Ten Things I Hate About You-SCIS

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A Beautiful Application Is a Successful Application

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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Mandamus for the Rest of Us

by Jason Dzubow

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

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

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

What can be done about this?

David Cleveland, pictured here listening to the Kinks.

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

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

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

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

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

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

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

Is a three-year delay unreasonable?

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

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

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

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

What happens after a complaint is filed in federal court?

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

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

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

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

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

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Proposed DHS Rule Seeks to Exclude Poor Immigrants

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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An Open Letter to the “Complicit” Asylum Officer

by Jason Dzubow

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

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

Asylum Officers review the latest Trump Administration policy memo.

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

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

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

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

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

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

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

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

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

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

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

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

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

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Applying for a Green Card Overseas While Asylum Is Pending

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Stephen Miller Is Not a Hypocrite

by Jason Dzubow

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

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

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

Can you guess which one is Stephen Miller?

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

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

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

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

Why does any of this matter?

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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When the Counter-Terrorism Unit Comes Calling

by Jason Dzubow

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

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

Ruth Dickey, immigration attorney extraordinaire.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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How Can I Help?

by Jason Dzubow

Being an immigration attorney at a time when immigrants are under assault means that people often ask me what they can do to help.

Frankly, I am usually at a loss about how to answer this question. There are many ways to help, depending on what you mean by “help” and where your interests and abilities lie. The problem is, there is no magic bullet to solve our current difficulties. But there are things that people can do, both on the individual level and the collective level. I will discuss a few of those ideas here.

“I would have gotten away with deporting them all if it weren’t for you meddling kids.”

Volunteer with a Non-Profit: There are plenty of non-profit organizations that assist refugees, asylum seekers, and immigrants, and they need plenty of help. Such organizations can be found throughout the U.S. (here is a link to a list of organizations in each state), and they provide all sorts of opportunities to volunteer: Teach English or other skills, spend time assisting organizations or individual immigrants, help with job searches, resumes or job counseling. People with specialized skills can provide specialized assistance. For example, those lucky enough to be lawyers (gag!) can take a case pro bono, or—for a less burdensome commitment—attend a group event where you assist with immigration forms. Some asylum seekers need forensic medical exams or psychological reports for their cases, and could use expert assistance. Others need mental health therapy, or assistance navigating the DMV, Social Security Office or school or university bureaucracies. Still others need help with housing or public benefits. Many people who are new to our country are lost, and someone familiar with “the system” can provide invaluable guidance.

Also, many faith-based institutions, such as churches, mosques, and synagogues, have programs to assist non-citizens. My synagogue, for example, has helped refugee families from Syria and Afghanistan to resettle in the Washington, DC area. Synagogue volunteers assist with babysitting and setting up the new apartments. Some religious institutions are involved in the sanctuary movement, offering living space to non-citizens in an effort to shield them from deportation (ICE has thus far declined to enter churches to detain people). Perhaps you could encourage your church or mosque to consider joining this movement.

Get Involved Politically: There are numerous opportunities here too, and not just at the federal level. A lot has been happening at the local and state levels (where it is often easier to have an effect). One group that supports pro-immigrant candidates is Immigrants List. A group that assists with impact litigation and public awareness is the American Immigration Council. Many local non-profits are also involved in advocacy for immigrants. You can find such groups here.

Reaching out to politicians can have an impact as well. During the Obama Administration, opponents of immigration famously mailed hundreds of bricks to Congress. This was a not-so-subtle message to “build a wall.” If the other side can advocate effectively, we can too. Congress needs to know that many Americans support our humanitarian immigration system. Unless we reach out to them, our representatives will only hear half the story. You can contacting your Senators here, and your Representatives here. You can find links to the different state legislatures here. You don’t have to be a U.S. citizen to contact your representative. Anyone can do it.

Contact the Media: There are many misconceptions about asylum seekers and refugees in the news. If you see an article or program that misrepresents such people, you can contact the journalists and let them know (contact info is often available on the journalist’s website). I think it is especially powerful for refugees themselves to engage in such advocacy. It’s very difficult for stereotypes to survive in the face of individual truths, and so when asylum seekers and refugees tell their stories, it can be quite influential. Also, if you ask in advance, journalists will usually agree to keep identity information confidential, so you can talk to them without fear that your personal information will be made public.

