The Perils and Pitfalls of Applying for a Green Card

by Jason Dzubow

In the past few weeks, we’ve had two former asylum clients return to our office for help after USCIS denied their applications for citizenship. The applications were denied due to mistakes the former clients made on their I-485 forms (the application for a green card). These cases illustrate the danger of incorrectly completing the I-485 form, and this danger is particularly acute for people with asylum.

The new Green Card application process.

Let’s start with a bit of background. After a person receives asylum, she must wait for one year before applying for her lawful permanent resident (“LPR”) status (her green card). The form used to apply for the green card is the I-485. In the good old days (a few months ago), this form used to be six pages. Now it is 18 pages. The old I-485 form contained 32 yes-or-no questions; the new form contains 92 such questions.

Many of these questions are difficult for me to understand, and I am a trained lawyer who speaks reasonably decent English. So you can imagine that people with more limited English, who are not familiar with the complicated terms and concepts contained in some of the questions, might have trouble answering.

In my clients’ cases, two questions in particular caused them trouble (these are from the old I-485). The first question was, “List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday.” Both clients had been involved with political parties, but were no longer members of those parties in the United States. The clients did not carefully read the question, and instead of listing their “past membership,” they instead answered “none” (because they are no longer members).

The second question asked whether the clients had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In fact, my clients had never been arrested for “breaking or violating any law or ordinance.” They were arrested for exercising their supposedly-lawful political rights, and they were correct to answer “no” to this question. Nevertheless, USCIS viewed their answers as deceptive.

My clients’ problems were compounded by the fact that they were never interviewed for their green cards, and so a USCIS officer never went over the questions with them and gave them an opportunity to correct the errors.

The result of all this—confusing questions, carelessness, and no interview—was that my clients obtained their green cards, but also sowed the seeds for future problems. Five years later, these problems appeared when the clients tried to naturalize, and USCIS went back and carefully reviewed their prior applications.

To me, my clients’ errors were clearly honest mistakes. Indeed, in their asylum applications, the clients had already informed USCIS about their party memberships and about their arrests, and so they had nothing to gain—and everything to lose—by failing to mention these issues in the I-485 form. But that is not how USCIS sees things. To them, the errors were “misrepresentations,” which disqualified my clients for citizenship.

To solve the problem, my clients will likely need to apply for waivers (an expensive application to seek forgiveness for making misrepresentations). Given that they are asylees, and that the misrepresentations were relatively minor, I suspect the clients will ultimately qualify for waivers and—eventually—become U.S. citizens. But between now and then, they will face a lot of unnecessary stress and expense. Unfortunately, this is the reality now-a-days for all applicants: If you leave yourself vulnerable, USCIS will bite you.

So what can be done? How can you protect yourself when completing the form I-485?

The key is to read each question carefully and make sure you understand what it means. This is time consuming and boring, but given that USCIS is looking for excuses to deny cases and cause trouble, you have little choice if you want to be safe.

Even using a lawyer is no guarantee. Until recently (when USCIS started looking for reasons to deny cases), I had a tendency to gloss over some of these questions. I am more careful now, but it’s not easy. Many of the questions are ridiculous: Are you a prostitute? Did you gamble illegally? Were you a Nazi in WWII? But intermingled with these questions are others that require closer attention: Did you ever have a J visa? Have you ever received public assistance? Have you ever been denied a visa? It’s easy to skim over these, but the consequences of an erroneous answer can be serious.

Also, some questions are tricky, and can’t easily be answered with a “yes” or a “no.” For example, my clients indicated that they had not been arrested for a crime, and this was correct, but they had been arrested for their (lawful) political activities, and USCIS took their answers as misrepresentations. What to do? When we complete I-485 forms and we encounter questions like this, we normally check “no” (or “yes” if that seems more appropriate) and circle the question. Next to the question, we write, “Please see cover letter,” and on the cover letter, we provide an explanation (“I was never arrested for a crime, but I was arrested by my home government for political reasons”). At least this avoids the problem of USCIS labeling your answer a misrepresentation.

In the end, the only real solution here is to read each question carefully, make sure you understand the question, and answer it appropriately. If the question is not amenable to a yes-or-no answer, or if you think an explanation is required, circle the question and provide an explanation. If you don’t understand something or are not sure, ask for help. It’s best to get the form correct now, even if that involves extra time or money, than to make mistakes that will cost you later on.

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Asylum for Witches

by Jason Dzubow

Just in time for Halloween, the Witchcraft & Human Rights Information Network (“WHRIN”) has released a report called “Witchcraft Accusations and Persecution; Muti Murders and Human Sacrifice.” The report was prepared for the United Nations Expert Workshop on Witchcraft and Human Rights, which was held last month, and it discusses the wide-spread and under-reported human rights problems related to witchcraft and other harmful traditional practices. From the WHRIN report–

Persecution.

In numerous countries around the world, harmful witchcraft related beliefs and practices have resulted in serious violations of human rights including, beatings, banishment, cutting of body parts, and amputation of limbs, torture and murder. Women, children, the elderly, and persons with disabilities, such as persons with albinism, are particularly vulnerable. Despite the seriousness of these human rights abuses, there is often no robust state led response.

The report indicates that the “exact numbers of victims of such abuses is unknown and is widely believed to be underreported.” “At the very least,” the report continues, “it is believed that there are thousands of cases of people accused of witchcraft each year globally, often with fatal consequences, and others are mutilated and killed for witchcraft-related rituals.” The number of cases—and the level of violence against victims–seems to be rising, and no area of the world is immune, though most of the documented cases are found in India (120 reported cases in 2016), Nigeria (67 cases), Zimbabwe (29), and South Africa (28).

This is all very sobering, and sad. In my work, I have represented a number of victims of traditional practices who have filed for asylum in the United States. One memorable case involved a young man from Rwanda who was gay. His family decided that he was possessed by demons, and so they had him kidnapped and held in a rural area where he was subject to a three-week exorcism ritual by some type of priest. The ritual involved beatings and starvation, among other things. We argued that all this amounted to past persecution on account of a particular social group—gay people. The government accepted our argument and approved the man’s application for asylum.

