When the Judge Is a Jerk

by Jason Dzubow

The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?

First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.

Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.

That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).

The government takes your complaints very seriously.

While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?

The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.

Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.

In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.

Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.

Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.

Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.

Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.

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The Emotional Toll of Asylum Lawyering

by Jason Dzubow

A recent paper by Neil Graffin, a Lecturer in International Law at the Open University, explores the emotional impact of working as an asylum lawyer. As you might expect, the study found that those of us who represent asylum seekers suffer from burnout and emotional stress. As a “protective mechanism,” we tend to detach ourselves from our clients, and we sometimes become “cynical or disbelieving of client narratives.” More surprising, perhaps, the author found that this “complex reaction” had both positive and negative effects in terms of case outcomes. The paper concludes that “more should be done to protect practitioners working in this area of law,” since “we cannot discharge our duties to asylum claimants, without protecting those who deliver assistance in protecting their rights.”

In researching his paper, Professor Graffin spoke to nine asylum advocates in England and one in the Republic of Ireland. The interviewees had a wide range of experience in the field, from one year to 30 years. Some worked for private firms; others for non-profits.

As we all know, we Yanks tend to be a lot tougher than the wilting flowers in England. Even so, Professor Graffin’s findings largely track with my own experience and that of my colleagues on this side of the pond. So as far as I can tell, the emotional impact of representing asylum seekers is essentially the same for lawyers in the U.S. and for our more fragile British cousins.

It seems to me that Professor Graffin’s findings can be divided into two broad categories: Effects on lawyers caused by dealing with individual clients, and effects caused by “the system.”

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At the individual level, dealing with traumatized asylum applicants is often “emotionally demanding” and “can have a negative emotional impact on practitioners, manifesting in self-reported burnout and emotional stress.” It can also lead practitioners to develop a cynical or disbelieving attitude towards some clients.

This type of skepticism does not necessarily have a negative effect on case outcomes, however. On the contrary, some study participants observed that “having a cynical or disbelieving attitude could make them better practitioners” because it helped them get “into the minds of the ‘suspicious decision-maker’” and “to spot issues of concern in their claimant’s narratives.” From my own perspective, a healthy skepticism towards our clients’ claims is crucial. We need to imagine how our clients’ stories will be received by government decision-makers and anticipate weaknesses in their cases.

Study participants also spoke about the issue of secondary trauma, which comes from “dealing with individuals on a daily basis who have experienced gross and traumatic violations of their human rights.” One common defensive mechanism for practitioners was to distance ourselves from our clients. Too much distance leads to depersonalization, but too little can lead to burnout. The key is balance: We should aim to be “sympathetic but detached.”

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In my own practice, I often deal with people who have been traumatized. Some have been physically harmed or threated. Others have lost loved ones. Still others are suffering due to separation from family members. While I am sympathetic to my clients, I don’t believe that the main emotional impact I face relates to these micro-level issues. For me, at least, the bigger stress-inducer is the system itself: Too many cases, not enough time, too much bureaucracy, too little control. Professor Graffin also discusses these and other macro-level issues.

One big issue for me, and for the participants in Professor Graffin’s study, is volume. “Heavy caseloads… were cited as a particular concern amongst participants.” This was an issue for non-profits, which are under increasing pressure to do more with less, and for private practitioners like me, who aim to serve the asylum-seeker community and make a living in the process. “On the one hand, while having a smaller amount of cases was described as economically unviable, having too large a caseload created unmanageable pressure on the firm.”

Another issue involves unfavorable changes to the law. Both Britain and the U.S. (and many other countries) are experiencing an anti-refugee moment. Changes in the law have made it more difficult for us to help our clients. Referencing the “constant downgrading of rights,” one long-term practitioner in Professor Graffin’s study notes that for her, it is “easier to cope with [extremely traumatized clients] than the overall feeling that [she] was being disabled as a lawyer.” I agree. Lawyers are trained to learn the law and help our clients navigate the system. But lately, in the U.S., the government has been throwing up nonsensical bureaucratic barriers that make our jobs more difficult. These barriers are not legal barriers, but rather procedural hurdles. So an application that previously took, say, two hours to complete, now takes three hours. To me, this is a deliberate and arbitrary attempt to reduce immigration by making “the system” harder. I have been reluctant to pass on the costs of the additional work to my clients, as I feel that this would almost make me complicit in the government’s scheme. The problem, however, is that this leads to increased stress for my office mates and me.

Asylum Lawyer

Another job of a lawyer is to explain how the system works. If you file a claim for asylum, for example, there should be a predictable series of events that follows. Now-a-days, there is much less predictability in the system. This is in large part due to these same bureaucratic barriers. It is also due to the general dysfunctionality of the system. The end result, though, is that we lawyers have less power to influence outcomes than we should, and this also increases stress levels.

A final issue discussed in Professor Graffin’s paper is the effect of the over-all hostile environment towards asylum seekers. A number of the participants discussed how “negativity towards asylum claimants within some sections of society had an impact on them.” In an ideal world, human rights would be non-partisan. But of course, our world is far from ideal. The rhetoric in the United States and Great Britain is frequently cruel, and quite often untrue. While I can understand why such an environment can be demoralizing for asylum practitioners, I do not think it affects me that way. If anything, it has energized me to work harder for my clients. It is also one of the reasons we held the Refugee Ball back in 2017.

Finally, I of course agree with Professor Graffin’s recommendation that we provide more support for asylum practitioners, “including training and education in secondary trauma and burnout, as well as the potential for structural re-design to support individuals who hear traumatic narratives on a regular basis.” But the unfortunate fact is that most practitioners—including me—do not have time for additional training, and our current government is not about to take action to make our lives any easier. For now, we just have to keep on keepin’ on.

A few last points that were not directly mentioned in the paper: For me, an important coping mechanism is to have a sense of humor (maybe gallows humor) about the whole system. It is not always easy, but it gets me through the day. It is also nice to know that we asylum lawyers are not alone, and that all of us in the system are struggling with similar issues. So send your good vibes, and we will keep moving forward together.

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Some Great Immigration and Refugee Books for Kids

by Jason Dzubow

In my house, we have young children who love books. We have to read to them all the time (at breakfast, at dinner, before bed – oy, it makes me crazy). Below are some books we’ve read that relate to my profession: Asylum and immigration. I’ve also included a few books that have crossed my desk for older kids or teens.

Of course, these subjects can be pretty heavy. How do you talk to young children about fleeing home, moving to a new place, separation from family? Thankfully, all this is outside my own children’s experience. But I do think it is important for them to learn about it. In part, because I work with refugees, but mostly, because it is a reality for many people, and children need to understand their world.

I must admit that the below list is pretty random. People gave us these books, or we found them at the library. If you’re looking for a more comprehensive list, check out BRYCS (Bridging Refugee Youth & Children’s Services), the “What Do We Do All Day?“ blog, and the Institute for Humane Education. But, for what it’s worth, here is my reading list for small, medium, and large children interested in a very grown-up issue:

Reading about the refugee experience can be scary.

