On the Morality of Lying to Win Asylum

by Jason Dzubow

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.

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A Doctor’s Mission – and How You Can Help

by Jason Dzubow

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

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What Happens at an Asylum Hearing in Immigration Court?

by Jason Dzubow

There are now more than 1,000,000 people with cases pending before our nation’s Immigration Courts. The culmination of this process is the Individual Hearing, where the Immigration Judge (“IJ”) usually decides whether the applicant gets asylum, some other relief, or is ordered deported from our country. For asylum seekers, the Individual Hearing can be stressful and frightening. Here, we will discuss what to expect at that hearing. In prior posts, I discussed the Master Calendar Hearing, and how to prepare for the Individual Hearing.

Before we get to the substance of what happens at the Individual Hearing, I should mention that there are detained and non-detained hearings. A detained hearing is similar to a non-detained hearing in terms of the order of events, but sometimes the IJ and the alien are in different locations, and so cases are done by video (non-detained cases can also be done by video, but this is less common). These video hearings are more difficult to litigate, in terms of looking at documents, hearing each other talk, reading non-verbal cues, empathizing with the applicant, etc. Detained hearings are more difficult to prepare for, as it is difficult to gather evidence and get ready for your case when you are in jail.

Also, of course, different IJs have different styles (in Immigration Court, IJs decide the case – there are no juries). Some IJs ask a lot of questions; others ask no questions. Some are professional and respectful; others, not so much. It is helpful to know something about your IJ before the court hearing, so you can have an idea about what to expect. Statistics about asylum grant rates for many IJs can be found at TRAC Immigration.

Also, if the Judge makes a joke, don’t forget to laugh. Even if you have no idea what the heck he is talking about.

Finally, as I discussed previously, many cases are won or lost before the trial even begins, and so how well the case is prepared will likely affect how the Individual Hearing proceeds.

As for the Individual Hearing itself, it begins when the IJ arrives in court. Everyone stands up for the Judge. Once everyone sits, the hearing usually begins with a conversation between the IJ and the lawyers (assuming the alien has a lawyer). During this discussion, the parties may try to narrow the issues that need to be discussed. Perhaps there are some areas of agreement, and it is helpful to know this in advance. Also, in some cases, the IJ will not need to hear testimony about the entire case – maybe the alien will only need to testify about part of her story.

At the beginning of the hearing, the IJ will ask what “relief” you are seeking. This can be asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, Adjustment of Status, Voluntary Departure, and/or something else. The IJ will also mark the evidence and hear any objections. So if you submitted evidence, and the DHS attorney objects to that evidence, the Judge must decide whether or not to admit that evidence into the record, and how much “weight” to give to that piece of evidence (some evidence is considered more reliable than other evidence and hence receives more “weight” in terms of how much it influences the IJ’s decision). At this time, the IJ will also ask whether there are any changes to the form I-589. You can update your form and make any corrections. Once the form is updated, the IJ will have you sign the form under penalty of perjury. You will also be “sworn in” under the penalty of perjury. This is basically a promise to tell the truth, and if it is found that you are not telling the truth, there are potential immigration and criminal consequences. If there is an interpreter in your case, the interpreter will also be sworn in.

If you have brought any witnesses to court, they will typically be asked to wait outside, so they cannot hear your testimony. That way, their testimony can be compared to your testimony. If there are inconsistencies between your witness and you, it could cause the IJ to think you are not telling the truth. For this reason, it is important that the witnesses are prepared in advance, and that you and your witnesses are on the same page. Keep in mind that different people may have different memories of the same event, and even if they are both telling the truth, there is still a risk that the two accounts will not be consistent. For this reason, it is important to go over each person’s testimony prior to the court hearing.

Normally, the “respondent” (the alien who is the subject of the court proceeding) testifies first. This usually begins with your attorney asking questions (assuming again that you have an attorney). This is called the “direct examination,” and usually involves you telling your whole story. Once the testimony is done, the DHS attorney asks questions. This is called “cross examination.” During cross exam, the DHS attorney will often try to test your credibility. There are different ways to do this: Asking about prior inconsistencies in other applications (including any visa applications), at the Asylum Office, or during the credible fear interview; asking about testimony that seems implausible or inconsistent with country conditions; asking about documents or evidence that seems fraudulent. Hopefully, as you prepare your case, you will think about some possible avenues for cross examination and how you might respond. Afterwards, your attorney has an opportunity to ask some additional questions, based on what happened during cross examination. This is called “re-direct.” The IJ can interject with questions at any time.

During your testimony (and for your witnesses’ testimony), remember that if you do not understand a question, ask for clarification. Do not answer a question that you do not understand. If you do not know the answer to a question, or you do not remember the answer, just say that you don’t know or you don’t remember; don’t guess. If you need a moment to collect your thoughts, ask for that. If you need a break, ask for that too. If you have an interpreter and there is a problem with the interpretation, don’t be afraid to raise that issue as well (especially if you do not have a lawyer or your lawyer does not understand the language). Also, on cross exam, the DHS attorney often asks yes-or-no questions, and will sometimes insist on a yes-or-no answer (sometimes, the IJ will do this as well). If you cannot answer the question using a yes or no, try to explain that. If you feel that you have no choice but to answer yes or no, you should at least alert the IJ that you have more to say. On re-direct, you will have an opportunity to elaborate on your answer. Remember to always be polite and don’t lose your cool.

After your testimony is finished, it will be your witnesses’ turn. Sometimes, the IJ will accept a “proffer” of a witness’s testimony (assuming both your lawyer and DHS agree). This means that the IJ will accept the testimony as recounted in the witness’s letter (witnesses generally submit a statement in advance of trial), and that the witness will not actually need to testify. A proffer can be beneficial to your case (since it eliminates the possibility of inconsistent testimony), but it can also be a disadvantage (since the IJ will not hear the witness’s testimony, which would presumably support your asylum claim).

After all the testimony is done, most–but not all–IJs allow the lawyers to make closing arguments. This is an opportunity for the lawyers to explain why they think you should win (or, for the DHS lawyer, lose) your case. Some IJs prefer to have a discussion at the end of testimony, to see whether there is agreement about resolution of the case.

Finally, the IJ will either make an oral decision, reserve decision for later, or inform the parties about the next step (in some cases, the IJ needs more information from the parties before she can make a decision). In the majority of of cases, the IJ issues an oral decision that same day.

If you do not like the IJ’s decision, you can “reserve” appeal. If the DHS attorney does not like the IJ’s decision, DHS can reserve appeal. If you (or DHS) reserve appeal, you have 30 days to file the appeal using form EOIR-26. The IJ should give you the deadline for the appeal. If you or DHS appeal, the appeal will be resolved by the Board of Immigration Appeals. But that is a story for another day.

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Asylum Ban 2.0 Won’t Work – Here’s Why

by Jason Dzubow

In a recent decision, the Supreme Court has allowed a new asylum regulation to go into effect, at least until questions about the legality of that regulation work their way through the court system. Until now, the rule had been on hold, thanks to an interim decision by a lower federal court. The regulation–colloquially known as Asylum Ban 2.0–bars certain people from asylum, depending on when and where they entered the United States. Whether the regulation will ultimately be upheld by the courts is not yet known, but obviously, the Supreme Court’s decision does not bode well. 

Here, we’ll take a look at the effect of the new rule on asylum applicants and on “the system.” 

First, let’s talk about who is blocked by the regulation. The rule applies only to people who arrive at “the southern land border” of the United States. So if you arrive in the U.S. at an airport or seaport, or if you arrive by boat or drop in by parachute at a place other than the southern land border, the rule does not apply to you. Even if you arrived at the southern land border, the regulation does not apply to you if you got here prior to July 16, 2019. Those who arrive at the U.S.-Mexico border on or after July 16, 2019 are affected.

There are many ways to avoid the southern land border.

If you are affected by the regulation, you are barred from asylum unless (1) you demonstrate that you applied for protection from persecution or torture in at least one country outside your country of citizenship, nationality, or last lawful habitual residence through which you transited en route to the United States, and that you received a final judgment denying your application for protection in such country; or (2) you demonstrate that you satisfy the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11.

So the first exception requires the alien to seek protection in a third country en route to the U.S. It’s worth noting that if you are seeking asylum from Mexico, the rule does not apply to you, since you have not passed through a third country. If you are from some other country, the only way to arrive at the southern land border is to pass through Mexico. Some people pass through dozens of countries to reach the U.S.-Mexico border; other people pass through only one country (Mexico). The regulation requires that you seek asylum in one of those countries; the regulation does not require you to seek asylum in more than one country.

In the preamble to the regulation, our government justifies its new policy by claiming that Mexico’s asylum system is a “robust protection regime.” This seems doubtful. Most reports indicate that the Mexican asylum system is overburdened and flawed. Moreover, the situation in Mexico is unsafe for many people trying to reach the U.S. Most other countries that asylum seekers might pass through are no better. And so the idea of barring asylum seekers simply because they did not seek asylum in a country that was unsafe for them and/or that does not have a functioning asylum system seems unfair (especially for those who did not know about the rule, which is effectively retroactive) and cruel. 

