, 2019 is upon us. As such, I thought it might be nice to re-visit my blog post from back in 2015, when all this seemed a long way off (plus, it being Thanksgiving, I wasn’t much in the mood to write something new). Have things changed since 2015? You bet. But mostly for the worse, as there are now over one million cases in the Immigration Court backlog (in contrast to 2015, when there were about 456,000 cases in the backlog). Anyway, without further ado, here is my blog post from July 1, 2015–
Postcard from the Apocalypse: November 29, 2019
BEGIN TRANSMISSION:
If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end.
This is how the Immigration Court backlog ends.
I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently.
What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.
“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time.
It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?
Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen.
And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind!
Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came.
EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter.
The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.
And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…
If you’ve filed an asylum application recently, you may have noticed that receipts are taking longer, and many applications are being rejected for seemingly minor omissions. What’s going on?
Starting about a month ago, our office has had a number of new asylum applications returned to us after a longer-than-expected delay. The reason is because we left certain boxes on the form I-589 blank. Mind you, the boxes that we left blank were boxes where there was no answer–for example, for a client without a middle name, we left the “middle name” box blank. In another case, on the signature page where the form asks for your name in your native alphabet, we left it blank because the client’s native alphabet is the same as the English alphabet, which was already included in an adjacent box. In other words, things we’ve been doing for years with no problem have now resulted in applications being rejected. The issue seems to be that USCIS has changed its practice and now requires all boxes to be filled. This would have been fine, if they had told us in advance. They did not. As a result, many people’s cases are being rejected and delayed, we have to incur extra expenses and wasted time, and people who have one-year bar issues now have some extra explaining to do. All because USCIS changed its policy without providing advance notice.
Except for that lack of notice, this change is not a big deal. If you are filing a new case, and you have a box on the form that will be left blank, you should write “N/A” for not applicable. If you have no middle name, or no apartment number, or no social security number, do not leave the box blank, write N/A. If you have three siblings, but the form has room for four, write N/A in the fourth box. If you’ve only entered the U.S. one time, and the form provides room for three entries, write N/A in the remaining two spaces. For questions such as the ones about your spouse and children, if you check that you do not have a spouse or child, I do not think you need to write N/A in every box (though given USCIS’s capriciousness, it couldn’t hurt). Make sure you check all the “yes” or “no” boxes on pages 5 through 8 of the form, and if you check “yes,” provide an explanation in the corresponding space. Also, on the signature page of the I-589, there are some check boxes that people often overlook. Failure to check those boxes can also result in a rejection.
The Asylum Office’s newest employee: “You forgot to check a box? No refuge for you!”
So why did USCIS implement this new policy? And why didn’t they tell us in advance?
Giving USCIS the benefit of the doubt, it makes sense that the I-589 form is 100% complete. Blank spaces–especially for information like names, Alien number, and family members–can create issues for the case. Assuming–and perhaps it is a big assumption–that USCIS does security checks in advance, this information is necessary to implement a complete check. Also, if the Asylum Officer researches the case in advance of the interview (again, another big assumption), it is helpful to have all pertinent information. In short, I think it is fair to require that applicants complete the form and answer all questions, and this includes writing “N/A” where a particular question does not apply.
That said, the problem here is not that USCIS now requires a complete form. The problem is that USCIS changed the definition of “complete” without telling us in advance, and has rejected scores of applications that do not meet the new requirements. In my office alone, we’ve had about six or seven cases rejected in the last three weeks. This is probably more cases than we’ve had rejected in the previous 15 years of my practice as an asylum lawyer. And I am not alone. Many other attorneys are commenting on our list serves about the same issue.
Now, to be completely fair, USCIS did quietly post something on their website–without any sort of announcement–in maybe late September, but by then, it was too late for applications that had already been submitted. If you look at their website today, and check the section “Where to File,” and then scroll all the way to the bottom, you will find this warning–
We will not accept your Form I-589 if you leave any fields blank. You must provide a response to all questions on the form, even if the response is “none,” “unknown” or “n/a.” We will not accept a Form I-589 that is missing the explanation of why you are applying for asylum or that is missing any addendums that you reference in your application.
Don’t forget to sign your form! We will reject any unsigned form.
Why this information is listed under “Where to File” and why it is not more prominently displayed, I do not know (similar information can be found on page 5 of the I-589 instructions). But the decision to start rejecting cases that do not meet this new standard shows–at best–a complete indifference to the plight of asylum seekers and to their right to a fair process.
For those who have not had an asylum application rejected, it may be difficult to understand how upsetting it is. Preparing the application is time-consuming and can be very stressful, especially for people who are already traumatized. When the application is returned, it is often re-arranged and contains numerous USCIS stamps and hand-written information. There is also a two-page Notice of Deficiency, which usually (but not always) explains what needs to be corrected. In the most recent incidents, it took USCIS six or seven weeks to return the errant forms. So applicants, who thought that their cases were pending, their Asylum Clocks had started, and their status in the U.S. was safe, are learning after a month and a half, that none of those things has happened and they have to start over again.
So if your asylum application has been rejected, what do you do? The short answer is, read the Notice of Deficiency, make the required changes, and re-submit the form. But also, double check all the boxes on the form, and if there are any that you left blank, make sure to fill those boxes with N/A, none, unknown, or whatever you think appropriate. Don’t leave them blank. When we re-submit a rejected application, we include a copy of the Notice of Deficiency. Finally, when you re-submit the application, keep a copy of the Notice of Deficiency and any pages that were stamped by USCIS (usually, USCIS stamps the first page of the I-589 with the date the form was received). This provides evidence that the application was filed and rejected. It is important to have such evidence, especially in cases where the one-year asylum filing deadline is an issue, but it is good to have it for any case, as you never know when you might need such proof. Also, the American Immigration Lawyer’s Association is tracking such cases in order to communicate the problem to USCIS. If you would like to be include in this effort, please email me.
What about the situation where the I-589 was initially filed within one year of your arrival in the U.S., but now the case has to be re-filed after the one-year deadline? Not to worry; the regulations provide an exception to the one-year bar where–
The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter.
8 C.F.R. § 208.4(a)(5)(v). The key here is that the application must be re-filed within a reasonable period of time after it is returned to you. To prove that, you need a copy of I-589 stamped by USCIS and the Notice of Deficiency, which provide the initial filing date, and you need proof that the application was re-filed within a reasonable period of time. For that, you need the USCIS mailing envelope and the Notice of Deficiency, which both show when the form was returned to you. For example, we received a returned I-589 on November 7 (after the one year bar), but the stamp on the I-589 indicates September 24 (before the one year bar). We did not cause the delay between September 24 and November 7; USCIS caused that delay. Since we have the Notice of Deficiency and the USCIS mailing envelope, we can prove that that portion of the delay was not our fault. We re-submitted the I-589 on November 8, and we have a copy of our mailing receipt. Thus, our client should be protected in terms of the one-year bar, since we only caused one day of delay, which is certainly a “reasonable” period of time to re-file a rejected application. How long is a “reasonable period” of time to re-file? There is no specific definition, and so the sooner you re-file, the better, but if it takes you a few weeks (maybe to consult with a lawyer), that should be fine.
What about the Asylum Clock? Unfortunately, as I understand the clock, it will not start running until the application is received and accepted. And so in the above example, my client’s clock will start running on November 9 (assuming USCIS accepts the application this time); it will not start on September 24, when the I-589 was initially received (once 150 days passes on the Asylum Clock, an applicant can apply for a work permit).
I think that is enough for now. This recent incident of USCIS using the asylum bureaucracy–which is meant to facilitate asylum applications–as a weapon against asylum seekers is not an isolated event. In a future post, I will discuss USCIS’s plans to raise filing fees and delay or block work permits for future asylum seekers. Stay tuned for more good news…
In an unexpected–but perhaps not surprising–move, the Asylum Division has canceled its Quarterly Engagement Meeting, which had been scheduled for November 14, 2019. This is the meeting where headquarters staff from the Asylum Division give updates and answer questions from stakeholders, such as non-profit organizations and lawyers like me.