Hannah Is My Name by Belle Yang (2004) – This is the story of a young girl who moves with her parents from Taiwan to San Francisco in the 1960s. She gives up her Chinese name, Na-Li, and takes an American name: Hannah. The girl and her family struggle in America while waiting and waiting for their green cards. A lawyer (or notario?) named Mr. Choo has helped the family with their paperwork, but there seems to be no progress and the family is stuck waiting for a decision (sound familiar?). At one point, the father has to escape from INS agents. This is a brightly colored book that really gave my children some idea about what I do in the office (waiting and more waiting). This book is probably appropriate for pre-school and elementary school-age children.

The Arrival by Shaun Tan (2007) – This is a graphic novel without words. It is probably more appropriate for middle and high school-age kids, but since I love it, I read it (assuming you can “read” a book with no words) to my elementary school-age children. The illustrations in the book are magnificent, and convey a sense of moving to a new, unfamiliar land. The book tells the story of a family living in a repressive and dangerous city. The father moves to a strange new country, where he must adapt, find work, and send for his family. This is probably my favorite illustrated book about the refugee experience. It is a moving and positive story about how people can help each other.

How I learned Geography by Uri Shulevitz (2008) – When he was four years old, author Uri Shulevitz and his family fled Poland and found refuge in Central Asia. It was World War II, and conditions in their new home were bleak. They barely had enough to eat, and so when Uri’s father spends the family’s dinner money on a large world map, Uri is understandably angry (and hungry). This book tells the story of how the young author uses the map and his imagination to escape his difficult existence and “explore” the world. In the end, Uri comes to appreciate his father’s wisdom. This is a beautifully illustrated and poetic book, which covers a challenging topic in a way that elementary-age children can understand and appreciate.

Two While Rabbits by Jairo Buitrago and Rafael Yockteng (2015) – This beautifully illustrated book tells the story of a little girl and her father who are traveling from Central America to the United States. Sometimes, they stop so that the father can work to earn more money for their trip. Why they are traveling and whether they reach their destination, we do not know. But the sights and experiences of the migration are shown from the perspective of the young girl, who spends her time counting the people, animals, and objects she encounters on the journey. As adults, we see a dangerous ride atop a freight train, menacing soldiers or a treacherous boat ride across a wide river. The girl in the story is barely aware of the danger. She focuses more on the beauty she encounters on her trip. There is a lot going on in this book visually, and my children enjoyed talking about the pictures and wondering about the girl’s journey. This story is appropriate for pre-school and elementary-age children.

Illegal by Eoin Colfer, Andrew Donkin, and Giovanni Rigano (2018) – This graphic novel is for teens or adults. I read it, but my children are still too young for a story like this. Illegal tells the story of two brothers who leave Niger, cross the Sahara, and try to reach Europe. The story is fiction, but the incidents portrayed are taken from real-life events. The book gives readers an idea about the difficult and very dangerous journey that many people take from Sub-Saharan Africa to Europe. The themes are necessarily mature, and though the worst issues (such as rape and murder) are not directly shown, there are plenty of scary incidents, including the deaths of many migrants. This is a sad, yet hopeful tale, which humanizes people who are too often treated as less than human.

An Olympic Dream: The Story of Samia Yusuf Omar by Reinhardt Kleist (2015) – This graphic novel is similar to Illegal, with a greater emphasis on the sad than the hopeful. It tells the true story of Samia Yusuf Omar, who represented Somalia in the 2008 Olympics. After the Games, she returned to her country where opportunities to train–especially for women–were limited (to put it mildly). To escape the threats and fulfill her dream of returning to the Olympics, she fled Somalia for Europe. Sadly, Samia died en route (and by the way, I am not really spoiling the story here–Samia’s death is described in the book’s introduction). While the story is depressing, the author conveys the sense of the journey and does a good job humanizing his subject. This book is appropriate for teens and adults.

Of course, this is just a sampling of the many books that discuss migration and asylum. What these books have in common is that they tell a very human story–the struggle for safety and freedom in a difficult and dangerous world. In this respect, these books form a powerful counterbalance to the dehumanizing narrative of asylum seekers as nefarious “others.” While these stories can be challenging, they are also uplifting, and they help children (and adults) better understand our world.

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The Instructions for the I-589 Asylum Form: An Invaluable Tool, but Not the Last Word

by Jason Dzubow

This posting is by Elizabeth Rosenman, a Seattle asylum attorney and a member of Northwest Immigrant Rights Project’s pro bono panel. A former editor of UCLA’s law review, she has a master’s degree in journalism from Columbia University. Among other publications, she has written for The Seattle Times, the Los Angeles Times, and most recently, The Hill. 

When I’m helping a client prepare his I-589, the first thing I do is download the 10-page application, officially called the “U.S. Citizenship and Immigration Form I-589 Application for Asylum,” from the USCIS website. The first half of the I-589 asks simple biographical questions and the second half probes for responses intended to tease out whether the applicant likely qualifies for asylum or is possibly barred from staying here permanently.

The form is written in plain English and even the questions that call for long answers are straightforward. Everything is self-explanatory. That’s why it’s tempting to skip over another document on the same website called “Instructions for I-589” — a 14-page document that is far denser than the form it’s supposed to clarify.

Read the instructions.

Elizabeth Rosenman

The first time I did, I was stunned by how helpful they were. The instructions contain both a concise tutorial on asylum law and a superb how-to manual for preparing an entire asylum case, not just filling out the I-589.

There’s also a lot of practical stuff that isn’t immediately obvious to asylum seekers and inexperienced lawyers: The one-year time limit for submitting the I-589 in most circumstances, the rule that the form has to be either typed or filled out in black–not blue–ink, and the requirement that an asylum seeker can’t leave the U.S., even for an emergency, without prior approval unless he wants to forfeit his claim.

Only about two pages of the instructions actually offer help filling out the I-589, but who cares? The document is an invaluable legal tool. And it’s free. But there’s a flip side. The instructions are also confusing, misleading, annoying, and bizarre. My take: Reading the instructions is a must, but following them all is a big mistake.

Consider this–even before you finish the first sentence, you realize there’s an obvious problem. The instructions, like the I-589, are only printed in English. Nobody in our government appears to care that the vast majority of asylum seekers aren’t native English speakers.

Just as bad, the instructions leave out some basic information, like where asylum seekers temporarily living in certain states–California, Nevada, and Pennsylvania–should send the I-589 to get the process rolling. Immigration officials have divided each of these states into two parts, but the instructions don’t explain where the dividing line is.

Take California. The instructions say that affirmative asylum seekers living in Northern Californian should send their completed I-589 to a post office box in Lincoln, Nebraska. Those in Southern California are told to send their asylum applications to Laguna Niguel, California (asylum seekers in court follow a different set of rules). Is Fresno considered north or south? How about Bakersfield? The instructions are silent. Instead, a few phone numbers are listed in the instructions for the asylum seeker or her lawyer to call with questions. My clients have all lived in Washington State, so this hasn’t been an issue for me. But I couldn’t resist calling the first phone number listed, the one for USCIS’s National Customer Service Center, to see how hard it would be to get an answer.

