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.
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.
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.
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.
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.
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.
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.
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!
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.
Last month, the Asylum Division released the most recent data about the affirmative asylum backlog. The short story is that the nationwide backlog continues to grow, albeit quite slowly. Also, the growth is not evenly distributed among the various Asylum Offices–some are seeing their backlogs get larger; others are seeing their backlogs shrink. Here, we’ll take a closer look at what is happening in terms of the backlog, and also review some of the (surprising) answers that the Asylum Division gave to questions posed at the quarterly stakeholders meeting.
First, some numbers. In February 2019, the nationwide backlog was 326,767 cases; in March, it was 327,984, meaning that the backlog grew at a rate of less than 0.4%, which is pretty insignificant. However, when we break down the growth rate by Asylum Office, we see a different picture. Some offices had growing backlogs: Arlington (+1.5%), Boston (+0.2%), Houston (+1.8%), Miami (+0.8%), New York (+0.2%), New Orleans (+4.1%), and San Francisco (+0.5%). Other offices had shrinking backlogs: Chicago (-0.2%), Los Angeles (-1.3%), and Newark (-1.9%).
Typical reaction when an asylum seeker learns about the backlog.
What these numbers mean for asylum seekers is not entirely clear. For people in the backlog, only three offices seem to be making any headway at all, and so if your case is stuck in Chicago, LA or Newark, there is at least some hope that you will eventually receive an interview. Backlogged applicants in the other offices are unlikely to receive an interview any time soon, unless they can expedite their case.
For new applicants, my suspicion is that offices with shrinking backlogs are more likely to interview newly-filed cases. For example, most of our cases are filed in three offices: Arlington, Chicago, and Newark. Arlington has a growing backlog, and our experience there is that a minority of our newly filed (LIFO) cases receive interviews. In Chicago and Newark, which both have shrinking backlogs, our newly-filed cases all seem to receive interviews.
So if you plan to file for asylum, and want to maximize the chance for a fast interview, are you better off filing in Chicago, LA or Newark? Maybe. But one issue is that USCIS moves resources from office to office, and so a fast office today might be a slow office tomorrow. An example of this is Los Angeles. For years, LA was the office with the largest asylum backlog. Then, at some point, headquarters sent some help (or made some sort of change), and now LA is one of the “fast” offices. At the Asylum Division Quarterly Stakeholder meeting last month, we asked about the inequitable delays, and the leadership told us that in summer, they re-evaluate how resources are distributed. So maybe there will be changes in the coming months, and this could affect how the local offices process their cases.
What about grant rates at the different offices? There are different ways to calculate grant rates, and so to some degree, whether a particular asylum office is “easy” depends on how you crunch the numbers. I prefer to factor out “no shows” for obvious reasons. I also factor out one-year bar cases, which is arguably a bad idea, and cases referred without an interview. In other words, I want to know the grant rate for cases filed on time, where the person shows up for his interview. Using that method, the overall grant rate for the U.S. for March 2019 (the most recent month available) is 47.7% (had I not factored out the cases I don’t like, the grant rate would be much lower: 27.5%). Looking at grant rates for each office, we have: Arlington (44.0%), Boston (37.8%), Chicago (55.6%), Houston (44.7%), Los Angeles (68.3%), Miami (25.5%), Newark (43.1%), New York (23.7%), New Orleans (68.3%), and San Francisco (69.3%).
While I think there is some value to these numbers, it is important to remember that different offices serve different populations, and some populations are more likely to be denied than others. For example, though many Central American asylum seekers face severe danger, they often have a hard time winning asylum because the harm they typically face does not easily fit within a protected category under the asylum statute. For this reason, an office with many Central American cases might have a lower grant rate than an office that serves a different population. Put another way, a strong case is likely to win regardless of the office where you file. Even so, when you have such a wide range of approval rates, it’s hard to argue that a person is not better off filing in LA, San Francisco or New Orleans, as opposed to Miami or New York.
