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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Seeking Asylum May Be Dangerous to Your Health, Your Children’s Health, and Even Your Unborn Baby’s Health

by Jason Dzubow

The asylum process was designed for speed. The regulations require that, absent “exceptional circumstances,” USCIS should adjudicate an affirmative asylum petition within 180 days. See INA § 208(d)(5)(A)(iii). That time frame went out the window with the “surge,” if not before, and these days, cases typically take a few years (and cases referred to Immigration Court can take even longer).

“I have to drink to forget.”

The effect of these delays on asylum applicants is about what you’d expect. I often hear from clients who are suffering from depression, anxiety, and other stress-related illnesses. Some have diagnosable conditions, and we regularly obtain letters from physicians to help us expedite cases. The situation is particularly dire for applicants separated from spouses and children, but few people seem immune to the stress caused by not knowing whether you (or your loved one) will be returned to a place where you fear harm.

Several recent studies have helped shed light on how the immigration process impacts people’s health, including the health of their children and even their unborn children.

One study stems from a well-known immigration raid in Postville, Iowa in 2008. Almost 400 undocumented workers—mostly Guatemalan—were arrested and charged with crimes such as identity theft and document fraud. Most were deported. Researchers at the University of Michigan at Ann Arbor examined the birth certificates of 52,000 children born before and after the raid. They found that “Latina mothers across the state were 24% more likely to give birth to undersized babies in the year after the raid than in the year before.” “The weight of non-Latino white babies stayed constant, suggesting that Latino populations were uniquely stressed by the incident.”

“Low birth weight is associated with developmental delays, behavioral problems and an increased risk of chronic disease,” among other problems.

Another study, currently in progress, will examine millions of birth certificates nationwide to “learn whether similar birth-weight patterns emerge when individual states enact laws targeting undocumented immigrants.”

A third study suggests that immigration raids can have deleterious effects on adults, as well. In November 2013, in the midst of an on-going health study of Latinos in Washtenaw County, Michigan, ICE conducted a high profile military-style raid on the local community. “The 151 people who answered the survey after the raids reported worse general health than the 325 who had already completed it…. Many said that after the raids, they were too afraid to leave their homes for food or medical care, and displayed symptoms of post-traumatic stress disorder.”

After President Trump signed the first executive order, the American Academy of Pediatrics warned that, “Prolonged exposure to serious stress — known as toxic stress — can harm the developing brain and negatively impact short- and long-term health…. The message these [immigrant] children received today from the highest levels of our federal government exacerbates that fear and anxiety.”

These reports focus on undocumented aliens who fear removal and their children, but my guess is that the results would be similar for asylum seekers, who also face uncertainty, especially in light of the Trump Administration’s rhetoric and stepped-up enforcement efforts. The reports also reflect what I am hearing from my clients.

So what can be done to help alleviate stress related to asylum delays?

First, you can try to take some affirmative action. Ask to expedite and/or short-list your case. File a motion to advance. I have written about these options here (for the Asylum Office) and here (for the Immigration Court). Whether such efforts will ultimately make the case any faster is somewhat unpredictable, but taking action may be better than waiting helplessly.

Second—and I often tell this to my clients, most of whom have strong cases—try to live like you will win your case. Learn English, go to school, get a job, buy a house, etc. You really can’t put your life entirely on hold for years waiting for a decision in your asylum case. You have to live. Obviously, this is easier said than done, and I myself would have a very hard time following such advice, but those who can put the case out of their minds and go on with life will be better off than those who dwell on it.

Third, stay engaged. There are support groups for refugees, asylum seekers, and victims of persecution. There are also churches, mosques, and other institutions that can help. Being able to discuss problems, share information, and talk (or complain) to people who understand your situation is useful, and maybe cathartic. For a list of non-profits that might be able to refer you to a support group near you, click here.

Although cases do seem to be moving a bit faster lately, it seems unlikely that the long delays and uncertainty faced by asylum seekers will go away anytime soon. During the wait, it is important to take care of yourself and your family, and that includes taking care—as well as you can—of your mental health.