The success of our case was due, perhaps, to the fact that our client easily fit within a protected category for purposes of asylum (there are five protected categories—race, religion, nationality, political opinion, and particular social group, and under U.S. law, it is well-established that LGBT individuals can constitute a particular social group; unless a case fits within a protected category, asylum will be denied). Not all victims of witchcraft-related persecution fit so neatly into the asylum scheme, as the WHRIN report makes plain—

Those accused of witchcraft, or at risk of such accusations, are not a well-recognised vulnerable group [under the asylum law], and they do not accrue specially recognised rights as such. They do, however, benefit from human rights protections which are available to all people. Those who face persecution in this way may flee and seek protection in other countries, but their situation is precarious even in exile.

The WHRIN report primarily discusses British law, but asylum applicants in the U.S. could face a similar problem. I have not seen a case where “witches” or “people accused of witchcraft” has been found to be a particular social group (“PSG”) for purposes of asylum, but it seems that a strong argument could be made in favor of such a PSG. Persecution of “witches” might also be couched in terms of imputed religion—maybe the persecutors view the alleged witch in religious terms and would harm her for that reason. If there is an ethnic or racial component to the persecution, that might also allow the applicant’s case to fit into a protected category.

Besides witchcraft, the WHRIN report discusses other harmful traditional practices: Human sacrifice and murder for body parts, which are used in certain magic rituals (sometime called Muti murder). People with albinism are particularly vulnerable to such attacks (I wrote about that here), and they would likely constitute a PSG under U.S. asylum law. But other people targeted in this way might not easily fit into a PSG.

To win asylum, the applicant must show that she faces harm “on account of” a characteristic that the applicant herself possess (for example, her race) or on a characteristic that the persecutor “imputes” to the victim (for example, maybe the persecutor incorrectly believes the applicant is a government opponent and seeks to harm her for that reason). In the case of some traditional practice, the victim may not be able to show that the harm is “on account of” a characteristic or an imputed characteristic, and then asylum would be denied. In our exorcism case, for example, we had a relatively easy job, since our client was gay and was harmed due to his sexual orientation. But what if he was not gay and he was being “exorcised” for some other reason–maybe he was an unruly child and his parents wanted to “cure” him? Such a case would present a real challenge under U.S. asylum law.

Fortunately, there are some resources available. The WHRIN is the obvious starting point. The Forced Migration Current Awareness blog also has a list of resources, and UNHCR has a comprehensive report about witchcraft accusations against children. Given the severity of the harm and the likelihood that the problem is spreading, it seems to me that more work needs to be done in this area. The recent attention from the UN is a good start. Hopefully, we will see those efforts continued and expanded.

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The Self-Fulling Prophecy of Demonizing Immigrants

by Jason Dzubow

In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.

“Don’t make me angry. You wouldn’t like me when I’m angry.”

Prof. Roth recently elaborated on his theories in the Washington Post. He writes–

When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.

He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community’s faith in our governing institutions–

The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.

During the 2008 election, Prof. Roth predicted that “the homicide rate in America’s cities would drop because of what [Barak Obama’s] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas.” Prof. Roth also “worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president.” Data from President Obama’s time as president now seems to support the Professor’s prediction (at least according to Prof. Roth–and I believe him).

So what does this mean for immigrants and asylum seekers?

Maybe the answer is fairly obvious–If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle–the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.

We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.

Prof. Roth, writing after the massacre in Las Vegas, notes that “most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society…. We have all played a part in creating them.”

If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it’s not all that difficult. It’s what teachers teach in our schools every day. It’s what we require in our workplaces. It’s what we see in our places of worship.

Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you’ll see what I mean. Politicians–most notably our Commander-in-Chief–have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.

Prof. Roth’s work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.

I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.

Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth’s theory is correct, the current Administration’s nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It’s up to us–those of us who stand with immigrants–to continue offering them help and hope, and to try to break this cycle before it begins.

 

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The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

by Jason Dzubow

In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.

Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.

Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”

Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”

First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.

Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.

And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.

The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.

I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.

 

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DACA Reform and Its Hostages (i.e., Asylum Seekers)

by Jason Dzubow

President Trump recently sent a letter to Congress laying out his “Administration’s principles for reforming our Nation’s immigration system.” In effect, this is what the President wants in exchange for agreeing to legalize DACA recipients (also known as Dreamers). Whether this is an opening bid or a final offer remains to be seen, but many Democrats and some Republicans seem to view the proposal as a non-starter.

Haggling over brown people? Where have I seen that before?

While the President’s letter covers a wide range of topics–from the border wall to hiring more ICE agents to eliminating the DV lottery–I want to focus here on the possible effects on our asylum system. Specifically, Section 1-C of the letter, Asylum Reform, lists the Administration’s ideas for “correcting the systemic deficiencies that created that [asylum] backlog.” Would that these ideas were so benign.

Below, I have listed the text of the President’s letter in bold, and added my comments (and complaints) in italics. Without further ado, here is the President’s proposal with commentary:

The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes. It seems what the President means by “asylum loopholes” is the asylum process itself. But asylum is not a “loophole.” It is the law, which says that if a person is physically present in the U.S. and he fears persecution in his home country, he can apply for asylum and stay here until his case is adjudicated. An executive order from the President cannot nullify this, but Congress and the President together can change the asylum law. I have not seen any movement in that direction, at least not yet.