So that’s more-or-less where we are in terms of the backlog and asylum grant rates, but there is other news from the Asylum Division as well, including about the LIFO system itself. Here, the Asylum Division is claiming a win: “Since the adoption of the LIFO scheduling policy, the Asylum Division has seen an approximately 30% decrease in receipts [i.e., newly-filed asylum cases].” The theory being that frivolous asylum seekers, who just want a work permit, are deterred from filing by the LIFO system. I don’t doubt that the number of asylum seekers has dropped since January 2018, when LIFO went into effect, but I am not convinced that LIFO gets credit (or blame) for this. There could be many reasons for the down turn, including normal fluctuations in applications, the hostile environment for asylum seekers, greater difficulty in obtaining a U.S. visa, etc. However, given that the Asylum Division views LIFO as contributing to a reduction in applications, I would not expect a change in that policy any time soon.
Also at the Stakeholders meeting, the Asylum Division informed us that, between October 2018 and March 2019, “approximately 70 percent of asylum office final decisions were made within two weeks of the completed interview.” I’m a bit more skeptical about this claim. At least I do not see it for my clients, who usually wait months (at least) for a decision. Admittedly, most of my clients are not typical asylum seekers, who come from Latin America and China, and that may skew my perspective (many of my clients come from Muslim countries, which seem to require longer background checks).
One final point: There have been rumors that the Asylum Division is terminating asylum grants for people from Ethiopia due to improved country conditions. In response to a question on this point, the Asylum Division states–
The Asylum Division initiates termination review when we receive person specific evidence that an individual asylee may be subject to termination of asylum status for any of the applicable grounds under 8 C.F.R. § 208.24. We have not issued any policy memos/directives/other information regarding the termination of asylum status based on the individual no longer having a well-founded fear of persecution due to changed country conditions in the individual’s country of nationality or last habitual residence.
In other words, there is no blanket policy to terminate asylum for Ethiopians. Whether this means that Ethiopian asylees are safe, I am not sure, but at least there is no general policy to terminate asylum in such cases.
So that’s the latest from the Asylum Division. If the recent agreement with Mexico blocks applicants from coming here, we might see resources moving from the border to the backlog, which could cause things to speed up. Only time will tell, and if there is news at the next Quarterly Meeting, I will try to post it here.
An asylum seeker is tired of waiting for her interview, and so she goes to the Asylum Office to inquire about her case.
Asylum Seeker: I’ve been waiting forever for my case. Can you please tell me when I can expect an interview?
Officer: You’re in luck–we have a new system and we can tell you precisely when your asylum interview will be held. Let me check… Hold on… Ok, I see that your interview will be in exactly two million years.
Asylum Seeker: What?!!? When will my interview be?
Officer: In exactly two million years.
Asylum Seeker: Oh, thank goodness! I thought you said two billion years.
(2)
A Trump supporter stands outside the Immigration Court and waits for an asylum seekers to arrive for his hearing.
Trump Supporter, yelling at the Asylum Seeker: All our troubles come from the asylum seekers!
S.O.L.
Asylum Seeker: That’s right – from the asylum seekers and from the bicycle riders.
Trump Supporter: From the bicycle riders? Why from the bicycle riders?
Asylum Seeker: Why from the asylum seekers?
(3)
Two DHS attorneys board a plane to the Federal Bar Association conference in Memphis. One sits by the window and the other sits in the middle seat.
After a few moments, an asylum attorney sits down in the aisle seat. The asylum attorney makes himself comfortable, takes off his shoes, and leans back in his chair.
Suddenly, the DHS attorney by the window gets up, and states, “I think I’ll get a Coke.”
The asylum attorney in the aisle says, “No worries – I’ll get it for you.” He walks to the back of the plane to get the soda. While he’s gone, the DHS attorney spits into the asylum attorney’s shoe. The two DHS attorneys can barely keep from giggling as the asylum attorney returns to his seat, and hands over the Coke.
The DHS attorney in the middle seat then says, “That looks good. I think I’ll get myself a Coke too.”
Again, the asylum attorney offers to run down the aisle and grab another Coke. While he’s gone, the second DHS attorney spits into the asylum attorney’s other shoe. Once again, the DHS attorneys suppress their laughter just in time, as the asylum attorney returns with a second Coke.
The flights proceeds uneventfully from there, and lands on time in Memphis. On the ground, the asylum attorney slips into his shoes. Immediately, he realizes what’s happened. “How long must this go on?” he asks. “The fighting between our two sides.” “The hatred? The animosity? The spitting in the shoes and the peeing in the Cokes?”
(4)
A Syrian refugee walks into a travel agency in Amman. The agent greets her and asks, “Where to?”