 

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The “New” Travel Ban and How It Affects Asylees and Refugees

by Jason Dzubow

Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six “banned” countries–Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

Since the Court’s decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order (“EO”). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court’s decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.

Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.

Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the “banned” countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), “Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply.” (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.

Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), “Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection].”

The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for “those refugees who are in transit and booked for travel,” though these people will likely all be in the U.S. by now.

According to DHS (question # 29), refugees can still come to the U.S. if they have a “close” family relationship with someone already here. DHS interprets this to mean:

[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?

Also, a refugee with a bona fide relationship to an “entity” in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don’t), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

The EO’s impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation’s values, which these days seem in grave jeopardy.

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Return of the Travel Ban

by Jason Dzubow

Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.

You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.

But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):

“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’

“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

“Who is likely to be allowed to enter the United States?

  • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
  • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
  • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
  • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
  • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

“Who may have trouble entering the United States?

  • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
  • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”

As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.

In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.

Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

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The BIA on Firm Resettlement

by Jason Dzubow

One of my professional goals in life is to get a published decision from the Board of Immigration Appeals (“BIA”). It won’t be easy–the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation’s Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.

Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are “persuasive,” meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.

My case centered on a legal construct called “firm resettlement.” An alien who has been “firmly resettled” in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client’s husband had been a high-ranking member of his country’s government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum–hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge (“IJ”) denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.

During the pendency of the BIA appeal, the home government assassinated my client’s husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.

On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.

DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government’s argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.

Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.

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New Study Shows that Refugees May or May Not Be Good for the Economy

by Jason Dzubow

Studies about immigrants and refugees tend to be a sort-of Rorschach test: For those who support higher levels of migration, they show that immigrants contribute positively to our society; for those who want to restrict immigration, the same studies demonstrate that new arrivals have a negative impact on our country.

Cost of resettling a refugee: $107,000. Taxes paid by said refugee: $130,00. Saving a human life: Priceless.

I’m no expert, but it seems to me that part of the problem is a lack of data. Where there is a dearth of information, we tend to fill-in the blank spaces with our own hopes and fears. Think of those medieval maps that showed fanciful creatures and fabulous kingdoms just past the borders of the known world.

The most recent attempt to quantify the economic impact of refugees comes from two professors at the University of Notre Dame: William N. Evans and Daniel Fitzgerald. Their paper, The Economic and Social Outcomes of Refugees in the United States, uses data from the U.S. Census Bureau’s most recent five-year American Community Survey (2010-2014) to tease out the impact of refugees–as distinct from other immigrants–on the U.S. economy. The website Five Thirty Eight nicely summarizes the report’s findings:

[R]esearchers pulled a sample of 18-to-45-year-olds who resettled in the U.S. over the past 25 years and examined how their employment and earnings changed over time. They found that the U.S. spends roughly $15,000 in relocation costs and $92,000 in social programs over a refugee’s first 20 years in the country. However, they estimated that over the same time period, refugees pay nearly $130,000 in taxes — over $20,000 more than they receive in benefits.

The authors found that, when compared to rates among U.S.-born residents, unemployment was higher and earnings were lower among adult refugees during their first few years in the country, but these outcomes changed substantially over time. After six years in the U.S., refugees were more likely to be employed than U.S.-born residents around the same age. The longer they live longer in the U.S., the more refugees’ economic outcomes improved and the less they relied on government assistance. While refugees’ average wages are never as high as the average for U.S.-born residents, after about eight years in the U.S., refugees aren’t significantly more likely to receive welfare or food stamps than native-born residents with similar education and language skills.

Responses to the report were predictable. The restrictionist Center for Immigration Studies questioned the study’s methodology (Steven Camarota notes that the authors did not include costs associated with education, incarceration, and law enforcement and looked only at more productive, working-age refugees). The Migration Policy Institute viewed the report as evidence that resettlement agencies help refugees become self-sufficient more quickly. Both points seem worthy of further exploration, and I hope this report will help spark more discussion.