Take to the Streets: I’m of two minds about public protests. Sometimes, I think they are useless; other times, I think they are transformative. Of course, there are all sorts of protests from mass rallies to performance-art type events (and there was also our very own Refugee Ball back in January 2017). Such events can be inspiring and energizing for the people involved. They can also help coalesce disparate people into a unified group. Such events also send a message—to politicians and to the American public.

Hire an Immigrant: The government is making it easier to discriminate against non-citizens. And in any case, it’s never been easy to get a job when you’re new to America. So if you have the ability to employ someone, why not consider an immigrant?

What if the intended employee does not have work authorization? Some people–such as people with asylum–are eligible to work even without the employment authorization document (the EAD card). It is obviously not legal to employ someone who is not authorized to work, but for many asylum seekers, who often wait months for their EAD, the only way to survive is to work without permission. Such people are frequently mistreated by employers. Hiring such a person comes with a risk to the employer as well as to the employee, and as a lawyer, I can’t advocate for breaking the law. However, at least in my opinion, employing such people, paying them fairly, and treating them decently is an act of resistance against an immoral system.

Talk to People Who Disagree with You: Advocates for immigrants have failed to convince the American public about the rightness of our cause, or at least we have failed to convince enough of them to win a presidential election. Rather than talking at people who disagree with us (as we often see on social media and left-leaning news outlets), we should be talking with such people. Speaking respectfully with people, listening empathetically and asking questions, and explaining a pro-immigrant view will not win everyone over to our side. But it might win over some. And even if we talk to people who disagree with us, and they are not swayed, a respectful conversation can help open doors later on. Anti-immigrant views seem to thrive in our current divisive environment. Perhaps if we work to tone things down and help move our country towards a more rational debate, it will also help immigrants. This needs to be done in big ways, but it also needs to be done in small ways, one conversation at a time. If you want to educate yourself about immigration issues, a good (pro-immigrant) source is the American Immigration Lawyers Association, which has policy statements on various issues.

So those are some ideas. Like I said, there is no magic solution for our current situation. But by supporting immigrants, in big ways and small, it is possible for each one of us to make a difference.

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Does Anybody Really Know What Time It Is? Not If You’re Using the Asylum Clock (+ Some Other EAD Updates)

by Jason Dzubow

If you’re reading this blog, and presumably you are, you probably already know about the “Asylum Clock.” The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (“EAD”). The Clock “stops” if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.

The official Asylum Clock, kept in a secure vault at DHS.

First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications–people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.

To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The “Asylum Clock” counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it’s often been a mess.

EOIR–the Executive Office for Immigration Review–has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other–unspecified–delays can also cause the Clock to stop in the Asylum Office or in Court.

Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.

Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop–that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office–

Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicant’s case.

Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office’s point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.

Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.

Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General”). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.

Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.

So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.

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An Update on LIFO and the Asylum Backlog (or, The Fix that Wasn’t)

by Jason Dzubow

On January 29, 2018, the Asylum Division changed the way it prioritizes cases. Since 2015, asylum applicants were being interviewed in the order that their cases were filed. Oldest cases first, followed by newer cases (“first in, first out” or FIFO). During this period, the number of people waiting for an interview—the backlog—grew and grew.

Now, under the new system, cases are interviewed on a “last in, first out” basis or LIFO. This is basically the same system we had prior to 2015. The backlog began under the pre-2015 LIFO because the Asylum Offices did not have the people-power to interview everyone who applied for asylum. The result: Some cases were interviewed, while others “disappeared” into the backlog. Because this was unfair to “disappeared” applicants, the Asylum Division eventually switched to FIFO, which had the virtue of being more fair, but did nothing to ameliorate the backlog.

Most experts believe the backlog will be resolved by the late 25th century. Biddi biddi biddi.

Under the Trump Administration, what’s old is new again, and so we are back to LIFO. How is LIFO working out? Some new data from USCIS gives us an idea. The short answer, if you don’t have time to read this whole post, is that the backlog is not about to be resolved any time soon. So if you are currently stuck waiting for an asylum interview, you might want to get comfortable, as you’ll probably be waiting for a while (or you can try to expedite your case). If you have time to keep reading, let’s look at where we are, and how you can best navigate through LIFO-land.

First, as of March 31, 2018, there were 318,624 asylum applications pending in the backlog. That’s “applications” not “applicants.” Since some applications include multiple family members, the number of people stuck in the affirmative asylum backlog is probably quite a bit higher than 318,624.

