What a Democratic Majority in the House Means for Asylum Seekers

by Jason Dzubow

When the 116th session of Congress opens on January 3, 2019, the Democrats will control the House of Representatives. Republicans still hold the Senate and, in case you didn’t notice, the Presidency. However, this is an important change from the last two years, when Republicans controlled both chambers of Congress. What will a Democratic House mean for asylum law and policy?

First, let’s talk about changes to the law. Since the time of the Refugee Act of 1980, which established our current asylum framework, there have been relatively few changes to our humanitarian immigration laws. In 1996, Congress amended the definition of “refugee” to include victims of forced abortion and forced sterilization, and in 2005, the REAL ID Act attempted to tighten up the legal requirements for a grant of asylum.

During the first two years of the Trump Administration, when Republicans controlled Congress and the Presidency, there have been no amendments to the nation’s immigration laws. Instead, the Administration focused on changing immigration policy based on executive orders–the travel ban, for example. It is curious that the same Republicans who criticized President Obama for his reliance on executive orders (such as DACA), failed to pass any legislation to further their own immigration agenda. Congress and the President could have acted to restrict the law vis-a-vis asylum seekers. For whatever reason, they did not, and now their window is closing. Given the hostility of the President and many Republicans towards asylum seekers, this is probably a good thing.

The beginning of a beautiful friendship. Or not.

Now, with the Democrats in charge of the House, any change in the law would need to be approved by them. This means that a purely punitive immigration reform is very unlikely to pass into law. So while the President can–and probably will–continue to impose hostile policy changes in terms of how the law is implemented, he will be constrained by the existing law. This means that, for the most part, non-citizens who fear persecution will remain eligible to seek and obtain asylum in the United States.

Another way that the Democratic House majority may help asylum seekers is in the area of oversight. With control of the majority comes the ability to issue subpoenas and more carefully oversee government agencies. This is important in the area of immigration, where many agencies–DHS, ICE, CBP, DOJ, EOIR–have engaged in questionable (or worse) practices with impunity.

The most high-profile example of agency malfeasance was the separation of children from their parents at the border. The policy was seemingly enacted as a way to deter asylum seekers, and the best thing you can say about family separation is that it was managed incompetently. Congress has thus far failed to investigate this fiasco, but that could change with Democrats in charge of the House.

Another area where Congressional oversight would benefit asylum seekers is at EOIR, which has been improperly hiring Immigration Judges based on their political leanings. Some of this is publicly known, but much of it has remained below the radar (though those of us in the business hear about it through the grapevine). My guess is that EOIR will be more careful going forward, given that House Democrats could subpoena employment documents to determine whether hiring officials acted improperly. Other agencies within the federal government will likely be similarly constrained.

House Democrats can also exercise oversight to protect the Immigration Judge’s union, which has been working hard to preserve judicial independence and resist the Administration’s efforts to turn their gavels into rubber stamps. I’ve heard rumors about a plan by the Administration to break the union. Whether this is true or not, I do not know, but House Democrats can potentially kibosh any such effort.

A third area where Democratic control of the House could affect asylum seekers is funding. Blocking and detaining immigrants is not cheap. The President’s most high-profile project is the border wall, but immigration enforcement in general is expensive. The Trump Administration has expanded the use of detention, and apparently plans are afoot to continue this trend. House Democrats can exercise some control by denying funding for the President’s more far-fetched projects. They could potentially limit funding for detention, investigate the private prisons where many non-citizens are held, and encourage the use of alternatives to detention. I suppose they could also grind deportations to a halt by reducing funding for Immigration Judges, though I doubt many Democrats are inclined in that direction.

In short, control of the House gives Democrats significant leverage over immigration matters. But it also comes with significant political risks. President Trump has effectively used the immigration issue to motivate his supporters, and if Democrats are seen as checking the President’s agenda, they can expect to be blamed for any real or imagined failures in the immigration realm. How this will translate in terms of votes, I do not know. President Trump and his surrogates raged about the caravan, but if that motivated their base, it was clearly not enough to archive success in the most recent election cycle.

Aside from simply blocking the President’s agenda, Democrats would do well to propose some positive legislation of their own. Of course, any reform would require bi-partisan support, since Republicans control the Senate and the Presidency. Whether such compromise is possible in the current climate, I do not know, especially since the President seems to view immigration in political, rather than policy terms. I expect he will be more-than-happy to let Democrats block his harsher proposals so he can use that to rally his base in 2020. But just maybe, after having lost in 2018, Republicans will conclude that their resistance to immigration reform is doing them more political harm than good. If so, perhaps there might still be a path towards constructive immigration reform.

Continue reading

141 Comments

Fridtjof Nansen, WWI, and the Beginning of the Modern Refugee Regime

by Jason Dzubow

This week–on November 11–marked the 100th anniversary of the Armistice that ended World War I. In terms of refugee law, the Great War is usually eclipsed by WWII, which gave rise to the Refugee Convention (in 1951). The Convention forms the basis for our international and domestic humanitarian law up until today.

But the First World War was also foundational to our current refugee regime, and so it’s too bad that WWI developments in refugee law get short shrift. Upwards of 10 million people were displaced by the War and the subsequent rise of the Soviet Union. Many would never return home and would permanently resettle in other countries. This mass movement of civilians led to political, cultural, and social changes, and predictably, to a backlash against refugees (as a security, economic, and health threat) that sounds all-too familiar today.

Fridtjof Nansen serves meals to orphans in Armenia (apparently, he was also a good cook).

Probably the most prominent figure in post-WWI refugee resettlement was a Norwegian wunderkind named Fridtjof Nansen. Mr. Nansen was born in 1861. He was a record-breaking skater and skier. He studied zoology in university, and went on to become a world famous artic explorer. In 1888, he led the first expedition to cross Greenland, and in 1895, he came within 4 degrees of the North Pole, the furthest north anyone had traveled to date. After his career in the Artic, he turned to science, where he made important contributions to the fields of neurology and oceanography. Mr. Nansen served as a diplomat and advocated for separation of Norway and Sweden (which had been united since 1814). Norway became independent in 1905.

Norway was neutral during the First World War, and during those years, Mr. Nansen was involved in organizing his nation’s defense. In 1917, he was dispatched to Washington, where he negotiated a deal to help alleviate a severe food shortage in his country.

After World War I, Mr. Nansen successfully helped advocate for Norway’s involvement in the League of Nations, and he served as a delegate to that body. He became involved in the repatriation of prisoners of war, and between 1920 and 1922, led the effort to resettle over 400,000 POWs in 30 different countries. In 1921, Mr. Nansen became the League’s High Commissioner for Refugees and helped resettle two million Russians displaced by the revolution. At the same time, he was working to relieve a massive famine in Russia, but had trouble securing international aid (due largely to suspicion of the new Marxist government). He also assisted Armenian refugees after the genocide there, and devised a controversial population exchange between Turkey and Greece, which resolved a Greek refugee crisis, but also resulted in the expulsion (with compensation) of Turks from Greece.

Mr. Nansen created the “Nansen” passports in 1922, a document that allowed stateless people to travel legally across borders. By WWII, 52 nations recognized the passport as a legal travel document. Nansen passports were originally created to help refugees from the Russian civil war, but over 20 years, they were used by more than 450,000 individuals from various countries (including a number of well-known figures, such as Marc Chagall, Aristotle Onassis, G.I. Gurdjiieff, Rabbi Menachem Mendel Schneerson, and Igor Stravinsky). The passports served as a foundation for a clearly-defined legal status for refugees, and some scholars consider the creation of the Nansen passports as the beginning of international refugee law.

In 1922, Mr. Nansen was awarded the Nobel Peace Prize. The Nobel Committee cited “his work for the repatriation of the prisoners of war, his work for the Russian refugees, his work to bring succour to the millions of Russians afflicted by famine, and finally his present work for the refugees in Asia Minor and Thrace.”

Mr. Nansen continued his involvement in the League of Nations through the 1920s, and he flirted with Norwegian politics, though he seems to have no major ambitions in that direction. In 1926, Mr. Nansen came up with a legal definition for refugees from Russia and Armenia, and his definition was adopted by several dozen nations. This marked the first time that the term “refugee” was defined in international law, and it helped set the stage for later legal developments in the area of refugee protection.

Fridtjof Nansen died on May 3, 1930. After his death, a fellow delegate from the League of Nations eulogized, “Every good cause had his support. He was a fearless peacemaker, a friend of justice, an advocate always for the weak and suffering.”

