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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The Attorney General’s Not-as-Bad-as-We-Feared Decision on Asylum

by Jason Dzubow

We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals (“BIA”) case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.

Attorney General Jeff Sessions explains why asylum seekers are bad.

There is a lot to say about the AG’s decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.

Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G-  was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that–he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.

How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group (“PSG”). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).

In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other “protected” reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever “vile abuse” (Jeff Sessions’s words) that is awaiting them.

The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Indeed, the decision makes multiple references to “gang violence,” but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.

So if they are presented with an asylum claim involving “gang violence,” how will Immigration Judges and Asylum Officers apply Matter of A-B-? It’s difficult to know. The AG’s vague pronouncements about “gang violence” are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.

There’s also the more general issue of “persecution based on violent conduct of a private [as opposed to government] actor,” which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant “must show more than difficulty controlling private behavior… The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims.” In other words, says the AG, “Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” Maybe I’m missing something here, but this is the exact same legal standard we’ve had since the asylum statute was enacted. As I read Matter of A-B-, I don’t expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.

In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: “Generally,” asylum claims based on persecution by non-state actors will fail. Generalizations like this aren’t guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:

Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group…. Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

In other words, adjudicators are supposed to follow the law. No duh.

I don’t know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision’s platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.

Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to “follow the law” will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG’s bidding. They are adjudicators empowered to interpret the law.

After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.

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Attorney as Counselor; Attorney as Cheerleader

by Jason Dzubow

It’s not easy to be an asylum seeker these days. Between the government’s efforts–often disingenuous–to undermine asylum claims, the long delays, and the unnecessary bureaucratic obstacles, the process has become more stressful and more unfair than at any time in recent memory.

Some people just weren’t meant to be cheerleaders.

It’s also become more difficult for attorneys who represent asylum seekers. Given the government’s unpredictability, we can’t easily advise our clients or evaluate their cases. It’s also harder to help them understand the process and to predict how long they will wait for an interview or a decision. In other words, it’s more difficult to serve as a counselor for our clients.

It’s also more difficult to offer our clients encouragement and hope. The long delays and hostile environment have made the asylum process (and the immigration process in general) more stressful. Clients need a sense of hope, and they need to feel someone is on their side. Hence, attorney as cheerleader.

Fulfilling both jobs—counselor and cheerleader—is not easy, and at times, the two roles can be contradictory. So how can we as lawyers provide honest counsel and still offer our clients hope?

First, I have found that even clients in the most dire circumstances appreciate hearing the unvarnished truth about their cases. Especially in the beginning, when it is time to evaluate the case and present the client her options, it is important not to sugarcoat the odds of success or gloss over potential obstacles. I sometimes have a tendency towards pessimism when I evaluate a case, as I don’t want to give the client unrealistic expectations. I also want the client to know what she is up against, so she can make her own decisions about how to proceed.

Also, of course, it is very important for the client to understand the problems in the case. Is there a one-year bar issue? Or other bars to asylum? Are there potential credibility problems? Is there important evidence that will be difficult to obtain? All this we need to know, so that the client and the lawyer together can prepare the strongest possible case.

The client needs to understand the process of seeking asylum, in all its dysfunctional glory. He needs to know how long a case might take, and whether it will likely be referred to court. He also needs to know about the limits of what we lawyers know. The fact is, the system is a mess. Even people working within the system often cannot predict how long a case will take, and lawyers like me certainly don’t know. We have to convey this uncertainty to the client, so he can understand the range of possible events. With the most accurate (albeit limited) information available, the client can make the best possible decisions for himself and his family.

In short, it is very important that the client understand his situation as clearly as possible, so he can prepare his case, make informed decisions, and have some sense of his prospects for success. But once the client understands the case and decides to go forward, he needs support and hope. He needs to feel that success is possible, and that he won’t be stuck forever in limbo. This is where the cheerleading comes in.