“Where to?” the refugee repeats thoughtfully. “I wish I knew. Let me look at your globe.”
The Syrian refugee slowly spins the globe around, looking carefully at the different continents and countries. After a few minutes, the refugee turns to the travel agent. “Pardon me,” she asks, “but do you have anything else to offer?”
(5)
During the Second World War, after three months of waiting in Casablanca, a Jewish asylum seeker named Lowenthal had almost given up hope of getting a visa for the United States. The U.S. consulate was constantly filled with refugees, and it was virtually impossible even to get an interview with an American official. Finally, Lowenthal was able to make an appointment.
“What are my chances of entering your country?” he asks.
“Not very good, I’m afraid,” said the official. “Your country quota is completely filled. I suggest you come back in ten years.”
“Fine,” replied Lowenthal. “Morning or afternoon?”
Mahir Ahmed really wants you to know that he’s a “legitimate” asylum seeker. Not like those other people who are “deliberately breaking U.S. laws” and “jumping in line” ahead of good people like him. To confront this crisis, which has delayed a decision in his case, Mr. Ahmed declares his support for President Trump’s border wall.
I have some sympathy for Mr. Ahmed ‘s frustration at the slow pace of his case, since many of my clients are similarly delayed. But his desire to slam the door on certain asylum seekers who he considers illegitimate demonstrates a deep ignorance of our asylum system, not to mention a profound arrogance about his own moral standing.
First, let’s take a look at Mr. Ahmed’s “legitimate” asylum case. Mr. Ahmed is from Ethiopia. He was born Muslim, in a “community that is virtually 100 percent Muslim.” After he came to the U.S. (legally!), he converted to Christianity. He writes that his “decision to leave and criticize Islam publicly forced me to resort to asylum.”
Mahir Ahmed offers his new-found Christian love to all asylum seekers. Except those who get in his way.
As an asylum lawyer, I have done apostasy cases from many countries. In some places, apostasy is illegal, and can be punished by death. Ethiopia is not one of those places. In fact, Ethiopia is mostly Christian, and while Mr. Ahmed’s community may be “virtually 100 percent Muslim,” his country is only 34% Muslim. This means internal relocation is a real possibility. If Mr. Ahmed can live safely in some other part of Ethiopia, he is ineligible for asylum. Further, it is unlikely that Mr. Ahmed fears persecution from the Ethiopian authorities, and so if the government can protect him from his Muslim community, he would also be ineligible for asylum. This is not to say that his claim is illegitimate, but an apostate from a country like Iran, Pakistan or Afghanistan might consider Mr. Ahmed to be unfairly blocking up the asylum system when he could potentially live safely in his own country. Let he who is without sin cast the first stone. Or something like that.
Now let’s take a look at some of Mr. Ahmed’s claims about these “law breaking” asylum seekers who have supposedly delayed the decision in his case. In fact, Mr. Ahmed was one of the lucky asylum seekers who received an interview quickly, based on LIFO. The Asylum Officer told him to return two weeks after the interview to collect his decision. Mr. Ahmed was excited: “You can imagine how thrilled I was knowing that no matter what the decision was, it would all be over within two months of filing. No more worrying, wondering, and being in limbo.” But then, the Officer called and informed Mr. Ahmed that he could not pick up the decision after all; it would come by mail. He “was told they have no idea when [the decision would be made] and that the fact that I had legal status might be a factor in the delay since priority is being given to illegal immigrants.” Mr. Ahmed was shocked: “I couldn’t believe that illegal immigrants would be given higher priority than someone who followed the law. It just seemed unfair to me that jumping in line would put you ahead.” More than seven months later, Mr. Ahmed is still waiting for a decision.
After doing a bit of research, Mr. Ahmed found that since the time he filed his case, “more than 460,000 illegal crossings took place” at the Southern border. The “vast majority of the crossers claimed asylum and basically got priority processing over everyone who filed their cases legally, myself included.” “That is exactly why I’m for the border wall,” he writes. “True asylum seekers will still be able to file for asylum at the ports of entry [and] maybe even in their home countries soon,” if a proposed anti-asylum bill becomes law.