Very hard, if you aren’t an attorney, it turns out. That general phone number has recorded messages for almost any immigration problem I’ve ever heard of, except the I-589 address question. I spent several minutes trying to get a customer care representative on the line to talk me through the problem. I couldn’t figure out how to do that. Every time I pushed a keypad number I thought would get me to a person, I instead got a recorded voice that referred me to the USCIS general website. So I called back again, this time taking advantage of the one keypad prompt that’s only for attorneys. In less than two minutes, a USCIS employee came on the line and cheerfully offered to help. Instantly, she pulled up a directory of which California counties were included in one address or the other.

“Why not list this on the I-589 instructions pages?” I asked. “We don’t really know why they wouldn’t,” she said. Me either. Given a chance, I’m not sure I could dream up a way to make the task of addressing an I-589 more complicated than the one our government has already put in place.

Another complaint: The instructions leave out some key facts. For instance, they note that people who are granted asylum “may eventually adjust to lawful permanent resident status.” That means an asylum seeker who is granted asylum may, a year later, apply for a green card. So what’s the big deal? The instructions omit the most important part–an asylee is also eligible to apply to become a U.S. citizen, with all of the rights and protections that come with citizenship, four years after getting a green card. He’d probably figure the citizenship part out somewhere along the way. Why not let him know from the start?

Then there’s an omission that I find mean spirited and annoying: The instructions never mention that documents submitted as part of an asylum case don’t need to be notarized. All of my clients have needlessly paid money to a Notary Public to translate a few documents before I began representing them. They could have instead had a friend do the translating and used the extra money to buy food or bus fare.

Even more troubling, the instructions contain some misleading advice. At one point, they say “you are strongly urged to attach additional written statements and documents to support your claim.” “Strongly urged” sounds scary. Don’t worry. I’ve ignored that instruction for every client. Let me explain.

Remember that rule about asylum seekers not being allowed to request work authorization until 150 days after USCIS receives the I-589? That clock starts ticking whether or not an asylum applicant submits all of his supporting documents with the I-589 or just the bare I-589. Since all of my clients are anxious to get legal work authorization, I quickly fill out and submit the I-589 to get the 150-day clock going.

Then, after it’s in the mail, I begin the long process of gathering the supporting documents. I don’t send in those documents, which make up the bulk of the asylum case, until closer to the date of a client’s court hearing or asylum interview.

Two paragraphs later, the instructions give horrible advice: “You can amend or supplement your application at the time of your asylum interview with an asylum officer and at your hearing in immigration court….” That’s not true. Asylum officers and immigration judges have various rules about when evidence is due. If an asylum seeker misses that cutoff, he may be barred from submitting crucial documents later. This isn’t a problem for a lawyer who has been through the rigmarole a few times and is aware of the rules. But what about an asylum seeker who has been unable to obtain a lawyer?

Then there’s this bizarre fact: The instructions explain that an asylum seeker attending an interview who doesn’t speak English fluently must bring an interpreter and cover the cost. But if the asylum seeker is hearing impaired, that’s a different story. In that instance, the government will supply a sign language interpreter in any language–on the house.

Enough complaining. Even though I’m aware of most potential pitfalls, I always re-read the instructions the night before meeting with a client to fill out an I-589. They are updated frequently without prior warning–oops, another complaint–so I always check to see if anything important has changed.

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You Can Now Check Your Asylum Case Status Online!

by Jason Dzubow

Last week, I wrote about my suggestions for a new Asylum Office website. In that post, I gave short shrift to a new development: For affirmative asylum applicants, it is now possible to check your asylum case online at the USCIS website. This development is actually pretty significant, and will be particularly helpful for those who set up an account with USCIS in order to receive automatic case updates.

Here’s how it works: If you filed affirmatively for asylum–meaning, you filed a case with the Asylum Office–you should have received a receipt with an Alien number (a nine-digit number usually starting with 0 or 2) and a receipt number (three letters followed by a 10-digit number; the first letter is “Z”). You can now enter the receipt number into the USCIS Check Case Status web page and obtain information about your case.

I’ve plugged in several of my clients’ receipt numbers to get an idea of how the system works. After you enter the receipt number, you will receive a message about your case. The messages I saw have between one and four paragraphs, depending on the stage of the case.

The USCIS computer team celebrates as their agency enters the 20th Century.

The first paragraph gives information about the status of the case. This is discussed more below.

The second and third paragraphs of the message discuss the “Asylum Clock” and eligibility for an employment authorization document or EAD. In short, once an asylum case is received, the “Clock” starts. After the Clock reaches 150 days, a person may apply for an EAD, but the Clock must reach 180 days in order for USCIS to actually issue the EAD. If a person delays her case (by skipping an appointment, for example), it could cause the Clock to stop. Buried in the middle of the second paragraph is the number of days that have elapsed on your Asylum Clock and a statement about whether your Clock is still running. This is quite helpful, as it is easy to know when to apply for your EAD (on or after day 150, assuming the Clock is still running). One quibble, if I may: It would be nice to see this information more prominently displayed, as it is kind-of hidden in an otherwise boilerplate paragraph.

The final paragraph contains information about what to do if you move (file form AR-11).

There are different messages generated, depending on the status of the case. After the case is filed and received, the message reads, “The next step in your application is an in-person interview. Once your interview is scheduled, you will receive an interview notice in the mail and this case status will change. If you have an attorney or accredited representative on file, this individual will also receive a copy of the interview notice in the mail.” Another quibble: This message appears even if the biometrics (fingerprint and photo) appointment letter has been mailed out. In other words, at least for the case I checked, the system does not indicate that a biometrics letter was sent. Hopefully, USCIS will include this information as it continues to update the online system.

Once the interview is scheduled, the message states, “Your interview has been scheduled. You will receive an interview notice at the mailing address we have on file. If you have listed family members as dependents on your application, you must bring them to your interview. If you cannot communicate effectively in English, you must bring an interpreter. If you have an attorney or accredited representative and come without that representative, we will ask you to sign a form stating you agree to be interviewed without that representative present.” Further down the page, the message indicates that you can reschedule the interview. However, there is no information about how to contact the Asylum Office to reschedule. Such information would be helpful, even if it is only a link to the (woefully inadequate) Asylum Office website (which also does not tell you how to reschedule an appointment). By the way, it seems that the interview message is the same whether it is a first interview or a rescheduled interview.

If the interview has taken place, but there is not yet a decision, the message states, “You completed your interview with USCIS. The time it takes for USCIS to give you a decision after completion of an interview may vary. An officer told you at the end of your interview if you needed to return to the office to pick-up your decision on a specific/scheduled date, or if your decision would be mailed to you.” This same message seems to appear regardless of how long the decision has been pending. For example, I checked one of my long-delayed cases (filed over five years ago!). I suspect that the case is being held up due to a TRIG (Terrorism Related Inadmissibility Grounds) bar–the client was kidnapped and paid money to the bad guys to get released (this is an example of how the TRIG bar treats the victims of terrorism as if they were terrorists). The client was interviewed (about four years ago), but there is still no decision. For this client, I received the same Case Status message as for a client who was interviewed three months ago (and who does not have any TRIG issues).