In response to the backlog, the Asylum Division has taken several actions. For years now, they’ve been staffing up. According to a recent report from the USCIS Ombudsman, since FY 2016, the number of Asylum Officers has increased from 533 to 686 (and they continue to hire – if you want to sign up, check out this job posting). Since we’ve dramatically reduced the number of refugees coming to the U.S., Refugee Officers have more free time, and so they are being rotated through the Asylum Offices on 12-week stints. We are also expecting a new National Vetting Center (in 2019 or 2020) that will deal with security checks and fraud issues, in order to free up more time for Asylum Officers to do their work. All these changes should allow the Asylum Offices to process more cases.

We also now have LIFO. Under this system, the Asylum Offices prioritize cases as follows: First priority are rescheduled interviews, whether the interview was rescheduled by the Asylum Office or the applicant. Second priority are asylum applications that have been pending less than 21 days. This does not mean you will receive an interview within 21 days of filing. Rather, cases less than 21 days old will receive priority to be scheduled for an interview. Third priority are all other affirmative cases, including the 318,624 currently in the backlog.

According to the Ombudsman’s report, not all new cases will receive priority for an interview:

Cases subject to interviews at “circuit ride” locations (generally a USCIS field office situated closer than the asylum office to an applicant’s residence) will not fall under the 21-day time frame. Rather, the Asylum Division will schedule these cases for interviews as resources permits.

This means that if you want a quick interview, you have to live in a location that is covered by one of the main offices or a sub-office (Arlington, Boston, Chicago, Houston, Los Angeles, Miami, Newark, New York, New Orleans or San Francisco), as opposed to a “circuit ride” location, which is a USCIS field office that is visited periodically by Asylum Officers (there are many, but some examples are Atlanta, Buffalo, and Seattle). I do not know of an on-line listing of areas covered by circuit ride locations, but I suppose you can email your Asylum Office to ask. If you live in a circuit-ride area, you can ask to be interviewed in a main office–sometimes they accommodate such requests.

Assuming you file at one of the main or sub-offices, the likelihood of actually receiving an interview (as opposed to disappearing into the backlog) varies by office. The chart below is based on very preliminary data from the Asylum Division. It shows the (very approximate) likelihood of having your case interviewed in each office.

In the chart, “New Cases Filed” is the number of asylum cases filed in that particular office for March 2018. “Interviews” is the number of interviews actually conducted in March 2018 (as opposed to the number of interviews scheduled and then canceled, which is quite a bit higher). The percentage figure is the rough likelihood that an applicant in that particular office would have received an interview in March 2018. And the “Completed” column shows how many cases were completed during the month, which—when compared to the number of cases filed—gives an idea of how much the backlog grew or shrunk in that office for March 2018 (the +/- in the Completed column).

 

Office New Cases Filed Interviews Completed
Arlington 920 494 / 54% 408 / +512
Boston 289 132 / 46% 178 / +111
Chicago 550 675 / 100% 550 / +0
Houston 751 583 / 78% 504 / +247
Los Angeles 997 708 / 71% 1,243 / -246
Miami 2,219 798 / 36% 920 / +1,299
Newark 668 792 / 100% 865 / -197
New York 802 690 / 86% 883 / -81
New Orleans 206 166 / 81% 280 / -74
San Francisco 653 529 / 81% 687 / -34

 

There are some caveats to this chart. First, I compare new cases filed with cases interviewed to determine the likelihood that you will receive an interview in that particular office. This is an apples/oranges comparison since we don’t know how many of the interviews were newly filed cases, as opposed to rescheduled interviews or expedites. Worse, the cases interviewed were probably filed in January or February, since it takes some time to actually schedule the interview. This makes the comparison even less reliable. Second, this data is for only one month, and March was probably not a “normal” month, in that the system was still adjusting to the change from FIFO to LIFO. So how useful this chart is for predicting the likelihood of an interview going forward, I do not know. Finally, this chart was prepared by me. Using math. Since I’m no Ramanujan, you should take all this with a big grain of salt.

That said, this is the best data we have, and maybe we can draw some tentative conclusions. For one, the backlog is generally growing, not shrinking. However, this varies by office. If your case is stuck in an office where the backlog is growing, it is unlikely that you will get an interview any time soon. If you are in an office where the backlog is shrinking, maybe you will eventually receive an interview. Also, if you are a new applicant and you want an interview quickly, you may be better off filing in Chicago or Newark, since they seem to be interviewing pending cases faster than they are receiving new cases (conversely, if you want a slower interview schedule, you are better off living in an area covered by a circuit ride location or an office where the backlog is growing). Again, all this is quite preliminary, and we will have to see how things progress when they release the next batch of data in a few months.