There’s a lot to unpack here, and we only have time to address the major points of Mr. Ahmed’s thesis. Let’s start with his data–the 460,000 “illegal crossings.” If you look at his source for this number (Customs and Border Protection or CBP), you will see that this figure represents people “apprehended between points of entry” from October 2018 through April 2019. While Mr. Ahmed writes that the “vast majority” of these border crossers claimed asylum, a review of the latest asylum office data reveals a different story. During this period, about 70,000 people sought credible or reasonable fear interviews, which indicates their desire to apply for asylum at the U.S. border (this is an estimate since the asylum office data is not as current as the CBP data). Thus, even assuming Mr. Ahmed is correct that these “illegal crossers” are jumping ahead of him in line, the number of line jumpers is “only” about 70,000; not 460,000.
Regardless of the statistics, Mr. Ahmed misses a more fundamental point: The law makes no distinction between “legal” and “illegal” asylum seekers. It is legal to arrive at the border (at a point of entry or elsewhere) and seek asylum. It is also legal to enter the U.S. without inspection and file for asylum. The relevant legal statute, INA § 208(a)(1), states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival….), irrespective of such alien’s status, may apply for asylum.” And so these “illegal immigrants” that so concern Mr. Ahmed have the exact same legal right to file for asylum as he does.
Do “illegal immigrants” jump ahead of the line? Do they get priority over “legal immigrants,” such as Mr. Ahmed? In one sense, they do. When an alien arrives at the border and expresses a fear of return, she receives a credible fear interview or CFI (or if she was previously in the U.S., she receives a reasonable fear interview). This is an initial evaluation of asylum eligibility. Such interviews receive priority over “regular” asylum cases. The large number of CFIs in recent years is a major contributor to the backlog of asylum cases. In Mr. Ahmed’s case, however, he received an interview within a few months of filing. In other words, his case did not fall into the backlog. Thus, unlike other asylum seekers who filed and did not receive a timely interview, Mr. Ahmed’s case was not delayed due to “illegal immigrants” receiving CFIs.
Even for those “regular” asylum seekers who land in the backlog, I do not see how they have much basis to complain about CFIs. This is the system our country created to enforce its humanitarian immigration law. CFIs get priority because those applicants must either be approved and sent to Immigration Court for a full asylum hearing, or denied and deported quickly. If anything, people seeking asylum at the border need more protection than asylum applicants who are already in the U.S., since the latter are in no immediate danger of being returned to a country where they face persecution. As such, it makes sense to adjudicate CFIs first.
Mr. Ahmed also claims that a decision in his case was delayed because USCIS gives priority to “illegal immigrants.” He references a USCIS webpage, which indicates that “longer processing times may be required if you… are currently in valid immigration status.” First of all, this website lists several different reasons for post-interview delay, including “pending security checks” and headquarters review, which are common reasons for post-interview delay (especially, as far as I can tell, for cases involving Muslim–or formerly Muslim–men). Second, the reason a “legal” immigrant’s case may be slower than that of an “illegal” immigrant is because it requires more work to deny such a case. People in legal status receive a detailed Notice of Intent to Deny letter. People who are out of status receive a much less detailed Referral letter. Since it takes more work to create a NOID, it makes sense that such cases takes longer. A final note on this point: I have done many cases for people who are in status, out of status, and who have entered the U.S. illegally. At least in my anecdotal experience, I see no pattern of differences in processing times, and so I doubt that “illegal” cases are processed any faster than “legal” ones.
Based on his analysis, Mr. Ahmed endorses a border wall as a way to help “legitimate” asylum seekers like himself. But this “solution” has no relationship to the problem. If you want to prevent “illegal” aliens from seeking asylum, you need to change the law that allows such people to seek asylum. Perhaps by building a wall and increasing punitive measures, you can deter asylum seekers from coming here. This would help reduce the backlog (at the expense of our nation’s integrity), but you could achieve the same ends (more cheaply) by simply blocking aliens from coming here legally. If fewer people come here, fewer will ask for asylum. Indeed, the Trump Administration is trying to make it more difficult to obtain a visa if you come from a country that tends to produce visa overstays (had it been in place when he came to the U.S., this rule may very well have blocked Mr. Ahmed from coming here).