There are more than 270,000 pending cases in the asylum backlog before USCIS, and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created that backlog. I don’t get to say this too often, but I agree with Trump! The backlog is way too large, and we need to reduce it. The Administration wants to hire 370 new Immigration Judges and 1,000 ICE attorneys. I’ve written before about some constructive and low-cost ideas for reducing the backlog. If anyone in the Administration is interested, you can see my thoughts here.

i. Significantly tighten standards and eliminate loopholes in our asylum system. It’s not clear which standards would be tightened and which loopholes eliminated. There are plenty of changes that could be made. Some might be productive (such as cracking down on notario and attorney fraud); others would likely result in eligible aliens being denied asylum and returned to face persecution (raising the evidentiary bar, for example). One area of concern for the Administration is asylum seekers at the border who arrive here and are then paroled into the U.S. Whether we could block such people without violating our treaty obligations (and our moral values) is an open question. Of course, Congress has the power to override treaties, but the unintended consequences of such a move might do (additional) damage to our standing in the world. 

ii. Elevate the threshold standard of proof in credible fear interviews. Presumably, this will go beyond what the Trump Administration has already done to make it more difficult for asylum seekers arriving at the border or an airport. Again, how much can be done without abrogating our treaty obligations is unclear, but certainly Congress and the President can make it more difficult for people arriving here and requesting asylum upon arrival.

iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate. Why these two proposals did not warrant their own Roman numerals, I do not know. As for the first, there are already severe immigration consequences for filing a frivolous asylum application (including a bar to all benefits under the INA), but I suppose the penalties could always be made worse. Also, the Trump Administration has already set forth a policy on expedited removal, so perhaps the new proposal would incorporate those ideas (which basically expands the temporal and geographic boundaries of expedited removal). 

iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits. As you might imagine, the immigration law currently has no provisions what-so-ever to block terrorists from coming here. Amazing that no one noticed this before. Lucky for us, some keen-eyed Trump Administration official caught the problem, and so now we can finally make some rules blocking terrorists. Whew!

v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits. An alien convicted of an aggravated felony is ineligible for most immigration benefits, including asylum. I agree that the definition of aggravated felony could use some work–some offenses that might seem serious (like assault and battery against a police officer) are generally not aggravated felonies under the Immigration Act; other crimes that seem minor (such as shoplifting) might be an aggravated felony. It’s clearly not equitable. My fear is that the Trump Administration will blindly expand the definition of aggravated felony so that any crime–no matter how minor–will bar asylum seekers from the U.S. and will needlessly divide more families through deportation.

vi. Expand the ability to return asylum seekers to safe third countries. The idea of sending asylum seekers back to the last “safe” country they passed through is not new. For various reasons, I doubt it is the magic bullet that some immigration resrictionists think it is. For one thing, it is difficult to know whether a particular country is safe, and so I suspect that such a provision might just shift the battle from the fear of persecution in the home country to whether the third country is “safe.” Also, whether the “safe” countries will agree to accept non-citizens we send their way seems doubtful.

vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied. This provision probably involves closing “loopholes” at the border. Here, some data might be useful. Is there any evidence that paroled aliens commit crimes? How often do such people fail to appear for court hearings? What is the cost of detaining such individuals? Making rational and effective policies requires answering such questions before taking action.

viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony. There is a waiver available to refugees and asylees who commit crimes (INA § 209(c)), including in some cases, aggravated felonies. However, BIA case law largely already prevents aggravated felons from taking advantage of the waiver. My main problem with eliminating the waiver is that it will result in people being deported to countries where they face harm, even for relatively minor crimes (many minor crimes are considered aggravated felonies already, and the Trump Administration plans to broaden the definition of aggravated felony even further).

ix. Require review of the asylee or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions. Asylees who return home are already subject to having their status terminated. So like many of the provisions listed here, this one seems like piling on. Also, there are legitimate reasons why some asylees need to return home–to see sick family members, for example. Also, in some cases, asylees do not fear their home government; they fear terrorist groups in their country. Such people can return home for a brief period, but if they remain in their country for the long term, they face great danger. The current law recognizes this, and makes some exceptions for asylees who return home. This seems more fair than a blanket prohibition. 

None of these provisions have yet been implemented or incorporated into law, and we will have to see how negotiations proceed. The Administration can argue that it is fair to bargain with the fate of DACA recipients in order to “reform” our immigration system (which certainly does need reforming). And perhaps that is the reality of politics. But I can’t help think there is a better way, and that it is not necessary to pit one minority group against another, and to hold so many innocent people hostage to a political agenda.

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The New Travel Ban, Asylum Seekers, and I-730 Petitions

by Jason Dzubow

As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the “banned” countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.

Moose limb ban.

Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here’s how things look now:

Asylum Seekers

The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to…  any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

Asylees

People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees’ rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

I-730 Petitions

When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their “following to join” family members here may be problematic, at least as I read the President’s order. Section 3(a) states–

[S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

Basically, this means that people outside the U.S. from a “banned” country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don’t see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further–

A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

The proclamation gives some examples of when a waiver might be appropriate, including where the “foreign national has previously established significant contacts with the United States” or where “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.” None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

UPDATE – October 9, 2017 – The U.S. State Department has issued guidance indicating that I-730 beneficiaries will not be affected by the new proclamation, and so following-to-join beneficiaries will still be able to join their asylee family members in the United States. Thank you to “Jabi” for letting us know about the good news.

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Trump Administration Lies About the Economic Impact of Refugees

by Jason Dzubow

There’s a Yiddish expression, “A halber emes iz a gantse lign,” which means, “A half-truth is a whole lie.” A recent article from the New York Times demonstrates that the Trump Administration is using half truths in order to justify its plan to reduce refugee admissions to historically low levels for the upcoming fiscal year. From the Times article:

President Trump is taking Simon and Garfunkel’s advice a bit too literally: “Lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie.”

Trump administration officials, under pressure from the White House to provide a rationale for reducing the number of refugees allowed into the United States next year, rejected a study by the Department of Health and Human Services that found that refugees brought in $63 billion more in government revenues over the past decade than they cost.

In other words, political officials suppressed a study from HHS because the results of that study did not support Mr. Trump’s policy goals.

The draft study was completed in July but never publicly released. Instead, it was leaked to the NY Times. The study was meant to look at the costs and benefits of refugee resettlement to our economy. How much do refugees cost us for things like public benefits, education, and law enforcement? How much do refugees contribute through taxes? Are refugees a net gain or a net loss, at least in terms of dollars spent and received?