Once a decision has been made, the message reads, “We reached a decision in your case. You should expect to receive the decision in the mail shortly. You must follow the instructions in your decision letter as to what you should do next.” If the decision was picked up, the message reads, “We reached a decision in your application. You recently picked up this decision at our office. You must follow the instructions in your decision letter as to what you should do next.” Whether the case was granted, denied or referred to Immigration Court, the message was basically the same. In other words, you cannot determine the outcome of the case based on the online message.

I did not have any cases with a pending Notice of Intent to Deny, so I do not know if the online system indicates whether such a letter has been mailed out. I hope it does, as applicant’s only have 16 days to respond to a NOID, so the earlier they know about it, the better.

I also checked an application that was closed. The message states, “We closed your application and notified you of the reason in the decision letter we mailed to the address we have on file for you. You must contact the office that has been handling your application if you believe your application should not have been closed.” Such a message means that the case is no longer with the Asylum Office. In our client’s case, the person had previously been before an Immigration Judge, and the Asylum Office determined that it did not have jurisdiction.

Probably the best part about the new system is that you can set up an account with USCIS so that you receive automatic updates by email or text message. In this way, you will know when to expect your interview notice or decision. And here’s a bonus: If you sign up for Informed Delivery with the U.S. Post Office, you will get a scan of all mail coming to your house, so you will know exactly when your notifications (and all your other mail) are arriving. Informed Delivery is not available everywhere, but you can check the USPS website to see whether you are eligible.

Finally, one last issue: The USCIS website is only in English. There are a limited number of messages that appear when you check your receipt, and so it really shouldn’t be that burdensome to create messages in other languages (Spanish being the most obvious). I am not sure that this is under consideration, but it would be very helpful.

So that’s about it. The new system is a good start, especially if you get automatic updates, but it’s not a substitute for a more informative Asylum Office website, as I discussed last week. Hopefully, USCIS will continue to improve it’s online presence, and continue to improve the process for asylum seekers and everyone else in the system.

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Dear Asylum Division: I’ve Re-Designed Your Webpage. You’re Welcome.

by Jason Dzubow

Dear Asylum Division:

These days, I don’t like to criticize you. I know that you’re under a lot of pressure from the political higher-ups who hate the whole “asylum thing.” But let’s face it–your website stinks. Fortunately, help is at hand. I’ve taken the liberty of creating a new website, which will benefit not only beleaguered asylum seekers, but also the hardworking folks at the various Asylum Offices.

And yes, I know that the Asylum Division is in the process of redesigning its online presence. It is now possible to get some basic information about an asylum case–including how many days have elapsed on the Asylum Clock–by entering the receipt number into the USCIS website (the receipt number is listed on the asylum receipt and starts with the letter Z).

Also, it should soon be possible to obtain an Info Pass appointment at the local asylum offices. If this system works, it will be better than what we have now (show up and hope for the best). But I’m worried that the asylum Info Pass will be as problematic as the current USCIS Info Pass system–these days, it’s easier to score Hamilton tickets than to get a USCIS Info Pass appointment.

Rumor has it that the Asylum Division is powered by a C-64.

That’s the (more or less) good news. The bad news is that the Asylum Office Locator has been changed as well, and it’s less useful now than it was before. The page still contains the addresses and office hours of the local asylum offices, and where to mail an initial I-589 (which varies depending where in the U.S. you live). But other contact information–email addresses and phone numbers–that appeared in the previous iteration of the website is now absent.

I get it–the Asylum Offices want to save time by preventing people from calling or emailing (I want to do this too), but now the only way to communicate with them is to go in person (difficult, especially for people who live far from the office) or send a letter (yes, a letter, like snail mail). The old email addresses still work, and I imagine the phone numbers do to (I haven’t tried to call the Asylum Office main number in years, as they rarely answer), but if you don’t have that information already, you’re basically out of luck.

All these changes are a mixed bag, but more can be done. The main problem with the current situation is the lack of available information. This is bad for asylum seekers, who are left in the dark, but it’s also bad for the Asylum Office staff, who have to respond to repeated requests for general information (which perhaps explains why certain contact information was removed from the website). My theory is this: If the website answered more questions, asylum seekers would be more informed, less stressed out, and less likely to contact the Asylum Office for help. This is what we in the business call a win-win.

So I’ve designed a new website for you. It’s attached below as a PDF. There are two parts–the Main Asylum Office Webpage and the Local Asylum Office Webpage. I’ve written it in outline format because I thought that would be easier to understand. Also, for the life of me, I can’t figure out how to make a flow chart (sad, as I was once fluent in Fortran).

The main page is designed to tell asylum seekers how to file, and to explain the process. It also provides links to help people find information they need, and answers some common questions. The local page provides specific information about a person’s local asylum office, including instructions for filing evidence, and information about expediting and short listing a case. If this information is available in multiple languages, that would also be a plus.

To be sure, my design, while quite lovely, is pretty basic and needs some work, but the main point is this–The Asylum Division should have a website that better serves asylum seekers. So, my friends at the Asylum Division, I proudly present you with your new Asylum Division Website Outline! I assume it will be up and running shortly.

You’re welcome, Jason

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The Irony and the Agony of a Government Shutdown

by Jason Dzubow

As you may have heard, parts of the federal government are closed for business. After two years of Republican inaction on “the wall,” somehow President Trump has decided that now is the time to shut the government down in an effort to “permanently fix the problem on the Southern Border.” Let’s look at the effect of the shutdown on immigration generally, and on asylum more particularly.

In immigration world, the biggest–and most ironic–effect of the shutdown has been to close most of the nation’s Immigration Courts. Courts that handle detained cases are still operating normally, but non-detained courts are closed. The irony is that shuttering the courts will have the effect of delaying the deportation of many aliens. On average (and based on current projections for FY2019), Immigration Judges will deport about 676 people per day. If we remove detained cases from the mix (very roughly speaking, detained cases make up about 13% of all Immigration Court cases), we can estimate that for each day the government is shut down, 588 people are spared from deportation. Given the long backlog in Immigration Court, most people with postponed cases will probably not return to court for another year or two, and so such people will be able to remain the U.S. far longer thanks to the shutdown.

$5,700,000,000 wall vs. $79 ladder.

Also from the Irony Department: The lapse in government funding means that Border Patrol agents–the very people who are supposed to guard our Southern border–will not be paid until the shutdown ends. As you can imagine, this is not great for morale. In addition, the E-Verify System, which allows employers to check whether a particular person is authorized to work, is down. If this “electronic wall” is not working, some “illegals” may be able to work. These results seems contrary to Mr. Trump’s stated goals of deporting more people and fixing the broken immigration system, but what else is new?

Of course, many asylum seekers will not be very happy about having their court cases delayed. Some have been waiting years for a decision, all the while separated from family members and living with great uncertainty. For such people and their families, the delay is heartbreaking.