The bottom line for me is this: Anyone who reaches the U.S. and fears return to his country is a legitimate asylum seeker, and deserves to have his case carefully reviewed. Mr. Ahmed’s effort to distinguish himself from asylum applicants at the Southern border represents a basic misunderstanding of our country’s humanitarian immigration system and the values that that system represents. This is a difficult time for asylum seekers, and sometimes, among desperate people, there is an inclination to attack each other. Mr. Ahmed should resist this temptation. Instead of undermining his fellow asylum seekers, he should stand together with them. By supporting each other, we can improve the asylum system for all.
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.
I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.
EOIR has released a new “Myths vs. Facts” brochure.
This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:
Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more. Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.
Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream. Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.
Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS. Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!
Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget. Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.
Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration. Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…
So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?
One of the most disheartening phrases to hear at an asylum interview is when the Officer says, “Government records indicate that…” This usually means the government has information contradicting the applicant’s testimony. Here are a few examples from a couple recent interviews I attended:
Government records indicate that you applied for a visa from a third country. Can you explain why you said you never applied for any other visas?
Government records indicate that you traveled outside the United States since your first arrival here. Can you explain why you said you had not left the U.S. since that time?
Government records indicate that your neighborhood in Syria was controlled by rebel forces at that time. Can you explain why you said the neighborhood was under government control?
The first two questions were for a Pakistani client. The third question was for an Iraqi. Both applicants were denied and referred to Immigration Court.
If your nickname is “Incredible,” it does not bode well for your asylum case.
As I see it, there are a number of problems with these “gotcha!”-type questions. For one, they are vague, in that the Asylum Officer does not state exactly what information the government has, and it is difficult to adequately respond to a question that you really don’t understand. For another, some of these questions rely on information that is easy for the applicant to forget or overlook. Finally, the “gotcha!” information possessed by the government is not always accurate.
In the first example above, it seems unfair to impugn an applicant’s credibility based on his failure to remember applying for a visa years after the fact. It’s not really a major life event, and if the person did not actually get the visa and visit the country, it’s easy to see how he might forget about filing a visa application (especially since some applications are done online and the person may never even have visited the country’s embassy).
In the other examples above, the government’s information seems to be inaccurate. My Pakistani client swears he never left the U.S. since he first arrived here, and I believe him–he has no reason to lie and his I-94 record, available at the CBP website, does not indicate that he re-entered the country after his initial arrival. In the case of my Iraqi client, she was simply baffled to hear that her neighborhood was controlled by non-government forces. She says she lived in that neighborhood the entire time, and I trust her on-the-ground experience over the government’s “information.” Of course, it is possible that my clients are incorrect, or that–for some indiscernible reason–they are lying, but in these example, I have more confidence in them than I do in the government.
What’s important to understand here is that the United Sates government wants to test an asylum applicant’s credibility, but it has limited means to do so. Asylum Officers can question applicants extensively to try to ferret out lies, but a more effective approach is when the Officer can compare an applicant’s testimony with information the government knows to be true. And the government knows a lot. It knows about every U.S. visa you have ever applied for–and what you told the embassy during the visa application process. It knows about visa applications to other countries (which countries share such information with the U.S., I am not sure, but it is safest to assume that the government knows about any visa application to any country). It knows about applications made to the United Nations. It knows a lot about a person’s travel history. It also knows about your relatives’ travel and visa histories (including ex-spouses). The government knows about any arrests or contacts with U.S. (and perhaps some foreign) law enforcement. Of course, it knows about any other U.S. immigration application made by you or your family members, and it probably has copies of all such applications. The government may know about your employment and education histories, and whether you have used any other names. The government also knows about conditions in your home country, including information about political parties, rebel groups, and terrorist organizations.
In short, Asylum Officers can–and do–gather significant independent evidence about a person’s case. Even where this evidence does not bear a direct relationship to the asylum claim, they can compare that evidence to your testimony and use that to determine whether you are credible (and remember, for the Asylum Office, inconsistent = incredible). If the Asylum Officer determines that your testimony is incredible because, for example, you lied about how you obtained your visa, she could conclude that you are lying about other, more significant, aspects of your case. If that happens, your application for asylum is likely to be denied.
So what do you do? First, don’t lie. Even about small things that you think are insignificant. The Asylum Officer may ask you questions about aspects of your life that seem irrelevant or embarrassing. If that happens, think about why they might be questioning you on that topic. What might they know? Do your best to answer honestly. Don’t guess! If you guess wrong, the Asylum Officer might assume you are lying. If you don’t remember or do not know, tell the officer that you don’t remember or you don’t know.