The 55-page draft study found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. Taking into account resettlement and other costs, the report estimates that “the net fiscal impact of refugees was positive over the 10-year period, at $63.0 billion.” When refugees and their family members were counted, the benefits were more modest, but still positive, at $16.9 billion. These results align with another recent study on the economic impact of refugees conducted by two professors at the University of Notre Dame.

The final, three-page report that HHS ultimately submitted includes only money spent by the government on refugees, without including revenue–literally, half the truth (and that’s being generous, since they reduced the size of the report from 55 pages to three). Maybe I can do the same thing on my own taxes–include only my expenses, but leave out revenue. I am not sure how that would go over with the IRS, but I’m guessing not well.

This strategy–of promoting the negative by leaving out the positive–is nothing new for the Trump Administration. Last Spring, the Department of Homeland Security launched the Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will, “Provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.” So we get to see the negative impact of aliens on the United States, but we hear nothing about the positive contributions made by such people (and of course, the evidence is pretty conclusive that aliens commit crimes at lower rates than native-born Americans).

Not all government employees are on board with the Trump Administration’s anti-refugee program. The most obvious dissenter is the anonymous person who leaked the HHS report to the NY Times. More publicly, the State Department’s Director of Refugee Admissions told an audience at the Heritage Foundation, “We see… that refugees do very, very well, and it’s one of the reasons that we would like to see more long-term studies about refugee success and perhaps failure so that we can really see those areas that we should focus on more…. They’re taking jobs that are otherwise unfilled, and refugees, frankly, do quite well.”

There also seems to be internal disagreement about how many refugees we should admit to the country. For FY 2017, President Obama raised the refugee ceiling from 85,000 to 110,000, but President Trump has proposed reducing refugee admissions to 45,000 for FY 2018, which starts on October 1. Interestingly, officials at the National Security Council, the State Department, and the Department of Defense have lined up to oppose such a precipitous drop, presumably because they recognize the benefits of our refugee program.

By next week, we should know for sure how many refugees President Trump plans to admit in FY 2018. I’m not optimistic about the numbers, but I understand that reducing immigration was one of Mr. Trump’s core promises when he ran for president. What probably bothers me most about the whole process, though, is the blatant dishonesty of the President, who is trying to justify his refugee policy based on half truths and whole lies. An honest discussion might not result in a different outcome in terms of numbers, but it would be far better for our country and our democracy.

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New Rule Spells Potential Trouble for Asylees

by Jason Dzubow

There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

The State Department has a long tradition of blocking visas for people facing persecution (if you don’t believe me, Google “Breckinridge Long”).

To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as “dual intent” visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

[If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to “bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.”

I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

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Advance Parole: Overseas Travel for Asylum Seekers

by Jason Dzubow

When government scientists invented Advance Parole (“AP”), they were not thinking about asylum seekers. Even today, if you look at the instructions to form I-131, the form used to apply for AP, you’ll find nary a word about asylum seekers (though asylees—people already granted asylum—can apply for a Refugee Travel Document using the same form). But fear not: People who have filed affirmatively for asylum and who are waiting for their interview can file for AP in order to travel abroad and return while their case is pending.

If your relative has a serious illness (or thinks he does), it may be enough for AP.

First, a brief word about asylum seekers who are not eligible to travel and return using AP. People who are in removal proceedings (i.e., in Immigration Court) cannot leave the U.S. and return, even if they have AP. If you are in removal proceedings, it means the government is trying to deport you, and if you leave, you are considered to have deported yourself. Thus, even if you apply for AP and receive the travel document, if you leave the United States, you will be deported, and thus barred from return. And yes, I am sure that there is a story about your third cousin’s best friend who was in Immigration Court, and who left and returned using AP. To that, I say: Talk to your cousin’s friend’s lawyer (and if you learn something, let me know!). My opinion is that if you are in removal proceedings and you leave the U.S., either you won’t get back here at all, or you will be detained upon arrival.

Another group that may be ineligible to travel using AP are J-1 visa holders subject to the pesky two-year home residency requirement. There are more people like this than you might imagine, and for such people, I recommend you talk to a lawyer about AP. Asylum basically “erases” the home residency requirement, but it is unclear (at least to me) whether this will work for purposes of AP while the asylum application is still pending.

Also, there was a group of people who were ineligible for AP, but who are now eligible. It is people who have six months or more of “unlawful presence.” If a person remains in the U.S. after her period of stay ends, she accrues unlawful presence (you stop accruing unlawful presence once you file for asylum). If she accrues six months of unlawful presence and leaves, she is barred from returning for three years. If she has one year or more of unlawful presence and then leaves, she cannot return for 10 years. Prior to 2012, if a person had six or more months of unlawful presence and left, she could not return to the U.S., even with AP. However, a decision by the Board of Immigration Appeals changed the rule, and so now, even if you have unlawful presence, you can leave the U.S. and return using Advance Parole. Thank you BIA!

There might be other people who are also ineligible to travel–people with criminal convictions or prior removal/deportation orders, for example. If you are not sure, you should certainly talk to a lawyer before applying for AP or traveling.

Next, let’s talk about what AP is and is not. If you get AP, you will receive a piece of paper with your photo on it. This paper works like a U.S. visa. It allows you to board the plane (or boat, if, like me, you hate flying), and pass through customs once you arrive at the port of entry. AP is not a passport or a Refugee Travel Document. You cannot use it to go to other countries or as a form of ID. If you travel with AP, you also need a passport. Keep in mind that traveling with a passport from a country where you fear persecution can raise questions at the asylum interview about why you would “avail” yourself of the protection of your country by using its passport. You should be prepared to respond to such questions, with evidence, during your interview.

So how do you apply for AP? Use form I-131. This one magic form can be used for all sorts of different applications: AP, Refugee Travel Document, DACA (at least for the next couple weeks), humanitarian parole. If you are applying for AP, complete only the portions of the form that apply to Advance Parole. You need to include evidence of a pending asylum case (receipts, biometrics notice), two passport-size photos, a copy of your passport or other government-issued photo ID (like an EAD card), and the filing fee (a whopping $575.00 as of this writing).