The process of seeking asylum is long (despite—or maybe because of—LIFO). It’s also grueling. Many clients want to forget about the bad things that happened to them back home. But for those mired in asylum-land, they cannot put traumatic events behind them. Also, many asylum seekers are separated from their families, which is particularly difficult and stressful for those with young children. There’s also the overall uncertainty of not knowing whether you can stay in the U.S. or you will have to leave. Should you buy a house? Build a life? What if your case is denied and you lose it all? Any human being living through such uncertainty will feel stress, but it’s even worse for asylum seekers, many of whom have suffered trauma, and whose family members may still be in danger. People in this situation need hope.

There is a school of thought—which was already outdated when I was in law school—that the client’s emotional needs are not the attorney’s problem. If the client needs a shoulder to cry on, he should find a friend. Or a therapist. It doesn’t help that we lawyers don’t receive much training in counseling, and that we’re usually super busy and don’t have time to sit and listen to the client’s troubles. There’s also the issue of attorney burn-out. Getting too emotionally involved in a case can lead to more stress and less objectivity, which is not good for the lawyer, or, ultimately, for the client. Despite all this, lawyers can offer clients hope and positivity in order to help them get through the difficult process of asylum.

How to do this? One way is to focus on aspects of the case that are within the client’s control: Obtaining evidence and witnesses, preparing the affidavit, applying for the work permit, trying to expedite or short-list the case. Much of the asylum process cannot be influenced by the client (or the lawyer), and so taking steps that are within the client’s power at least gives her a sense of agency.

We can also encourage clients to live their lives as normally as possible: Get a job, go to school, get married, have children. To the extent possible, it is better to build a life, instead of allowing the uncertainty of an asylum case to rule your day-to-day existence.

Finally, we can try to emphasize the positive aspects of the case. Once the client is going forward with the case and understands the challenges, there is no point in focusing on the negative. If it’s very unlikely that your client can overcome the one-year bar, for example, do everything possible to help the client demonstrate an exception to the bar, but once that is done, offer the client some encouragement: Some Immigration Judges or Asylum Officers will interpret the bar more liberally, maybe the client will get lucky, etc.

These are difficult times for asylum seekers in the U.S. As attorneys, we have to continually push ourselves to be more compassionate and more patient. I know personally how difficult that can be, but if we want to best serve our clients and stand up to the forces against them, that is what we must do.

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The Trump Administration and the Rhetoric of Genocide

by Jason Dzubow

If you go to the White House’s official website, you will see this article: “What You Need To Know About The Violent Animals Of MS-13.” The article claims that the “violent animals of MS-13 have committed heinous, violent attacks in communities across America.” Indeed, the two-page article uses the term “animal” in reference to MS-13 gang members a total of 10 times. What to make of this?

The path of dehumanization always ends at the same place.

On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I’ve met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.

But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people–even criminals–as “animals” that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people–even bad people–has historically been a first step towards mass murder.

President Trump’s characterization of MS-13 gang members as “animals” reminds me of the Rwandan government’s rhetoric prior to the 1994 genocide. Tutsis were referred to as “cockroaches.” At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers–it extended to all Tutsis.

In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President’s words will stretch well beyond members of the MS-13 gang. Here’s more from the White House website—

Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory

So does this mean that all people from El Salvador are suspect? Are they all “animals”? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?

And if you think that mere words are not dangerous, or they can be dismissed as “Trump being Trump,” let’s remember how the Nazis engineered the mass killing of millions of Jews and other “undesirables” during World War II. From the U.S. Holocaust Memorial Museum—

Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image

The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even “evidence” for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.

In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government’s decision to rip apart parents and children who arrive at the border seeking asylum (in many case from–ironically–MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.

Let’s not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as “animals.” And when governments negate the humanity of people–even people deemed undesirable–it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.

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What Happens When Asylum Is Granted?

by Jason Dzubow

With all the bad news related to refugees and asylum seekers, I thought it might be nice to discuss something positive: What happens when an asylum case is granted?

One of my clients celebrates her asylum grant.

The fact is, despite the best efforts of the Trump Administration, people are still winning their cases. They are winning affirmatively at the Asylum Offices, and defensively in the Immigration Courts. There are some differences between an affirmative and a defensive grant, and we’ll talk about those first.