Even after his death, Mr. Nansen’s work continued. The League of Nations established the Nansen International Office for Refugees, which helped resettle tens of thousands of refugees during the inter-War years. The Nansen Office was also instrumental in establishing the Refugee Convention of 1933 (now, largely forgotten), the first international, multilateral treaty offering legal protection to refugees and granting them certain civic and economic rights. The 1933 Convention also established the principle of “non-refoulement,” the idea that nations cannot return individuals to countries where they face persecution. To this day, non-refoulement is a key concept of international (and U.S.) refugee law. For all this work, the Nansen Office was awarded the Nobel Peace Prize in 1938.

Fridtjof Nansen’s legacy lives on in many ways. There are geographic features named after him in the Artic, Antarctic, and various places around the globe. In space, there is a crater on the moon named in his honor, as well as an asteroid. The oldest ski club in the United States is named for Mr. Nansen, and there is a species of fish that bears his name (Nansenia). A museum in Armenia documents his scientific and humanitarian achievements. And each year, the United Nations bestows the Nansen Refugee Award on an individual or organization that has assisted refugees, displaced or stateless people. For me, though, Mr. Nansen’s most enduring achievement is his pioneering work to help establish international refugee law, a legal regime which protects us all.

Continue reading

97 Comments

In Defiance of Hate

by Jason Dzubow

The massacre at the Tree of Life Synagogue in Pittsburgh hits home for me, as a Jew and as an immigration lawyer. The murderer shouted anti-Semitic slurs as he gunned down innocent parishioners. His on-line rants point to his motivation: Hatred of HIAS (the Hebrew Immigrant Aid Society, a Jewish resettlement agency) and “invaders,” i.e., refugees seeking protection in the United States.

The synagogue attack did not happen in a vacuum. According to the Anti-Defamation League, incidents of anti-Semitism increased 57% between 2016 and 2017. We’ve also seen a rise in hate crimes against immigrants (and people perceived to be immigrants), and there is good reason to believe that anti-Semitism and anti-immigrant sentiment go hand in hand.

What to do about all this?

Only love can drive out hate.

On the macro level, we as a nation need to do better. We need to be more civil and more truthful. We need to listen more, and we need to think critically and be less wiling to accept the version of “reality” that comports with our own narrow prejudices. These are important policies points, but they are not really what I want to talk about in the wake of the massacre in Pittsburgh.

I want to talk about defiance.

The murders in Pittsburgh were motivated by hatred of Jews and hatred of immigrants. This was an act of terror, designed to intimidate us. It was the violent manifestation of the same hate that has, of late, become prominent in our country. Politicians–most notably our President, but many others as well–have fanned the flames of this hatred for political gain. The animosity has largely been directed at Muslims, Mexicans, and immigrants, but many “outsiders,” including Jews, have also been targeted.

The reaction I have observed from my friends in the Jewish community has been unified and powerful: We are not intimidated by the haters and we are not afraid. We will not compromise or cower. We will continue to attend synagogue and engage in all the social, charitable, and religious activities that have been the hallmark of our vibrant community. We have survived persecution by Romans, Crusaders, Inquisitions, programs, Nazis, and terrorists. We are still here and we will carry on.

I saw this determination last week at a vigil at my synagogue. Over 3,000 people came to honor and remember those murdered and injured in Pittsburgh. The mayor of Washington, DC spoke, so did the governors of our neighboring states, Maryland and Virginia. Leaders of the local and national Jewish community were there, as was the Israeli Ambassador. Also present were clergy and lay leaders from many faiths. And so while the pain inflicted on our community is very real, the support we feel is overwhelming.

Since the attack in Pittsburgh, I have been to my synagogue four times–for regular events and special events related to the massacre. Maybe the best way to honor the martyrs in Pittsburgh is to continue to live our lives as Jews, and that is what we are doing.

As for my friends in the immigrant-advocacy community, I have also seen our determination. The attack in Pittsburgh was motivated by hatred and fear of “invaders,” who the murderer thought were coming to the U.S. to “slaughter” his people. He specifically mentioned a refugee resettlement agency, HIAS, which has been helping displaced Jews and others since 1881.

The murderer’s fear of these “invaders” does not come from nowhere. The President and many others have been lying about the alleged threat of refugees and other foreigners. They have been ginning up hatred and anger. I suppose this is their way of motivating their supporters to vote. But it also seems related to the attack in Pittsburgh, and it apparently has inspired private militia members to bring their guns to the border and fend off the “invasion.” And why not? If we are being invaded by terrorists and gang members, armed resistance is the logical response.

The torrent of hate has effected immigrants and their advocates, and not just at the border. The HIAS office now has armed guards. Other immigrant advocacy groups have increased their security as well. The Pittsburgh attack and the regular threats received by advocates demonstrate that the danger is real.

But the lies and the hate have not stopped immigrant advocates from doing our jobs. Indeed, the situation is quite the opposite–more people than ever are donating and volunteering to help immigrants and refugees. In part, this is simply because people want to help others who are in need. It is also a response to rising xenophobia, and to the hatred and mendacity we see from some politicians and pundits. The bottom line, though, is that we are continuing our work to support immigrants and refugees despite–and because of–the current political environment.

Eleven Jews are dead. Other Jews and law enforcement officers are injured. There is no escaping this tragedy. But to the extent that the attack was designed to terrorize us and to prevent us from living our lives and pursuing Justice, it has failed. I have faith that even in these difficult times, we will never surrender to the forces of hate, and in the end, we will prevail.

Continue reading

113 Comments

In Defense of Refugees

by Jason Dzubow

In an on-line rant shortly before he entered a synagogue and murdered 11 people, Robert Bowers railed against asylum seekers and the Hebrew Immigrant Aid Society, a refugee-assistance organization: “HIAS likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.”

Who are these “invaders” and why do we allow them into our country?

The first thing to know is that not every foreign person who faces harm abroad qualifies for protection in the United States. The definition of “refugee” is circumscribed by law. The feared harm must be “on account of” a protected ground: race, religion, nationality, particular social group or political opinion. These categories reflect our American values, and when we grant asylum, we demonstrate our commitment to those values.

I am an attorney who specializes in political asylum. Every day, I represent non-citizens who are seeking refugee status in our country. My clients include activists for democracy, peace, and women’s rights, journalists who have stood up for free speech, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, and interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help further the values that are foundational to our nation and to all who believe in freedom and liberty.

Critics of our humanitarian immigration policies claim that asylum is merely a kindness we extend to needy recipients. That we get nothing in return. This view of asylum is false.

Since its beginning—during the Cold War in the 1950’s—asylum was about advancing America’s strategic interests. In those early days, we used the asylum system to demonstrate moral superiority over our Soviet adversaries. We celebrated famous dissidents, athletes, and artists who defected to the West. Now, the Soviet Union is gone, but asylum remains an essential tool of U.S. foreign policy. We gain tangible benefits from asylum. And I am not talking only about the influx of talented, brilliant people who add to our nation’s strength.

When we give asylum to interpreters who served with our soldiers in Iraq or Afghanistan, we demonstrate our loyalty to those who work with us. When we grant asylum to women’s rights advocates, we show our support for the cause of gender equality. When we support journalists, we show that we stand for free speech. And when we grant asylum to religious minorities, we reinforce our founding principle of Religious Freedom.

Imagine for a moment what it would mean to deny asylum to Iraqi interpreters, woman’s rights advocates, journalists or members of religious minorities. Imagine what that would say about us, about our country. Imagine what message it would send to those around the world who are working for the values that we, in our best moments, embody.

When we offer refuge to those who have stood with us, and who have risked their lives to advance the values that we cherish (and which we too often take for granted), we send a powerful message: When you work with us, when you work for the values we believe in, America is with you. And when activists around the world have confidence that America is on their side, it helps them continue their struggle for justice.

And it helps us too. If we want their cooperation and loyalty going forward, our allies need to know that we are there for them. That we will protect them if they need our help. Our asylum and refugee systems demonstrate–in a tangible way—our loyalty to those who stand with us, and this helps us advance our own national interests and our moral values.

Asylum seekers and refugees are not invaders. They are people who we choose to allow into our country. We make this decision based on our own foundational values: democracy, human rights, women’s rights, press freedom, religious liberty. Our humanitarian immigration system does not threaten our country. On the contrary, it represents our nation’s highest ideals made manifest.