Also, you need to demonstrate a humanitarian need for the travel. It is not enough that you simply want to travel. A humanitarian reason might be that you are traveling to receive medical treatment or going to visit a seriously ill relative. It might also be because you are attending a funeral for a close relative. We have sought AP for people who needed to travel for work or education, though that was pre-Trump, and I would not feel particularly optimistic about such an application today.

To demonstrate a humanitarian need for AP, you need to provide a written explanation for the travel. You also need to provide evidence: A letter from the doctor, in the case of medical travel, or a death certificate if you are traveling for a funeral. If you are trying to travel for work or education, you need a letter from your job or school, plus an explanation of why the travel is “humanitarian.” In addition, if you are traveling to visit a sick relative, provide proof of the relationship, such as birth or marriage certificates connecting you to your relative.

On the form I-131, you need to state the dates of proposed travel. Don’t make the date too soon, or USCIS will not be able to process the paperwork before your travel date, and then they will send a request for evidence asking you to explain whether you still plan to travel since your departure date passed before AP was approved.

Also, it may be possible to expedite a request for AP, or even to get AP on an emergency basis, though you can bet that the bureaucrats at USCIS will not make the process easy. For more information about such requests, see the USCIS Ombudsman webpage.

Finally, and this is important, if you are an asylum seeker and you use AP to visit your home country, it will very likely cause your asylum case to be denied. Indeed, unless you can demonstrate “compelling reasons” for returning to your country, your asylum application will be deemed abandoned by the return trip. You can learn more about that here.

So there you have it. Most lawyers–including this one–discourage our clients from traveling with AP. There is always a risk when you leave the U.S. You might have trouble boarding a return flight. You could be detained upon arrival in the United States. Our capricious President might issue a new travel ban. But so far (knock on wood), we have not had any problems for our clients who traveled using AP. I do think it is better to stay in the country while your asylum application is pending, but given the long waits, some people must travel. If so, at least AP gives most people that option.

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Another Open Letter to My Friends at DHS and DOJ: After Joe Arpaio, What Now?

by Jason Dzubow

The Joe Arpaio pardon is an affront to anyone concerned about the rule of law. And this includes the lawyers, judges, and adjudicators I know at the Departments of Justice and Homeland Security.

Soulless Joe from Maricopo’

But before we get to that, we need to talk a bit about “Sheriff Joe.” A brief overview of his career as sheriff of Maricopa County, Arizona reveals various misdeeds, including–

abuse of power; misuse of funds; failure to investigate sex crimes; improper clearance of cases; unlawful enforcement of immigration laws; and election law violations. A Federal court monitor was appointed to oversee his office’s operations because of complaints of racial profiling. The U.S. Department of Justice concluded that Arpaio oversaw the worst pattern of racial profiling in U.S. history, and subsequently filed suit against him for unlawful discriminatory police conduct. Arpaio’s office paid more than $146 million in fees, settlements, and court awards.

But all that is not what ultimately led to where we are now. Mr. Arpaio was a defendant in a civil rights lawsuit. The judge ordered him to stop racial profiling, but Mr. Arpaio refused to comply. In a civil contempt proceeding, Mr. Arpaio admitted as much to the Court: “Defendants acknowledge and appreciate that they have violated the Court’s orders and that there are consequences for these violations.” In this particular case, the “consequences” proposed by Mr. Arpaio were for the tax payers of Maricopa County to foot the bill for a victim compensation fund. That didn’t pan out, and Mr. Arpaio was charged with criminal contempt.

He was convicted on July 31, 2017. The presiding judge wrote that Mr. Arpaio had “willfully violated an order of the court” by failing “to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” Sentencing was scheduled for October.

Then last week, on a Friday night in the midst of a hurricane, President Trump issued a pardon for the criminal contempt and any other charges that might arise out of the same litigation. In an explanatory statement, the White House called Mr. Arpaio a “worthy candidate” who “protect[ed] the public from the scourges of crime and illegal immigration.”

So what does this mean? Of course, it means that Joe Arpaio won’t be going to jail. But on a more fundamental level, what does it mean for the rule of law? And what does it mean for those who enforce the law?

It seems to me that the clear signal sent by this pardon is that violating the law–by racial profiling or other means–is acceptable in order to rid our country of the “scourge” of illegal immigration. The ends justify the means.

Such an approach is antithetical to any society that values law and order, and that opposes tyranny. Those sworn to protect our nation’s laws must hold themselves to the highest standards. It is not for them to decide which laws to follow based on their subjective beliefs about right and wrong. They must follow the law. And when they don’t, they must be held accountable. When regular citizens fail to obey the law, it is anarchy. When law enforcement officers fail to obey the law, it is fascism.

And so the Joe Arpaio pardon is an endorsement of fascism. Whether you think all “illegals” should be rounded up and deported, or whether you think they should all be granted green cards makes no difference to this analysis. Fascism is fascism and law is law.

So what does all this mean for attorneys, judges, adjudicators, and others at DOJ and DHS?

It seems to me that you have a duty to uphold the law, regardless of whether the President is willing to tolerate or even encourage you to violate it in the service of his goals. That’s pretty basic, and we’ve seen examples of government officials following the law even when the President discouraged it (see Jeff Sessions and recusal).

But I think there is something more you can do. You can err on the side of non-citizens. Especially these days, the deck is stacked against aliens seeking immigration benefits. Simple mistakes on forms can lead to severe consequences. Minor criminal convictions can lead to banishment for life. The over-broad terrorism bar treats victims of terror like terrorists. Prosecutorial discretion is gone. The denial rate for asylum cases is on the rise. We are seeing more and more requests for evidence, and the wait time for many immigration benefits is getting longer. Not to mention the travel ban, increased use of detention, the backlog, etc., etc. In other words, the situation on the immigrant-side of the fence ain’t easy.