What then do you do if the new rule applies to you? For people who are not yet here, my guess is that some of them will start seeking asylum in third countries and being denied. It seems to me that the rule will create a cottage industry where any Mexican or Central American official with a “no” stamp can issue a denial, and then the asylum applicant can use that denial to support a claim for asylum in the U.S. For people who arrive after July 16, 2019 and who have not tried to obtain asylum in a third country, there are still two main options–Withholding of Removal (“WOR”) and relief under the UN Convention Against Torture (“CAT”). Both forms of relief are potentially available to people who fear persecution in their home countries, though they are both inferior in terms of benefits when compared to asylum. Also, the evidentiary burden for WOR and CAT is higher than the burden to obtain asylum. Nevertheless, WOR and CAT are forms of protection that remain available to asylum seekers, even those who are blocked by the new regulation.

The second exception to Asylum Ban 2.0 applies to victims of human trafficking. The regulation defines trafficking victim as follows–

Severe form of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under the age of 18 years; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery

This is pretty broad and pretty vague. People who have been subject to sexual abuse or forced labor might meet this exception. Also, unlike the first requirement about seeking asylum in a third country, the regulation does not require that the trafficking took place “en route to the United States.” Potentially then, if you were ever a victim of human trafficking, you might qualify for this exception to the asylum ban.

Asylum Ban 2.0 will undoubtedly make it more difficult for certain people to obtain protection in the United States. That is the whole point. But I have my doubts about whether the new rule will accomplish what the Trump Administration hopes to accomplish, which is to deter people from coming here to seek asylum. The new regulation does not block people from WOR or CAT, and so when they arrive at the border and ask for protection, they will still be accorded a credible or reasonable fear interview (which is an initial evaluation of eligibility for asylum, WOR, and CAT). While it may now be more difficult to “pass” such an interview, the difference in the burden of proof between asylum and the burden for WOR or CAT is fuzzy, and it seems to me that aliens who would have passed for purposes of asylum may very well also pass for purposes of WOR and CAT. Thus, asylum seekers will still be entering the system, and so the deterrent effect of the new rule will probably be less than what the Administration wants. Further, I just don’t believe that people will be deterred from coming here by the Administration raising the bar a few notches. Look what is happening in the Mediterranean: Every year, thousands of migrants are killed trying to get to Europe, yet still they come. If people are not deterred by the real possibility of dying, it seems doubtful that they will be deterred by a higher legal hurdle.

In the end, I doubt that this new regulation will do much to alleviate the problem at the border or the backlogs in the Asylum and Immigration Court systems. However, it will hurt asylum seekers–by making it more difficult for them to get the protection they need and by encouraging those who arrive at the border to circumvent legal points of entry. The new regulation will also further erode morale among Asylum Officers and Immigration Judges, who simply want to follow the law. And finally, the new rule further degrades our country’s role as a beacon of hope and freedom for persecuted people throughout the world.

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President Trump’s Attack on Ilhan Omar Is an Attack on All Naturalized Citizens

by Jason Dzubow

This is a guest post by Katharine Clark, Managing Attorney for Immigration at the Silver Spring, MD office of Ayuda. She has previously worked on citizenship and nationality issues at the U.S. Department of Justice. The views and opinions expressed herein are solely those of the author, and not necessarily those of any organization, employer, or agency.

On July 14, President Trump tweeted that four members of the House of Representatives – known as “The Squad” – should “go back” to “the crime-infested places from which they came.” The tweet targeted three representatives who were born in the United States, and one naturalized citizen, Rep. Ilhan Omar.

Given Omar’s naturalized status, it’s no accident that Trump and his supporters have settled on her as the long-term focus of their racist ire, chanting “Send her back!” at subsequent rallies beginning on July 17, in reference to Omar alone.

Katharine Clark

Much ink has already, rightly, been spilled about how Trump’s tweets and the crowd’s chants were racist, Islamophobic, detrimental to national rhetoric, and offensive to refugees and naturalized citizens. For example, the LA Times in July focused on how the racialized aspects of Trump’s immigration policies, including his denaturalization task force, are likely to suppress political opposition because these efforts are disproportionately concentrated in jurisdictions where naturalized citizens tend to vote Democratic. Jelani Cobb in the New Yorker explored how Trump’s rhetoric aligns with past efforts in the U.S. to make citizenship provisional for non-whites, U.S.-born and naturalized alike.

These are important points, but I believe there is another, more specific legal action that Trump may be proposing in his ongoing comments about Rep. Omar. He is not just using his tweets to energize his base in advance of the 2020 election. More particularly, I believe Trump and his followers are calling for Rep. Omar to be denaturalized and removed to Somalia.

The Legal Context of “Send Her Back”:

There are two ways to lose United States citizenship. Any U.S. citizen, born in this country or naturalized, can voluntarily renounce citizenship under 8 U.S.C. § 1481. However, renunciation requires a citizen to follow strict procedures for abandonment (it is also possible to lose citizenship after a conviction for treason or a similar criminal offense).

Unlike renunciation, which is initiated by the citizen, denaturalization is a civil action initiated by the federal government under 8 U.S.C. § 1451. To denaturalize a citizen against his or her wishes, a federal court must find that the citizen’s naturalization was illegally procured or procured by willful misrepresentation of material fact.

If a person willfully misrepresents a material fact on a naturalization application, or on the application for a green card that preceded the naturalization application as required under 8 U.S.C. § 1421(c), that misrepresentation can provide a basis for denaturalization many years later. Not only that, the consequences can pass from generation to generation. Under 8 U.S.C. § 1451(d), children who naturalized through their parents can be denaturalized if their parents are found to have procured their naturalization through willful misrepresentation of a material fact.

History of Denaturalization:

Historically, denaturalization actions have been extraordinarily rare. These cases were primarily instituted against war criminals, such as Nazi concentration camp guards, who hid their crimes when they applied for green cards or citizenship. The New York Times reported that from 2004 to 2016, the Justice Department initiated only 46 denaturalization cases.

Denaturalization cases are not only rare, but also difficult for the government to win. This is true by deliberate judicial design. In denaturalization cases, courts hold the government to a very high burden of proof and do not afford great deference to lower court findings of fact on appellate review. Baumgartner v. United States, 322 U.S. 665 (1944); United States v. Zajanckauskas, 441 F.3d 32, n.5 (1st Cir. 2006). As the Supreme Court explained, “rights once conferred should not be lightly revoked,” particularly where the right in question is as “precious” as citizenship. Schneiderman v. United States, 320 U.S. 118, 125 (1943).

Ultimately, then, denaturalization has long been reserved for people who told serious lies, often about their crimes against humanity, in order to become citizens. In other situations, citizenship has been treated as a settled question once naturalization occurs.

Denaturalization Task Force:

This trend began to shift in 2018, when the Trump administration created a denaturalization task force within United States Citizenship and Immigration Services, to review the A-files of naturalized citizens for previous fraud. In the first few months of its existence, the LA Times reports, the task force referred at least 100 cases to the Justice Department for initiation of a civil action.

In some ways, the administration’s focus on denaturalization is simply one small part of the United States’ long history of failing to respect citizenship rights. This history includes laws denying birthright citizenship to Americans of Chinese descent, and forced “repatriation” of US citizens of Mexican descent during the Great Depression.

However, Trump’s threat to Rep. Omar is also uniquely insidious. If Trump is, indeed, calling for Rep. Omar’s denaturalization, we are witnessing the chief executive of our nation, calling for the denaturalization of a duly elected representative on account of her race, religion, and political opinion. This is, to my knowledge, unprecedented.

Trump’s history of policy-making by tweet demonstrates why this threat is so serious and sinister. In this context, Trump’s tweet can be seen as a directive to the U.S. Attorney for the District of Minnesota, to USCIS, and to the Office of Immigration Litigation, to investigate and prosecute Rep. Omar for denaturalization. Ken Cuccinelli’s new role at the helm of USCIS does nothing to reassure me, given his 2008 attempt to repeal birthright citizenship while serving in the Virginia legislature, by calling for a Constitutional convention.

Ilhan Omar:

One’s opinion of Rep. Omar’s politics simply do not matter here. I have never seen her immigration file and I am not her attorney, so I have no specific insight into her case.

What is clear from press reports about her naturalization is that, if there were any problems with her immigration or naturalization, they would have occurred before she was old enough to play any meaningful part in the process. Media reports all indicate that Rep. Omar was born in 1982 in Mogadishu, came to the U.S. in 1992, received asylum in 1995, and naturalized in 2000 as a 17-year-old child.

This means that Trump is explicitly threatening, and implicitly assigning his task force to investigate, the possibility of bringing an extraordinarily rare denaturalization action, historically reserved for war criminals, against a political opponent based on immigration applications filed when she was a child.