Continue reading

84 Comments

The Ineffable Backlog (and a Bit of Good News)

by Jason Dzubow

Someone–maybe a new age guru–once defined for me the Buddhist concept of time: Once every hundred years, a monk walks up to a mountain and brushes it lightly with a feather. In a short time, the mountain will be eroded to nothing.

This is also good way to think about the asylum backlog. If you assume that the mountain is growing. And you assume that the monk sometimes forgets to show up.

If you’re stuck in the backlog, you don’t need anyone to tell you how slow it is. The wait is particularly painful for asylum seekers separated from spouses and children, but it is bad for everyone. The effects are psychologically and financial, lives are put on hold, career and education opportunities are missed, time with loved ones is lost forever. People who are often already traumatized are re-traumatized by the endless waiting and uncertainty.

Things that move faster than the asylum backlog.

So what’s happening with the backlog lately? The latest data we have is from June 2018. It’s not always easy to understand the statistics from the asylum office, at least for me, but here, I will discuss what we know.

First off, the backlog, which has been growing for years, seems to have leveled off this Spring. Between April and June 2018, the backlog grew from 319,056 cases to 319,563 cases. That’s a growth rate of less than 0.1% per month. Does this mean that the Asylum Division is finally getting a handle on the backlog? Maybe, but I think it is still too soon to know. One issue is that when the system changed from FIFO to LIFO in January 2018, the volume of new cases dropped. Now that lawyers and applicants have mostly adjusted to the new system, we might expect a higher volume of cases post-June. Also, it seems more people have been arriving at the Southern border lately, and this likely will divert resources that would otherwise have been used to adjudicate affirmative asylum cases. In any event, we’ll have to keep an eye on the overall numbers to see whether the trend from this Spring continues.

Second, from the chart below, which contains information from June 2018, you can see that some offices are doing better than others in terms of interviews and decisions. A number of offices are completing more cases than they are receiving (Chicago, LA, Newark, NY, and San Francisco). Logically, you would think this means that these offices are interviewing all new cases that come in, and making progress on backlogged cases. But I am not so sure that is true. If you look at the number of interviews actually conducted, you can see that only Los Angeles and Newark are interviewing more cases than they are receiving. So for me at least, how many new cases and backlogged cases are being interviewed and decided is still something of a mystery (also, remember, these numbers are just a snapshot from one month–June 2018).

 

Office New Cases Interviews Scheduled/Conducted Cases Completed
Arlington 885 637/374 664
Boston 259 292/160 221
Chicago 611 690/507 750
Houston 752 397/253 440
Los Angeles 867 2,145/1,113 1,230
Miami 2,046 1,494/929 1,298
Newark 692 1,635/911 1,179
New York 946 1,494/815 1,180
New Orleans 204 374/117 201
San Francisco 605 1,147/646 730
TOTAL 7,867 10,307/5,825 7,893

 

There are other mysteries contained in these numbers. Why are so many interviews scheduled, but so few actually conducted (less than 57% of scheduled interviews were conducted in June 2018)? Some interviews are cancelled by the Asylum Offices; others (more) are cancelled by the applicants. You would think that under LIFO, most applicants would file a complete case and be prepared for an interview when it comes, but maybe not (and if you’re wondering, the reschedule rate was about the same under FIFO).

Another anomaly–though not quite a mystery–appears in the numbers for the Miami Asylum Office, which is receiving far more new cases than any other office. The reason? It may be because Venezuela has surpassed all other countries as a source nation for asylum seekers, and I suspect that these applicants largely land in Miami. Indeed, if you look at the top sending countries for asylum seekers, you will see that for the last three months (at least), Venezuelans make up more than 25% of all affirmative asylum seekers in the United States.

One final point for today. I posted previously about the declining grant rate for affirmative asylum cases. At that time (February 2018), the overall approval rate for FY 2018 cases was 26%. The most recent numbers paint a similar picture. The overall approval rate for April 2018 is 23.5%. The rate for May is 26.3%, and for June is 25.0%. However, if we remove from the mix cases where the applicant did not show up for the interview, where the applicant declined an interview (and went directly to court to seek other relief), and where the application was denied due to the one-year bar, the situation is better: The approval rate under those circumstances for April 2018 is 41.4%. May is 44.5%, and June is 43.0%. So this means, generally speaking, if you file for asylum on time, and you show up to your interview, you have a decent chance of winning your case. Let’s call that good news, and end there for today. Au revoir!

Continue reading

134 Comments

Ten Things I Hate About You-SCIS

by Jason Dzubow

Lee Francis Cissna, the Director of USCIS, is building an “invisible wall” to compliment his boss’s “big beautiful wall” along the U.S./Mexico border. The “invisible wall” consists of bureaucratic barriers to prevent people from obtaining immigration benefits in the United States. Ostensibly, the plan is to make America more secure and to protect our country’s workforce. From my perspective, though, much of it seems like gratuitous cruelty, which especially impacts families who don’t have the resources to hire a lawyer.

The bureaucratic changes at USCIS also impact attorneys, increasing our work load and our stress level. It’s now harder to advise our clients, since many USCIS decisions seem arbitrary. While cases are mostly still successful, the environment is decidedly less pleasant. And so without further ado, here are the top ten things I hate about the “new” USCIS:

(1) Asylum Seekers Must Report Arrests on the I-765 Form: The new I-765, a form used to request an employment authorization document (“EAD”), requires that asylum seekers–and only asylum seekers–indicate whether they have ever been arrested. Other EAD applicants, such as people waiting for a green card based on a family or work petition, are not required to report prior arrests. Why are asylum seekers so special? I have no idea, but it’s clear that the current Administration is no fan of asylum, and so perhaps this is another way to punish those who have the temerity to ask our country for protection. What’s wrong with asking about prior arrests? Aside from the arbitrary decision to single out asylum seekers for this additional burden, there are a couple issues: First, many asylum seekers have been arrested back home for their political opinion or religion (hence, they are seeking asylum). USCIS wants documents on all arrests, but it is often impossible to obtain documents for these “illegal” arrests, and this could potentially result in a denied EAD application. Another issue is delay. It takes extra time to process applications if there is more to review. We can expect this new requirement to slow down cases where the person has a prior arrest, and since extra resources will be devoted to such cases, we can expect a ripple effect for all EAD applicants. Finally, the new requirement might necessitate some EAD applicants to hire lawyers, which can be burdensome. And for those with lawyers, the extra work might result in higher fees. At its heart, this is an access to justice issue: In many cases, you receive the justice you can afford, and that is not fair.

A French immigrant is blocked by the invisible wall (and frankly, in this case, I’m good with that).

(2)  Delayed Work Permits After an Asylum Grant: I am not sure how widespread this problem is, but we’ve seen a number of examples lately where a person is granted asylum, and then waits months to receive her new EAD. The delay makes it more difficult to get or keep a job, and it can also block people from receiving a driver’s license.

(3) Disappearing Cases at the Texas Service Center: Most of our office’s affirmative asylum cases are filed at the Texas Service Center (“TSC”). But sometimes, cases are received at the TSC, and then vanish, like dignity from the Oval Office. This happens if the applicant had a prior asylum application, which we did not know about (sometimes, an applicant was a dependent on a prior case and did not know about the case), and it can also happen if we accidentally send an application to the TSC when it should have been sent to a different service center. Why the TSC can’t simply inform us about these errors, or just reject the application, I do not know (though there is an email to contact the TSC, and they recently assisted in one of our cases – Thank you, TSC!).

(4) Rejected Cases at the TSC: The TSC is also notorious for rejecting cases for small, insignificant errors. We once had a case rejected because we did not list the applicant’s siblings. He had no siblings (now, we make sure to write “n/a” in any empty boxes on the I-589). We’ve had instances where we forgot to check a box, and the application was rejected and returned to us. Now-a-days, we triple check the applications in the hope of avoiding such issues, but I imagine for pro se applicants, this is more frequently a problem. The shame of it is, most of these small errors could be resolved at the asylum interview; there is no reason to reject the entire case, causing additional delay and stress.

(5) Refusal to Accept Birth Certificates: Lately, we’ve seen examples of USCIS refusing to accept birth certificates that were not created at the time the person was born (we have not seen this problem for asylum cases, but we have seen it for asylees who are filing for a green card). It is common practice in many countries, that when you need a birth certificate, you request it from the local office. They look it up in a registry, and issue a birth certificate. This used to satisfy USCIS, but no longer. Now they want hospital records, letters from people who knew you when you were born, old school records, and lots of other difficult-to-obtain information about your birth. For me, the best evidence that a person was born is that the person currently exists. Shouldn’t that be enough?