Over the years, I’ve attended a number of these Engagement Meetings. They were helpful for several reasons. Most obviously, Asylum Division leaders answered written questions, which had to be submitted in advance, and also allowed us to ask questions and raise issues at the meetings themselves. The meetings provided an opportunity for us to meet Asylum Division leaders and for them to meet us. This type of human-to-human interaction is beneficial to both sides. We were able to see “the bureaucracy” and better understand their concerns, and they could directly hear from their constituents. As I see it, this type of communication and transparency is appropriate in any functioning democracy.
But now things have changed. And while it is disappointing that the Engagement Meeting has been canceled, it is not really surprising. The Trump Administration has been closing avenues of communication between government agencies and various stakeholders for some time. For example, EOIR–the Executive Office for Immigration Review–the office that oversees that nation’s Immigration Courts, has dramatically reduced the ability of its employees to communicate with people outside the agency. In my interview with the former Chief Immigration Judge, she notes that, “This change was touted as a way to streamline the Agency’s messaging system, but cutting off… communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.” EOIR is also refusing to release data about its operations–data that was routinely made public in the past, and which helped us better understand how the system was operating. In addition, EOIR, DHS, and the Asylum Division have all been blocking their employees from speaking publicly, even to law students and at professional conferences. All this is harmful to students and professionals, who benefit from contact with public servants, but it is detrimental to the agencies as well, since they cannot hear directly from the people they serve or explain themselves to the advocacy community. Worse, their ability to recruit talented employees is hampered if they cannot communicate directly with people outside the government.
A live view of the Asylum Division meeting not taking place.
So as you can see, the Asylum Division’s decision to cancel the Engagement Meeting fits a wider pattern, but there may be other reasons behind the cancellation as well. The most obvious is a recent change in leadership. The long-time Director of the Asylum Division, John Lafferty, who normally chaired the Engagement Meetings, was forced out a few months ago. I met Mr. Lafferty several times, and I had (and still have) a high opinion of him: He tried to follow the law in the face of the Trump Administration’s assault on due process. Some lawyers I know felt he bent too far towards accommodating the Administration’s policies, but I saw him walking a difficult line and doing his duty to his superiors and to the law. He managed to keep the Asylum Division operating (more or less) despite the Administration’s machinations against it. According to news reports, Mr. Lafferty’s removal has further damaged morale at his agency–
The reassignment of John Lafferty… has caused consternation and fear among asylum officers and other USCIS officials, who worry that the administration is dead set on pushing forward with policies that may not always be legal or adequately researched…. “This is shocking and distressing news for the civil servants in the Asylum Division,” said [an unnamed] USCIS official. “A very sad day where an incredibly sophisticated, highly dedicated, and ethical leader is being removed from an important position in the agency.”
The new Director of the Asylum Division is Andrew Davidson, the former deputy associate director for USCIS’s Fraud Detection and National Security Directorate, the department that leads the agency’s “efforts to combat fraud, detect national security and public safety threats, and maximize law enforcement and Intelligence Community partnerships.” It seems likely that the choice of Mr. Davidson reflects the Trump Administration’s view that asylum claims are largely fraudulent, and so we will have to see where the Asylum Division goes under his leadership.
As the new Director, Mr. Davidson is in a position to continue or cancel the practice of holding Quarterly Engagement Meetings. The fact that the November 14th meeting–which would have been the first of his tenure–has been canceled, does not bode well. But perhaps since he is new to his role, he was not yet ready to engage with stakeholders, and meetings will resume once he settles in. Perhaps.
I myself was looking forward to the Engagement Meeting because I was hoping to hear answers to questions I submitted about how each Asylum Office was addressing its backlog. Whether USCIS will ever provide answers to these questions, I do not know. I reached out to them after I learned that the meeting was canceled, but I have not yet received a response.
I certainly hope the Asylum Division will resume the practice of holding public meetings. Whatever your feelings about asylum seekers and the asylum system, when government agencies close off avenues of communication and hide behind bureaucracy, it is bad for our democracy. It also begs the question: If the Asylum Division is so intent on cutting communication with us, what is it that they are trying to hide?
So, you’ve decided to file for asylum. Let’s talk about what happens on your journey as an affirmative asylum seeker.
Once you mail in the I-589 form, you should receive a receipt in about three or four weeks (though lately, this has been taking longer). After that, you and any dependent family members will be scheduled for a biometric appointment, where the government will take your fingerprints and your photo. For the biometric appointment, each person should bring their appointment letter and a photo ID, usually a passport.
Next, you will have an interview. Some Asylum Offices are faster than others, so in some cases, you will only wait a few weeks or months for your interview; in other cases, you may wait years. If you do not receive an interview within about 90 days of filing, you can be pretty confident that your case is in the backlog. Currently, there are well over 300,000 cases in the affirmative asylum backlog, and most new cases seem to end up in the backlog.
A computer determines at random who will get an asylum interview.
Why does one applicant land in the backlog while another receives an interview relatively quickly? My understanding from talking to my local Asylum Office Director is that it is completely dependent on luck. It does not matter what country you come from, or how strong your case is. It does not matter whether or not you have a lawyer. The Asylum Office staff determines how many interview slots they have for a given day, and a computer randomly chooses which cases, from the pool of newly-filed LIFO cases, will be interviewed.
If you end up in the backlog, how long will you wait? No one knows. The government does not know. The people working at the Asylum Office do not know. And I certainly don’t know. The basic reason for the backlog is that there are too many asylum cases and too few Asylum Officers. The Asylum Division has been trying to “staff up” for some time, and they are having some success. As more Officers come online, we might see progress on the backlog. Also, as you may have heard, the Trump Administration is working overtime to block asylum seekers from coming to the U.S. If there are fewer asylum seekers, we could also see progress on the backlog. Despite all this effort, the backlog continues to grow.
If your case falls into the backlog, there are a few things you can do. You can try to expedite the case. This is not easy, and even people with a strong reason to expedite are often rejected. The best reasons to expedite are where the applicant has a health problem or there is family separation, especially if the family members are unsafe. Even if you do not have a strong reason to expedite, you can still try–once in a while, applicants get lucky. Also, some offices have a short list. This is usually a long list of people who have agreed to accept an interview on short notice if there happens to be an opening. Putting your name on the short list will not necessarily get you a faster interview, but it might. You can contact your local office to find out whether they have a short list. If you put your name on the short list, make sure that all the evidence is submitted, so you are ready to go in case you get called. Attempting to expedite or put your name on the short list will never make your case slower–either it will be faster or there will be no effect.
If you do not get an interview, or if you do get an interview and there is no decision, you may be eligible for an employment authorization document (“EAD”), which allows you to work legally in the United States. You cannot file for your EAD immediately. Instead, you have to wait 150 days after the I-589 form is received by the government (the “received” date is listed on your receipt). Do not file before the 150th day, or the EAD application could be rejected as filed too early. Also, if you cause a delay in your case (by missing a government appointment, for example), or if you have certain criminal convictions, you may be ineligible for the EAD. Check the EAD instructions for more information. If you do not have an EAD, you cannot work lawfully in the U.S. Even the receipt for the initial EAD does not allow you to work. People who work unlawfully are not precluded from receiving asylum, but unauthorized employment could block you from other immigration benefits. When you file for the EAD, you can request a Social Security card on the same form.
Once you have an EAD, it is valid for two years. You can renew an expiring EAD up to 180 days before the old card expires. When you receive your receipt to renew, your old EAD will be extended by 180 days. Renewals can take a while, so it is a good idea to file the renewal soon after you are eligible.