If an applicant wins at the Asylum Office, she receives a letter indicting that asylum was granted. The date on the letter and the date of the asylum grant are usually not the same. To find the date that asylum was granted, look in the body of the letter on the first page. It will indicate that “asylum was granted on” a certain date. This is the date that matters for purposes of applying for a green card and obtaining certain government benefits.

If asylum is granted in Court, the Immigration Judge will issue an order stating that asylum is granted. If the DHS attorney appeals, the case is not over, and will have to be adjudicated by the Board of Immigration Appeals. But if DHS does not appeal (or if the BIA has already indicated that asylum must be granted), then the case is over and the applicant has asylum. There is one more step that the applicant must take in order to complete the process. The person must bring his approval order and photo ID to USCIS, which will issue an I-94 indicating that the person has asylum, and will also create a new Employment Authorization Document (“EAD”). You can learn about that process here (check the link called post-order instructions).

As soon as asylum is granted, you are eligible to work in the United States, even if you do not have an EAD (see Working in the United States). You can also get an unrestricted Social Security number by contacting the Social Security office.

A person who wins asylum can file an I-730 petition for her spouse and children. To qualify for an I-730, the marriage must have existed prior to the date that asylum was granted. For a child to benefit from an I-730, the child must have been under 21 and unmarried at the time the asylum application was filed. If the child turned 21 before the asylum case was granted, he is still eligible to benefit from the I-730. However, if the child married after the case was filed, he is not eligible to bring his own spouse and children to the U.S. through the I-730 process.

One year after asylum is granted, the alien may file for her lawful permanent residency (“LPR”) (her green card) using form I-485. We used to advise people that they could file for the green card 30 days prior to their one-year asylum anniversary, and this used to work. But then we filed a green card application early, and USCIS rejected it. Since then, we have advised our clients to wait one full year before filing for their residency. Principal asylum applicants do not generally receive a green card interview, but dependents usually do. When you receive the LPR card, it will be back-dated by one year (so if you get the card on May 21, 2018, it will indicate that you have been an LPR since May 21, 2017). You can apply for U.S. citizenship based on the earlier date listed on the card.

A person who wins asylum can obtain a Refugee Travel Document using form I-131. This document is valid for one year and is used in lieu of a passport, but there are some limitations. For example, returning to the country of feared persecution can result in termination of asylum status or lawful permanent residency (I wrote about this here). Also, not every country will accept the RTD as a travel document, so you have to check with the country’s embassy in advance.

People granted asylum may also be eligible for certain government benefits, including referrals for short-term cash and medical assistance, job development, trauma counseling, and English as a Foreign Language services. The Office of Refugee Resettlement has a state-by-state collection of agencies that can help with these and other services (once you identify agencies near you, you have to contact them directly). For those granted asylum affirmatively, the Asylum Office sometimes holds meetings to explain the benefits available to asylum seekers. You would have to ask your local Asylum Office about that. Be aware that after the case is granted, you have a very limited time to access most services, and so the sooner you reach out to provider organizations, the better.

Asylees are eligible to attend university (asylum applicants who have an EAD are also eligible to attend most universities). In many cases, universities offer in-state tuition to people with asylum. There may also be scholarships available. You would have to reach out directly to the university to learn more about tuition discounts and scholarship money.

Asylees also have certain legal obligations. If you are a male asylee (or a dependent) between the ages of 18 and 26, you must register for Selective Service. LPRs and citizens are also required to register. Also, like everyone else, asylees have to pay taxes and follow the law.

Finally, asylees and LPRs must inform USCIS whenever they move to a new address. You are required to do this within 10 days of the move. You can notify USCIS of your new address by mailing them form AR-11 or filing it electronically. Either way, keep evidence that you filed the change of address form.

Especially these days, I view every asylum win not only as a victory for the individual, but also as a victory for our country. Whether our leadership understands it or not, our nation is defined in large part by how we treat those coming to us for refuge. So if you have been granted asylum in the U.S., thank you for still believing in the American Dream–it helps the rest of us keep believing as well. And of course, Welcome to the USA!