(6) Denial of Advance Parole for Asylum Seekers: To get Advance Parole (“AP”) as an asylum seeker, you must show a “humanitarian” need for the travel. In the past, this was basically a formality. But now, all sorts of evidence seems necessary to obtain AP. In one of our recent cases, the client was seeking AP to visit her mother, who was ill. We submitted a doctor’s letter about the mother’s condition, but USCIS denied AP because the mother was not sick enough (the doctor’s letter indicated that the mother’s condition was “stable”). What was the purpose in blocking our client from visiting her sick mother? To me, this is simply another way to punish people seeking asylum in our country.

(7) Limitations on Advance Parole for Asylum Seekers: We have also seen examples of USCIS issuing AP for very limited periods of time. In one case, we received the approval, but AP was only valid for two days, thus making travel impossible. We try to avoid this outcome by requesting multiple trips, and timing the trips so that USCIS issues the document for a longer period, but what is the harm in issuing AP for one year (or longer)? Why make travel difficult for people who are already enduring difficult circumstances?

(8) The Four-Page Form G-28: Maybe this is a quibble, but why does it take four pieces of paper to enter my appearance as a lawyer using form G-28? All USCIS should need is my name and contact information, the client’s name and information, and space for some signatures. The form used to be two pages, which already seemed too long. Now, every time we enter our appearance, we have to waste four pieces of paper. The G-28 is just one example of USCIS form proliferation. The I-485 went from six pages to 18 pages. The I-130 went from two pages to 12 pages plus another six-page form for marriage cases. The Lorax would not be pleased. Neither am I. Also, of course, longer forms increase costs.

(9) Less Requests for Evidence, More Denials: A new USCIS policy memo makes it easier for the agency to deny cases, instead of issuing requests for evidence (“RFE”). Aliens are paying big bucks for a lot of their applications, and previously, if the applicant made a mistake, USCIS would issue an RFE to allow the person to correct her application. Now, USCIS will deny some such cases. As a result, some aliens will hire lawyers (and endure additional expenses that should have been unnecessary); others may have their cases denied, thus losing their fees and potentially jeopardizing their ability to remain in the U.S.

(10) Slower and More Unpredictable Processing Times: All the changes at USCIS have inevitably affected processing times. Applicants often want to know how long their cases will take, and how long they will have to wait to be reunited with loved ones. These days, processing times have become longer for most applications. Also, processing times have become more unpredictable. For example, if you are applying for a green card in Baltimore, Maryland, the processing time is between 11.5 and 27 months. That’s pretty long, and pretty unpredictable. It’s hard to plan your life in the face of such uncertainty.

I could go on, but I am sure you get the point. USCIS’s “invisible wall” is having its desired effect: It is making it more expensive and more difficult for people to come to the United States. People with fewer resources will suffer the most (as usual), but everyone is affected. Cases are still being approved, but these days, applicants need to be prepared for a more difficult journey to reach their goal.

Continue reading

155 Comments

A Beautiful Application Is a Successful Application

by Jason Dzubow

A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”

What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.

How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?

Yours truly, several years before being voted “Best Looking Asylum Lawyer in Washington, DC.”

The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.

First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.

Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.

On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index

The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to be translated with a certificate of translation. Of course, the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.

Also, it is a good idea to submit the exhibits on time. These days, under LIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.

If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in the Immigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able to find one for free).

One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.

Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!

Continue reading

114 Comments

Mandamus for the Rest of Us

by Jason Dzubow

This posting is by David L. Cleveland, a staff attorney at Catholic Charities in Washington, DC. David was Chair of the AILA Asylum Committee from 2004 to 2005, and has secured asylum or Withholding of Removal for people from 47 countries. A graduate of the University of Rochester and Case Western Reserve University School of Law, he has published articles about asylum in Bender’s Immigration Bulletin, ILW.com, AILA, and Lexis-Nexis.

When I was in high school, I liked music by a British group called “The Kinks.” One of their songs was “Tired of Waiting.”  It goes: “Tired of waiting, Tired of waiting for you, So tired….”

Now, I am an immigration lawyer. I file cases. I wait. I get tired from time to time. My clients, of course, suffer more than me. They are really tired of waiting.

What can be done about this?

David Cleveland, pictured here listening to the Kinks.

First, I try to determine if the application is, or is not, in the hands of a real human being. There are cases that “slip through the cracks.” Supervisors at USCIS have told me–more than once–that at times, cases get “lost.” For example, an asylum case file is assigned to Officer “A” in January 2015. His boss tells him to make a decision. But, six months later, Officer A quits his job. His boss realizes that the case should be assigned to a new officer, but it doesn’t happen. The case is not re-assigned. It sits in a box in the asylum office, but no officer is assigned to it.

In such a case, the applicant can make an inquiry at the asylum office, and ask, “What is the name of the officer assigned to my case?” The applicant can ask at the asylum office reception window, “Where is my case? In whose office is it?” If the case has not been assigned, the applicant’s inquiry might cause it to be assigned. The applicant can also email the Asylum Office, but sometimes, it is more effective to go in person.

Second, the applicant can try to force the Asylum Office to make a decision by filing a complaint in the local U.S. District Court. The theory of the case is simple:

(1) Congress enacted a law–the Administrative Procedures Act–that provides that a federal court “may” compel an agency to act in a case if it is “unreasonably delayed.”

(2) The applicant filed–for example–an asylum application with the USCIS more than three years ago, and there has been no action on the application.

(3) A three-year delay is “unreasonable.”

Therefore: Judge, make the agency do something! Make them adjudicate the case!

Is a three-year delay unreasonable?

Many judges have said “No, a three-year delay is not unreasonable. Applicant loses.”

In fact, applicants waiting more than three years have been denied relief: A judge in Missouri denied relief to an applicant who had been waiting six years. A California judge agreed: Six years is not unreasonable. A judge in New York denied relief in a case involving a five-year delay. A DC judge agreed that five years was not unreasonable.

But, another DC judge said 2.75 years was too slow. SAI v. Dep’t of Homeland Security, 149 F. Supp.3d 99, 121 (D.D.C. 2015) (airport patron who alleged harassment at airport filed an administrative complaint).

In another case, Haus v. Nielsen, 2018 WL 1035870 (N.D. Illinois 2018), the government filed a motion to dismiss, arguing that a three-year delay was reasonable. The Judge denied the motion, stating that he was not “prepared to hold” that a three-year delay was reasonable. He did not say it was unreasonable, either. This case illustrates the confusion and difficulty judges have with these kinds of cases.

What happens after a complaint is filed in federal court?

A copy of the complaint is delivered to the agency (in an asylum case, the agency is USCIS). The agency then gives the complaint to its lawyer; very often, this is a lawyer at the Department of Justice (“DOJ”). The Judge sets a deadline for the agency to file a response with the court–often 60 days after the complaint was filed.

The DOJ lawyer could file a motion to dismiss the case, citing precedent that holds a six-year delay is reasonable.

Or, the DOJ lawyer could telephone the agency, and ask, “Why haven’t you made a decision on this case? Why don’t you make a decision soon? If you do, then I do not need to file a motion with the Court.” Such phone calls, at times, result in agency action.

I am aware of three recent cases in the Washington, DC area: (1) In January 2017, an asylum applicant filed a complaint in court. He was granted asylum in March; (2) In June 2017, an asylum applicant filed a complaint. USCIS interviewed the applicant a second time, and then denied asylum in September; (3) In June 2018, the applicant filed a complaint. He was granted asylum in July. In these three cases, the agency did not file a motion to dismiss. Instead, the agency did what the applicant wanted by adjudicating the case (even if the result was not always what the applicant had hoped for).

Each case is different. Many applicants who file complaints lose. But some win. If you would like more information, contact me at David.Cleveland@cc-dc.org.

Continue reading

126 Comments

Proposed DHS Rule Seeks to Exclude Poor Immigrants

by Jason Dzubow

The Department of Homeland Security (“DHS”) has proposed a new rule, which seeks to block anyone who is likely to become a public charge from immigrating to the United States. DHS justifies the new rule, in part, based on history–

The term “public charge” as applied to admission of aliens to the United States has a long history in U.S. immigration law, appearing at least as far back as the Immigration Act of 1882. In the late 19th and early 20th centuries public charge was the most common ground for refusing admission at U.S. ports of entry.