To check on the status of the Immigration Courts, you can visit the EOIR website, which will indicate whether operations have resumed. If your court case is postponed due to the shutdown, the case will be rescheduled once the lapse in funding has been resolved. From EOIR:

Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

In other words, the Immigration Court will send you or your lawyer a written notice for the new hearing date. You can also check the Immigration Court hotline, which indicates when your next hearing is scheduled. The phone number is 800-898-7180. This is a computer system; not a person. When it answers, follow the instructions and, when prompted, enter your Alien number. The system will tell you your next hearing date. Unfortunately, the hotline will not be updated during the shutdown, but once the situation is resolved, you can check for your next appointment (whether cancelled Individual Hearing dates will be set for another Individual Hearing or a Master Calendar Hearing, we do not yet know).

What if you want to file documents, evidence or a change of address with the Immigration Court? Immigration Courts and the Board of Immigration Appeals (“BIA”) are accepting filings for detained cases. As I understand, most courts are also accepting filings for non-detained cases, but such filings will not be acted upon. The problem is that such filings may get lost in the avalanche of documents that the courts receive. This problem will be especially acute if the shutdown drags on for weeks or months. My advice: If you have a deadline, file your documents, but make sure to keep a copy for yourself and have evidence that you filed (if you can file in-person, the clerk will stamp your copy of the documents; if you file by mail, you should keep a copy of the certified mailing receipt). If you do not have a deadline or an emergency, it is probably better to wait until the shutdown ends before filing any documents with an Immigration Court or the BIA.

For asylum seekers and immigrants who do not have court cases, the shutdown is far less consequential. USCIS obtains its budget from “customer fees” (i.e., money you pay for your green card, work permit, etc.), and so the lapse in government funding is not an issue (there is currently no fee for asylum, but USCIS customer fees fund the Asylum Offices). As a result, the Asylum Offices, USCIS offices, and Application Support Centers (the place that takes your fingerprints) are all operating normally. While this is unlikely to change, there is no harm in double checking before you make the trek to your appointment. You can do that here.

One final question is, How long will the shutdown last? Of course, we do not know. The longest shutdown to date occurred during President Clinton’s term, and lasted 21 days. The current shutdown began on December 22, 2018, and so as of this writing, we are approaching Mr. Clinton’s (or more accurately, Newt Gingrich’s) record. The shutdown is inflicting much damage on our country, including to some immigrants and asylum seekers. Let’s hope that our leaders can bring an end to the impasse as soon as possible.

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Fees for Asylum? How About Premium Processing Instead?

by Jason Dzubow

According to recent reports, the Trump Administration is considering charging $50.00 to apply for asylum in the United States. If the purpose of this fee is to dissuade people from seeking asylum, it is a stupid and cruel idea, which may violate our treaty obligations. If the purpose is to raise money to help cover the costs of the asylum process, it is merely a stupid idea.

Here is what we know so far. The Trump Administration is working on a new regulation that would require applicants who are already residing in the United States to pay $50.00 to apply for asylum. “The fee would not apply to those who claim a fear of persecution at ports of entry or those who apply for the protections while in deportation proceedings.” “There would be no waiver of the fee for those who cannot afford to pay the $50.” Currently, of course, there is no fee to file for asylum.

Why is this idea so dumb?

If the fee is meant to deter people from filing for asylum, few will be dissuaded by such a low amount. The only applicants who would potentially be blocked by this fee are those who are particularly vulnerable, such as children. In most such cases, non-profit organizations would probably cover the costs, but this will be burdensome for the non-profits, many of which are already suffering from insufficient resources. So in practical terms, this fee would block few people from asylum, but it would create a further strain on organizations that assist asylum seekers.

Wait in line for asylum with the hoi polloi? Never!

To the extent that anyone is blocked from asylum by this new policy, the fee might violate our treaty obligations (not to mention our moral responsibility to people fleeing harm). For example, Article 25 of the Refugee Convention contemplates “exceptional treatment” for indigent asylum seekers, and so people blocked by the fee would have grounds for a suit against the federal government.

Also, the idea of charging a nominal fee to people fleeing harm is just plain cruel. Many asylum seekers have suffered past harm, and they are already fearful and traumatized. The legal changes and malicious rhetoric of the Trump Administration have already increased the stress level for these vulnerable people. A filing fee would be one more indicator of how unwelcome asylum applicants are.

In addition, asylum seekers often must wait for many months before they can obtain permission to work in the United States. Talk to most asylum seekers, and you will hear stories of great financial difficulty. Many have lost property and assets at home, and are living off their savings or the goodwill of family and friends. A filing fee under these circumstances is one more strain on people who are often in dire financial straits.

Finally, asylum seekers already pay plenty of fees. Although they do not pay directly for the asylum form, they often employ lawyers and experts, or have to pay for mailing and copying fees for their evidence, and for transportation to their interview. In addition, for people granted asylum, there is the fee for the green card (currently $1,225.00) and for U.S. citizenship ($725.00). Obtaining status in the United States is not cheap, and given that they have to pay for other steps in the process, asylum seekers are pulling their weight.

If the purpose of the fee is to offset the government’s costs, perhaps there is a better way. First of all, the $50.00 fee will do little to help the government. Given that the fee will only apply to certain affirmative asylum applicants, the amount of money generated will not be significant. Based on the current number of cases filed, a $50.00 fee would add less than $5 million to the government’s coffers per year. I have not been able to find recent data on USCIS’s budget, which is almost entirely funded by user fees, but in 2008, that budget was $2.6 billion. Presumably, it is more today. Even using the 2008 figure, $5 million represents less than 0.2% of the total.

If the government wants to make a profit from asylum seekers, maybe an alternative solution is to allow “premium processing” for asylum cases. Certain types of applications allow the alien to pay an additional fee (currently $1,410.00) to have their case processed more quickly. Some asylum seekers would probably be able to afford such a fee (remember, asylum seekers have made their own way to the U.S., usually by paying for transportation and sometimes by paying a smuggler). So perhaps there is room here to make a deal (I know how much President Trump loves a good deal).

I’ve previously spoken about this idea to the muckety-mucks at the Asylum Division (and I’ve written about it here as well). I think the main objection was optics–it looks bad to charge asylum seekers a fee, and it looks bad to allow asylum seekers with money to jump ahead of those without. I get that. But now we are in a new world. The government seems to be moving forward with fees for asylum seekers. If so, at least one of these objections is off the table.

As for the fairness argument (people with money should not be processed before people without money), in my opinion, that fails as well. Name one thing about asylum that is fair? The idea of fairness just doesn’t apply to asylum, so why apply it to premium processing? Earlier this year, we switched from FIFO to LIFO, so people who apply today are often interviewed before people who have been waiting for years. Is that fair? Asylum seekers with money hire fancy lawyers to help with their cases. This isn’t fair either. So for me, at least, the fairness argument falls flat.

This is especially so given that allowing “rich” asylum applicants to pay a fee would benefit everyone in the system. People who could pay the fee would benefit the most, and their cases would move the fastest. But the infusion of money into the system and the removal of “premium” cases from the queue would benefit everyone. Even those who do not pay should see their cases processed faster than they are moving today.