Also, prior to the interview (ideally, when you prepare the affidavit), think about the times when you (or your family members) had contact with the U.S. government, the UN, or other foreign governments. What did you say on your applications and in your interviews? Did you lie? If so, the time to admit that is in your asylum affidavit and at the asylum interview. You are much better off affirmatively coming clean and explaining any old lies than hoping that the Asylum Officer won’t know about them. Correcting the record in this way does not guarantee that the old lie won’t be used against you, but in most cases, adjudicators appreciate the honesty and they are more likely to forgive a misrepresentation that you bring to their attention than one that they bring up in a “gotcha!” question. In addition, in many cases, the law forgives an asylum applicant for lying, if that lie was necessary for the person to get a visa and escape from her home country. Affirmatively coming clean is usually the safest approach for people who have something negative in their history.
Turning back to the above examples, maybe the best response to the first question would have been for the applicant to think about why the officer was asking him about other visa applications. If he was not sure about his answer, he might have replied, “I don’t remember applying for a visa to a third country, and so I am not sure whether I did or not.” This type of equivocal answer would at least have made it more difficult for the Asylum Officer to impugn the applicant’s credibility.
What about the second two examples, where the government’s information seems to be wrong? Here, I don’t know what the applicants could have done, other than to state that the Asylum Officer’s information is not correct. That is what my clients did, but obviously, it was not enough. The hope now is that, with the cases referred to court, the DHS attorney (the prosecutor) cannot rely on vague accusations–they will have to provide specific evidence of their claims (that client A traveled outside the U.S. or that client B’s neighborhood was controlled by a rebel group). If we are allowed to see the government’s evidence, we can (hopefully) refute it.
In an asylum interview, honest is the best policy. And if you don’t remember or don’t know, it is best to say that. Finally, if there are “issues” in your past, it is best to bring those up affirmatively and explain them in your asylum application. In these ways, you can improve your credibility and increase the likelihood of a favorable outcome in your case.
In case you haven’t noticed, President Trump is not a fan of asylum seekers. His Administration has taken a number of actions to block asylum seekers from coming to the United States and to reduce legal protections for those who are already here. Now, the President has issued a policy memo instructing the Attorney General and the (acting) Secretary of Homeland Security to propose new regulations and re-arrange resources to further discourage migrants from seeking asylum in the U.S. Let’s take a look at this most recent move, and how it might impact the asylum process.
As a preliminary matter, the news is not all bad. In Section 2 of the memo, the President re-affirms his commitment to the humanitarian immigration system: “It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.” While it may not be big news that the Administration will provide “relief or protection… for aliens who qualify,” since failing to do so would violate the law, we have to take our good news where we can find it.
“Pay for asylum? No problem. I’ll have my manservant write you a check whilst I finish my charcuterie platter and valet my Bentley.”
In addition, the thrust of the new proposals seem directed towards migrants arriving at the Mexican border. Indeed, the express purpose of the memo is to address the on-going “crisis” in “our immigration and asylum system… as a consequence of the mass migration of aliens across our southern border.” It appears that some of the coming changes will affect all asylum seekers–as opposed to only those entering from Mexico–but we won’t know for sure until the AG and the DHS Secretary draw up the new regulations.
Finally, it is important to note that none of the changes in the memo have gone into effect–yet. The President has ordered his team to propose regulations within 90 days, and after that, it will likely take additional time to implement those changes (and some may be challenged in court). So for the time being, none of the new rules listed in the memo are operational.
Turning now to the specifics, the memo calls for several significant changes:
First, as I read the memo, it requires all asylum applicants who pass a credible fear interview (an initial evaluation of asylum eligibility) to present their cases before an Immigration Judge. Previously, certain applicants–most notably, minors–could present their cases in the less-confrontational environment of the Asylum Office. Now, it seems, they must present their cases in court.