But if you are an adjudicator or an attorney or a judge with DHS or DOJ, you have some power to mitigate these difficulties. You have some flexibility in your decision-making. You are in a position to blunt some of the worst excesses of the Trump Administration. You can help act as a counter-balance when the President encourages law enforcement to push the boundaries of the law, as he did with the Joe Arpaio pardon.

Immigration and asylum laws are not nearly as harsh as the Trump Administration would have us believe. But the President is trying to use immigration law and procedure in a way that blocks people from coming here, or that deports those who are here. It is up to the people on the front line of that effort to protect the rule of law. Judges, adjudicators, and attorneys have the legal authority to grant cases, and in the face of the Trump Administration’s attack on the rule of law, they should continue to do so. The lives of many immigrants–and our country’s fealty to the rule of law–depend on it.

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Translating Documents for Your Asylum Case

by Jason Dzubow

The word “translation” is derived from “trans,” meaning “across” two languages, and “elation,” meaning “to make your lawyer happy.” Or something like that. The point is, if your translations are correct, you are more likely to win your case and so you–and your lawyer–will be happy.

If you think accurate translations are not important, please stay away from my garden.

But many asylum seekers are unable (or unwilling) to pay for professional translations, which can be quite costly. Instead, they do the translations themselves, or they use a friend who speaks “good English” (technically, anyone who claims to speak “good English” does not speak English very well). The problem faced by these non-professionals is that translating documents is not as easy as it looks.

I ran into this problem recently, when a keen-eyed DHS attorney discovered that my client’s translations were incorrect. The client had submitted several translated documents when he applied for asylum at the Asylum Office (using a different lawyer). These documents included a newspaper article, a police report, and several witness letters. The quality of the translations was poor, and so we asked the client to obtain better translations. Unfortunately, the new translator embellished some of the translations. Instead of translating the documents literally, he tried to include what the writer meant (or what the translator believed the writer meant). This problem is all too common. Sometimes, I catch it, and other times, I don’t. In this particular case, the DHS attorney caught the inconsistency, which–to state the obvious–is not great for our case.

Poor translations can cause real problems for asylum cases. I have at least one case where an inaccurate translation resulted in the case being denied by the Asylum Office and referred to Immigration Court (where it remains pending 3+ years later–ugh).

So how do you ensure that your translations are correct? And what happens if you can’t afford a professional translator?

First, any document that is not in English must be translated into English. For each such document, you must submit a copy of the original document (in the foreign language), an English translation, and a certificate of translation (for an example certificate of translation, see the Immigration Court Practice Manual, Appendix H).

Second, the translation should be accurate. This seems like a no-brainer, but in my experience, it is not. Here, “accurate” means that the translator should–as much as possible–literally change each and every word of the original document into the equivalent English word. Some words are not easy to translate from one language to the next. Other words have symbolic, cultural or idiomatic meanings that may differ from their literal meaning (the word “jihad” is a good example). In that case, translate the word literally, and maybe include a footnote indicating the meaning or cultural significance of the word. The footnote should clearly indicate that it is not part of the translation (for example, it could say, “Translator’s note:” and then include the explanation). Other times, the original document is vague or unclear. In that case, the translator should again literally translate the words, but can include an explanatory note. Sometimes, documents contain illegible words. For them, the translator can include a bracketed statement indicating that the text is [illegible].

Third, while I think it is not required, I strongly prefer that the translated text look similar to the original (or sometime like a mirror image of the original, if it is a right-to-left language like Arabic). So bold or underlined words in the original should be bold or underlined in English. If the original text has different paragraphs, the English should follow a similar format. If some words in the original are centered, or shifted to one side or to a corner of the page, the translation should do the same.

Fourth, every word of the document should be translated. For documents where that is not possible (like a newspaper where you are only interested in using one article on the page), the translator should clearly indicate what portions of the document are being translated. In this case, I prefer to highlight the original document to make clear which parts are being translated. Also, for news articles, it is important to include (in the original language and in English), the name of the newspaper, the date, the title of the article, and the author, if any. Certain documents contain a lot of unnecessary boilerplate verbiage (I’m thinking of you, Salvadoran birth certificates), and so a summary translation might be more appropriate. If you use a summary translation, you need to clearly indicate that it is a summary, not a literal translation. Whether all Judges and Asylum Officers will accept summary translations, I do not know, but we use them now and again, and we have not had any problems.

Finally, countries sometimes use different calendars and even different clocks. In this situation, I think the best practice is to translate the date or time literally, and then include an explanatory note (for example, in the Jewish calendar, today is the second day of the month of Elul in the year 5777, and so if a Hebrew document contained that date, the English translation would look like this: “2 Elul 5777 [August 24, 2017]”). Some translators include only the date in our system (and not “2 Elul 5777”), and I have never had a Judge or Asylum Officer reject that, but I still think the better practice is the literal translation + explanatory note.

A related issue is letters from people who do not speak English, including the asylum applicants themselves. If a person does not speak English, but submits an English letter or affidavit, there must be a “certificate of interpretation stating that the affidavit or declaration has been read to the person in a language that the person understands and that he or she understood it before signing.” See Immigration Court Practice Manual, p. 48. “The certificate must also state that the interpreter is competent to translate the language of the document, and that the interpretation was true and accurate to the best of the interpreter’s abilities.” Id.

Lastly, many asylum seekers speak English and can translate documents themselves. This is fine. However, a person should not sign a certificate of translation for her own case. So if you translate your own documents, find a friend who speaks both languages to review the documents and sign the certificate of translation.

Accurate translations can enhance credibility and help you win your case. So either find (and pay) a competent translator or – if you do it yourself or use a friend – take the time to ensure that the translations are accurate and complete. Otherwise, documents that might help your case could end up doing more harm than good.