This seems an odd precedent to cite, since the same Congress, three months earlier, also passed the racist Chinese Exclusion Act of 1882, which blocked the immigration of most Chinese nationals to the United States. In addition, in the same breathe that Congress enacted the public charge requirement, it also blocked anyone who was a “convict, lunatic [or] idiot.” So I’m not sure that historic pedigree is the best justification for DHS’s new rule (on the other hand, if convicts, lunatics, and idiots were blocked from government service, I don’t think anyone would be left in the Trump Administration).

“In its majestic equality, the law forbids rich and poor alike to sleep under bridges.” – Anatole France

A second reason for the new rule, according to DHS Secretary and patron of Caucasian restaurants Kirstjen Nielson is to “promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.” I suppose it supports self-sufficiency to force would-be immigrants to choose between feeding their children and remaining in the U.S., but perhaps there are more humane ways to encourage non-citizens to become self-reliant. Finally, the tax-payer argument is not too convincing either, given that most credible studies show that immigrants contribute more to the economy than they take (this, despite the Trump Administration’s effort to suppress such information).

Whether or not the new rule is justified, DHS seems set to forge ahead, and so here I want to discuss how the proposed rule would affect humanitarian immigrants to the United States. The short answer is that asylum seekers, asylees, and refugees are exempted by statute from the public charge requirement, and so they are not affected by the new rule. Also, since the rule would not apply to people with a Green Card seeking to naturalize, asylees and refugees who adjust status and become lawful permanent residents (Green Card holders) would not be affected by the rule. In sum, if you are an asylum seeker, asylee or refugee, or if you have obtained your Green Card based on one of those categories, the new rule does not affect you.

That’s the good news. The bad news is that the new rule will affect many other categories of immigrants and non-immigrants, including people who are inside the United States and who wish to extend or change their status, or who wish to adjust status and obtain their Green Cards. Some people–including people who received public benefits or who are, in the opinion of the U.S. government, likely to require such benefits, or people who have previously requested a fee waiver from USCIS–may be blocked outright from entering or remaining lawfully in the United States. Other people will be deterred by the new rule’s increased costs and wait times. Indeed, the proposed rule makes clear that implementing the public charge requirements will increase costs on aliens seeking to immigrate or visit the United States. These costs will be monetary, since it seems that processing fees will be going up. There will also be additional costs in the form of delay, since adjudicating public charge cases will take time. Whether humanitarian immigrants will be indirectly affected by these costs (in the form of higher overall fees and wait times), we will have to wait and see.

President Trump was elected to reduce immigration, and the new rule is another step in that direction. In this sense, the President is simply doing what he was elected to do. However, in another sense, it’s difficult to escape the fact that the new rule is racially tinged. Like the poll taxes and literacy tests before it, the proposed rule is facially neutral, but there is little doubt who will be most affected: Immigrants of color and their families.

Of course, we can expect the new rule to face legal challenges. However, unlike facially neutral laws to disenfranchise minority voters, immigrants have fewer legal protections, and so the likelihood of a successful court challenge is unclear.

In any event, the proposed rule has not yet gone into effect. DHS has released a draft of the rule (last Saturday) and will publish it in the federal register. Once that happens, we will enter a “comment period” when members of the public (including you) can make our views known. For now, information on how to submit comments can be found on page 2 of the proposed rule.

Barring a successful court challenge, I expect the proposed rule will be implemented largely as written. If so, many immigrants and their families, as well as our nation, will be harmed. The silver lining for asylum seekers, asylees, and refugees is that the rule will not affect them. These days, I suppose we have to take our good news where we find it.

Continue reading

228 Comments

An Open Letter to the “Complicit” Asylum Officer

by Jason Dzubow

By now, you’re probably familiar with the famous, anonymous op-ed in the New York Times, written by a high-level member of the White House staff who is “resisting” President Trump. But in asylum-world, there’s another anonymous article getting attention. It’s an interview in Topic Magazine with an un-named asylum officer.

The interview is sad and poignant. It’s obvious that the officer cares about his (or her) job and the individuals who are seeking protection in the United States. With the advent of the Trump Administration and it’s increasingly hostile approach to asylum seekers, the officer is facing a crisis of conscious: “I struggle every single day with how to determine whether I’m causing more harm than good,” the officer states.

Asylum Officers review the latest Trump Administration policy memo.

One example the officer gives is the implementation of the infamous “zero tolerance” policy at the border, where parents and children were separated, often by trickery, and with no real plan for reunification:

I was interviewing moms in detention who were separated from their children. [U.S. government officials] took their children away from them. All that they wanted from me was to know where their kids were. They would ask me, “Where are my children?” But I was told not to tell them where their kids were. I was told not to tell them. When I say I’m complicit, this is what I mean.

Obviously, looking a desperate mother in the eyes and declining to give her information about her children is a soul-crushing experience. And, according to the anonymous officer, the Administration’s policies are having a deleterious effect on asylum officers:

People in the office are demoralized. I think the job was hard to begin with. There were already very high expectations, very rigorous screenings. Now, there is a fear among upper-level officers that the [asylum] program could get cut altogether, so everyone is trying very hard to not make any mistakes so that the program doesn’t get cut. My worry is that this will lead to people who should get asylum not getting asylum…. [At] this point, I can’t yet fathom what [bad thing] will happen next. I don’t want to, but I’m sure it will come. I never thought they would take kids away from their parents. What else could they do? They did that, so they could do anything.

What should a decent, moral person do in a situation like this? For me (as an outsider), the answer is not so clear. I have friends who have left government because they could not contribute to the goals of the Trump Administration. Other friends have chosen to stay, to do whatever good they can. Which approach is better probably depends on the individual and her circumstances, and I am quite sure it is not an easy decision either way.

If it were me, one factor in deciding whether to stay or go would be the impact of my choice on the asylum system. I have written this before, but it bears repeating here: In many ways our asylum system is sacred. Our country grants protection to strangers who arrive on our shores seeking refuge from danger. We offer asylum in part because it serves our national interests. But we also offer asylum because we are generous and good. By helping others, we help define ourselves. My decision to leave would depend in part on whether I thought my departure would make “the system” better or worse.

Asylum Officers, Immigration Judges, and government attorneys implement the asylum law. Without them, there would be no humanitarian immigration system. In my experience, most of these people are hard working. The majority are clearly committed to the rule of law, and to Justice (though we don’t always agree on what “Justice” looks like). They take their responsibilities seriously and recognize the life-changing nature of their work. They are the ones who have to make the difficult choices (choices that lawyers like me do not have to make): Whether to grant a close case or deny a sympathetic one that simply does not qualify for relief; whether to give an applicant the benefit of the doubt; whether to grant or deny as a matter of discretion. These are the tough choices that ultimately allow “the system” to continue functioning.

So it seems to me, the question for the anonymous asylum officer and many hundreds like him, is whether there is still room in the system–and in his particular job–to do Justice. In the case of our officer, it appears that such room still exists.

Even as the Trump Administration is working overtime to narrow the path for asylum seekers, it is still possible to do good. As the anonymous officer notes, “there is still space to be fair, and to provide opportunities for people.” And it’s not just fairness; it’s also kindness. Speaking about female asylum seekers detained at the Southern border, the officer says:

I think that oftentimes for the women who are detained at those facilities, [my interaction with them] will be the first moment that someone will be kind to them. The very first time in the whole process. They are not treated well at the border, by other agents in other agencies….

The value of such kindness is difficult to overstate. It can be the difference between hope and despair. Even for people who are ultimately denied, the fact that they were treated with respect and fairness makes a real difference. I have seen that myself many times.

As an attorney who represents asylum seekers, I hope that the anonymous officer will stay. When good people depart government service, the rule of law is degraded. The decency and compassion that have been–to borrow a word–the loadstars of our asylum system, are further eroded. And of course, the erosion of our humanitarian immigration system also marks a degradation of our country’s humanity.

These days, many good people in government are conflicted. The anonymous officer states, “I think about it [quitting] all the time.” I don’t blame the officer for this. It is painful to compromise one’s morals. But now, more than ever, I think we need people like this officer to stay. To do their jobs. And to pursue Justice.

Continue reading

196 Comments

Applying for a Green Card Overseas While Asylum Is Pending

by Jason Dzubow

This is the final installment in a three-part series about getting a Green Card while asylum is pending. Part 1 covered marriage to a U.S. citizen (or a petition by another “immediate relative”). Part 2 discussed other bases for a Green Card. Here, I will talk about leaving the U.S. to get a Green Card at a U.S. embassy.