Another bit of information we can glean from the Ombudsman report is that local asylum offices “report a 25 percent drop in affirmative receipts in the immediate aftermath of the change to LIFO scheduling.” The implication/hope is that the new LIFO system is deterring people from filing frivolous asylum claims. I think there is another, more likely explanation, however. In my office, for example, when the Asylum Division switched from FIFO to LIFO, we stopped filing cases for a few months in order to adjust how we filed (under FIFO, we filed a bare-bones application, consisting of the I-589 form and the passport; under LIFO, we file a complete case, which takes much longer to prepare). My guess is that once people adjust to LIFO, there will be little change in the number of cases being filed (of course, since fewer aliens are coming to the U.S. these days, we can expect fewer asylum applications for that reason).

One final piece of news is a pilot program to refer one-year bar cases directly to the Immigration Court without an interview. The Asylum Division has identified up to 50,000 pending cases where the applicant entered the U.S. more than 10 years before filing for asylum. Such people may have filed for asylum in order to be referred to Court, where they will seek other relief (most notably, Cancellation of Removal). So far, the Asylum Division has contacted about 1,500 such people, and given them the option to skip the interview and go directly to Court. Depending on the case, and the person’s goals, this may be an attractive option for some, though I suspect anyone with a real fear of returning to the home country will prefer to have an asylum interview.

So there you have it. It is probably too soon to draw any firm conclusions from the data at hand, but based on what we know so far, it seems likely that the backlog will be with us for the long term. Keeping informed about the Asylum Office’s statistics and policies may allow some applicants to increase their chance for an interview. As more data becomes available, I will try to post that information here.

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Immigration Judges and Asylum Officers Protect Us All

by Jason Dzubow

I’ve never been a big fan of the Martin Niemöller poem about the Nazi era, “First they came…” You know the one:

First they came for the Socialists, and I did not speak out – Because I was not a Socialist,
Then they came for the Jews, and I did not speak out – Because I was not a Jew,
…yadda, yadda, yadda…
Then they came for me – And there was no one left to speak for me.

I have two complaints about this poem. First, it implies that the main reason to “speak out” on behalf of others is self-interest: If I don’t help others, no one will help me. That seems a weak foundation for a system of moral behavior. Second, I don’t think Pastor Niemöller’s basic point—that eventually a malicious government will come for everyone—is convincing to the people who need convincing. Nazi supporters certainly did not think that their government would turn against them. And the fact is, Hitler did not persecute most of the people who stood by his side (he caused them great misery, but that is another story).

Due Process of Law…

Fast forward to our own time, and President Trump’s attacks on non-citizens. Last month, the President announced his opposition to due process of law for asylum seekers: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote on Twitter. And a series of new legal, policy, and personnel changes represent clear moves in the direction of weakening due process protections for non-citizens, and making it easier to deny cases—including asylum cases—without a full review of the applicant’s claim.

Why should we be so concerned about due process, you ask? For one thing, due process is a foundational principle of our democracy (and its origins go all the way back to the Magna Charta). The Founding Fathers were rightly concerned about the exercise of government power against individuals. Due process provides a procedural check on that power—the government’s authority cannot be unleashed in a criminal, civil or immigration case without first ensuring that the use of that power is lawful. In the case of non-citizens, the Immigration and Nationality Act (“INA”) provides certain legal rights to non-citizens, including the right to apply for asylum. The Supreme Court has recognized—repeatedly—that aliens are entitled to due process of law before they can be deported.

What does due process look like in the immigration context? The protections afforded to non-citizens vary, depending on many factors, including the type of case, the relief sought, and whether the alien is inside the U.S. or seeking admission at the border. In the asylum context, an alien who is physically present in the United States or at a border has the right to seek asylum. That is the law (specifically INA §208). In most cases, asylum seekers are entitled to a full hearing to evaluate their claims. However, the Trump Administration has been working hard to eliminate due process protections, and reduce the system’s safeguards (for a sobering analysis of the Trump Administration’s degradation of due process for non-citizens, check out this article by the brilliant Jeffrey S. Chase). But thus far, the Trump Administration has not changed the immigration law—that requires an act of Congress.