If the Administration today threatens to denaturalize duly elected representatives, who have the protections of visibility, it will not only make all naturalized citizens provisional, and second-class under the law. It will also demonstrate the Administration’s full intention to use citizenship – by birth and naturalization alike – as a weapon of political war. If this does not make us concerned for the very foundations of our democracy, then we are not paying attention.

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Asylum for People With Serious Medical Conditions

by Jason Dzubow

In the latest outrageous move against non-citizens, the Trump Administration seems to be eliminating a long-standing program that allows people with serious medical conditions and their caregivers to remain in the United States beyond the normal period of stay. The change means that children and adults with cancer, leukemia, AIDS, and other serious health problems could be deported to their deaths.

The program on the chopping block is known as deferred action. It is basically a form of prosecutorial discretion. The government simply chooses not to initiate deportation proceedings against a person who is in the U.S. without status. In some cases, the person may receive permission to work. A person could receive deferred action for different reasons, but for the cases at issue here, the non-citizens were permitted to remain in the U.S. due to serious–and often life-threatening–health problems. Here is a statement from USCIS, as conveyed to the American Immigration Lawyers Association–

USCIS field offices will no longer consider non-military requests for deferred action, to instead focus agency resources on faithfully administering our nation’s lawful immigration system. This redirection of agency resources does not affect DACA or other deferred action requests processed at USCIS service centers under other policies, regulations, or court orders (such as VAWA deferred action and deferred action related to the U nonimmigrant status waiting list). As deferred action is a type of prosecutorial discretion used to delay removal from the United States, USCIS will generally defer to the DHS component agency responsible for removing individuals from the United States – U.S. Immigration and Customs Enforcement (ICE) – to make most non-DACA, non-military deferred action determinations.

USCIS confirmed that this change became effective on August 7, 2019, and that no public notice about the change was issued. The public is being informed about the change on an individual, case by case basis.

The Trump Administration has also announced a plan to turn excess children into a nutritious snack.

This basically means that medial patients and their caregivers who applied for deferred action may now be denied. The denial letters that I have seen in the press indicate that applicants have 33 days to leave the United States or face removal proceedings. The letters do not indicate how these medical patients can apply to ICE for deferred action, and at this stage, it is unclear whether ICE is even accepting such applications.

You can imagine how these denials would affect sick people (many of whom are children) who suddenly learn that they have to leave the U.S. and quite possibly lose their medical treatment. Here is a statement from Jonathan Sanchez, who has cystic fibrosis and whose sister earlier died from the same disease:

“If they deny the program, then I need to go back to my country [Honduras], and I’ll probably die because in my country, there’s no treatment for CF [cystic fibrosis],” Sanchez said, crying and trying to catch his breath. “Doctors don’t even know what’s the disease. The only ones who can help me are here in the United States.”

Even if he is ultimately allowed to remain here for treatment, the idea that this boy has been threatened with deportation at a time when he is fighting for his life is a true horror. From my point of view, the fact that we are even having this conversation is extraordinarily repulsive. That our country would mistreat people–especially children–in this manner is a black stain on our nation (one of many, unfortunately). All that said, the question I want to address here is, Can these medical patients (and their family members/caregivers) make a viable claim for asylum, so that they can try to remain in the country?

First, to receive asylum, you need to demonstrate that you filed for asylum within one year of arriving in the United States. There are exceptions to this rule, and if you have (or had) deferred action, you may meet such an exception (the “extraordinary circumstances” exception). However, once deferred action ends, you must file within a “reasonable” period of time; otherwise the asylum application will be considered untimely filed, and it will be denied. What is a reasonable period of time? There is no set definition, and I have seen cases indicating that two or three months is reasonable, but six months is not reasonable. So the bottom line is, if your deferred action ends and you want to request asylum, you should file your application as soon as possible.

Second, in some deferred action cases, more than one family member is in the United States (for example, a sick child and a caregiver parent). Certain family members can file for asylum together, and so it is worth considering which family member, if any, has a viable asylum case. An adult asylum applicant can include a spouse and any minor, unmarried children in her asylum case. A child who is over 21, or who is married, cannot be included in a parent’s asylum application. An unmarried couple would each have to file their own application for asylum. A child with his own asylum case cannot include a parent in that case (though sometimes when a child faces persecution, the parent can articulate her own, independent claim – an example might be where the child faces FGM or female genital mutilation, and the parent faces harm for trying to protect the child). So you have to think about who in the family might have a claim for asylum, and whether all family members could be included in that application.

Third, if a person was persecuted in the past–even the distant past–based on race, religion, nationality, political opinion or particular social group, he may be eligible for “humanitarian” asylum or “other serious harm” asylum. Humanitarian asylum is available to people who have faced severe persecution in the past. Even if the country is now safe, we allow the person to remain in the United States rather than force him to go back to a place where he faced terrible harm. I once did such a case for a Rwandan woman whose family was massacred during the genocide, when she was only 11 years old. The Immigration Judge found that the harm she suffered qualified her for humanitarian asylum, even if it would be safe for her in Rwanda today. Other serious harm asylum is for people who suffered persecution in the past based on their race, religion, nationality, political opinion or particular social group. If such a person would face any other serious harm today, even if that harm is not on account of a protected ground, she can qualify for asylum. So for example, if a woman was subject to FGM as a child (FGM is persecution on account of a particular social group) and today, she faces harm due to a lack of medical treatment for cancer, she might qualify for “other serious harm” asylum.

Finally, what if there is no basis for asylum other than the medical condition itself? Such cases are often difficult, since there needs to be a “persecutor” – someone who wants to harm the asylum applicant. Poor hospital conditions or lack of medical care–without more–would not normally qualify for asylum protection. But sometimes, people with medical conditions face discrimination that rises to the level of persecution. For instance, we once obtained protection for a Mexican man who was HIV positive. We argued that discrimination in Mexico was so severe that his life would be at risk there. For people from countries where law and order has broken down, one argument might be that people with medical conditions will be targeted by criminals or member of society due to their particular vulnerabilities. Central American countries with rampant gang issues may be places where vulnerable people are specifically targeted by gang members, and maybe that could form the basis for an asylum claim. Other medical conditions, such as albinism, are so stigmatized in certain societies that people with those conditions face harm or death. The key to cases like these often involves obtaining country condition information that demonstrates the danger faced by people with medical conditions. Specific examples of people who were harmed can also help. For example, we did a case where a Turkish man faced imprisonment for political reasons. The man had leukemia, and so we argued that even a short imprisonment would be life threatening. We supported our claim with newspaper articles about people who died in prison due to health problems. These articles demonstrated that the harm faced, at least for this specific person, was severe enough to qualify him for asylum.

The status of deferred action cases is still unclear. Will ICE announce a procedure for people with serious medical conditions to apply for deferred removal? Will USCIS respond to the backlash and re-institute the program? It now appears that cases filed before August 7, 2019, which were denied, are now being reopened, but the fate of the program going forward seems uncertain (at best). For those affected, it is important to start thinking about alternatives. One such option may be asylum; other options may exist as well, depending on the case. Talk to a lawyer, and if you cannot afford a lawyer, remember that free or low-cost help is available. Unfortunately, this new change affects the most vulnerable, and it is easy to lose hope. But there are many people who want to help, and the sooner you take action, the more likely you are to find an alternative way to remain in the United States.

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Want to Lose Your Asylum Hearing in Immigration Court? Then Don’t Prepare in Advance

by Jason Dzubow

The key to winning an asylum case in Immigration Court is preparation. I’d venture that the majority of asylum cases are won or lost before the applicant arrives in court for the final hearing. If the case and the applicant are well prepared, the chances for success are greatly improved. If the case and the applicant are not well prepared, the likelihood of winning is much reduced. So how do you prepare for an asylum hearing in Immigration Court?

First, you have to determine whether you are eligible for any relief. If you fear return to your country on account of your race, religion, nationality, political opinion or particular social group, you may be eligible for asylum or Withholding of Removal. If you fear torture, you could be eligible for relief under the United Nations Convention Against Torture. Besides these types of humanitarian protection, there are a number of other applications that might help you avoid deportation: Cancellation of Removal, adjustment of status based on a family relationship or a job, a T or U visa for certain victims of crimes, the semi-mythical S visa for certain cooperating witnesses, the Special Immigrant Juvenile visa, to name the most common. How do you know what relief you might be eligible for? Your best bet is to talk to a lawyer, but you can also do your own research.

Pear

Assuming you qualify for relief, you normally have to inform the Immigration Judge and submit all necessary forms at the Master Calendar Hearing (“MCH”). In many cases, if you do not submit all applications for relief in advance of the Individual Hearing, you forfeit those opportunities for relief. Be aware that some applications for relief require a fee (asylum does not require a fee), and so make sure to pay the fee well in advance of the Individual Hearing.