While your case is pending, you can apply for Advance Parole (“AP”), so you can travel outside the United States and return. USCIS does not always approve AP, and sometimes, they only grant it for a short period of time, but if you have it, it acts like a U.S. visa. You still need to use your passport to travel, and this can create issues for asylum seekers, especially those who fear harm from the same government that issued the passport. And of course, asylum seekers should not return to the country of feared persecution, as that could kaibosh your asylum case.
Also, while your case is pending, if you move, you need to file a form to change your address. Depending where you move, this could cause your case to be transferred to a different Asylum Office. If the case moves to a new office, it should not cause additional delay and should be treated as if it were originally filed in the new office.
What if you do get an interview, but there is no decision? The most common reason for post-interview delay is the security background check, but there could be other reasons as well. You can contact the Asylum Office directly to ask about the delay, or you can ask your Congressperson or Senator to do that for you. You can also seek assistance from the DHS Ombudsman’s office, which can sometimes help with delayed cases. None of these approaches seems very effective to me, but there is no harm in trying. If all else fails, you might consider a mandamus lawsuit. This is where you sue the Asylum Office and ask a federal judge to force them to issue a decision.
In the end, you will either be granted asylum, or your application will be rejected. If you are rejected, there are two choices: If you are no longer in lawful status in the U.S., you will be referred to an Immigration Judge, who will review your case and issue a new, independent decision. If you are still lawfully present in the U.S., you will receive a Notice of Intent to Deny, be given an opportunity to respond, and if the Asylum Office still cannot approve the case, they will issue a final denial. In that case, you are expected to leave the U.S. when your lawful period of stay ends, but you can re-file asylum (the process is different – check the I-589 instructions) or you can seek other ways to remain here.
So that is the affirmative asylum process in a nutshell. The system is a mess, and it is helpful to know that before you begin. Perhaps this knowledge will make the process a bit easier to endure.
If online reviews of Asylum Officer (“AO”) jobs are to be believed, our nation’s AOs are not doing well. They are overworked, fearful of losing their jobs, and unhappy with management.
Now, I know what you’re thinking – online reviews are not reliable. I agree. My feeling is that anyone who spends 20 minutes reviewing shampoo is not the type of person I want to take advice from–about shampoo or anything else. And so, it is important to take these reviews with a big grain of salt: They are written by anonymous people and we have no way of verifying their claims or knowing whether they have ulterior motives. Online reviews also tend to be written by people who are unhappy about something, and so I imagine that happy AOs are less likely to post a review than unhappy ones. Nevertheless, after looking at about a dozen detailed reviews online and checking with my inside source, I feel pretty confident that these reviews were posted by actual AOs and that they are generally reflective of the situation in our nation’s Asylum Offices.
The website with the AO reviews is called Glassdoor, which bills itself as “one of the world’s largest job and recruiting sites.” Apparently, the negative reviews caught the attention of management and caused a bit of a stir at the Asylum Office. You can see about a dozen AO job reviews here and one more here. Most of the reviews give the AO job one star out of five. The best review gives three stars and the average is 1.6 stars. By comparison, the Glassdoor page for USCIS gives jobs at the agency an overall rating of 3.3 (and this number would be higher if we could factor out AO reviews, which are included with all the other USCIS reviews).
A typical Asylum Officer, pictured here after submitting her resignation.
Glassdoor breaks down the reviews into Pros and Cons, and has a section for Advice to Management. Let’s start with some positives. The two most common Pros listed by AOs are health insurance/benefits and that you have the ability to help people. However, even many of the Pros are qualified positives. Here are some Pros from two different AOs–
The Asylum Division has some of the smartest, most dedicated employees. Asylum Officers are highly educated and they are by far some of the most competent people working in the federal government. Many Asylum Officers have taken demotions and pay cuts to work as an Asylum Officer. Also, the cooperation among the Asylum Officers is exemplary. Asylum Officers work very well with each other as they can relate to each other’s pain and suffering while trying to learn this job and keep up with unrealistic demands by management.
You may get an office to yourself, with all the paper clips and staplers all setup for you because whoever you are replacing left in a hurry. You get a first hand horrific glimpse into how tax dollars are wasted, and a lesson in labor law and union “representation”, due to the gross mismanagement and brutalizing egos of socially awkward and millennial minded supervisors and directors. you won’t have to rent horror movies anymore, because you’ll be living in one.
Yes, those are the Pros. The Cons include poor management, an overwhelming case load, high turnover, unrealistic expectations, and working extra hours without pay. Here are some quotes from AOs about the negative aspects of their job. Trigger Warning: These ain’t pretty–
The current White House Administration would love for you to not exist.
The time provided to do interviews, update systems, and write up cases [is] insufficient and forces Asylum Officers to engage in unpaid overtime. If you get a backlog of cases, you may be written up and I have [known] people to [be] fired for having a backlog…. The IT systems Asylum Officers use is 40 years old. This makes doing the job very hard.
The workload is extremely unrealistic. You are expected to read your cases, conduct security checks, prep paperwork, call interpreters, interview 4 people, document miscellaneous items, and then write up your decisions in an 8 hr. day.
Too many [Cons] to list. All around awful experience. This place will be a stain on your professional record.
If we were to use one word to describe the Asylum Division’s conduct toward its employees it would be: abusive. The new PPA [performance evaluation] added another layer to this conduct. The Asylum program’s number one management tool in dealing with Asylum Officers is distilling fear; fear of not interviewing fast enough, fear of not writing up the cases fast enough, fear of not satisfying some of the supervisors, and most importantly, fear of the new PPA. Fear, fear, fear; almost nothing, but fear. So, if you want your career to be driven by meeting unrealistic expectations by fear, becoming an Asylum Officer would be the perfect choice for you.
If you already have experience in the field of immigration, this is CAREER SUICIDE. Supervisors (Who routinely have no experience in it) will resent you and make your life hell…. The supervisors are grossly incompetent, and will SET YOU UP to FAIL, and spend their time undermining your work, instead of actually helping to address the issue of THEIR failing procedures…. Supervisors and directors wholly operate with malicious intent and gross neglect in regards to the purpose of the agency, and are only concerned with getting a higher grade level and feathering their own nests. There is NO ACCOUNTABILITY whatsoever, from the supervisors, to the directors. The management at the asylum office ruins lives, and not just those of the applicants. OIG [Office of the Inspector General] needs to investigate management, bring charges and overhaul this agency.
Management is grossly incompetent, back-stabbing, insulting, treat you like kids in a summer camp and many are 2nd-tier law school graduates that couldn’t make it as a lawyer or even a government attorney for the family court, district court or any court…. You listen to stories of torture and persecution and unlike… any other government organizations, where time is built in to deal with 2nd-hand psychological trauma, you are told to “make sure you take care of yourself.” WITH WHAT TIME? … If you don’t churn out the number of cases that they want and keep in mind this is with the constant ramp-up, month after month[, you] will be terminated and your personal record will reflect that you were terminated. Do not take this job unless your rent is due, you have exhausted all your financial resources and you have no other government prospects. If you mis-step, you will NOT have a career in the government.
stunning incompetence and bad faith decisions at ALL levels of management, from the supervisors to the directors…. extremely low morale and toxic work environment.
Yikes. But there’s more. Here’s what some of the AOs had to say for Advice to Management–
If your department is turning over at 40% to 50% a year, it’s not that the work is too hard, it’s because you and those above you are lacking in the ability to establish a process with integrity, fairness and nurturance.
I have no advice. RAIO [Refugee, Asylum and International Operations] USCIS Management knows there is high turnover and does not care. They can simply hire more people. My advice is to the US Congress and GAO. You need to know what is going on in RAIO Asylum and make changes.
Lower the interview amount to 3 assigned cases a day, offer economic incentives to people who can do more in a day.