Some non-citizens are eligible for a Green Card only if they leave the United States and process their case at an embassy overseas. This is generally because the law does not allow a person who is “out of status” to “adjust status” and get the Green Card in the U.S. As I discussed previously, a pending asylum case does not confer status on the applicant, and so certain asylum seekers must leave the U.S. if they hope to get a Green Card based on a family relationship, a job or some other basis.

Of course, if possible, it is safer to get your Green Card in the United States. But if that is not an option, and you must leave the country to process your case, how do you know whether you can return? What is the safest way to leave and come back to the U.S.? And what about asylum seekers who cannot go to the U.S. embassy in their home country?

Leaving the U.S. to return is kind-of like starting your diet at the DQ. It seems counter-intuitive and a bit dangerous.

First and most important, if you plan to leave the U.S., you should understand that you are taking a risk. From a legal perspective, it is a lot easier to prevent you from returning than to kick you out once you are here. For this reason, it is imperative to talk to a lawyer before leaving the country to process a Green Card application. Make sure the lawyer explains the basis for your eligibility, and explains each step of the process (and preferably puts it all in writing). You need to know how you are eligible for the Green Card, and how you can leave and return safely. Also, you should think about a back-up plan: What if the Green Card is denied? How will you return to the U.S. then?

Keep in mind that whether a person can successfully leave and return depends on many factors specific to the case: Do you have a 3/10 year bar? Are you eligible for a provisional waiver or some other waiver? Are there any other bars to obtaining the Green Card or re-entering the U.S.? Might there be a prior deportation order? All this needs to be discussed with a lawyer, and if you have any doubts about your prior immigration history, you should file a Freedom of Information Act request to get a copy of your file. You don’t want to leave the U.S. unless you are pretty certain that you can return.

Assuming you are eligible to leave and process your case at a U.S. embassy overseas, what happens if something goes wrong? Sometimes, people who seem eligible for consular processing arrive at the embassy and learn that there are problems with the case. Such people can get stuck outside the United States. Sometimes, a case can be un-stuck, but other times, there is no way to return. What then? If you have a pending asylum case, you can apply for Advance Parole (“AP”) before you leave the United States. AP is permission to leave the U.S. and re-enter later on. If you have AP, and if something goes wrong at the embassy, you can still return to the United States using AP as your “back up” plan.

I wrote about AP here, but since I wrote that article, things have gotten more difficult for AP applicants. USCIS seems more reluctant to issue AP, and when it is issued, it is granted for a shorter period of time. Also, the processing time for an AP application is unpredictable. For these reasons, it is more difficult to coordinate the consular processing and the AP so that they occur at the same time. But if you can do that, it will avoid the possibility of getting stuck overseas in the event that something goes wrong with the Green Card case.

Finally, asylum seekers have a special problem when it comes to consular processing. Normally, a person would process her case at the U.S. embassy in her home country. But asylum seekers have told the U.S. government that they fear harm in their home country. What to do?

One choice is to try processing the case in the home country anyway. Depending on the asylum case, you might be able to argue (to the U.S. government) that it is safe for you to visit the country for a short trip, but you cannot life there over the long term. Obviously, this reasoning works better where the persecutor is a non-government actor. If the persecutor is the government, they could presumably arrest you as soon as you arrive at the airport.

But even if the persecutor is not the government, returning to the home country involves some risk to your immigration status. The U.S. government may conclude that your original asylum application was fraudulent (since you voluntarily returned to your country). This could result in a denial of your asylum claim and a denial of any other application for an immigration benefit. So it is preferable to process your case in a third country.

However, processing the case in a third country is not always easy. If you are trying that, you would be well-advised to talk to a lawyer who has significant experience with consular processing. The benefit of processing the case in a third country is that it is (presumably) safer, since no one is trying to harm you in the third country, and you avoid the problem of the U.S. government suspecting that your asylum case was fake. The down side is that if the consular processing fails, you will be stuck in a third country. Another down side is that you may need a visa to visit the third country. Coordinating the visa, the consular processing, and the AP sounds like a real challenge, but if the stars align, this would probably be the safest way for an asylum seeker to obtain a Green Card overseas.

One last point. While I have been referring to obtaining the Green Card overseas, this is not exactly what happens. If the consular processing is successful, you will receive a packet, which you bring with you when you come to the United States. The packet is opened at the port of entry, and if all goes well, you should get your lawful permanent resident status at that time (in the form of a stamp in the passport). The actual Green Card comes later by mail.

So that’s it. There are alternatives to asylum available to some applicants, and those paths are worth considering. However, they are often tricky, and so it would be a good idea to talk to a lawyer to assist you with the process.

Continue reading

196 Comments

Applying for a Green Card While Asylum Is Pending: Family, Job, Lottery, &tc.

by Jason Dzubow

Aside from winning asylum, probably the most common way that asylum applicants obtain a Green Card is through marriage to a U.S. citizen (I wrote about that here). But there are other ways, and I will discuss some of those today.

As a preliminary manner, we need to talk about two concepts: lawful status and unlawful presence.

A person has lawful status in the United States if she arrives with a visa (or a visa waiver), does not violate the terms of that visa (by, for example, working without authorization), and the period of authorized stay has not yet expired (you can check whether your status has expired here). Such a person is considered “in status.”

The second concept is called “unlawful presence.” If you remain in the United States after your authorized stay has ended, you are unlawfully present. Each day you remain in the U.S. after your status has expired, you accrue one day of unlawful presence. If you have more than 180 days of unlawful presence, and you leave the United States, you are barred from returning for three years. If you have one year or more of unlawful presence, and you leave the U.S., you are barred from returning for 10 years. In attorney-speak, this is known as the 3/10 year bar. It is important to note that this bar only goes into effect if you leave the country. If you remain in the U.S., the 3/10 year bar has no effect. If you are (or will be) subject to the bar, it is still possible to return to the United States, but you need a waiver, (or a provisional waiver), which can be difficult and expensive to obtain.

If one road doesn’t lead to a Green Card, maybe another one will.

For people who entered the U.S. illegally, there are a whole set of other issues. In short, most such people will have to leave the U.S. to get their Green Cards, and this will likely be very difficult, since they may face various bars to returning. People in this situation may be eligible for a provisional waiver, or they may be able to obtain their Green Card under INA § 245(i) (discussed below). If this is you, talk to a lawyer about how to proceed, and make sure the lawyer maps out for you the whole process–how will you get from where you are now to a Green Card? Will you have to leave the U.S.? How will you return?

One last point, assuming you are “in status” and eligible to obtain your Green Card in the United States (called “adjusting status”), you normally must file the application (form I-485) before your lawful status expires. If you do that—even if your status expires while the I-485 is pending—you are eligible to adjust status. If you have to leave the U.S., you would certainly want to talk to a lawyer to be sure you are eligible to leave, get the Green Card, and return. I will discuss leaving the U.S. to get a Green Card in the final post of this series, so stay tuned.

With these preliminaries out of the way, let’s discuss some ways a person with a pending asylum case might obtain a Green Card.

Family Petition: Here is a list of family-based immigration categories (aside from immediate relative categories, which I previous discussed): (1) A Lawful Permanent Resident (“LPR”) can file for a spouse; (2) An LPR can file for a child who is under 21 and unmarried; (3) A U.S. citizen can file for an unmarried child who is over 21 years old; (4) A citizen can file for a child who is married; (5) A citizen can file for a sibling.

If you are in one of the above categories, your family member can file an I-130 petition for you. The different categories have different wait times, which you can see at the U.S. State Department Visa Bulletin. Also, certain countries—Mexico, China, India, and the Philippines—may have extra-long wait times, which you can also see on the Visa Bulletin. Once the date on the Visa Bulletin matches or passes the filing date for the form I-130 (called the “priority date”), you can apply for a Green Card. However, you might need to leave the United States in order to obtain the Green Card.

So how do you know whether you have to leave the U.S. to get your Green Card?

In order to get your Green Card based on one of the above categories without leaving the United States, you need to have entered the U.S. lawfully and still be “in status” (as discussed above). A pending asylum case is not considered “in status” for this purpose. Meaning, you need to have some other lawful status that has not yet expired (F-1 or H1b are two common possibilities). Given the long wait times for many of these categories, few people will be eligible to obtain their Green Cards without leaving the country.