As the Individual Hearing approaches, you need to file all the necessary documents with the Immigration Court. This includes all evidence, a witness list, and a legal brief. The documents must be filed on time. The default rule (from the Immigration Court Practice Manual) is that evidence should be filed at least 15 days prior to the Individual Hearing, but some Judges have their own rules and require documents earlier than that (the Judge should inform you about this at the MCH). One copy of the evidence goes to the Court and one copy goes to the local Office of the Principal Legal Advisor (the prosecutor).

The evidence normally consists of the I-589 asylum form (and/or forms for any other applications for relief), an affidavit, and supporting documents. Any documents not in English must be properly translated. You can read more about what evidence is helpful here.

Courts also require a witness list, which is a list of people who will come to Court to provide testimony in your case. Anyone who plans to appear as a witness must provide a letter indicating what they know about your situation. There are benefits and risks to any witness, and you need to think carefully about whether a particular witness will be helpful for your case (and of course, if you have a lawyer, the lawyer should explore this with you). All witnesses need to be prepared for their testimony, just as the applicant herself needs to be prepared (see below).

Also, for most cases, it is a good idea to submit a brief detailing the legal theory of the case. This is especially important where the case involves a particular social group or PSG (the BIA requires applicants to specifically articulate any PSG). Even in cases where PSG is not an issue, it is important to explain the legal posture of the case and any issues that may be relevant (one year filing bar, nexus, persecutor bar, firm resettlement, criminal issues, etc.).

In addition, if your case was referred to Court by the Asylum Office, you should think about why. Are there inconsistencies or errors that need to be addressed? Maybe this requires a new affidavit or additional evidence. Did you fail to show that you suffered past persecution or that you have a well-founded fear of future persecution? Maybe you need more evidence or a stronger legal argument. While the Immigration Judge reviews the case de novo (meaning, the IJ makes her own decision), remember that the Asylum Officer’s notes can be admitted to impeach your credibility. As you prepare for Court, you should think about what was said and submitted at the Asylum Interview, and determine whether that requires any additional evidence or testimony.

Pre-Pear

Before the Individual Hearing, make sure you and any of your dependents have completed their biometrics (fingerprints) appointment. If your case has been referred from the Asylum Office, this will already have been done (assuming you showed up for your biometrics appointment prior to your asylum interview). If not, you can request a biometrics appointment. This is important, and if you forget to do it (which is easy), it could result in the case being delayed or denied.

As the Court date approaches, it is important to practice for the hearing. How do you want to present your case? What questions might be asked of you? What are the weak points in the case and how will you discuss those? It is very important to think about these issues in advance. Judges and Trial Attorneys are good at finding the weaknesses in a case and asking about them, and failure to prepare ahead of time may result in the case being denied. In our office, we do two practice sessions with the client – the first about a week before the trial and the second a day or two before (this practice session is an much for the attorney’s benefit as the client’s).

Finally, prior to the hearing, it is a good idea to talk to the DHS Attorney (normally, your lawyer does this). It is not always easy to reach these attorneys, and they often do not return calls. However, at the beginning of the hearing, it is common for the Judge to ask whether the parties have talked, and so it is helpful to at least have tried to communicate with the government lawyer. Assuming you can talk to the lawyer in advance, you can potentially narrow the issues and have a better sense of what to expect at the hearing.

So that’s about it for preparation. In a future post, I will discuss what happens at the Individual Hearing.

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The Art of Migration (and a Bit of Housekeeping)

by Jason Dzubow

An ambitious multi-media exhibit at the Phillip’s Collection in Washington, DC explores the “experiences and perceptions of migration and the current global refugee crisis.” The exhibition, called The Warmth of Other Suns: Stories of Global Displacement, presents the work of 75 historical and contemporary artists “from the United States as well as Algeria, Bangladesh, Belgium, Brazil, Egypt, Ghana, Iraq, Lebanon, Mexico, Morocco, Syria, Turkey, UK, Vietnam, and more.” Many of the artists are themselves refugees, and this lends power and authenticity to the show.

My office mates and I took a field trip to the Phillip’s to check out the exhibit, which consists of “installations, videos, paintings, and documentary images.” There’s a lot to see, and a lot to read–each artist has a story, and for me at least, learning about that story helped me understand what I was looking at. Most of the art is individually interesting and it would be easy to linger with each piece, but in this case, the sum of the show exceeds its parts. Indeed, the great strength of this exhibit comes from its diversity–diversity in experience, place, and time.

A photo from the exhibit, showing migrants waiting for a plane that never arrives (either that, or it’s a bunch of people boarding Wonder Woman’s jet).

The curators have anchored the show with a display of Jacob Lawrence’s Migration Series: 60 or so paintings depicting the Great Migration of African Americans from the American South to the North. Between about 1920 and 1970, more than six million people moved North to escape poverty and racism (or, more accurately, they moved to escape from severe poverty and racism in the South to somewhat less severe poverty and racism in the North). The Migration Series is a part of the museum’s regular collection, but placing it in the wider context of The Warmth of Other Suns adds to its emotional impact and gives it a sense of universality that is less obvious when it is viewed individually.

Other powerful exhibits include a video installation showing a conversation with elderly Central American parents whose son left for the United States. We hear their perspective of the son’s journey–phone calls from different stops along the road, and then finally nothing. The parents learn later that their son has died on the journey. The devastation of their loss is haunting. The mother can’t even speak about it. She talks about the weather and the coffee harvest instead, and somehow, this is harder to watch than a direct accounting of her son’s demise.

Another room has a floor covered in clothing. On the wall is a large photo of a rough ocean. The clothes are blue, indicative of the sea, and they represent the unnamed and unseen migrants who were lost while crossing the Mediterranean (thousands of migrants die each year on their journeys, many in the Mediterranean Sea). On the wall of this room are three world maps, but by a different artist. This artist commissioned Afghan seamstresses to sew the maps. Each country is represented by its colors or part of its national flag. The maps–with their distinct borders between countries–contrasts with the scattered clothing, lost in the liminal space between nations.

Another exhibit is a video of a young boy from Syria. He is deaf and mute, and he looks to be about 12 or 13 years old. He fled Syria after the Islamic State attacked his home town. Unable to speak, the boy describes the attack with gestures and facial expressions. The artist writes, “The power of his body language [has] made any other language form insufficient and insignificant.” I am not sure about that, but his non-verbal description certainly renders any other language form redundant, as it is all too clear that this boy has witnessed and suffered a trauma that no child (and no adult) should ever have to experience.

A more lighthearted exhibit called Centro de Permanenza Temporanea or Center for Temporary Permanence (pictured above) shows a group of migrants climbing an airport boarding ladder for a plane that never arrives. This exhibit symbolizes the inability of Western countries (here, Italy) to return their “unwanted” migrants, who are left to wait and wait.

For me as an attorney who represents asylum seekers, this exhibit was challenging. Our cases are serious and the stakes are high (indeed, just this week, I heard about a colleague’s client who was murdered after having been deported by an Immigration Judge). To do these cases effectively, we need a certain level of detachment (to preserve our sanity) and objectivity (to properly evaluate and prepare our clients’ cases). These qualities serve us well in the practice of asylum law, but they are the opposite of what is needed to appreciate an art exhibit about migration. But by lowering my defenses and engaging with this art, I find that it provides inspiration and serves as a reminder of why we do what we do.

For those who are not immersed in the world of migration, I think the great power of this art is that it gives voice to people who are frequently voiceless, and humanity to people who are too often used as political pawns (“invaders!” “rapists!”). The Warmth of Other Suns is a thoughtful and sobering testament to those who have journeyed–willingly and unwillingly–in search of a better life.

The exhibition runs through September 22, 2019. For more information, and to see some of the art, click here.

PS: The title of this blog post was shamelessly stolen from my friend Sheryl Winarick, who drove across Eurasia to document various communities and their experiences with migration. Learn more about her journey here.

PPS: I almost forgot the housekeeping. I will be off-line from about August 16 to 25, 2019. So if you post questions or comments, I will try to answer them after that time.

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Immigrants and Truth Are Both Casualties of the Recent ICE Raids

by Jason Dzubow

By now, you’ve probably heard about the massive, coordinated ICE raids in Mississippi. About 680 people were arrested at seven agricultural processing plants. According to ICE’s acting director, Matthew Albence, some of those arrested will be prosecuted for crimes, others will be swiftly deported, and some will be released pending immigration court hearings. Mr. Albence states, “The arrests today were the result of a year-long criminal investigation, and the arrests and warrants executed today were just another step in that investigation.” How many of those arrested were actually criminals, and how many were “collaterals” (people who were not targets of the raids, but were encountered and arrested due to their unlawful immigration status), we do not know.

The raids are supposedly also targeting the companies that hired these “illegals.” The U.S. attorney for the Southern District of Mississippi, who was involved in the ICE operation, warned: “To those who use illegal aliens for a competitive advantage or to make a quick buck, we have something to say to you: If we find you have violated federal criminal law, we are coming for you.”