Adjust allotted times for interviewing and writing assessments.
How do you live with yourselves? Turn yourselves in before you make things even worse. You’re really, really bad at your jobs.
Advice to lawmakers: Someone should look into what is going on in the Asylum Division and stop the questionable labor practices.
Realize it’s not YOUR personal agency to make up the rules how you want. Seek therapy, get a life coach, and get a reality check: the younger officers who laugh at all your awkward jokes, and oblige your antics at forced weekly meetings where you give yourselves awards for a job well done (not making that up), don’t actually like you or agree with you at all. they are just afraid to lose their jobs. look into the actual work you are supposed to be supervising, don’t imitate the behaviors of the corrupt governments that the applicants are running from. morale is at an all time low, numbers are at an all time low, and you seem happy to make it worse. if you are getting a sense you are really bad at your job, move on to an agency or a do nothing federal position where you will do less harm.
Oy Vey. Again, we need to read the above comments skeptically, since dissatisfied people may be more likely to post negative reviews. Nevertheless, all this points to some real issues at the Asylum Offices.
As for solutions, there is no easy fix, particularly in the current environment, and I doubt we will see any improvement soon. The Director of the Asylum Division for the last six years was recently forced out. The new Acting Director was moved to his current position from the USCIS fraud detection section. How he will manage the agency’s problems, we shall see, but he faces a fundamental and perhaps unresolvable challenge: While the Administration wants to block all asylum seekers regardless of the law, the AOs themselves are sworn to follow the law. As long as management is pressuring AOs and their immediate supervisors to ignore the law, it is hard to imagine how working conditions will improve. And of course, all this affects asylum seekers in terms of worse decisions and longer delays.
The only hopeful note here is that AOs seem to be pushing back against the Administration’s worst excesses. But these only represents part of the problem, as issues at the Asylum Offices long pre-date Mr. Trump. Whether the bureaucracy can save us, I do not know, but as long as AOs continue to do their jobs and follow the law–even under difficult conditions–there is still hope for our nation’s asylum system.
Earlier this month, United States Citizenship and Immigration Service (“USCIS”) issued a news release touting its accomplishments for FY 2019, which ended on September 30, 2019 (a belated Happy FY 2020 to all!). According to the agency, “FY 2019 has been a historic year for USCIS and we have achieved many of President Trump’s goals to make our immigration system work better for America.” Here, we’ll take a look at some of USCIS’s “accomplishments” and explore what that means for asylum seekers.
First, I can’t help but note the hostility towards Congress and towards asylum seekers expressed in the news release and by Acting USCIS Director Ken Cuccinelli. Here are a couple quotes—
In the face of congressional inaction, we’ve taken significant steps to mitigate the loopholes in our asylum system, combat fraudulent claims and strengthen the protections we have in place to preserve humanitarian assistance for those truly in need of it.
Absent congressional action to provide targeted fixes to our immigration system, USCIS rushed personnel and resources to our southern border and implemented a number of significant policy changes and reforms designed to help reduce the loopholes in our nation’s asylum system that allowed for crisis levels of abuse and exploitation.
USCIS is correct that Congress has failed to pass comprehensive (or partial) immigration reform, which has been sorely needed for years. However, to blame only Congress, without considering the erratic leadership (or lack thereof) from the Executive Branch looks like a case of the pot calling the kettle black. Also, USCIS again points to “loopholes” and “crisis levels of abuse and exploitation” without specifying what that means. Clearly, the Acting Director wants to deter asylum seekers from coming here, but that is a separate question from whether asylum seekers themselves are exploiting loopholes or abusing the system.
In anticipation of more e-filing, USCIS has added extra hard drives to its computer.
USCIS points to two major policy reforms for FY 2019. The first is the Migrant Protection Protocols (“MPP”), which were designed to stop asylum seekers from “attempting to game the immigration system.” Again, evidence that anyone is “gaming the system” is lacking. “Under MPP, aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. during their immigration proceedings.” Sadly, the MPP has done real damage to our asylum system and to our nation’s moral standing. The program has forced thousands of people to wait in tents in Mexico, where they are subject to violence and extortion at the hands of cartels, which have a powerful presence near the border. Also under the MPP, asylum seekers are routinely and blatantly denied due process of law.
The other major policy reform is the Third Country Transit Asylum Rule, which is designed to–
enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, with limited exceptions, the rule bars aliens, who entered along the southern border, from receiving asylum in the U.S. if they did not apply for asylum in at least one other country they transited through. This rule aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.
Like the MPP, this rule degrades (and arguably violates) our asylum system by forcing asylum seekers who arrive at the Southern border to file for asylum in a country that they pass through on the way to the U.S. This might be fine if the countries in question were safe and had operating asylum systems of their own, but for the most part, they aren’t and they don’t. What I find most offensive about this pronouncement, though, is the last part–the claim that the policy “aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.” It does no such thing. Instead, the rule arbitrary seeks to block all asylum seekers by forcing them to seek protection in third countries. There is no effort to distinguish legitimate asylum seekers from those who are somehow not legitimate (whatever that means). Why USCIS can’t simply say this, and be honest about their goal of making asylum more difficult for everyone, I do not know.
The news release also gives us some statistics. “In FY 2019, the Asylum Division received more than 105,000 credible fear cases – over 5,000 more than in FY 2018 and a new record high.” A credible fear interview or CFI is an initial evaluation of asylum eligibility. People who arrive at a border or an airport and request asylum receive a CFI. If they “pass,” they are referred to an Immigration Judge for a full asylum hearing. If they “fail,” they are removed from the U.S. The fact that USCIS performed a record number of CFIs signals that the government’s deterrent efforts are not working. If people were being deterred from coming to the U.S. for asylum, we should see lower numbers of CFIs.
Another statistic relates to hiring–
In FY 2019, USCIS executed an ambitious plan to hire 500 staff for the Asylum Division by the end of December 2019 to reach authorized staffing levels. New strategies are in development to more specifically target individuals with relevant experience and skill sets, including those with prior military and law enforcement expertise.
The Asylum Division has been “staffing up” for probably half a dozen years, and whether they expect to actually achieve their goal this time, they do not say. If so, this could help reduce the asylum backlog, which would be good news. On the other hand, the idea that they are recruiting people with “law enforcement expertise” rather than human rights experience, points to the type of candidate they may be seeking.
Also in FY 2019, the “Asylum Division trained and deployed U.S. Border Patrol agents and USCIS officers from outside the Asylum Division to supplement staffing on the southern border and assist with the Asylum Division’s workload.” Whether Border Patrol agents and USCIS officers have the training necessary to properly do Asylum Division work is an open question, and is an issue of concern for advocates. I personally have my doubts. But on the positive side, I suppose it will free up “real” Asylum Officers to do more affirmative cases.
Finally, the news release discusses some plans for FY 2020. One point of interest for asylum seekers is that USCIS plans to continue the transition to on-line filing, and will make it possible to e-file the I-589 asylum form. If done properly, this would be a great benefit to asylum seekers, since it would make filing easier and more reliable, and would hopefully avoid the problem of USCIS losing documents, which has been a big issue in the past. Given all the bad news from USCIS, let’s end here, with happy thoughts of e-filing in FY 2020.
MaryBeth Keller was the Chief Immigration Judge of the United States from September 2016 until July 2019. She was the first woman to hold that position. The Asylumist sat down with her to discuss her career, her tenure as CIJ, and her hope for the future of the Immigration Courts.
Asylumist: Tell us about your career. How did you get to be the Chief Immigration Judge of the United States?
Judge Keller: I was appointed to the position by Attorney General Loretta Lynch in 2016. By that time, I had been at EOIR (the Executive Office for Immigration Review) for 28 years, and had a lot of experience with and knowledge of the entire organization, especially the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA”).