So instead of charging all applicants, including indigent applicants, $50.00 to file for asylum, let’s allow those who can afford it to pay for premium processing ($1,410.00 or some other fee that makes sense). This will offset costs for the government and benefit all asylum seekers.

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It’s Getting Harder to Win Asylum in Court, at Least for Some Applicants

by Jason Dzubow

The indefatigable folks at TRAC Immigration have issued a new report about our nation’s Immigration Courts, and the news is not encouraging: Overall asylum denial rates are the highest we’ve seen in almost two decades. As always with asylum numbers, things are not quite so simple, so let’s take a look at what’s going on.

Fiscal Year 2018 (which ended on September 30, 2018) was noteworthy for several reasons. First, the asylum denial rate reached 65%. This caps a six year trend of increasing denial rates and represents the highest rate of denial in 20 years (between 1986 and 1999, denial rates ranged from 68% to 89%). In some ways, the news from FY2018 is worse than the average denial rate indicates. If you look at TRAC’s month-to-month chart, you can see that denial rates spiked between June 2018 and the end of the fiscal year. Thus, in the last few months of the fiscal year, denial rates were pushing 70%.

Rejection rates also went up after each Immigration Judge received a fancy new “Denied” stamp.

A second way that FY2018 stands out is that Immigration Courts adjudicated more asylum cases than any prior year: 42,224. This figure represents significantly more decisions than FY2017 (30,253) or FY2016 (22,318). Indeed, this is the most asylum cases decided in any one year since at least 1986 (I could not find data older than that).

Despite the higher denial rates, there is a silver lining to the news from FY2018: In absolute terms, more asylum cases were granted in that year (14,200) than in any previous year (in FY2017, courts granted 11,591 cases, and in FY2016, they granted 9,714 cases). Of course, the only reason so many cases were granted is because courts are adjudicating record numbers of cases overall. But these days, we takes our good news where we gets it.

These figures raise an obvious question: Why are denial rates so high?

One factor that is (probably) not to blame is the availability of help from lawyers. For the first time since FY2013, representation rates are going up. When people are represented, they are statistically more likely to win their cases. For example, in FY2016, asylum seekers without lawyers were denied 90% of the time; those with lawyers were denied only 48% of the time. While I think this disparity exaggerates the benefit of lawyers (because people with weak cases are often less likely to have representation), it is still pretty clear that having an attorney increases the likelihood of a successful outcome. Given that more people are represented these days, the increased asylum denial rate is likely not caused by an absence of legal council.

A second reason that I suspect is not to blame are the new Immigration Judges hired since the Trump Administration came into office. Since January 2017, the Executive Office for Immigration Review has significantly expanded the number of IJs nationwide. Most likely, this accounts for the increased number of decisions, but we don’t yet have data on the “Trump” judges’ denial rates. My guess is that the statistics for these new IJs will not differ very much from their more senior colleagues. I could be wrong here, but at least in my experience, the new judges do not seem any tougher than the judges that we have been dealing with for years. Perhaps as they gather more data, TRAC will issue a report about this (and maybe I will be proved wrong – I will be curious to know the answer).

One likely candidate for the increased denial rate is the case Matter of A-B-, 27 I&N Dec. 316 (AG 2018), which was issued by then-Attorney General Jeff Sessions this past June. The decision made asylum more difficult for people fearing harm from non-state actors, in general, and for victims of domestic violence, in particular. After Matter of A-B- was issued, there was a corresponding uptick in asylum denial rates. Even before Matter of A-B-, however, asylum denial rates had increased since the end of the Obama Administration (and indeed, they have been increasing since 2012). This increase might reflect less significant developments in immigration case law, as well as the cultural shift that I imagine accompanies any new Administration (and especially an Administration so openly hostile to non-Americans).

When considering asylum denial rates, one important point about A-B- is that the case is limited in scope. Certain aliens–especially people fleeing domestic and gang violence in Central America and Mexico–will be disproportionately affected, but others will not be affected. Given that a large percentage of asylum cases involve Central Americans and Mexicans, a case like A-B- has a visible impact on overall denial rates, even though the impact of the decision is limited to certain types of cases. This means that while changes in the law have affected the denial rate, that effect is an “average,” and how a particular case is impacted depends on the facts of that case.

Another contributing factor to the higher denial rate may be that more long-term residents are coming into Immigration Court. This happens because the government is aggressively pursuing aliens without lawful status. It also happens because the Asylum Offices are identifying people who have been in the U.S. for more than 10 years, and trying to refer them to court.

Aliens who have been present in the United States for more than one year are often ineligible for asylum due to the one-year filing bar. There are exceptions to this rule, but it is generally more difficult for such people to win their asylum cases. Many people in this position file asylum as a last-ditch effort to remain in the United States. My guess is that as these long-term residents start to receive decisions, many will be denied, and this will contribute to the overall increased denial rate.

We’ll have to see whether the current trend continues. These days, government officials are looking for ways to make asylum more difficult, but they are limited by the law, and so it’s not clear how much higher the denial rate can go. When thinking about denial rates, it is important to remember that certain cases–Matter of A-B- cases, one-year bar cases–are probably driving the increase in denial rates. Other cases are less affected. Either way, the environment these days is not easy for any asylum seeker, and so it is more important than ever to gather evidence and present the strongest case possible.

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Deportation Can Mean Death, Even When the Judge Gets It Right

by Jason Dzubow

A recent article in the Washington Post discusses the case of Santos Chirino, a Honduran man who sought asylum in the United States after gang members threatened him for testifying against one of their own. Immigration Judge Thomas Snow found that Mr. Chirino did not qualify for asylum or other relief, and ordered him deported. Eight months after he returned home, Mr. Chirino was shot dead at a soccer match.

Mr. Chirino’s is a sad and sympathetic case. But the fact is, his story tells us nothing about whether Judge Snow made the wrong decision. In fact, our asylum system is designed so that a certain percentage of those properly ordered deported will be harmed or killed in their home countries. Let me explain.

To win asylum, an applicant must demonstrate that he faces at least a 10% chance of “persecution” (serious harm or death) in the home country (this statement is a simplification, but for our purposes, it works just fine). Mathematically speaking, applicants who demonstrate a 9% chance of harm should be deported. If 100 such individuals are deported, we would expect nine of them to be persecuted upon their return.

Predicting is difficult; especially when it’s about the future.

As a conservative and cautious person, I do not like these odds. If you tell me that my airplane has a 9% of crashing, there’s no way in hell I’m getting on board. I’ll take the bus, thank you very much.

The situation is even more grim for people–such as Mr. Chirino–who do not qualify for asylum, but who still fear harm. Some people are ineligible for asylum because they committed crimes; others, like Mr. Chirino, are barred because they failed to file within one year of arriving in the U.S. and failed to meet an exception to that rule; still others are blocked because the harm they face is not “on account of” a protected ground (race, religion, nationality, particular social group or political opinion). Such people can apply for other, lesser, forms of relief: Withholding of Removal and relief under the United Nations Convention Against Torture (“CAT”). But to qualify for protection under these laws, an applicant must demonstrate that she will “more likely than not” suffer persecution or torture in the home country. In other words, that the likelihood of harm is greater than 50%.