On the plus side, now is a great time to apply for a job in the poultry processing business.

As we know from prior large-scale raids, the implications of arresting so many people are deep and long-lasting. Probably the most famous example is the 2008 raid at a Kosher food processing plant in Postville, Iowa. Almost 400 people–mostly indigenous Mayans from Guatemala–were detained. Many were charged with crimes such as using a false Social Security card. They were given a choice: Plead guilty and accept deportation, or go to trial. Going to trial was risky, and would result in many months of detention, even for those who were ultimately acquitted (since unlawful immigrants can be held in detention pending a criminal case). The result: Most people chose to plead guilty and accept deportation. A number of people in management were also charged with crimes. Only one–the owner of the plant Sholom Rubashkin–served any significant jail time, and that was for financial fraud (he had also faced charges for immigration-related crimes, but those were dropped). After eight years in jail, Mr. Rubashkin’s sentence was commuted by President Trump, purportedly after the intervention of Trump sycophant Alan Dershowitz.

The effect of the raid on the town of Postville and the wider community was profound: Children stopped going to school, families were separated, several hundred people were tried, convicted, and deported with little due process of law, the food processing plant–the town’s largest employer–closed for weeks and eventually declared bankruptcy, and a study of the long-term health effects of the raid showed that “Babies born to Latina mothers after the raid were 24 percent more likely to be underweight than infants born the year before,” presumably due to the stress and fear the raid engendered. Ten years later, the town had mostly rebounded, but memories of the raid–and the trauma–live on.

I imagine that noncitizens in Mississippi and across the nation will experience similar impacts as a result of the recent ICE raids. The psychological harm is compounded by the Trump Administration’s vicious anti-immigrant rhetoric, as well as the mass shootings in Pittsburgh and El Paso, which were seemingly perpetrated by men opposed to the foreign “invasion” of our country.

What will happen to the men, women, and children affected by the recent raids is still not known. Some of those detained likely have defenses to deportation, such as asylum or Cancellation of Removal (assuming their due process rights are not violated and they have an opportunity to present their defenses). Several of the people arrested during the Postville raid cooperated with the authorities in the criminal investigation and obtained U visas. Perhaps some of those affected by the raids in Mississippi will be eligible for such visas as well. 

Family members of those detained–especially children–will also face severe challenges. After the Iowa raid, many children went into hiding or were traumatized by the sudden absence of their parents and the fear of their own pending arrest. Churches and non-profits stepped up in Iowa, and I imagine we will see similar efforts here. Whether ICE has made arrangements for detainees’ children, and whether they will release non-criminal parents in their custody, is still unclear (ICE has indicated that such people would be released after an initial screening).

Part of the problem in this regard is trust. It is impossible to trust what ICE says. For example, one of the detainees in the recent raids has a 12-year-old daughter named Angie. The child was brought to the scene by a family friend in order to say goodbye to her mother. The following exchange with an ICE agent ensued–

“Here’s the deal, all right,” an agent says to an English-speaking woman accompanying Angie. “She [Angie’s mother] just went. Her mom got on the bus. We took her mom’s documents, all right. She’s going to be processed, because she doesn’t have papers to be here legally.”

But “because she’s the only caretaker of the child,” the agent continues, “she’ll be released this afternoon. So with [Angie] being a U.S. citizen and being 12 years old … she’s going to be issued a notice to appear, she’ll have to see an immigration judge, she’ll be released this afternoon.”

“Today?” a woman asks.

“Yes, yes,” the officer responds. “But I’m going to tell you something, she’s not going to be deported because she has a United States citizen child.”

As of Wednesday night, the mother had not been released. 

This is the type of behavior we see all the time from ICE agents. They give assurances to defuse the situation or end a conversation, but those assurances are false. They also pass the buck–in this case, it is not the ICE agent’s problem, the mother will have to see an Immigration Judge. I get it–law enforcement officers want to de-escalate tense encounters. But the frequent lying makes it impossible to trust anything that ICE agents may say. 

Finally, I do understand that ICE agents have a job to do, and that people who are here unlawfully can be deported. That is the law. But this raid–with its helicopters and military-style trappings–seems designed for propaganda purposes. In the context of the times, I fear that the effect on our country’s noncitizen and minority community members will be traumatizing and frightening. I also can’t help but feel that that is exactly what ICE wants. 

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Acting USCIS Director to Asylum Seekers: You Can Live Safely in Your Own Country

by Jason Dzubow

Acting USCIS Director Ken Cuccinelli is encouraging Asylum Officers to deny asylum applications and credible fear interviews by any means necessary. He is particularly concerned about our Southern border, where “an unprecedented number of aliens [are] overwhelming our asylum system.” According to Mr. Cuccinelli, many of these aliens are “ineligible for asylum and are attempting to enter and remain in the country in violation of our laws.” His latest strategy for rejecting asylum applicants involves a regulatory bar to asylum called “internal relocation.”

Under existing rules, where an applicant fears harm from non-state actors, Asylum Officers and Immigration Judges should determine whether the applicant can live safely anywhere in the home country–in other words, whether the applicant can internally relocate. If the applicant can live safely within her home country, she is probably ineligible for asylum. The burden of proof in “internal relocation” cases varies, depending on whether the government is the persecutor, and whether the applicant has suffered past persecution: According to the regulations—

In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored.

In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.

Ken Cuccinelli: “Erupting volcanoes contain areas that are generally very safe. Look, here’s one!”

This means that where the government is not the persecutor, and the applicant has not suffered past persecution, the applicant must demonstrate that there is no place in his country where he can live safely. How do you show this? First, according to the Board of Immigration Appeals, internal relocation must be “reasonable under all the circumstances.” According to the relevant regulations, “adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” An example from my practice would be a single woman from Afghanistan who fears persecution from the Taliban because of her political activities. Given the restrictive culture in Afghanistan and the generally high level of violence throughout the country, especially against women, it would not be reasonable to expect her to pick up and move to a new city.

Where the persecutor is the government, or where the applicant has demonstrated past persecution, the applicant enjoys a presumption that internal relocation is impossible. Under these circumstances, the U.S. government has the burden to show by a preponderance of the evidence that safe internal relocation is possible. An example of government persecution and internal relocation might be an Evangelical Christian from Eritrea. The government there persecutes people from “banned” religions, including Evangelicals. Since the Eritrean government controls the entire country, internal relocation is not possible. The situation might be different in a country where the government does not control all its territory. For example, an applicant who fears persecution from the Iraqi government might be questioned about whether she could “internally relocate” to Kurdistan, since that area has some autonomy from the central government of Iraq. In this example, there are restrictions on a non-Kurd’s ability to live in the Kurdish region, and so I doubt that the U.S. government could demonstrate that internal relocation is possible, but they might make that argument.

A more unclear situation exists where the asylum applicant suffered past persecution from a non-state actor. Here, there exists a presumption that internal relocation is not possible. However, given the Acting USCIS Director’s admonition, I imagine that Asylum Officers will be encouraged to look more closely at whether such applicants can live safely within their countries.

If you are concerned about internal relocation, what can you do? Whether the burden is on you or on the government, it is a good idea to submit evidence that internal relocation is impossible. This is relatively easy where the government is the persecutor and controls the entirety of the nation’s territory. In other cases, where the persecutor is a non-state actor, things become more complicated.

The “internal relocation” analysis is really a two-step process: First, is it possible to relocate within the country and avoid persecution? And second, is internal relocation reasonable under all the circumstances? Based on this framework, the first thing to do is to submit evidence that the persecutor can reach you anywhere in the country. Typically, that would be country reports or news articles showing that, for example, gang members or terrorists are ubiquitous throughout the country. The State Department puts out a crime and safety report, which is often helpful, especially given that the Trump Administration has white-washed country conditions in many of its human rights reports. Other helpful sources include UNHCR RefWorld, Human Rights Watch, and Amnesty International, to name a few. Of course, if you tried to relocate and the persecutor found you, that would also be important evidence.

If there are places inside your country where the persecutor cannot reach you, you can still avoid an asylum denial by showing that internal relocation is not reasonable. Such a determination is very country specific, but perhaps there is generalized violence that makes it unsafe to relocate, or maybe there are no jobs, or maybe there are cultural issues (like the single woman in Afghanistan). Some countries have laws that prevent people from relocating internally (like the rules in Kurdistan or the propiska in Russia). In other cases, a person’s age or health might make relocation impossible. Whatever the reason, try to obtain evidence in support of your claim.

All this brings us back to Mr. Cuccinelli’s latest pronouncement and his effort to block asylum seekers. He states that asylum would not be necessary for many individuals coming here “if they sought refuge within their home country, particularly given the fact that there are areas that are generally very safe within each of the countries that currently make up the bulk of our credible fear cases.” There is no factual basis for this claim, and in fact, it flies in the face of available country-condition evidence. It is also an insult to the intelligence and independence of the Asylum Officers tasked with implementing our nation’s asylum laws.