Assuming that Congress does not act (usually a safe assumption), some measure of due process will remain for all asylum seekers—even those at the border. But of course, reducing due process means increasing the likelihood that legitimate claims will be denied, and that some aliens will be returned to face harm.

Dupe Process of Law.

All this brings us back to Pastor Neimöller. I have little hope that President Trump’s supporters or Republicans in Congress will have a sudden change of heart, or recognize that when due process protections are reduced for some, those protections are reduced for us all. They seem to believe that while the government might come for non-citizens, it will not come for them. Or in the case of our elected officials, they may know better, but are cowed by the President’s Twitter account. Either way, we can’t expect much help here.

So where does that leave us? Who will speak out?

The primary decision-makers in asylum cases—the people on the front line—are Immigration Judges and Asylum Officers. There are other players, of course: The federal courts, the Board of Immigration Appeals, and USCIS Officers, but in most cases, it will be the IJs and Asylum Officers who determine the applicant’s fate. Here, I do have hope. Despite seeming efforts (probably illegal) by the Justice Department to exclude politically undesirable candidates, most IJs and Asylum Officers are serious people who recognize their duty to the rule of law. They were not hired to rubber stamp the President’s agenda, and most will not do so.

And while I can’t say I am a fan of Pastor Neimöller’s famous quote, I do think he is correct in this sense: When we weaken the legal mechanisms and institutions that protect us from excessive government power, we all become more vulnerable. Perhaps non-citizens are the canaries in the coal mine. As the government seeks to reduce due process protections for them, we should all be concerned. Immigration Judges and Asylum Officers stand on the front line of this fight, and when they do their duty, they protect us all.

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A Note to Readers

by Jason Dzubow

I originally began the Asylumist for several reasons: I wanted to diversify and grow my law practice; I needed an outlet to complain about the asylum system (we lawyers love to complain), and I hoped the blog would serve as a forum to discuss asylum and related issues. After 8+ years, it’s time to take stock.

When I started the Asylumist in 2010, there were already plenty of blogs related to immigration (there still are), but there was no other blog that focused on asylum (there still isn’t, as far as I know). My main interest as an attorney has always been asylum, and so I felt a blog on the subject would be a good way to grow my business in that direction. Back then, I didn’t really know what a blog was. I viewed it as the equivalent of standing on a milk crate in the town square and yelling over and over, “I’m an expert!” Eventually, I figured, people would look at me and say, “That’s the expert.”

“I’m ba-aaack!”

In a sense, I was right. To the extent that I am known professionally, people view me as an expert on asylum, and that has helped to diversify my practice. In 2010, the majority of my asylum clients came from Ethiopia, Eritrea, and Afghanistan. These days, my clients come from all over (though perhaps this is more a testament to the sorry state of the world than anything else).

From a purely business perspective, however, I cannot say that the Asylumist has been a great success. First of all, no businessperson with any sense would consider asylum law as a profession. It simply isn’t that lucrative, especially when compared to other legal specialties. And so attracting more asylum clients is not necessarily a path to Easy Street. Also, the amount of time invested in managing a blog, at least my blog, is not even remotely commensurate with the business generated. I’d probably be better off handing out flyers in the subway.

But of course, none of the asylum lawyers I know went into human rights law for the money (except for the terrible ones). We practice asylum law because we believe it helps people. It is interesting. The clients are generally wonderful, intelligent, and accomplished people. Some of us view our work as an extension of our moral or religious values. So while it is not particularly remunerative, there are plenty of rewards for people practicing asylum law.

And in that sense, I think the Asylumist has been successful. It has allowed me to be part of the conversation on asylum. It has also allowed me–and others–to air our complaints about the system. In short, I am lucky to have had the opportunity to work on this blog, and I feel I have gained professionally and personally from the time invested here. I hope it has also been useful to the readers.

With all that said, I just wanted to note some changes that have been made and that are coming. The platform I had been using for the last eight years had become obsolete, and so it was necessary to change the format of the website. I should have made these changes years ago, but I am good at procrastination and bad at change. Anyway, better late than never. Implementing the updates took some time (hence we were down for a few days), but now we are back. We’re not done. There are still kinks to be worked out, and hopefully some bling to be added. The new website should be more user friendly, more accessible to mobile devices, and hopefully more secure.

These days, more than ever, asylum seekers and their supporters need to stand strong. Morality, justice, and history are on our side. I hope to continue to do my part in this great struggle. Thank you for reading and contributing. En la lucha, Jason

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