Second, the memo requires that, “absent exceptional circumstances, all asylum applications adjudicated in immigration court proceedings receive final administrative adjudication, not including administrative appeal, within 180 days of filing.” [please assume there is a long pause here, while I laugh and laugh, and eventually compose myself well enough to continue writing]. This ain’t gonna happen. No way. No how. It’s another iteration of what Judge Paul Wickham Schmidt famously calls “aimless docket reshuffling” or ADS. ADS is the process whereby a new Administration comes in and imposes its particular priorities on the Immigration Court system. The very predictable result of ADS is that cases get re-arranged, judges lose control of their dockets, and most everything gets delayed much longer than if management had just left well-enough alone. The Trump Administration is by no means the first to practice ADS, but they do seem to indulge in it more frequently than prior administrations.
Third, the memo calls for “regulations setting a fee for an asylum application not to exceed the costs of adjudicating the application… and for an initial application for employment authorization for the period an asylum claim is pending.” In other words, the government wants to charge asylum seekers to seek asylum (the affirmative asylum system is currently funded by other immigrants when they pay USCIS fees). How much this fee will be, we don’t yet know, but if the fee is meant to cover the cost of adjudicating the asylum application, it won’t be cheap. Will the fee include the cost of security background checks? Immigration Court proceedings? These processes are expensive, and few asylum seekers can afford to “do business” this way.
The memo does not indicate what happens to people who cannot pay, but we can’t just deport them. Indeed, the Immigration and Nationality Act (section 241(b)(3)) and the Convention Against Torture prohibit the U.S. from returning people to countries where they face certain types of harm (this is separate from, but similar to, the asylum law). Such people apply for relief using the same form (I-589) as asylum applicants. Will the government adjudicate these other types of humanitarian applications where the person is unable to pay for asylum? We don’t know this either.
Perhaps those who cannot afford to pay will be eligible for a fee waiver. That would help, but fee waivers require significant work to complete, and so, at a minimum, many lawyers would raise their fees (since we are paid for our time). This would make it more difficult for asylum seekers to obtain legal counsel.
As I read the memo, it also seems to be calling for a fee for the initial Employment Authorization Document (“EAD”). Currently, the first EAD for an asylum applicant is free. Renewals cost money (currently $410). EADs are valid for two years, and fee waivers are available, so this particular requirement, while harmful to asylum seekers, is probably not that damaging.
Fourth, the memo calls for regulations to “bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted, and to ensure immediate revocation of employment authorization for aliens who are denied asylum or become subject to a final order of removal.”
Currently, an alien is eligible for an EAD 180 days after she files for asylum (she can submit the application 150 days after she files for asylum). If the new memo is implemented, asylum seekers who “entered or attempted to enter the United States unlawfully”can no longer receive an EAD unless and until their cases are granted. As the memo is written, this provision would probably not apply to an alien who arrived in the U.S. with a visa, but that is not entirely clear. The phrase “entered or attempted to enter the United States unlawfully” is subject to interpretation, and if interpreted broadly, it could block some asylum seekers from obtaining an EAD, even if they entered the U.S. with a visa (for example, if the visa was procured by fraud).
Ironically, if the government succeeds in adjudicating asylum cases within 180 days (and I am skeptical about that), the EAD provision will become less important, since cases will either be granted or denied before the alien is eligible to obtain his EAD. If the case is granted, the alien will be eligible to work immediately, and if it is denied, he presumably (based on this memo) would be ineligible to work while the matter is being appealed. The problem will be for applicants who face long delays, and are unable to work lawfully. How will such people survive the wait?
Finally, the memo calls on the Secretary of Homeland Security to “reprioritize the assignment of immigration officers and any other employees of the Department as the Secretary deems necessary and appropriate to improve the integrity of adjudications of credible and reasonable fear claims, to strengthen the enforcement of the immigration laws, and to ensure compliance with the law by those aliens who have final orders of removal.” It’s unclear (at least to me) what this means, but it seems like another version of ADS. Perhaps the plan is to shift resources away from adjudicating immigration benefits and towards enforcement. While this would certainly cause even more delay for individuals, families, and businesses who rely on USCIS, any boost to the asylum or enforcement sections of DHS seems unlikely. There is just not a lot of cross-over between the different functions of DHS, and so there are only so many resources that can be shifted around. In other words, I doubt the DHS Secretary can arm Naturalization officers and enlist them to chase after aliens with final orders.
President Trump’s memo leaves many unanswered questions, and so we will have to wait for the new regulations to learn the specifics. While some of these changes may be blocked by courts, others will likely go into effect. The result will be a further erosion of our proud tradition as a beacon of hope to those fleeing harm.