In this light, Mr. Cuccinelli’s closing words sound ominous: “The Asylum Division work is very important, and your dedication to the mission has not gone unnoticed.” Is this simply a tepid expression of Mr. Cuccinelli’s appreciation for the Asylum Officers working under him? Or–coming from one who seems determined to undercut the mission of the Asylum Division–is it a warning to those who have the temerity to do their jobs according to the law? At one time, I would have considered this a ridiculous question. These days, I am not so sure.

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Asylum and the New Rule on Expedited Removal

by Jason Dzubow

The Trump Administration has implemented a new rule to reduce due process protections and make it easier to deport certain aliens who are in the United States unlawfully. Given its questionable legality, clumsy roll-out, and lack of notice, we can expect the new rule–which expands the use of “expedited removal”–to be challenged in court, and so whether it will remain in effect and how it will ultimately be implemented, we do not yet know.

While I don’t share the apocalyptic view of some of my colleagues, I do think there is a real danger that the rule gives too much authority to under-trained immigration agents, and that it will result in some non-citizens (and potentially some citizens) being improperly detained and deported in violation of the law. I also think it will further exacerbate the Asylum Office backlog. Worst of all, I expect the new rule will disproportionately impact and terrorize minority communities.

On the bright side, non-citizens will get some exercise carting around their papers.

Here, we will take a look at the new rule and what it might mean for asylum seekers and others. But first, we have to talk about “expedited removal.” The American Immigration Council describes expedited removal as follows–

Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain non-citizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

Basically, a non-citizen who recently entered the U.S. either without inspection or through fraud, and who is encountered near the border, had less due process protections than someone who has been here for a longer time, who entered lawfully or who is in the interior of the country. People subject to expedited removal do not get to see an Immigration Judge–they are detained and deported quickly (though there are exceptions, discussed below). The new rule expands the use of expedited removal geographically and temporally–

As of July 23, 2019, expedited removal may be applied to individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension

What does this mean in practical terms? If you entered the U.S. lawfully with a visa, and did not commit fraud, expedited removal does not apply to you. Even if you entered unlawfully or without inspection, expedited removal does not apply to you if you have been in the United States for more than two years. These criteria beg the obvious question: How does an immigration agent know whether you entered fraudulently or whether you have been here for less than two years? As I read the rule, it seems that the burden of proof is on the alien. So if you entered legally, keep a copy of your passport, visa, and I-94 with you. If you entered unlawfully more than two years ago, carry evidence showing your length of residency–tax and employment documents, school records, lease agreement, bills, etc. This type of evidence will not protect you from being detained if you are out of status, but it should at least allow you an opportunity to present your case to an Immigration Judge, rather than facing summary removal (for information about what to do if you encounter an ICE agent, click here).

Let’s say you are subject to expedited removal and ICE stops you. Then what? If you have a fear of returning to your country, you can express that fear to the immigration agents and you should be afforded a credible fear interview (“CFI”). The CFI is an initial evaluation of eligibility for asylum; it is conducted by an Asylum Officer. If you “pass” the CFI, your case will be referred to Immigration Court where you can present your full asylum case to a Judge. If you “fail” the CFI, you can request an Immigration Judge to review that decision and potentially reverse the negative determination by the Asylum Officer (unfortunately, the likelihood of success for such cases varies significantly depending on the particular Court that hears your case).

If everything were to work according to the law, the new rule should not be too bad: People with a fear of return can still seek asylum and those here unlawfully would be quickly removed (such people generally do not have any defense to being deported). The problem–which is completely predictable since we have seen it before–is that things often do not work according to the law. ICE agents frequently lie to prevent non-citizens from exercising their legal rights. They also make mistakes, which result in people being denied their rights. Further, ICE often engages in racial profiling, and so we know which communities will bear the brunt of the new rule.

In addition, there is the problem of politicization of our nation’s immigration enforcement. Every time the President puts out a tough tweet about “illegals,” ICE has to scramble to make it come true (or not). The result, of course, is distress and terror in immigrant communities. The new rule seems tailor-made to increase such fears.

Finally, with this new rule, there is the problem of execution. I’ve described the Trump Administration’s approach to immigration as malevolence tempered by incompetence, and this new rule is no different. According to the Migration Policy Institute, there are nearly 300,000 immigrants in the United States who could be subject to expedited removal. When ICE starts detaining these people, we can expect many to ask for a CFI (which is usually their only option). Since CFIs are conducted by Asylum Officers, the new rule will shift resources away from “regular” affirmative asylum cases and will likely exacerbate the backlog (ironically, the whole point of the LIFO system was to deter frivolous cases by making the process faster–the new rule will have the exact opposite effect). Further, people whose CFIs are denied can ask an Immigration Judge to review that decision, thus taking additional resources from the Courts and causing more “aimless docket reshuffling.”

The new expedited removal rule seems to me predicated on two myths: First, that there is a pressing danger from non-citizens living in our country. Empirical data does not support this conclusion; rather, it is based on racist and xenophobic stereotypes perpetrated by the current Administration. Second is the myth that our country would be safer if we traded some of our liberty for more security. And make no mistake, when under-trained immigration officials are given near carte blanche to investigate anyone deemed “foreign,” we are–all of us–giving up some of our liberty. As my favorite Founding Father, Ben Franklin, once wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The new rule reduces our liberty, does nothing to enhance our safety, and sows more fear among our immigrant neighbors. It is another sad step towards the degradation of our great country.

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Should I Be Worried About ICE Raids?

by Jason Dzubow

For weeks, the Trump Administration has been threatening to deport “millions” of illegal immigrants. The on-again, off-again plan seems to be on again (sort of), and so let’s discuss who might be targeted, and what to do if ICE comes calling.

Before we get to that, I think it is important to understand something about the rhetoric of President Trump and his aids: Through their words and their actions, they are trying to terrorize non-citizens. Unfortunately, they are largely succeeding, and many people throughout the U.S. are living in a state of dread. Perhaps the President and his supporters can argue that this is about enforcing the law, and about deterring foreigners from coming here. But it seems to me that the law can be enforced without the cruel words and rhetorical games, such as Mr. Trump’s gleeful tweet that unless Congress can work out a solution to the “Asylum and Loophole problems at the Southern Border… Deportations start!” From where I sit, this is pure cruelty, and the harm to regular people–non-citizens and their citizen family members–and to our nation is very real.

Remember when Conservatives used to oppose raids against children?

In a case of giving advice that I would have a hard time accepting myself, I think it is important to ignore the Administration’s words as much as possible. By this, I don’t mean that non-citizens should tune out, since it is important to know what’s happening in order to protect yourself. But dwelling on the Administration’s threats and bluster is mentally exhausting, and it serves no purpose (other than perhaps to further the President’s goal of terrorizing you). Despite it all, so far, Mr. Trump’s bark has proved far worse than his bite (in terms of deportations, the opposite might be said of President Obama).

And so while the rhetoric is bad, and bad things are happening, they are not happening on the scale that the President likes to claim. The “millions” of deportations is now down to two thousand, and even that may be difficult to accomplish given the government’s limited resources and the advance notice provided by the Commander-in-Chief. In short, the situation is not as bad as it may appear, and it is important to not let the stress and fear become overwhelming.

Turning to the raids themselves, who is a target? We don’t precisely know, since ICE keeps its cards close to the vest, but the New York Times reports that ICE will target individuals and families with final orders of deportation, particularly those who entered the country recently. Also, according to RAICES, an immigration non-profit, raids will occur in 10 different cities.

If you have legal status in the United States, or if you have a pending application in Immigration Court or at the Asylum Office, the raids should not directly affect you. Indeed, from what we know so far, unless you actually have been ordered deported by an Immigration Judge and that order is final (meaning, you did not appeal or your appeal was denied), you are not a target of the raids.

On the other hand, if you do have a final order of removal, you could be a target. It likely does not matter how long you have been in the U.S., whether you have family here, or whether you are otherwise law-abiding. If you live in one of the targeted cities, the risk is probably greater than if you live elsewhere, but we cannot be sure about that–raids could occur anywhere.

Also, ICE officers are perfectly happy to arrest any “illegal” who they encounter, even if that person is not the target of a raid. So if you live with a person who is a target, or you spend time with such a person, or if you just happen to be in the wrong place at the wrong time, you could find yourself affected by a raid. For this reason, it is good for all non-citizens to be prepared.

So how do you prepare? The ACLU has a helpful webpage in many different languages. Also, the National Immigration Law Center recommends the following for people without status (I have slightly edited this list):

  • If you encounter ICE agents, remain silent, or tell the ICE agent that you want to remain silent.
  • Ask to speak with a lawyer.
  • Do not carry false documents.
  • Carry a “know your rights” card (PDF)
  • Find out the name and phone number of a reliable immigration attorney and keep this information with you at all times.
  • Know your “alien registration number” (“A” number) if you have one, and write it down someplace at home where your family members can find it.
  • Prepare a form or document that authorizes another adult to care for any minor children.
  • Advise family members who do not want to be questioned by ICE to stay away from any place where a raid occurred or where a detained person is being held.
  • Do not sign any U.S. government documents without first speaking with a lawyer.