After law school at the University of Virginia, I clerked for state court judges in Iowa. I wanted to return to DC, and in those days – the late 1980s – there were a lot of options. I submitted my resume to a federal government database and was selected to interview at the BIA for a staff attorney position (they liked the fact that I had taken an immigration law class with Professor David Martin at UVA). At the interview, I knew it would be an incredible job. The BIA is the highest level administrative body in immigration law, and the people I met seemed happy to be there. I thought I would stay maybe two years and then move on, but I ended up remaining with EOIR for 31 years.
MaryBeth Keller
I was at the BIA for about 15 years, nine of those as a manager. In my early days as a staff attorney, I helped revitalize the BIA union, which was basically defunct when I arrived. Some employees had wanted to simply decertify the union, but a colleague and I convinced the majority of attorneys and staff that it could be a useful organization, so they voted to keep it. I was the union president for several years. After I later became a manager, my colleagues joked that my penance for having led the BIA union was to have to deal with the union from the other side. I helped then-Chairman Paul Schmidt revamp and restructure the BIA in the mid-1990s.
From there, I served as EOIR’s General Counsel and was involved with many reforms, including the institution of the first fraud program and a program to address complaints about the conduct of Immigration Judges. This ultimately led to my appointment as the first Assistant Chief Immigration Judge (“ACIJ”) for Conduct and Professionalism (“C&P”). At the time, David Neal was the Chief Immigration Judge, and we built the C&P program from whole cloth. In addition to responsibility for judge conduct, performance, and disciplinary issues, I supervised courts from headquarters and was the management representative to the judges’ union. All of this experience led to me to the position of Chief Judge.
Asylumist: What does the CIJ do? How is that position different from the EOIR Director or General Counsel?
Judge Keller: I view the CIJ’s job as leading the trial level immigration courts to execute the mission of EOIR, including, most importantly, managing the dockets to best deliver due process. In practical terms, this involved hiring and training judges and staff, determining the supervisory structure of the courts, directing the management team of Deputies, ACIJs, and Court Administrators, overseeing the Headquarters team that supports the field, including an administrative office, a business development team, legal advisers, an organizational results unit, and an interpreters unit. The CIJ also collaborates with the other senior executives such as the Chairman of the BIA, the General Counsel, and the Director of Administration to coordinate agency activities on a broader scale. In years past, the CIJ acted as a high-level liaison with counterparts in DHS, the private bar, and other governmental and nongovernmental groups.
The regulations–specifically 8 C.F.R. 1003.9–describe the function of the CIJ. I kept a copy of that regulation on my wall. The regulations set forth the CIJ’s authority to issue operational instructions and policy, provide for training of the immigration judges and other staff, set priorities or time frames for the resolution of cases, and manage the docket of matters to be decided by the immigration judges.
Despite the regulation, under the current Administration, much of the CIJ’s, authority has been assumed by the Director’s Office or the newly created Office of Policy. Court operational instructions, court policy, the provision of training, setting priorities and time frames for case disposition, and many other matters are now being performed by the EOIR Director’s Office, with minimal input from the CIJ and OCIJ management. I do recognize the regulation setting forth the authority of the Director, as well as the fact that the CIJ’s authority is subject to the Director’s supervision. However, reliance on career employees and specifically the career senior executives (Senior Executive Service or SES) at the head of each EOIR component is significantly diminished now. I believe that is compromising the effectiveness of EOIR as a whole. Senior Executives have leadership skills and incredible institutional knowledge and experience that should bridge that gap between policy and operations. They should be a part of developing the direction of the agency and its structure to most effectively accomplish its functions, but are instead largely sidelined and relegated to much more perfunctory tasks. I worry that people with valuable skills will not be satisfied with decreased levels of responsibility, and will leave the agency. This will make it more difficult for EOIR to meet the challenges it is facing.
To answer the question as to how the CIJ position is different from the Director and General Counsel, the EOIR Director manages all the components of the Agency (BIA, OCIJ, Administration, and OGC) and reports to the Deputy Attorney General. The EOIR General Counsel provides legal and other advice to the EOIR component heads and the Director.
Asylumist: What were your goals and accomplishments as CIJ? Is there anything you wanted to do but could not get done?
Judge Keller: I was fortunate to serve as the CIJ at a time of many changes: Hiring an unprecedented number of IJs, finally beginning to implement electronic filing, and creating new ways to effectively complete cases. At the same time, we faced challenges, such as the ever-changing prioritization of certain types of cases, an increased focus on speed of adjudication, and the creation of the new Office of Policy within the agency, which was given far-reaching authority.
Amid these changes, one of my goals was to use my experience at the agency and my credibility to reassure judges and staff that, despite any changes, our mission of delivering fair hearings and fair decisions would remain unchanged. I always told new classes of judges that their primary responsibility was to conduct fair hearings and make fair decisions. Due process is what we do. And if we don’t get that right, we are not fulfilling the mission of the immigration court. I had the sense that my presence as CIJ gave people some level of security that we were holding on to that mission during all of the change.
Another goal was to hire more staff. I thought I would have more control over hiring and court management than I ultimately did. In terms of hiring, while we greatly increased the number of IJs, it is important to remember that IJs cannot function without support staff: Court administrators, legal assistants, clerks, interpreters, and others. The ratio is about 1-5, judges to support staff. Our hope was also to have one law clerk per IJ and we made some major progress in that regard. It might be wiser for EOIR to take a breather from hiring more judges and focus on hiring support staff, because that is imperative for the court to function. Overall, I was not able to prioritize staff hiring as I would have liked, nor was I confident that my office’s input had much impact on hiring decisions.
Aside from hiring many more judges, some of the positive changes we made while I was there included implementing shortened oral decisions–we do not need a 45-page decision in every case. Shorter decisions, where appropriate, are vital to increasing efficiency. We also encouraged more written decisions. It seems counterintuitive, but written decisions can actually be more efficient than oral decisions. If you have the written material available, as well as law clerks, and the administrative time to review the decision, written decisions save the time that would be spent delivering the oral decision and that time can be used for additional hearings. For this purpose, we greatly increased the accessibility of legal resources for both judges and staff through the development of a highly detailed and searchable user-friendly electronic database of caselaw, decisions, and other reference material.
Importantly, we were also working on ways to replace the standard scheduling based on Individual and Master Calendar Hearings. Instead, in a manner more like other courts, we would schedule cases according to the particular needs of the case, including creating, for example, a motions docket, a bond docket, a short-matters docket. Cases would be sent to certain dockets depending on what issues needed to be addressed, and then move through the process as appropriate from there. Different judges might work on one case, depending on what was needed. During the course of this process, many cases would resolve at the earliest possible point, and some would fall out–people leave the country, they obtain other relief, etc. But in the meantime, such cases would not have taken up a normally-allotted four hour Individual Calendar hearing block in the IJ’s schedule. We were looking to do at least three things: Secure a certain trial date at the start of proceedings, allot time judiciously to each matter, and reduce the time between hearings. If the immigration courts could successfully transition to this model, it would improve the timeliness and rate of completion of final decisions.
While I was CIJ, we also looked to see how other courts dealt with issues such as technology. For example, we went to see the electronic systems at the Fairfax County, Virginia court. That system is more advanced than EOIR’s, and it would, for example, allow a judge to give advisals that are simultaneously translated into different languages for different listeners. This would eliminate the time it takes to do individual advisals, without sacrificing the face-to-face time with the judge. We also investigated video remote interpreting, which is having the interpreter in the courtroom via video, so everyone can see and hear each other as if they were in the same place. IT infrastructure to properly support such initiatives is very expensive, but is obviously currently available and used by other court systems. Changes like improving the interpretation system and implementing e-filing and a user friendly electronic processing system would make a profound difference in how the courts operate.