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In a Time of Hate, My Refugee Clients Give Me Hope

by Jason Dzubow

As an ordinary citizen, it is not easy to decide the best way to confront a Nazi march. Show up to peacefully protest? That might give additional attention to the other side. Protest violently? Not only could that elevate the Nazis, it might also de-legitimize the resistance to the Nazis (even those who peacefully resist). Ignore them? That might be viewed as condoning their views. Reasonable people can differ about what to do, at least as far as the peaceful responses are concerned.

As a great American philosopher once said, “I hate Nazis.”

But when you are a public figure, especially an elected official, the decision about how to respond is clear: First, ensure safety and free speech. Second, denounce the evils of Nazism and make it plain that Nazis, Klan members, and anyone who might march side-by-side with such people are un-American, illegitimate, and unworthy of a seat at the table of public discourse.

Fortunately, the vast majority of our country’s elected leaders knew what to say in response to the Nazi march last weekend. But unfortunately, there was one important exception–our President, Donald J. Trump. To me, Mr. Trump’s contemptible silence, followed by a reluctant “denunciation” of the Nazis, followed by a denunciation of the “denunciation” is an utter disgrace. It is a green light to Nazis. It is yet another attack on common decency and on our shared national values. It is complicity with Nazism. By the President of the United States. (As an aside, one of my lawyer-friends at the Justice Department told me–perhaps half jokingly–that she wanted to post a sign in her office that reads, “Nazis are bad,” but she feared it might get her into trouble–that is where we are under Mr. Trump.)

Frankly, I am not particularly worried about the Nazis themselves. They certainly can do damage–they murdered a young woman and injured many others. But they do not have the power or support to threaten our democracy. This does not mean we should take them for granted (few would have predicted Hitler’s rise when he was sitting in prison after the Beerhall Putsch), but we should not be unduly fearful either.

On the other hand, I am very worried about our President’s behavior. His governing philosophy (perhaps we can call it, “trickle down histrionics”) is poisoning our public debate, and it weakens us domestically and internationally. Thus far, his incompetence has served as a bulwark against his malevolence, but that can only go on for so long (see, e.g., North Korea). So there is much to be concerned about.

Here, though, I want to talk about hope. Specifically, the hope that I feel from my clients: Asylum seekers, “illegals,” and other immigrants. There are several reasons my clients give me hope.

One reason is that they still believe in the American Dream. Despite all of the nastiness, mendacity, and bigotry coming from the White House, people still want to come to America. They are voting with their feet. Some endure seemingly endless waits, often times separated from their loved ones, in order to obtain legal status here. Others risk their lives to get here. They don’t do this because (as Mr. Trump suggests) they want to harm us. They do it because they want to join us. They want to be part of America. My clients and others like them represent the American ideal far better than those, like our embattled President and his racist friends, who disparage them. When I see my country through my clients’ eyes, it gives me hope.

My clients’ stories also give me hope. Most of my clients are asylum seekers. They have escaped repressive regimes or failing states. Where they come from, the government doesn’t just tweet nasty comments about its opponents, it tortures and murders them. The terrorist groups operating in my clients’ countries regularly harm and kill noncombatants, women, children, and even babies. My clients have stood against this depravity, and many of them continue to fight for democracy, justice, and human rights from our shores. My clients’ perseverance in the face of evil gives me hope.

Finally, I have hope because I see the courage of my clients, who refuse to be cowed by the hateful rhetoric of our Commander-in-Chief. Since the early days of his campaign, Mr. Trump has demonized foreigners and refugees, and after he was sworn in as President, these individuals were the first to come into his cross hairs. If he can defeat people like my clients, he can move on to new targets. But many refugees and asylum seekers have been subject to far worse treatment than Mr. Trump’s bluster, and they are ready to stand firm against his bullying. Their fortitude encourages others to stand with them. And stand with them we will. The fact that vulnerable, traumatized people are on the front lines of this fight, and that they will not surrender, gives me hope.

I have written before about the tangible benefits of our humanitarian immigration system. It demonstrates to the world that our principles–democracy, human rights, freedom, justice–are not empty platitudes. It shows that we support people who work with us and who advance the values we hold dear. When such people know that we have their backs, they will be more willing to work with us going forward. And of course, that system helps bring people to the United States whose talents and energy benefit our entire nation. Add to this list one more benefit that asylees and refugees bring to our nation in this dark time–hope.

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The Cato Institute on the Asylum Reform and Border Protection Act

by Jason Dzubow

This post is by David J. Bier, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. Below is a statement he submitted to the House of Representatives about a new bill that is currently under consideration, the Asylum Reform and Border Protection Act. The bill would make it more difficult for certain aliens to seek asylum in the United States (though in a nod to Christian conservatives, the bill would also make it easier to gain asylum for people fleeing “home school persecution”).

David J. Bier

The Asylum Reform and Border Protection Act (H.R. 391) would undermine the individual rights of people fleeing persecution and violence to seek asylum in the United States. The bill would obliterate the current asylum standards for people seeking asylum at the border, and now require such asylum seekers to prove their claims to an impossible degree immediately upon their arrival at the border—without access to the documents or witnesses that they would need to do so. The government would then promptly deport without a hearing before an immigration judge those who fail this unattainable requirement, possibly to endure violence or persecution.

The authors claim that this radical change is necessary due to an unprecedented surge of asylum applicants. In the 1990s, however, a similar surge of asylum seekers arrived in the United States, and Congress adopted much less severe reforms than those proposed in this bill. Even assuming that the applicants are submitting asylum applications for the sole purpose of gaining entrance to the United States, the bill does nothing to address the underlying cause of the problem: the lack of a legal alternative to migrate. As long as legal immigration remains impossible for lesser-skilled workers and their family members, unauthorized immigration of various kinds will continue to present a challenge.

Asylum rule change will result in denials of legitimate claims

Current law requires that asylum seekers at the border assert a “credible fear” of persecution. Asylum officers determine credibility based on whether there is a “significant possibility” that, if they allow the person to apply, an immigration judge would find that the fear is “well-founded,” a higher standard of proof. The credible fear interview screens out only the claims that obviously have “no possibility, or only a minimal or mere possibility, of success,” as U.S. Citizenship and Immigration Services (USCIS) puts it. If the USCIS asylum officer rejects the claim as not credible, the applicant may ask an immigration judge to review the determination the next day but is not granted a full hearing. Customs and Border Protection removes those who fail to assert or fail to articulate a credible fear.