More generally, have a plan. Make sure a trusted family member or friend has access to your immigration information and documents. Maybe scan or photograph your documents and save them online. Make a plan with your immediate family about what to do in the event of a raid – who to call, where to go.

If you have a deportation order, realize that you are a target for ICE. If ICE or any part of the U.S. government has your home, work or school address, they could come there to arrest you. If you are in an area where raids are likely to occur, you also face risk, as ICE can detain anyone without status, even if that person was not the specific target of the raid. One thing you can do affirmatively is to talk to a lawyer–if there is a basis to re-open your case, you are probably better off getting started now rather than waiting until you are detained.

Non-citizens who are in-status also need to be careful and should be aware of their rights. Carry your Green Card, EAD or other documents with you (in some cases a non-citizen is required to carry such documents), or at least carry a copy of them. And keep a copy at your house, online, or with a trusted friend, in case you lose the original.

If you do not have status but have a pending case, carry copies of your receipts or Immigration Court scheduling order, and–if you have it–a photo ID. Such documents should provide protection against arrest.

If you are arrested, there are actions that you (or more likely, your lawyer) can take: File a motion to reopen a closed case, request a stay of removal, file a motion for bond. So even an arrest may not be the end of the story, if you are prepared to take action.

Finally, try to keep things in perspective. In 2016, there were over 950,000 people in the U.S. with removal orders. This is the most recent data I could find, and I suspect that the numbers are even higher today. If ICE hopes to arrest 2,000 people in these raids, that accounts for only about 1 person in 500 of those in the U.S. with a deportation order. And even if they arrest more than that, the likelihood of any one individual being targeted is quite low. These raids are more about frightening people than about effective immigration enforcement. Keep that in mind and make sure you are prepared. These are the best ways to get through this difficult time.

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The Great Asylum Officer Rebellion of 2019

by Jason Dzubow

The Trump Administration has been doing everything it can to block asylum seekers from reaching our shores (everything, that is, except working with Congress to reform the law). Many of the Administration’s policies are legally questionable (to put it mildly), and have been challenged in federal court. Now, in an extraordinary move, a union that represents Asylum Officers has filed an amicus brief opposing a policy of President Trump (their boss).

The Administration policy at issue is officially known as the Migrant Protection Protocols or MPP. It is also called the “Remain in Mexico” plan, and it requires many asylum seekers entering the United States from Mexico illegally or without proper documentation to be returned to Mexico for the duration of their immigration proceeding. As a result of the MPP, over 12,000 people have been forced to wait in Mexico while their cases are adjudicated in the U.S.

Acting USCIS Director Ken Cuccinelli responds to the question, “How many asylum seekers will be interviewed this year under the MPP?”

The problems with the MPP are too numerous to list here. But for starters, Mexico is not a safe place for many asylum seekers, especially women, children, and sexual and ethnic minorities. Another problem is that asylum applicants stuck in Mexico have less access to legal assistance and less due process of law. Of course, all this is by design, as the MPP is clearly meant to deter people from seeking asylum by punishing those who have the temerity to ask us for help.

Apparently, the MPP was also too much for many Asylum Officers, who are charged with evaluating asylum claims made by people arriving at our Southern border. Through their union, Local 1924, a group of Officers filed an “amicus” or “friend of the court” brief supporting a lawsuit that seeks to block the MPP. Amicus briefs must include a “statement of interest,” explaining why the filing party has an interest in the matter. Here is what Local 1924 had to say:

Local 1924 has a special interest in this case because, as the collective bargaining unit of federal government employees who are at the forefront of interviewing and adjudicating the claims of individuals seeking asylum in the United States, Local 1924’s members have first-hand knowledge as to whether the MPP assures the United States’ compliance with international and domestic laws concerning due process for asylum seekers and the protection of refugees and whether the MPP is necessary to deal with the flow of migrants through our Nation’s Southern Border.

There are two main reasons that Local 1924 objects to the MPP:

  • In the course of waiting [in Mexico] for a determination of their asylum applications, many [asylum seekers] will face persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.
  • Moreover, the MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable—with additional resources where appropriate–of efficiently processing asylum claims… The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient.

In short, the officers charged with enforcing the asylum law at the Southern border think that the MPP violates the law and endangers people who our country is obliged (under international and domestic law) to protect.

Predictably, the Acting Director of USCIS (which oversees the Asylum Division), Ken Cuccinelli, issued a statement “blasting” the amicus brief:

Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.

In his statement, Mr. Cuccinelli fails to address any of the substantive claims raised in the amicus brief (shocking, I know). Instead, he falls back on the old talking point that frivolous asylum claims are somehow to blame for the crisis at the border. Of course, there is little evidence to support this position, but as a climate-change denier, Mr. Cuccinelli is obviously not beholden to concepts such as evidence or common sense (or common decency).

In my experience, most Asylum Officers take their jobs very seriously. They recognize their duty to uphold the asylum law and to grant or deny protection where appropriate. They also recognize their duty to protect the United States. This sense of responsibility to country stands in sharp contrast to the arrogance of the Trump Administration and the USCIS Acting Director, who seem to think they can run roughshod over our nation’s laws and force government employees to do the same. For this reason, I think the amicus brief is significant: It stands as an expression of independence of Asylum Officers (or at least those in Local 1924) to make decisions in accordance with the law, even when their higher-ups demand that they do otherwise.

I hope Asylum Officers and Immigration Judges around the country will take note. I hope that they will read the amicus brief, particularly the recitation of our country’s proud (but imperfect) history of protecting people fleeing harm. And most of all, I hope Officers and Judges will continue to follow the law, even when the political leadership pushes them to ignore it. Following and enforcing the law is the ultimate “rebellion” against the current Administration’s lawlessness. Our asylum system, our country’s moral integrity, and the lives of asylum seekers all depend on it.

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Do’s and Don’ts for the Asylum Office and Immigration Court

by Jason Dzubow

Moving to another country can be challenging and confusing. Navigating that new country’s legal system can be downright maddening. As an asylum attorney, I’ve observed my clients’ behavior in Immigration Court, the Asylum Office, and during USCIS interviews, and I’ve accumulated a list of do’s and don’ts (mostly don’ts) for interacting with immigration officials. So, in no particular order, here’s what to do and not do, when you appear for your hearing or interview–

Do turn off your cell phone (don’t put it on “silent” or “vibrate” – turn it off)

Do dress respectfully

Do not wear a hat (unless it is religious garb, like a hijab or kippah)

Do not engage in fake emotional outbursts, like crying or screaming uncontrollably – it is not culturally appropriate in American, and it will potentially make the decision-maker uncomfortable, embarrassed or angry (you can express your emotions – just don’t be fake)

Don’t wear perfume or cologne

Do do these do’s or you’ll be due for deep doo doo (times deux).

Don’t answer a question when you do not know the answer – Don’t guess!

Do take a bath beforehand

Don’t tell the decision-maker that she is good-looking, smart, professional, well-dressed, brilliant, funny, Christ-like or anything else that resembles kissing her ass – this will probably only aggravate and/or creep out the person you are trying to flatter

Do tell the truth

Don’t cry and beg for a good decision

Do turn off your cell phone (I mean it!)

Do use the bathroom before your interview or hearing, so you do not have to interrupt proceedings to run to the potty

Do not lose your temper with or be disrespectful to the Immigration Judge, DHS attorney, Asylum Officer, interpreter, clerk, security guard or anyone else involved in the process

Do not chew gum (or tobacco, toothpicks or anything else)

Don’t bring small children to the court or the interview unless they are required to be present

Do bring all your original documents with you (all passports, birth certificates, marriage certificates, divorce documents, school and work records, military records, medical documents, death certificates, police reports, ID cards, photos, witnesses letters, etc. – in short, if you submitted a copy of it, bring the original if you have it)

Do show up on time (or better yet, show up early)

Don’t answer questions that you do not understand (just say, “Sorry, I do not understand the question”)

Don’t take advice from friends or family members if they do not know what they are talking about

Do be friendly and make eye contact

Don’t avoid responsibility for bad things you did, such as criminal conduct or prior misrepresentations – if you take responsibility, express remorse, apologize, explain how you have changed, and show that you will not repeat the bad behavior, you are most likely to overcome the problem (of course, if you have a criminal or misrepresentation issue, you should talk to a lawyer for guidance)

Do get a good night sleep beforehand (even though this can be difficult)

Do listen carefully and respond to the question that is asked; not to the question that you wanted them to ask

Do not try to avoid the questions or change the subject

Don’t interrupt other people, especially Judges, Trial Attorneys, and Asylum Officers

Don’t get flustered – if you are losing your cool, take a breath, or ask for a moment to compose yourself

Don’t leave your cell phone on – shut it off! (did I already mention this?)