I believe that some of these ideas are still being considered, but the problem is that there does not seem to be much patience for changes that are not a quick fix. I had hoped to move things further than we were able to, but we did make progress as I discussed.
As another example of a positive accomplishment, EOIR is now very effectively using more contractors for administrative support. This was started by Juan Osuna when he was Director of EOIR, and it has been highly successful. Because our growth has been so rapid, contract employees allow us to get top-notch people quickly, and gives us the flexibility to easily replace someone whose performance is not up to speed. Contractors are not a substitute for permanent employees, but can bridge the gap between a vacancy and a new hire. Once contractors have some experience, they can apply for permanent positions and by then, we have good knowledge of their skills and can hire experienced workers.
Finally, a major accomplishment was that I was the first female Chief Immigration Judge. Even though my experience was extensive, I still had to fight to get the job, including nine hours of interviews. At the time, I think I underestimated how much the workplace was still unaccustomed to women in particular positions. The emails I received after I left the job were astounding. Men and women alike wrote to tell me how much it meant to them to have a female CIJ.
Asylumist: How did things at EOIR change between the Obama Administration and the Trump Administration?
Judge Keller: Things now are unlike any time in the past. As I think we have been seeing throughout government during this Administration, the difference seems to be that there is now a fundamental distrust of people and organizations in the federal government. Over three decades, I have worked through a variety of administrations at all points on the political spectrum. Long-time federal employees are very accustomed to altering course when new administrations come in, whether or not the political parties change. Many employees and executives like me welcomed change as an opportunity to move their organizations forward and make the delivery of their services better. But if those in political power do not trust their subordinates and the functions of the agencies they run, it’s a very different and difficult scenario.
Some of the “small p” political pressure was happening by the end of the Obama Administration. For example, we saw this with children’s cases and the instruction we received from Justice Department leaders in political positions to prioritize those cases on our dockets. Still, in that instance, once the political goal was set, the best way to accomplish the goal, and even its ongoing feasibility, was largely left to senior staff in the agency with operational expertise to implement or to ultimately advise superiors that a different course of action might be needed. Now, very often both the political and the operational decisions down to the smallest details are dictated from above. For example, even my emails and communications to staff were edited from above. Aside from the very questionable advisability of having operational determinations made by persons with no operational expertise, this approach subjects the court process to claims that it is not neutrally deciding cases but instead deciding cases in the manner that political leaders would like.
Until recently, I had never really thought very hard about an Article I court for immigration cases. I thought that the line between politics and neutral adjudication was being walked. There was no major concern from my perspective about EOIR managers navigating that line. Now, the level of impact of political decisions is so extraordinary that I wonder whether we do need to remove the immigration courts from the Department of Justice. I’ve just started to seriously consider the validity of this idea and I need to do more research and thinking about it. The American Bar Association’s recommendations are very persuasive and of significant interest to me. Before, I would not have thought it necessary.
Of course, moving the Immigration Courts to Article I status would not solve all our problems, but it could free us from some of the questions that have been raised over the years about politicized hiring, how cases are being politically prioritized, and whether that is appropriate for a court.
Another large change came in our ability to talk to those we serve. To best function, you have to talk to stakeholders on both sides: The Department of Homeland Security (DHS) and the private bar/respondents. This used to be standard procedure in past administrations, and it was done at both the upper and ground levels. Recently, such conversations were much more limited, and took place primarily at higher levels, often above my position and that of my Deputies. This change was touted as a way to streamline the Agency’s messaging system, but cutting off other forms of communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.
We previously had a great relationship with the American Immigration Lawyers Association (“AILA”). For example, when I was working on conduct and professionalism for Immigration Judges, AILA was a great help. At the time, AILA’s message was the same as our message (poor conduct of adjudicators and representatives should be addressed), and we successfully partnered for a long time. Similarly, the CIJ previously had regular interactions with DHS’s Principal Legal Advisor and others in the DHS management chain, but that is no longer the case. Another change to the management structure that I believe was ill-advised was abolishing the “portfolio” ACIJs who bore targeted responsibility for several very important subjects to immigration court management: Judge conduct and professionalism, training, and vulnerable populations. In my experience, having officials whose specialized function was to oversee programs in these areas increased the integrity, accessibility, credibility, and efficiency of the court.
Asylumist: While you were CIJ, EOIR implemented quotas. IJs are now supposed to complete 700 cases per year. Can you comment on this?
Judge Keller: Many different court systems have performance goals and I am generally in favor of those. But the question is, How do you establish and implement them? Are you consulting the managers and IJs about it? How do you come up with the goals? Should they be uniform across the courts? The current requirements were not developed by me or my management team. Numeric expectations alone are not going to fix things. Timeliness is more important in my view than specific numbers. Moreover, the way that the emphasis is being placed on these numbers now sends the wrong message to both the parties and our judges and court staff. Also, court staff and stakeholders would more likely buy into such a change if they understood how the goal was developed, and why. My experience is that IJs are generally over-achievers and they want to do well and will meet or exceed any goals you set. In my view, completing 700 cases may be an appropriate expectation for some judges and dockets, and might be too high or even too low for others. Courts, dockets, and cases are vastly different from the southern border to the Pacific Northwest to the bigger cities, so I’m not sure about a one-size-fits-all approach.
Asylumist: What about the Migrant Protection Protocols (“MPP”), also known as the Remain in Mexico policy. Can you comment on the effectiveness or efficacy of this program?
Judge Keller: The MPP began right before I left EOIR. In the MPP, as with all dockets, the role of the immigration court is simply to hear and resolve the cases that DHS files, but there were and still are, many legal and procedural concerns about the program. For example, what is the status of a person when they come across the border for their hearing, are they detained or not? Also, there were significant practical considerations. If you bring people across the border and plan to use trailers or tents for hearings, you need lines for IT equipment, air conditioning, water, bathrooms, etc. All that needs to be taken care of well in advance and is a huge undertaking. My impression of the MPP was that it was a political policy decision, which, even if an appropriate DHS exercise, is evidence of how asking the court to prioritize political desires impacts the overall efficiency of the court. The resources it required us to commit in terms of planning, and the resources it took away from the remaining existing caseload will likely contribute to further delay in other cases.
Asylumist: According to press reports, you and two other senior EOIR officials–all three of you women–were forced out in June 2019. What happened? Why did you leave?
Judge Keller: Unless there is something I don’t know about my two colleagues, none of us was forced out. I was not. We could have stayed in our same roles if we had chosen to do so. At the same time, I would not necessarily say that our departures were completely coincidental. I do know that the nature of our jobs had changed considerably.
For me, the previous level of responsibility was no longer there, and I did not have the latitude to lead the OCIJ workforce. My experience and management skills were not being used and I was mostly implementing directives. Any time three experienced, high-level executives depart an agency, there should be cause for concern. The fact that we were all women certainly raises a question, but EOIR has always been pretty progressive in that regard. Nevertheless, appropriate equal respect for women in the workplace is something that unfortunately still needs attention everywhere.
Leaving EOIR was a hard decision for me to make, and I think it was a big loss for EOIR that all three of us chose to exit.
The politicization of the court was also a concern for me. Historically, the Director of EOIR was always a career SES appointee, not a political SES. I viewed that as critically important, symbolically and practically, for a court system, especially one like the immigration court within the Executive Branch. Director James McHenry is in a career Senior Executive position. However, his path to the position was through the new Administration, which had detailed him from his position as a relatively new Administrative Law Judge to Main DOJ as a Deputy Assistant Attorney General for a while before he became the Director. It appears that the large majority of his career otherwise was at DHS in non-managerial positions.
Successfully overseeing or managing an organization the size of EOIR with all of its challenges today would be difficult even for a seasoned executive with a lot of management experience.