There are exceptions to the general rule. The most common exception is under INA § 245(i). That section of the law states that a person who was physically present in the U.S. by December 20, 2000, and who was the beneficiary (or sometimes, the child of a beneficiary) of a family- or employment-based petition, or Labor Certification petition, filed by April 30, 2001, may be eligible to obtain a Green Card based on one of the above categories without leaving the U.S. If you think you might be eligible under INA § 245(i), talk to a lawyer to be sure. One other possible exception involves people with TPS, but such cases are often complex and you would need to talk to a lawyer about what to do. You can find some basic information about TPS and adjustment of status here.

Employer Petition: There are various types of employment-based petitions for a Green Card, called EB-1 through EB-5 (EB means “employment-based”). Some categories have a waiting period (and certain countries have extra-long waits); others do not. You can see all that here. Also, certain categories allow you to self-sponsor (EB-1, EB-2/National Interest Waiver, and EB-5). Other categories require an employer to sponsor you. Some categories allow for “premium processing,” which means you can expedite the case by paying an additional fee. In general, employment-based cases are complex, and you would probably want to use a lawyer to help you. USCIS has a good overview of the different employment-based categories and the requirements for each.

As with family-based petitions, unless you are “in status” (and a pending asylum case does not count), you would need to leave the U.S. to get your Green Card (this is where premium processing can sometimes come in handy) (also, there is a possible exception to this rule for certain employment-based categories where the period of the violation did not exceed 180 days, or where the period only exceeded 180 days due to a “technical violation” or through no fault of the alien – and potentially, this could include a person with a pending asylum case). Be aware that if you have unlawful presence, you could be barred from returning after you leave, per the 3/10 year bar (discussed above). Finally, employment-based immigrants may benefit from the same exceptions as family-based immigrants: INA §245(i) and perhaps TPS. In short, this can get very complicated, very quickly, so talk to a lawyer if you think you may be eligible to adjust status based on a job.

One word of caution for the EB categories. I have seen a number of instances where the alien hired (and paid) a lawyer to help with an employment-based Green Card, only to learn later that he (the alien) was ineligible to actually get the Green Card. The lawyer successfully completed the first step of the process (the petition or I-140), but the alien was ultimately ineligible to get the Green Card due to the 3/10 year bar, a prior removal order or for some other reason. The attorney knew or should have known this in advance—before the client started spending money on the case—but for whatever reason, did not inform the client. The short answer here: Make sure when you talk to a lawyer, you have her explain the entire process, whether you need to leave the U.S. to get your Green Card, and how you will do that and return. To be extra safe, I would have all this in writing.

Diversity Visa Lottery: If you win the Visa Lottery, and you are “in status,” you may be able to adjust status, as discussed above. If you are no longer “in status,” you would have to leave the U.S. to get your Green Card (unless you meet an exception, such as INA § 245(i), as discussed above). As always, be aware of the 3/10 year bar and any other bars to re-entry. Also, if you plan to leave the U.S. to collect your Green Card overseas, talk to a lawyer about the process, as the Lottery can be tricky, and you do not want to take get stuck outside the country.

Some Other Random Ideas: Aside from the more common ways to obtain a Green Card, there are some more obscure paths as well. Some of these might allow you to obtain a Green Card without leaving the U.S. If you think you might qualify for one of these visas, talk to a lawyer to evaluate your case. For a number of these visa, your best bet might be a non-profit organization, as many of these visas apply to particularly vulnerable people, who are often served by non-profits. A list of such organizations can be found here. Without further ado, here are a few of the lesser-well known paths to a Green Card:

– S Visa: The semi-mythical “snitch visa” for people who cooperate with the government in a criminal or terrorism investigation. I wrote about it here.

– T Visa: This visa may available to victims of “severe trafficking.” You can learn more here.

– U Visa: Victims of certain crimes who assist law enforcement may be eligible for a U visa. Learn more here.

– SIJ Visa: The Special Immigration Juvenile Visa may be available to minors who are abused, abandoned or neglected. If you are under 21 and you are not with a parent or guardian, you may qualify. More information is available here.

VAWA: Under the Violence Against Women Act, certain battered spouses, parents, and children are eligible to file for a Green Card (both men and women can qualify under VAWA). Learn more here.

In the final installment in this series, I will discuss leaving the United States to get your Green Card overseas.

Continue reading

289 Comments

Stephen Miller Is Not a Hypocrite

by Jason Dzubow

If you follow the news about immigration, you probably know Stephen Miller. He’s a Senior Policy Advisor to President Trump, and he’s supposedly the nefarious driving force behind many of the Administration’s most vicious anti-immigrant policies.

Last week, Dr. David S. Glosser–Mr. Miller’s uncle and a retired neuropsychologist who volunteers with refugees–penned a powerful article refuting his nephew’s raison d’etre: Stephen Miller Is an Immigration Hypocrite. I Know Because I’m His Uncle. The article discusses the immigration history of Mr. Miller’s family, and points out that the policies espoused by Mr. Miller would have prevented his own ancestors from escaping persecution in Europe. Here’s Dr. Glosser’s money shot:

Trump and my nephew both know their immigrant and refugee roots. Yet, they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human. Trump publicly parades the grieving families of people hurt or killed by migrants, just as the early Nazis dredged up Jewish criminals to frighten and enrage their political base to justify persecution of all Jews. Almost every American family has an immigration story of its own based on flight from war, poverty, famine, persecution, fear or hopelessness. Most of these immigrants became workers, entrepreneurs, scientists and soldiers of America.

Can you guess which one is Stephen Miller?

It’s a powerful piece, in part because of Dr. Glosser’s relationship to Stephen Miller, and in part due to the juxtaposition of these two men. Dr. Glosser speaks from his personal experience dealing with refugees. He sees the story of his parents and grandparents in the stories of modern-day refugees. He has absorbed the lessons of the past, particular with regard to ethnic and religious demonization. Mr. Miller, on the other hand, seems inured to the suffering of his fellow humans and immune to the lessons of history. I have never heard him articulate a fact-based justification for his cruel policies. But he persists in advocating for those policies nevertheless. Mr. Miller’s background and how it influences (or fails to influence) his thinking are important questions, as is the “grim historical irony” of his views.

Here, however, I want to discuss a different question: Is it accurate to call Mr. Miller and the President hypocrites because their policies would have blocked their own ancestors from immigrating to the United States? A second, perhaps more important question, is this: Why does the first question matter?

A hypocrite is a person who pretends to be something that he is not. It’s an epithet often used for politicians who claim to be virtuous and honest, but who, in reality, are the opposite. The word derives from the Greek “hypokrites,” which means “actor,” and there’s a long and rich history of contempt for hypocritical politicians (Dante, for example, relegates the hypocrites to the eight circle of hell, which is pretty close to the bottom).

I don’t think that Mr. Miller or Mr. Trump are hypocrites simply because their immigration policies would have blocked their own ancestors from coming to the U.S. They may be bigots and bullies, whose policies are based more on falsehood than fact, but that is not hypocrisy. Indeed, Mr. Trump has repeatedly articulated his disdain for Muslims, Mexicans, people from “shit-hole countries,” etc., and so the fact that he enacts policies to exclude such people seems perfectly consistent with his world view. He and Mr. Miller may hold ignorant and racist views, but that does not make them hypocrites.

Why does any of this matter?

Aside from the fact that words should be used properly (or as Inigo Montoya might say, “You keep using that word. I do not think it means what you think it means”), it seems wrong to try to limit what people can do by shaming them as hypocrites based on their ancestry. Is the decedent of slave owners a hypocrite if she supports Affirmative Action? Would a Native American be a hypocrite if he became an immigration lawyer? Is the daughter of a candy store owner acting hypocritically if she becomes a dietician? You get my point. We are who we are because of, and in spite of, our progenitors. But I don’t think we should be condemned for the choices we make that are not consistent with the choices they made.

Further, with regards to a complex topic like immigration policy, labels such as “hypocrite” seem inapplicable and designed to shut down–rather than encourage–discussion. Even a person who personally benefited from U.S. refugee policy, for example, has a right to oppose the admission of additional refugees. Economic and political circumstances change, as does the population of refugees seeking admission to our country. Maybe you support admitting some types of refugees (those like you) and oppose admitting others. Such a position is likely based on ignorance of “the other,” but I don’t think it is necessarily hypocritical.

So condemn Mr. Miller for his bigotry and his lies. Call out the irony of his policies, which would have blocked his own ancestors from finding refuge in our country. But don’t call Stephen Miller a hypocrite. Sadly, he is exactly what he purports to be.