H.R. 391 would impose a much higher standard simply to apply for asylum in the United States. In addition to demonstrating that they had significant possibility of successfully proving their claim to an immigration judge, it would require applicants to prove that it is “more probable than not” that their claims are true—a preponderance of the evidence standard. This standard eviscerates the lower bar that Congress established. The committee simply cannot expect that asylum seekers who may have had to sneak out of their country of origin in the dead of night or swim across rivers to escape persecution will have sufficient evidence the moment they arrive in the United States to meet this burden.

In 2016, a group of Syrian Christians who traveled thousands of miles across multiple continents and then up through Mexico to get to the United States arrived at the border to apply for asylum. Thankfully, they met the credible fear standard and were not deported, which enabled them to hire an attorney to help them lay out their claim, but this new standard could endanger anyone who follows their path. An inability to provide sufficient evidence of their religion, nationality, residence, or fear would result in deportation immediately after presenting themselves at the border.

The authors imply that requiring them to prove their statements are true is not the same as requiring them to prove their entire asylum case, but this is a distinction without a difference. Asylum applicants must state a “credible fear” of persecution. Those statements would then be subject to the much more stringent standard. Of course the government should demand the truth from all applicants, but this is a question of the standard by which asylum officers should use to weed truth from falsehood. It is virtually impossible that, by words alone, asylum seekers could prove that it is “more probable than not” that their statements are true.

The committee should consider this fact: in 2016, immigration judges reversed nearly 30 percent of all denials of credible fear that came to them on appeal. This means that even under the current law, asylum officers make errors that would reject people with credible claims of persecution. If Congress requires an even greater burden, many more such errors will occur, but faced with the higher evidentiary requirement, immigration judges will have little choice but to ratify them.

Here is another sign that the truth is not enough: asylum applicants with attorneys were half as likely to have their asylum denied by immigration judges in 2016 as those without attorneys. Indeed, 90 percent of all applicants without counsel lose their case, while a majority with counsel win theirs. This demonstrates that people need more than just honesty—they also need to understand what evidence is relevant to their case and need help to gather documents, witnesses, and other evidence to support their claim.

For these reasons, Congress never intended the credible fear interview as a rigorous adversarial process because it wanted to give people who could credibly articulate a fear of persecution an opportunity to apply. It knew that while some people without legitimate claims would be able to apply, the lower standard of proof would protect vulnerable people from exclusion. As Senator Alan Simpson, the sponsor of the 1996 bill that created the credible fear process, said, “it is a significantly lesser fear standard than we use for any other provision.” Indeed, during the debate over the compromise version of the bill, proponents of the legislation touted that the fact that they had dropped “the more probable than not” language in the original version.

Asylum surge is not unprecedented

People can either apply for asylum “affirmatively” to USCIS on their own or they can apply “defensively” after they come into the custody of the U.S. government somehow, such as at the border or airport, to an immigration judge, which would include the credible fear process. If USCIS denies an “affirmative” applicant who is in the country illegally, the government places them in removal proceedings before an immigration judge where they can present their claim again.

Reviewing the data on asylum claims, two facts become clear: total asylum claims peaked in the 1990s, and a substantial majority of claims are affirmative—that is, done voluntarily, not through the credible fear process or through removal proceedings. Although credible fear claims—a process that was first created in 1997—have increased dramatically, the overall number of asylum claims has still not reached the highs of the early 1990s. Unfortunately, the immigration courts have not published the number of cases that they received before 1996, but as Figure 1 shows, the United States has experienced similar surges of asylum seekers to 2016.

It is noteworthy that in the midst of the surge in the 1990s, Congress did not adopt the draconian approach that this bill would require. Rather, it created the credible fear process that the bill would essentially eliminate. The authors of the legislation, however, argue that the Obama administration turned the credible fear process into a rubber stamp, allowing applicants to enter regardless of the credibility of their claims. But again a look at the numbers undermines this narrative. As Figure 2 highlights, the Obama administration denied an average of about 25 percent of all asylum seekers from 2009 to 2016.

Despite fluctuations of up to 35 percentage points during this time, there is simply no relationship at all between the rate of approval and the number of claims being made. Factors other than the approval rate must be driving the number of applications. Some of these claims are undoubtedly invalid or even fraudulent, but given that a majority of claims by individuals with representation in immigration court win their asylum claims, it is obvious that the credible fear process has protected many people from deportation to persecution abroad.

If fraudulent claims are a concern, Congress can best address it in the same way that it has successfully addressed other aspects of illegal immigration from Mexico: through an expansion of legal immigration. During the 1950s and again recently in the 2000s, Congress expanded the availability of low-skilled guest worker visas, which led to a great reduction in the rate of illegal immigration. Figure 3 presents the number of guest workers entering each year and the number of people each border agent apprehended each year—the best available measure of illegal immigration. It shows that the period of high illegal immigration occurred almost exclusively during the period of restrictive immigration.

Most guest workers today are Mexicans. This is largely due to the fact that the current guest worker programs are limited to seasonal temporary jobs and Mexico is closer to the United States, which makes trips to and from the United States easier. By comparison, most asylum seekers are from Central America. Assuming that a significant portion of these asylum seekers are either reuniting with illegal residents already in the United States or are seeking illegal residence themselves, these seasonal programs are unavailable to them.

Congress should create a temporary work visa program for low-skilled workers in year-round jobs, similar to the H-1B visa for high-skilled workers. This would cut down on asylum fraud and illegal immigration without the downsides that this bill presents.

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President Trump’s 101-Year Deportation Plan

by Jason Dzubow

Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.

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We’re All in Atlanta Now

by Jason Dzubow

Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

If you’re feeling down about Georgia exports, here’s something to love.

Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator  Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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