For my part, I have mixed feelings about the study. On the one hand, the whole idea of quantifying the economic impact of refugees seems like a vulgar exercise. We shouldn’t be helping such people because we hope to gain a monetary benefit from them. We should help them because it is the right thing to do. Indeed, the notion that refugees should somehow be a financial boon to our economy debases the high ideals of our humanitarian immigration system.

On the other hand (and in the real world), I recognize that it is critical for us to understand the impact of refugees on our country–economically, socially, and in the national security context. The report by Professors Evans and Fitzgerald seems to be a valuable contribution to this effort. Only with more information about refugees can we create rational, fact-based policies. How many refugees and asylum seekers should we admit each year? How well do such people integrate into our community? How can we ease the transition so that migrants become self sufficient more quickly? The more information we have, the better equipped we will be to answer such questions.

To be sure, the economic aspect of refugee resettlement is only one part of the story. But it is important to better understand how refugees are integrating into our economy so we can help improve that process. It is also relevant (at least to some extent) to the debate about how many refugees we should be admitting into our country.

These days I am not feeling overly optimistic about the quality of our public conversation on refugees (or on any other topic). It is far more common to hear hyperbole, falsehoods, and ad hominem attacks in the immigration debate than it is to find sober analysis. But at least in the economic realm, I think this report is significant. It contributes to a mounting body of evidence suggesting that immigrants and refugees help our economy more than most restrictionists would have us believe. It is also a serious piece of analytic work at a time when seriousness is sorely lacking from the discussion.

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“Us Versus Them” in Immigration Court

by Jason Dzubow

There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn’t better friends with my opposing counsel at the end of the case than at the beginning.”

Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.

His philosophy may be Old School and–in these days, where being nice to someone you disagree with has become all too rare–almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.

The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.

Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.

Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair–to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).

Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.

Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.

All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.

With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.

While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers–the immigration bar and DHS–should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country’s leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.

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I Don’t Know, I Don’t Know, I Don’t Know

by Jason Dzubow

If you are an asylum seeker waiting for your interview, repeat these words: I don’t know. Again: I don’t know. Say them out loud: I don’t know. One more time: I don’t know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.

“I appear wise because I do not think I know what I do not know” – Socrates. #BeLikeSocrates

I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says “I don’t know,” you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.

Asylum seekers also need to practice their I-don’t-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.

Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client’s assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).

Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don’t fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.

I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.

Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).

It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can’t, don’t be afraid to say “I don’t know.” As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.

 

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Fred Korematsu and the Forgotten Legacy of Lies

by Jason Dzubow

Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.

Fred Korematsu and the Presidential Medal of Freedom.

After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).

The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”

Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.

With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.

But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.

The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.

As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”

In 2011, the Acting Solicitor General stated:

By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.

Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.

Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.

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Illogical Fears Generate Illogical Policies: Notes from the Center for Immigration Studies “Asylum Fraud” Panel

by Jason Dzubow

This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.

Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.

On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.

CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.

As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.

The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.

Immigrants are Dangerous

To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.

Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.

As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.

What Do the Numbers Tell Us?

A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”

So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.

One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.

The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.

Asylum Seekers vs. Refugees

I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.

Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.

For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?

“Pro-immigrant”

At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.

Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.

Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.

Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.

Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.

Ignoring the Elephant in the Room

Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.

Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.

This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.

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Exposing the Grandma Menace

by Jason Dzubow

On April 26, the Department of Homeland Security launched its new Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will “assist victims of crimes committed by criminal aliens.” DHS Secretary John Kelly said in a statement, “All crime is terrible, but these victims are unique—and too often ignored. They are casualties of crimes that should never have taken place—because the people who victimized them often times should not have been in the country in the first place.” I suppose the same might be said of crimes committed by children born of unplanned pregnancies, but I digress.

Don’t mess with these ladies, especially if they haven’t had their nap.

The fact is, most credible reports show that immigrants commit crimes at a lower rate than U.S. citizens. But never mind that. Today, I am concerned with another group whose below-average crime rate masks its otherwise sinister nature. You guessed it, I’m talking about America’s grandmothers.