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Asylum Interview Tips for Attorneys from a Former Asylum Officer

by Jason Dzubow

Before founding Stilwell & Slatton, Victoria Slatton worked as an Asylum Officer at the Department of Homeland Security. As a former employee of USCIS, she has an in-depth understanding of the United States immigration system and is a passionate advocate for her clients in private practice. Her full bio can be found here.

Contact Victoria Slatton at victoria.slatton@ssimmigrationfirm.com. To schedule a consultation with an immigration attorney at Stilwell & Slatton, visit our website.

Victoria Slatton

It’s been a year since I left my former position as an asylum officer and switched to private practice. As a former officer, sometimes it’s hard for me to balance my inherent urge to zealously advocate for my client during an asylum interview with my knowledge of how my actions will be perceived by an asylum officer. To address these concerns, I’ve compiled a very basic list of information I think will be helpful for attorneys during an asylum interview.

  1. Go Over the I-589 With Your Client Before the Interview

Every officer has her own way of handling I-589 updates, but I personally preferred it when attorneys had changes to the I-589 already written out and ready for me to go over. You don’t have to redo the entire document. Instead, simply type up the changes in an organized Word document and respectfully ask whether the officer would like a written update to help subsidize their I-589 review. Some might say no, but others will be very grateful.

This was helpful to me for two reasons. First, it showed me that the applicant wanted to be upfront about the mistakes in his claim and had every intention of being forthcoming. Second, it saved me time, in that I did not have to ask repeatedly how to spell names of family members, addresses, or seek clarification from applicants over specific dates that might be confusing. Especially if your client has an interpreter, written updates could easily save an officer a precious 20 or 30 minutes in an interview. I was always grateful when attorneys took every step to respect my time.

  1. The Interview is About Your Client

It is very frustrating to sit back and watch your client struggle to answer a question he doesn’t understand, especially when you know he has a perfectly reasonable explanation and simply cannot communicate his response due to nerves or a language barrier. However, interjecting yourself into your client’s testimony to clear up a discrepancy is generally not going to do your client any favors.

Officers almost never factor in attorney interjections when making a decision, and sometimes it can prevent your client from saying what the officer needs to get on record. When I handed my supervisor my interview notes, I wanted it to be clear that the applicant was forthcoming in his responses and understood my questions, not the attorney. Unless a conversation is truly going off the rails and you feel it is necessary to recenter the discussion for the sake of your client, I would highly suggest saving these remarks for your closing argument.

  1. Have a Copy of Your Client’s Evidence in Front of You

One of the few times you should interject in an interview is if the officer asked for evidence that has already been submitted. Officers don’t always have time to review the file in depth before an interview, and might not truly understand the nature of everything that has been submitted. Therefore, if your client is asked a question about why a certain piece of evidence wasn’t brought forth, it is very helpful and appropriate to respectfully direct the officer to the exhibit in question.

  1. Make Your Closing Argument Short and Concise

Generally speaking, for an asylum officer, the closing statement will probably be the least important piece of information in the record. Officers understand the nature of zealous advocacy and know that you will already have an inherent bias to protect your client. Now that I’m in private practice, I try to keep my closing argument to under three minutes and maintain a level of respect for my officer, even if the interview has been particularly frustrating.

I usually use this time to address inconsistencies in my client’s testimony and to explain how I think the client either misunderstood the question or point to pieces of evidence that might help the officer paint a clear picture of what happened. For example, I recently had a client who stumbled over his timeline and incorrectly quoted a few dates. The officer questioned these discrepancies and I kindly explained at the end of the interview that my client used a different calendar in his home country and often became confused when recalling the specifics of his timeline.

Lastly, I will make a short statement about why my client meets the definition of a refugee. I try to keep this to a thirty second monologue. Closing statements are an art, not a science, and I tend to focus on different legal aspects depending on the case. It is important to remember that not every legal aspect of the case needs to be defended at this point in the interview.

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