Do stand up when the Judge enters the courtroom

Do not repeat the entire oath after the Judge or Asylum Officer asks whether you swear or affirm to tell the truth – just say, “I do” or “yes”

Do speak slowly and clearly, and, if you are using an interpreter, break up long answers into shorter bits so the interpreter can accurately translate everything you say

Do not bring weapons or other prohibited items to the courtroom or Asylum Office

Do not roll your eyes or use other disrespectful body language

Do answer questions verbally – you cannot nod your head for “yes” or “no”

Do sit up straight

Do not plead “Not guilty!” at the Master Calendar Hearing

Do think before you speak – Why are you being asked this question? What might the questioner have in mind?

Don’t answer a question in court if your attorney objects to that question – let the Judge make a decision on the objection. Depending on how the Judge rules, you may not be required to answer the question

Do not forget where you are and get too comfortable/familiar – remember, you are being judged (literally)

Do not use curse words or rude language, unless it is part of the story you are telling

Do not refer to the Immigration Judge as “Your Lordship,” “Your Majesty,” “Your Highness,” “Oh Great One,” “Your Holiness,” “He Who Must Not Be Named,” or any other unusual sobriquet – in the U.S., we say “Your Honor”

Do not refer to the Asylum Officer by any weird sobriquets either – you can call the officer “Officer” or “Sir” or “Ma’am”

Do review your case before any hearing, and think in advance about how to respond to difficult questions

And most important of all, Do pay your lawyer (especially if you are my client!)

So that’s about it. This list is not comprehensive, of course, and so if you have any suggestions, please let us know. And in case I forgot to mention it: Turn off your cell phone!

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A New Foundation for Asylum Reform

by Jason Dzubow

In case you hadn’t noticed, the asylum system has essentially collapsed. A lucky few still have their cases decided, but they seem to be a minority. It is painfully clear that the backlog continues to grow. It currently stands at about 327,000 affirmative asylum cases and more than 908,000 cases in Immigration Court (how many of these court cases involve asylum, I do not know). The heart of the problem is mathematical: Too many applicants; too few resources. Unfortunately, we are not moving towards a solution at either the legislative or regulatory levels.

In terms of new regulations and policies, the Trump Administration’s only apparent plan is to deter would-be asylum seekers by making the process more painful and by trying to block people from reaching our shores. In my opinion, making the asylum process more painful won’t work. That’s because whatever harm the Administration can impose (family separation, indefinite detention, “wait in Mexico,” hieleras, tear gas, stricter legal standards) pales in comparison to the harm many asylum seekers face if they return home (death). Asylum seekers, being rational actors, are simply choosing the lesser evil, and coming to the United States. Blocking people from coming here might be more effective, but again, I have my doubts. People are fleeing for their lives and determined to reach safety, and so gaining better cooperation from Mexico, building bigger walls, and tightening up visa requirements will only get us so far.

In today’s divisive environment, progress is measured in centimeters and Grahams.

The “problem” from the Trump Administration’s viewpoint is that the law of asylum still offers refuge to those fleeing persecution. Thus, the Administration’s efforts to change the regulations (which modify how the law is applied) can do only so much. To change the law requires Congressional action. During the first two years of Mr. Trump’s presidency–when Republicans controlled both Houses of Congress–there was no effort to reform the asylum law. Now, with the Democrats in control of the House, legislation is only possible if the two parties reach a compromise. And compromise in Washington has lately proved elusive (just a bit).

Elusive, yes, but perhaps not impossible. Recently, Republican Senator Lindsey Graham proposed changes to the asylum system to increase the length of time families can be held in detention and to add 500 new Immigration Judges, among other (mostly punitive) ideas. Despite the hard line, Mr. Graham expressed a willingness to “put other immigration ideas on the table to marry up with this.” Mr. Graham’s bill may be all stick and no carrot, but at least it signals a desire to address asylum reform. On the House side, the Democratic majority (with a few Republicans) passed a bill to protect Dreamers. Perhaps these opening bids could lead us in a productive direction.

The fact is, while asylum policy is a difficult issue, it should be amenable to a legislative fix. If politics were removed from the mix (a very big “if”), we could find policy solutions that would greatly improve the current situation. What would such a “solution” look like? Spoiler alert: I don’t have an answer. But I do have some ideas, at least about where we can get started–a foundation upon which legislation can be built. Here, I want to discuss the fundamental elements of this foundation:

– We must be honest about the problem: The Trump Administration has not been truthful about why asylum seekers are coming to our country, who they are, or what they do once they get here. It’s very difficult to move towards a reasonable policy solution when we are living in dystopian fantasy land. Asylum seekers are not invading our country. They are not coming to collect welfare or commit crimes. The data is pretty clear that they are basically regular people, who are coming here because they fear harm back home. They tend to commit fewer crimes than the average American, and they make an overall modest contribution to our economy. Reforming the asylum system will require a realistic and honest appraisal of asylum seekers, and so we have to stop the politically-motivated effort to demonize them.

– We need to decide who should receive asylum: The asylum law provides for five protected categories: Race, religion, nationality, political opinion, and particular social group (“PSG”). These categories exist because our nation decided to protect people who face these types of harm. Conversely, other types of harm–such as generalized violence in war or criminal violence–were not considered worthy of protection. Why did we make this distinction? Because these types of harm in some way reflect our national values (political freedom, religious freedom, and racial equality, to name a few). But these categories were largely created by white men to protect against harm inflicted on other white men, and national values evolve over time. In the case of the protected asylum categories, this evolution occurred through litigation, not through any sort of consensus legislation (with one exception, which relates to forced abortion and forced sterilization).

For example, litigation has expanded the definition of PSG to encompass a diverse range of applicants (LGBT individuals, victims of FGM, victims of domestic violence, members of a family, and many more) who were not on the radar when the law was created. This indeterminacy has led to shifting interpretations of the law (depending partly on the Administration in power), inconsistent decision-making at the individual level, and confusion and misinformation among asylum seekers about who is protected. This chaos has contributed to the influx of Central American migrants arriving at our Southern border, who are mostly seeking protection based on PSG.

In order to resolve this crisis, we need to make a decision by legislation, not by litigation, about who we want to protect. For example, we can choose to protect victims of domestic violence, or not. That is our right as a sovereign nation. However, in making that decision, we need to be honest about what we are doing–these people are often facing life-threatening harm. We can send them back, if we so choose, but we cannot pretend that they are returning to someplace safe. In other words, we can choose to let anyone in, or keep anyone out, but we have a moral obligation to make that decision based on facts–not based on anti-immigrant propaganda. If we can define more precisely who is eligible for protection, we can create more certainty for migrants, and hopefully deter those who do not qualify. Further, if this is done with the support of most Americans (i.e., through legislation), the decision about who to protect will have more legitimacy and be more sustainable.

– We need to decide how much due process is due: Even for people arriving at the border, we have a Cadillac-immigration system. This includes Border Patrol Agents, detention facilities, Asylum Officers, Immigration Judges, ICE attorneys, administrative support staff, and many others. All this is expensive, especially when you have thousands of asylum applicants presenting at the border each week. Our system is not designed to handle such a high volume of cases, and unless we are prepared to significantly increase resources to review asylum applications, something has to change.

One option is to screen applicants and release those who pass a credible fear interview (“CFI”), and then require them to return for a court hearing (what our President has eloquently called “catch and release”). This has the advantage of ensuring a high level of due process for everyone seeking protection at our borders, but has the disadvantage of essentially opening the border to anyone who can pass a CFI (a relatively low bar). It also seems to be politically unpopular. Another option is to detain some or all asylum seekers until we can give them a full hearing. This has the advantage of providing a higher level of due process (to the extent that a person can exercise her due process rights while detained), but comes with a heavy cost, both economically and in human terms. A third option is to provide a lower level of due process, maybe a rigorous CFI, followed by removal for those who are denied. Such a system would provide some measure of justice, but would result in the return of many people who might qualify for protection if they had time to gather evidence and present their cases. Another option might be to provide no due process at all: Anyone who requests asylum at the border can be placed into a refugee camp or sent to a safe third country, and will remain there until the crisis in the home country is resolved (which the way things are going, is probably forever). This would solve the problem of protecting people from imminent harm, but would result in long-term issues, since it would potentially create a permanent community of displaced people.

Perhaps the point here is that, while there may be no perfect solution, we need to think in realistic terms about the level of due process we want to offer asylum seekers who arrive at our border.

The idea that Congress and the President could actually come up with a rational solution to improve the asylum system seems almost fantastical in this age of divisiveness and gridlock. But something has to be done. The first step is to speak honestly about what is going on, and then to work towards a solution that is made democratically, and which considers our country’s national and economic security, moral ideals, humanitarian commitments, and the rule of law.

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