Continue reading

110 Comments

Applying for a Green Card While Asylum Is Pending: Marriage to a U.S. Citizen

by Jason Dzubow

If you add up all the people with pending asylum cases at the Asylum Offices, Immigration Courts, and Board of Immigration Appeals, there are over one million souls waiting in limbo. Many will be waiting for years. During that time, some applicants will inevitably become eligible to obtain legal status in the U.S. through other means. Here, I want to discuss the possibilities for a green card for those with a pending asylum case.

We’ll start with the easiest and most common path to a Green Card for asylum seekers already in the country: Marriage to a United States citizen. In a future post, I will cover other ways asylum seekers might obtain residency in the U.S., such as marriage to a lawful permanent resident, sponsorship by an employer, and the Visa Lottery.

There are plenty of good-looking U.S. citizens just waiting to marry you!

As a preliminary matter, I should say that the rules discussed here apply not only to spouses of U.S. citizens, but also to other “immediate relatives” of U.S. citizens. Immediate relatives are (1) spouses, (2) unmarried children of U.S. citizens where the child is under 21 years old, and (3) parents of U.S. citizens where the U.S. citizen child is over 21 years old.

Second, I should note that under U.S. immigration law, same-sex marriage is allowed, and such couples are treated the same as heterosexual couples for purposes of immigration.

With that out of the way, let’s talk about obtaining a Green Card by marrying a U.S. citizen. Not everyone who marries a citizen is eligible to obtain a Green Card, but most people are. If you entered the country lawfully (usually with a visa), you have not been ordered deported, and you have no serious criminal issues, you are most likely eligible to adjust status (i.e., obtain your Green Card without leaving the U.S.) based on the marriage. Check with a lawyer to be sure you are eligible, as there is no sense starting the processing (and paying a lot of money), if you are not legally able to get your Green Card.

Cases at the Asylum Office: The process of applying for a Green Card varies depending on whether you have a case pending with the Asylum Office or the Immigration Court. Normally, for Asylum Office cases, we file the I-130 (petition for alien relative), the I-485 (application for a Green Card), and accompanying forms and evidence with USCIS. This includes filing for a work permit and Advance Parole, which will allow you to work and travel while the Green Card application is pending (when you pay for the I-485, the fee includes these applications as well).

If you are lucky, USCIS will process the case normally and you will get a Green Card. If the marriage is less than two years old, you will receive a Conditional Permanent Resident card that is valid for two years. Prior to the card’s expiration, you will need to file another form to obtain the lawful permanent resident card. If the marriage is more than two years old, you should receive the lawful permanent resident card, which is valid for 10 years. Once you have the temporary or permanent Green Card, you can inform the Asylum Office and close your case.

Some Green Card applicants are not so lucky, and their cases get delayed. If that happens, we contact the Asylum Office and tell them about the pending Green Card. In some mysterious way, they sometimes help move things along (it may be that the Asylum Office has a file that USCIS needs to adjudicate the marriage case). If that doesn’t work, we can try withdrawing the asylum case to pursue only the Green Card case, but at least in my opinion, it is preferable to keep the asylum case alive until you have the Green Card in hand.

Cases in Immigration Court: The process is different for people in Court (or before the BIA). For one thing, you don’t normally file the I-130 and the I-485 together. Instead, the U.S. citizen spouse files the I-130 petition alone. The purpose of this form is to get USCIS to “approve” the bona fides of the marriage (in other words, to agree that the marriage is true).

In contrast to I-130 cases where the alien is not in Immigration Court, the burden of proof is higher, meaning you need to submit stronger evidence that the marriage is real. Technically, you are asking for a bona fide marriage exemption (USCIS suspects that people in Court may get married in order to avoid deportation, and so such cases are flagged for extra attention). In practice, while USCIS often asks for a formal declaration from the couple that the marriage is bona fide, the standard of evidence is not discernibly different than in “regular” I-130 marriage cases.

Once the I-130 is pending, we typically inform the Court and give them a copy of the I-130, the supporting evidence, and the I-130 receipt. Depending on the stage of the case, we often ask the Immigration Judge for a continuance, so that USCIS has time to process the I-130 petition. If there is a processing delay from USCIS, we sometimes contact the DHS attorney and ask whether they can help facilitate the I-130, which they usually agree to do. This can sometimes magically move things along at USCIS.

Once the I-130 is approved, we inform the Court and can then try one of two paths to get the Green Card. Either we ask the Judge to terminate proceedings so the person can “adjust status” (i.e., obtain a Green Card) with USCIS, or we ask the Immigration Judge to grant the Green Card in court. Often, the Immigration Judge will make this decision for you. But if you have a choice, you should know that there are advantages and disadvantages to each approach.

If you decide to go with USCIS, which is probably the more common choice, the first step is to get the Judge to terminate proceedings (be sure that you get an order “terminating” proceedings, not an order to “administratively close” proceedings, which keeps jurisdiction with the Judge and blocks you from obtaining a Green Card from USCIS). When we tried this in the past, the DHS attorneys and the judges were amenable to termination, as that makes life easier for them. However, in a recent case, the DHS attorney would not agree to terminate proceedings until we completed the I-485 and provided proof that we paid the fee. The problem is, the fee has to be paid in a particular way for cases in Immigration Court. We paid the fee and received the receipt. After that, the case was terminated. We then tried to use the fee receipt to “pay” for the I-485. In the past, USCIS has accepted the fee receipt in lieu of payment, but this time, they refused, and so my client had to pay the fee a second time ($1,225!). Next time I have a case like this, I will ask that proceedings be terminated without the fee receipt, which will hopefully avoid the problem of paying double fees.

Once the case is terminated, the applicant can adjust status with USCIS. It is pretty common to see delays in such cases, where the person was previously in removal proceedings. But ultimately, everyone who does this seems to end up with a Green Card, and it is easy to get a work permit and travel document (Advance Parole) while the case is pending with USCIS.

Alternatively, you can ask the Judge to schedule an Individual Hearing to approve the Green Card in court. This can be faster (depending on the Judge’s schedule), and should avoid the problem of double fees, but it is more difficult to get a work permit while you are waiting (you can try to use the I-485 fee receipt to “pay” for the EAD, but as we found out, that does not always work). Also, you cannot travel outside the U.S. until the Green Card is granted (if a person in Immigration Court leaves the U.S., he has effectively deported himself). Once the Judge approves the Green Card, you will need to make an Info Pass appointment to obtain the physical card.

Some Exceptions: Not everyone who enters the country illegally, or who has a criminal conviction or a deportation order, is ineligible to get a Green Card through marriage to a U.S. citizen. However, if you fall into one of these categories, you would want to talk to a lawyer about your eligibility.

For people who entered illegally, there is a law called INA 245(i) that allows certain people to pay a fine and obtain their Green Card despite the unlawful entry. To qualify, you would have had to be present in the U.S. since at least December 20, 2000 and have had a family member or employer file an immigrant petition or labor certification for you (or possibly a parent) prior to April 30, 2001. There are other requirements too, and so you would want to discuss the specifics of your case with a lawyer. Also, potentially you can leave the U.S. with a provisional waiver and obtain your Green Card overseas. This can also be problematic, especially for asylum seekers who cannot go to the U.S. embassy in their home country, and so you would want to check with a lawyer before trying this option.

For people with a criminal conviction, there are possible “waivers” available. A waiver is basically a form (usually with a steep fee) that asks the government to forgive your crime and allows you to obtain your Green Card. Many waivers require that you have citizen or resident relatives (parent, child or spouse) in the U.S. and that the relative(s) show that they would suffer some type of hardship if you were deported. Again, you would want to talk to a lawyer about this.

People with a deportation order, or some other type of immigration issue (such as the J-1 two-year home residency requirement) might also be eligible to adjust status. But especially for people with a deportation order, it is very important to talk to a lawyer. Part of the Green Card process involves an interview with USCIS, and there have been many recent examples of people with deportation orders being detained by ICE at their I-130 interviews. A lawyer can’t stop you from being detained, but she can evaluate the likelihood of a problem, and help you weigh that risk against the possibility of a successful outcome.

For most asylum seekers who marry a U.S. citizen, the likelihood of obtaining a Green Card is quite high. However, the process can be bureaucratically challenging. For all these reasons, if you can afford a lawyer to get you through the system, that is probably a good idea.

In a future post, I will discuss some other paths to residency for asylum seekers, Stay tuned.

Continue reading

525 Comments

When the Counter-Terrorism Unit Comes Calling

by Jason Dzubow

My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.

Ruth Dickey, immigration attorney extraordinaire.

What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:

  • That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
  • That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
  • That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
  • Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
  • That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).

Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

Continue reading

158 Comments