This means that under our system, applicants for Withholding or CAT who demonstrate a 49% chance of being persecuted or tortured should properly be deported. Again, if 100 such people are deported, we can expect 49 of them to be harmed. This is not very comforting for asylum applicants or their families, or for people like Judge Snow who work in the system and are tasked with enforcing the law.

There’s another side to this coin, however. That’s the case where the adjudicator grants relief, and then the person commits a bad act inside the United States. Fortunately, such cases are rare, and it has been pretty-well demonstrated that immigration to the United States has a neutral or positive effect on crime rates (this makes sense given the strict vetting process for immigrants). But there are glaring exceptions, and these tend to get significant attention. One recent case involved a Salvadoran teen accused by DHS of membership in MS-13. Last summer, an Immigration Judge found the evidence against him insufficient and ordered him released from custody. A month later, he helped commit a brutal murder. Once again, the Immigration Judge may have made the “right” decision, but the end result was tragic.

So in a sense, Immigration Judges are caught between the Charybdis of granting relief and the Scylla of denying. But to me, that is not really their problem. We live in an imperfect world, and we have an imperfect asylum system. Judges operate within that system and hopefully follow the law to the best of their ability. If a particular asylum seeker has demonstrated a 9% chance of harm, the judge should deport that person. That is the law, and if we don’t like the law, we should try to change it.

In Mr. Chirino’s case, the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case would have been evaluated under an easier standard, and he might have been granted relief. Again, this is a problem with the law, not the judge, and it is up to us to change laws that we do not like.

Several years ago, I was speaking with Judge Snow, who I consider one of the best and most thoughtful judges I know. I was thinking about applying to be an Immigration Judge, and I asked him how he handles hard cases, those where his sympathies lie with the applicant, but where relief was legally unavailable. He told me that in such cases, he does his best to follow the law, even when it is difficult. That is a judge’s duty, and I have little doubt that that is what Judge Snow did in the case of Santos Chirino.

I suppose all this goes to show that what works for “the system” does not necessarily work for the individual. One could argue that Mr. Chirino was an innocent martyr of our asylum system. He and many others have died or been persecuted so that our humanitarian immigration system might exist. It is important for all of us to be aware of these sacrifices, and to work towards a more perfect and just system.

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Two Words I Never Thought I’d See Next to Each Other: BACKLOG SHRINKS!

by Jason Dzubow

It’s the season of miracles. One day’s worth of oil burns for eight days. A child is born to a virgin mother. The Eagles will return to the Super Bowl. OK, that last one is probably a bridge too far, but I know miracles happen because the asylum backlog is shrinking. Yes, shrinking.

As usual in asylum world, the news is not quite so straightforward, but let’s look at the newest data from the Asylum Division and try to break down what’s happening. The most recent report covers the months of July, August, and September 2018. The number of asylum cases pending in the United States is shown in the chart below:

July 2018 320,663
August 2018 320,314
September 2018 319,202

So between July and September 2018, the backlog shrank by 1,461 cases, or about 0.5%. Prior to July, the backlog was still increasing, though for a few months growth had been pretty flat. This means that more cases are being completed than are being filed.

Breaking News: Drop of water removed from ocean!

The first question is, Why is this happening? Looking at the data, it seems that the main reasons are that the number of new cases being filed is down and the number of cases being interviewed is up. Between July and September 2018, there were 23,257 new asylum cases filed. For the same period in 2017, there were 30,804 new cases filed. This represents a decrease of nearly 25%. Also, between July and September 2018, the Asylum Offices conducted 19,573 interviews. For this period in 2017, they conducted 15,405 interviews. Thus, the number of cases interviewed has increased by about 27%. The total number of cases completed during this time frame has also increased, from 16,852 in 2017 to 24,695 in 2018, an increase of almost 47%.

Why have the number of new cases gone down? The most obvious answer is that fewer people are able to get to the United States. Between the “Muslim ban,” the generally hostile attitude towards foreigners, and the Trump Administration’s machinations at the border, it is more difficult for people to come to our country. For example, in September 2017, the State Department issued 652,035 non-immigrant visas worldwide. During September 2018, the State Department issued 620,158 visas, which represents about a 5% decrease. However, for countries that “send” us asylum seekers, the drop appears much more dramatic. Take Venezuela, the top source country for asylum seekers. The number of B visas issued for Venezuelans dropped from 1,861 in September 2017 to 1,060 in September 2018, a drop of 43%. If fewer people are coming here, especially from troubled countries, it stands to reason that we will see fewer asylum applications.

Also, the Trump Administration has made its attitude towards non-Americans quite clear. It has also ginned up hostility and anger more generally. In a case of cutting off the nose to spite the face, I suppose making our country a less attractive place to live means that fewer people will want to come here.

Why have the number of interviews gone up? One explanation is that fewer Asylum Division resources are being deployed to the border, and so this is freeing up officers to interview affirmative asylum applicants.

Anyone who arrives at the border (or an airport) and who states that they need protection should receive a Credible Fear Interview (an initial evaluations of asylum eligibility). These interviews are conducted by Asylum Officers. When the officers are doing CFIs, they are not working on “regular” asylum cases. The large number of CFIs is widely believed to have led to the backlog. However, here we run into an anomaly. In FY2017, Asylum Officers issued 79,710 CFI decisions. In FY2018, they issued 97,728 decisions, an increase of nearly 23%. Somehow, despite a significant increase in CFIs, the Asylum Division managed to process more affirmative cases.

My guess is that this “anomaly” is the result of increased people power. The Asylum Division has hired large numbers of Officers who deal exclusively with CFIs. Many of these Officers perform interviews remotely (there is an office in Arlington, Virginia dedicated to CFIs). So perhaps this explains how the Asylum Division was able to make progress on  affirmative cases while still processing large numbers of CFIs.

Aside from hiring more Officers, the Asylum Division has tried to increase productivity by identifying cases that have been filed more than 10 years after the applicant arrived in the United States, and to offer those applicants an opportunity to skip the interview and go directly to Immigration Court. Some applicants have filed asylum primarily as a vehicle to get into court, where they will seek other relief (usually Cancellation of Removal). However, the impact of this plan seems fairly marginal. The number of cases referred to court without an interview during the three-month period was 1,275 in 2017 and 1,680 in 2018. The total number of cases referred to Immigration Court based on a filing deadline referral (i.e., the applicant missed the one-year asylum-filing deadline, failed to demonstrate an exception to the rule, and probably received a truncated interview) was 5,138 in 2017 and 6,684 in 2018. Also, the number of “no shows” increased from 2,072 in 2017 to 3,040 in 2018. Collectively, all this probably made a modest contribution to increased productivity.

All this leads to the final, and probably most important question: How will all this affect people who are stuck in the backlog? I think the answer here is, It depends.