The question at this time for EOIR is, How does your mission of fair adjudication of immigration cases fit within the broader immigration goals of the government? It takes deft and nuanced management to ensure the integrity of a court of independent decision-makers while maintaining responsiveness to political leaders. A good manager listens to people with expertise and is skilled at motivating others, getting the most from each employee, developing well-thought-out operational plans to reach policy goals, and even changing course if necessary. Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS. I didn’t think there was as much focus on improving how we heard cases, as there was on meeting numeric goals and adjusting to the priorities of the DHS.
Asylumist: The BIA recently added six new members. All are sitting IJs and all had lower than average asylum approval rates. Do you know how these IJs were selected? What was the process?
Judge Keller: This was stunning. I can’t imagine that the pool of applicants was such that only IJs would be hired, including two from the same city. I think IJs are generally eminently qualified to be Board Members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that. At both the courts and the BIA, we used to get applicants for judge positions from academia, the private sector, BIA, and other governmental entities. More recently, we also had experienced judges and adjudicators from various other administrative systems, the military, and state and local courts applying to be IJs. I find these recent BIA hires to be very unusual.
I do not know the process for selection, but suspect that Board Chairman David Neal* had minimal input into these hires. I find this scenario very odd.
* Note: Since this interview took place, the Chairman of the BIA, David Neal, left his position and retired from the federal government. Before serving as Chairman of the BIA, David Neal held many other leadership positions at EOIR over many years, including the Vice-Chairman of the BIA and Chief Immigration Judge.
Asylumist: EOIR has made some moves to decertify the IJ union. Do you know why? What do you think about this?
Judge Keller: This happened after I left, but of course, it is easier to run an organization without people questioning you. Good managers recognize that you want opposing viewpoints. Maybe I am biased because I was a union officer, but I was also a manager longer than I was a union leader, and I’ve seen both sides. When I first learned that attorneys and judges were unionized, I was surprised, but I have seen the value of that. As a manager, the union is a great source of information. There are inherent conflicts between management and any union, but the union often has goals similar to those of management. The relationship between a union and management must be carefully developed, managed, and maintained. In the end, I felt it was worth the extra effort.
Now, I think management is more comfortable without public questions. I think decertifying is a mistake, particularly now when there are so many other changes that demand focus.
Asylumist: When he was Attorney General, Jeff Sessions gave a speech to EOIR where he claimed that most asylum cases were fake. This is also a line we frequently hear from the Trump Administration. What was your opinion of that speech?
Judge Keller: I think you may be referring to a press conference the Attorney General held at EOIR in October 2017. In a speech that day, the Attorney General said that the asylum system was “subject to rampant abuse and fraud.” That was disheartening. Fraud is not a factor in the large majority of cases. We know about fraud and we have been dealing with it probably since the inception of the immigration court. But it is not true that overwhelming numbers of asylum seekers are coming to immigration court trying to fraudulently obtain benefits. Whether the majority of their claims ultimately lack merit is a different question. But it is the very fact that we have a robust system to examine and decide asylum claims that makes our country a role model to others. I do not think statements like that made by the Attorney General are helpful to the court’s credibility. If IJs had that speech in mind in court, they would be labeled as biased, and bias is not a good thing for a judge or a court.
For the current Administration, I think there is an underlying skepticism about the extent to which the system is being manipulated. The process is indeed imperfect. But if you think that there are inappropriate “loopholes,” then we need to fix the law or the process. That is why comprehensive, or at least extensive, immigration reform has been discussed for so long. The Attorney General articulated some potential improvements he wanted to make, but also unfortunately focused in that speech on fraud and abuse, as if it was a problem greater than I believe it is.
When I would give my speech to new IJs, I would tell them that they would see the best and the worst of human nature in immigration court. As an IJ, you see persecutors and those who were persecuted; courageous individuals and liars. It is a huge responsibility. Therefore, you can’t go into court as an IJ and be thinking either that everyone is telling the truth, or that everyone is manipulating the process. You have to have an open, yet critical mind. It seems to me that Attorney General Sessions did not have a full appreciation for our particular role. This again brings us back to the idea of an Article I court, or some other solution to solidify the independence of immigration court adjudicators.
Asylumist: What do you think should be done about asylum-decision disparities? Does something need to be done?
Judge Keller: Yes. I think that asylum decision disparities should be evaluated by immigration court managers as they may be a sign of an underlying problem that may need to be addressed. However, I do not believe that they can or should be entirely eliminated.
If a judge is significantly out of line with his or her colleagues in the local court, it might be a red flag. Sometimes, simple things impact grant rates. For example, did the IJ miss some training in a particular area and is that affecting the grant rate? Is the judge assigned or does a court have a docket that by its nature (detained, criminal) will result in a higher or lower grant rate? Court managers should be alert to and manage those issues.
We’ve been looking at this issue for a long time. I remember talking about it with many EOIR leaders and judges over the last 10 years. But each case is different from the next and you don’t want decisions on asylum made according to mathematical formulas as if by computers. Decisions on such important human matters should be made by people who know the legal requirements, and can exercise sound judgment.
One way we thought about addressing seemingly significant disparities was temporarily assigning IJs with high or low grant rates to courts where the grant rates are different. Sometimes, the best way to evaluate your own opinions is to think through them with people who have different views. The hope was that judges would have the time and opportunity to reflect on their approach to asylum.
Once, former Director Osuna and I went to Chicago to visit the judges of the Seventh Circuit, which was at the time highly critical of our judges. We met with several of the Circuit Judges and talked about many things, including disparities in immigration court. We explained our approach to disparities, namely, addressing training needs, addressing any inappropriate conduct via discipline, and improving resources. One of the Circuit Judges mentioned that he was appreciative of our approach, and suspected that if anyone looked at it, there are probably similar disparities at the circuit court level too. As long as human beings are deciding immigration cases, there will always be some disparities. However, significant disparities should be evaluated and action taken only if the disparity is the result of something inappropriate, that is, something other than the proper exercise of independent legal judgment.
Asylumist: What is your hope for the future of EOIR?
Judge Keller: I hope EOIR can hold onto its core focus of hearing and deciding cases fairly and impartially. I also hope that the parties in the process know that we are listening to them. Parties in any court should feel that they’ve received a fair shake and a fair decision. They should understand the reasons why their cases were decided a certain way, and should not have to wait for years to get resolution. That is our reason for being – to deliver that service.
We are living in a time of big lies. President Trump is notorious for his mendacity, and many members of his Administration are no better. These lies come in different shapes and sizes, and relate to topics as diverse as climate change, election meddling, hurricane forecasts, international trade, and Joe Biden. But the biggest and most oft-repeated lies seem to involve immigrants: Asylum seekers are criminals, separating children from parents at the border was Obama’s fault, the asylum system is a scam, non-citizens are voting in our elections, illegal immigrants get free healthcare and welfare benefits, Democrats support open borders, the Diversity Visa Lottery lets foreign governments choose who gets a green card, Muslim refugees were admitted into the U.S. while Christian refugees were refused, immigrants can sponsor all sorts of distant relatives through “chain migration,” Central American countries are safe, etc., etc.
The question I want to ask today is this: If the government itself is lying about asylum seekers, why shouldn’t asylum seekers lie if it helps them win their cases?
The Asyl-Immanuel Kant approve a case where the applicant has Ben Constant-ly lying.
My interest here is not in practicality–it is clearly a bad idea to lie because you might get caught. Our government has a lot of information about asylum seekers and can use that information to test credibility. Asylum Officers, USCIS Officers, DHS attorneys, and Immigration Judges are good at examining witnesses and ferreting out falsehoods. Even if you get away with lying on an asylum application, the lie could come back to haunt you in the future (when you apply for residency or citizenship, or if you want to sponsor a family member). So there are good, practical reasons to tell the truth: You could lose your case, you could be blocked from any immigration benefits for life, you could end up in jail. And if you do get away with it, you can never really rest easy, and for as long as you are here, you will have to live with the possibility that your lie might be exposed and you could lose the life you’ve built in the United States. So in practice, lying is a bad idea. Here, though, I am interested in the morality of lying; not the practicality. Is it morally wrong to lie if that lie helps you to remain in the United States?