First and most obviously, it depends on whether this trend continues. I think there is good reason to believe that the trend will continue. Between the Trump Administration’s efforts to block people from coming to the U.S. and the Asylum Division’s seeming ability to simultaneously process CFIs and affirmative cases, I expect we will see continued progress on the backlog.

Second, it depends on which particular Asylum Office we are talking about. Some offices are dealing with their backlogs better than others. For example, in September 2018, some offices completed more cases than they received (Chicago, Los Angeles, Newark, and New York). Other offices received more cases than they completed (Arlington, Boston, Houston, Miami, New Orleans, and San Francisco). This changes month-to-month, and so it is difficult to guess how a particular case will ultimately fare, but you can see the data for yourself and make your own predictions.

Of course, all this can change quickly, depending on the state of the world, our government’s policies, and the ability of the Asylum Division to keep pace with new cases. But for now at least, the backlog is shrinking. For those stuck waiting, I suppose that is a rare bit of good news.

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Of Caravans and Consequences

by Jason Dzubow

As thousands of asylum seekers approach the Southern border in “caravans,” the Trump Administration is reacting harshly. Border Patrol Agents fired tear gas at men, women, and children. The crossing at San Ysidro has been closed, resulting in significant economic losses in San Diego (businesses on the U.S. side earn between $10 and $15 million per day from Mexican consumers). And U.S. immigration authorities are essentially denying migrants’ right to apply for asylum by insisting that they can process only 60 to 100 cases per day.

DHS Secretary Kirstjen Nielsen writes that the “caravan… entered Mexico violently and attacked border police in two other countries.” She states that the caravan is well organized and includes more than 8,500 individuals, with more on the way. Most of the migrants are men, she writes, and the “limited number of women and children in the caravan are being used by the organizers as ‘human shields’ when they confront law enforcement.” Secretary Nielsen claims that, “we have confirmed that there are over 600 convicted criminals traveling with the caravan flow.” How this has been “confirmed,” she dos not say. Secretary Nielsen also states that most migrants are coming here for jobs or to reunite with family members, and notes that, “Historically, less than 10% of those who claim asylum from Guatemala, Honduras, and El Salvador are found eligible by a federal judge.”

I hear that the U.S. Border Patrol is recruiting new agents in the Andaman Islands.

Others who have witnessed the migration paint a somewhat different picture. For example, a photojournalist who traveled with the caravan in Mexico estimates that 25 to 30 percent of the migrants are families with children. Other members of the group are elderly. “Though many were fatigued and battered by the experience,” he writes, “they often expressed a good deal of hope for what awaited them at the border.” Another journalist who interviewed migrants found that the people he spoke to were fleeing violence in their home country.

So there is disagreement over who the migrants are, and why they are coming here. But what are the legal, policy, and political implications of the caravan?

First, anyone who arrives at a U.S. border is entitled to apply for asylum. The law on this point is pretty clear–

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section….

The Trump Administration wants asylum seekers to wait outside the U.S. while their cases are decided. Whether this is lawful is not so clear. The law seems silent on this point, though the Attorney General has the authority to “establish a procedure for the consideration of asylum applications.” Arguably this would include where the applicants must wait while their cases are adjudicated. My guess is that this “wait in Mexico” policy–like most of the Administration’s other policies–will be subject to a court challenge.

There are also practical and policy implications for how we deal with the caravan. The Trump Administration claims that it only has the capacity to process 60 to 100 cases per day. This, I don’t believe. Statistics from the Asylum Division show that in FY 2018, Asylum Officers conducted an average of 253 credible and reasonable fear interviews per day (assuming the Officers are working 365 days per year), and in the busiest month (June 2018), they conducted an average of 318 interviews per day (again, working every day). Admittedly, these figures are for all parts of the country, but they illustrate the government’s capacity to deal with a crisis if it chooses to.

At the present rate, the government will need 3 to 5 months to screen the current group of people waiting at the San Ysidro crossing (assuming that no more asylum seekers arrive there). Whether Mexico has the will, ability or legal obligation to accommodate large numbers of people waiting for asylum in the U.S., I do not know. Rumors of an agreement between the Trump Administration and the incoming Mexican President are still unconfirmed, but even if Mexico agrees to host the migrants, it is unclear whether they can deal with so many people.

The legal effect of the long wait is clear: Some asylum seekers will be denied their right to seek asylum in the U.S. The practical effects are also pretty obvious. The Mexican side of the border is unsafe and economically weak. The migrants will have a hard time remaining there while they wait for decisions. Imposing cruel conditions on people fleeing persecution seems an inhumane way to deter people from exercising their legal right to seek asylum, but that has been the modus operandi of the current Administration.

I imagine there will also be political and economic consequences for our country if large numbers of Central Americans get stuck on the Mexican side of the border. Besides straining relations with Mexico, we set a bad example. If the U.S. rejects these relatively few refugees, will other countries follow our lead and deny protection to people fleeing persecution? Will they use violence to keep refugees out? The implications for international humanitarian law are potentially dire.

While I am no fan of the Trump Administration’s border policies (or most of its other policies), it is not enough to criticize without offering an alternative. That is easier said than done. Compared to migrations in the past, the current numbers are relatively modest. Indeed, the overall number of illegal entrants for 2017 is significantly down from peak periods in 2014 (for Central Americans – down 41%) and 2007 (for Mexicans – down 80%). Nevertheless, our country’s tolerance for immigration seems lower, and something needs to be done.

One idea (possibly DOA from a political standpoint) is to make the argument that screening and admitting asylum seekers is good for us. First, helping people who are fleeing harm is the right thing to do. Also, asylum seekers are less likely to commit crimes than the average American, they tend to use fewer public benefits, and they are a net economic gain for our country. Certainly, we should be working to convince the general public that a more liberal immigration policy would be beneficial.

But in examining policies solutions, we need to keep in mind that most Central American asylum seekers will not qualify for protection. This is not because their countries are safe. Rather, it is because the type of harm most Central Americans face does not easily fit within the legal framework of asylum (also, many such applicants lack legal representation and cannot properly present their cases). Unless this changes, it makes sense to process the cases as quickly and fairly as possible, and to return those who do not qualify for protection.

Also, we need to decide where and how people will wait for their decisions. How many asylum seekers abscond rather than appear for hearings? Are some types of migrants (families, for example) less likely to abscond than others? Do we need detention or “wait in Mexico” at all? If so, do alternatives to detention (such as ankle bracelets) work? How can large numbers of refugees be kept safely for a period of months? These are not easy questions to answer, but the answers are knowable and I have little doubt that we can manage the border humanely and honorably, if we so choose.

In the wake of Democratic successes in the 2018 election, politicians may conclude that they have more to gain by working towards immigration reform than by using immigrants as boogeymen to rally voters. But compromise is not easy. It requires that we all do something that is not very American: Accepting less than everything we wanted. I doubt that any reform would give us the immigration system that I envision, but I still feel hopeful that we could end up with something better for our country–and better for immigrants and asylum seekers–than we have now.

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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.

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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.

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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.

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