At one time, it would have been easy to answer that question in the affirmative. While President Obama’s policies were not always friendly to immigrants–he was called the “Deporter in Chief” by some immigration advocates–his Administration never engaged in the type of systematic dishonesty that we see from President Trump and his team. Despite all the problems during President Obama’s term (and there were many problems), at least it felt as though asylum applicants could generally have their cases adjudicated in an environment that was free from overt political interference. Given that people could get a fair shake, the moral justification for lying was a more difficult case to make.
In those distant days of the Obama Presidency, it was common to hear asylum seekers express great faith in our system of justice. That was one reason they came here in the first place. Their faith in our system made them more likely to tell the truth. Ironically, the constant barrage of lies from President Trump and his Administration is eroding faith in our system, which creates an increased incentive for individuals to falsify their own asylum stories. When the asylum system is discredited and illegitimate, the moral case for telling the truth is weakened.
Of course this outlook assumes a sort-of quid pro quo: If you (Trump) lie about me (asylum seeker), I can lie to you. This is an ends-justify-the-means approach that has never appealed to my sense of justice, and I am frankly uncomfortable with lying from a moral perspective simply because I believe lying is wrong–regardless of the end goal. But this is a type of morality that is easily deconstructed under various modern theories of legal justice. For example, when my law partner asks me, as he often does, “Do these pants make me look fat?” I always say no, even though those pants do make him look fat. I am lying for the sake of maintaining harmony in the office. Ends justifying means. So perhaps I should be less skittish about the moral implications of lying in other realms.
Indeed, support for the morality of lying for the “greater good” can be found in an old philosophical conundrum, presented by Benjamin Constant to Immanuel Kant in 1797. Kant basically believed that lying was always wrong, and so Constant challenged him with a scenario where a murderer is searching for his victim. The murderer arrives at the house of the victim’s friend and asks the friend where the victim is hiding. Does the friend have a duty to speak truthfully to the murderer? Constant argues that he does not–
The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to a truth that will harm others.
And so where the government is deliberately harming asylum seekers by lying about them in order to send them away, how can we say that asylum seekers have a duty to tell the truth to that same government?
For me, this is a difficult and uncomfortable question. But despite it all–the unfair laws (which long pre-date this Administration), the torrent of false claims about asylum seekers, the assault on due process–I still think lying is morally wrong in an asylum case. Here’s why: First, for me, the idea of asylum is somehow sacred. Our country is offering protection to strangers who need our help. We ask for nothing in return. In this respect, and despite a realpolitik element, asylum represents our highest ideals. And these are not just American ideals. The idea of welcoming the stranger is mentioned again and again in the Bible. Because I view asylum this way, the idea of lying to win one’s case feels like the violation of a sacred trust or covenant, and I see that as morally wrong.
Also, lying to win asylum further erodes the system and makes it harder for other asylum seekers to receive the protection they need. It is bad enough that the Trump Administration is systematically trying to dismantle our asylum system. When asylum seekers lie, they unwittingly aid in this effort and amplify it, and I believe that this is morally wrong.
Finally, I do not believe that two wrongs make a right. Just because the Administration is debasing itself by lying to harm asylum seekers, I do not think asylum seekers should do the same. I do not think it is moral to lower one’s own standards simply because another person is acting immorally, or even when we are operating in a system that is moving towards moral bankruptcy.
Having said all this, I recognize that I am far less affected by “the system” than the people seeking asylum. I have less to gain and less to lose. Each of us–asylum applicants, attorneys, decision-makers–has to make our own decision based on our own moral imperatives and our own needs. The President and his Administration have made their choice. They are lying to further their agenda. My hope is that asylum seekers and the asylum system can survive their lies while keeping our own morality intact.
Kate Sugarman is a family physician in Washington, DC. Here, she writes about her experience assisting detained asylum seekers who have health problems, and she invites you to join her and Doctors for Camp Closure for a lobby day and march on October 18 and 19, 2019.
In about 2005, I learned that if I can properly document scars of torture for someone who is seeking asylum, it greatly increases the odds of their being granted protection. So began my passion for human rights medicine and working to bring justice to immigrants seeking asylum in the United States. I have interviewed, examined, and written up forensic evaluations for well over 600 immigrants seeking asylum. All of these people have either been granted asylum or their cases are still pending.
Over the past several years, I have also been asked to go into ICE detention centers to document scars of torture for immigrants seeking asylum. Most of these people were detained upon entering the U.S. They have not committed any crimes, and are being held only because they have requested asylum in the United States.
Dr. Sugarman’s prescription for good health: Eat right, exercise, and stay away from ICE.
During the summer of 2018, like many other Americans, I became upset over family separations happening to those arriving at the ports of entry along the Southern border. I reached out to human rights doctors and lawyers and I became aware that many immigrants being detained in ICE facilities were being denied necessary medical care. I started building a medical-legal partnership, in which lawyers who were working with individuals being denied medical care while being held in detention could contact our group of doctors for an assessment of their client’s medical risk as a result of having appropriate care withheld. We then wrote medical letters to ICE to describe our findings, as a means of advocating for detainees to receive the care they needed and deserved. Some of our letters included medical assessments, such as “Denying HIV infected people their HIV pills would result in their getting sick and dying from a treatable illness,” “Denying surgery for a growing and painful inguinal hernia puts a patient in terrible pain and in grave danger,” and “Not treating a patient with a deep osteomyelitis that is now oozing large amounts of pus and giving her a fever will cause her to die from a treatable condition.”
Until a few months ago, more than half of these letters resulted in the person getting released. That is no longer the case, as ICE is now refusing to release asylum seekers, even if they are severely ill. As a result, I am shifting my energies, though I continue to work on behalf of detained immigrants who are being denied health care.
One case I worked on recently was for a man named Yoel, who is seeking asylum from Cuba and whose case was profiled on NPR. His lawyers contacted me because they were hoping I could get him released based on his untreated medical condition. He had been detained in Louisiana. He has a lung mass, which is quite suspicious for lung cancer. Instead of giving him a lung biopsy, which is the standard approach in this situation, ICE kept moving him back and forth from Louisiana to Mississippi. Despite a nationwide outcry from many doctors and members of Congress, he was deported, even though his wife is a U.S. resident living in Florida. Two days later, the U.S. Supreme Court ruled that people arriving at the Southern border to request asylum have to wait in extremely dangerous conditions in Mexico without being allowed to enter the United States.
A few days later, I testified on behalf of a woman seeking asylum. Since she is not being provided appropriate medical care, her neurological degenerative disease is getting worse. The judge spent most of his time grilling me over details that had no relevance at all to what I was trying to tell him. In that case, we are still waiting for a decision and the asylum seeker is still behind bars.
Which leads me to why I joined D4CC – Doctors for Camp Closure. There is no healthy amount of time for any man, woman or child to be behind bars, denied the basics of human health and dignity. Seeking safety and asylum in the United States should not result in inhumane, dangerous incarceration. We have already seen the results with multiple adults and children dying in ICE custody.
Please join us Friday October 18, 2019 as we lobby Congress for the health and safety of immigrants. Our March for Migrants in Washington, DC on Saturday October 19 is open to everyone who shares our concerns. Spread the word and let’s work together to put an end to mass incarceration of people who deserve care, not condemnation.
You can find more information about D4CC and the upcoming events here: Facebook: https://www.facebook.com/groups/915776502154354/ Twitter https://twitter.com/Doc4CampClosure Instagram: @Doctorsforcampclosure Website: https://d4cc.squarespace.com