To shed light on this menace, I’ve decided to create a new website called VOGUE – Victims Of Grandmothers’ Unscrupulous Ethics. The website will track crimes committed by mommoms, babas, memoms, geemas, and savtas throughout our great country. And I’m not just talking about the Little Old Lady from Pasadena, though her reckless driving certainly terrified everyone on Colorado Boulevard. Rather, I want the public to know that America’s bubbies are a real threat to our society. So in the spirit of disproving statistics with anecdotes, I present to you the Top 5 nana-related crimes of recent memory. Be afraid. Be very afraid:

(1) In 2010, a 64-year old Long Island woman was arrested for stealing boxes of jello, replacing the contents with sand and salt, and then returning the boxes for a full refund (of $1.40 each!). According to authorities, Christine Clement disposed of the evidence by cooking up and eating the contents of the boxes she had emptied. Ms. Clement’s husband of 40 years served as her get-away driver.

(2) Griselda Blanco was a drug lord (drug lady?) from Colombia who relocated to Miami where she dominated the violent cocaine-trafficking scene in the 1970s and 1980s. She was supposedly responsible for over 200 murders, including the murder of at least one of her husbands. Ms. Blanco was finally deported to Colombia where she was assassinated at a butcher shop in 2012. Catherine Zeta-Jones is slated to play her in an upcoming movie called The Godmother (fittingly, Ms. Blanco’s youngest son is named Michael Corleone Blanco).

(3) Velma Barfield, also known as “Death Row Granny,” used arsenic as her weapon of choice. She confessed to killing four people, including her mother and a boyfriend. It seems likely she also killed at least one of her two husbands. In 1984, she became the first woman executed by lethal injection and the first woman in the United States executed since 1962.

(4) Another killer who preferred poison was Nannie Doss, known as the “Giggling Granny.” All together, she killed four husbands, two children, her two sisters, her mother, a grandson, and a mother-in-law. The first murders took place in the late 1920’s and the last occurred in 1953, when she killed her fifth husband by poisoning his sweet-potato pie (given my own feelings about sweet potatos, I am unlikely to die this way).

(5) Career criminal Doris Payne has been a jewel thief for more than six decades. Her most famous theft involved a $500,000.00, 10-carat diamond ring, which she stole from a jewelry store in Monte Carlo in the 1970’s. More recently, in 2015, she allegedly stole another diamond ring valued at $33,000.00 from a store in North Carolina (at age 84!). Her modus operandi is to pretend to be a well-to-do person looking to buy jewelry. She has the clerk take out various pieces, and then somehow causes the clerk to lose track of a piece or two, which she carries away.

So as you can see, America’s grannies are a notorious bunch. Whether they’re clandestinely replacing our jello with sand, murdering rival drug lords and annoying husbands, or walking away with large diamonds, they clearly represent a danger to us all. But hopefully, VOGUE will help. By shining a light on a few bad (Granny Smith) apples, we’ll soon have you convinced that the whole barrel is spoiled. At least that’s what they tell me at DHS.

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In Trump’s America, Are Asylum Seekers at Risk of Arrest?

by Jason Dzubow

A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.

If you see these guys at your asylum interview, it’s probably a bad sign.

Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”

I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.

Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.

Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).

It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.

In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.

So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.

First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.

If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.

If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?

Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

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Expediting a Case in Immigration Court

by Jason Dzubow

For the last few years, the “hot topic” in asylum has been the backlog–the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.

Courts are still wrapping up the last of Justice Marshall’s immigration cases.

The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That’s a long time, especially if you are separated from family members while your case is pending. For what it’s worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).

Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, “Motions to advance are disfavored.” The motion should “completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.” Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).

Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.

OK, before we get to the various approaches for advancing a court case, let’s start with a bit of background. A case commences in Immigration Court when the Notice to Appear–or NTA–is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, “remove”) someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing (“MCH”). At the MCH, the alien–hopefully with the help of an attorney–tells the Immigration Judge (“IJ”) whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.

If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an “A number”). The system will tell you whether your case is scheduled and the date of the next hearing.

If the system indicates that your “A-number was not found,” this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.

If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.

While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.

If the MCH is scheduled: Sometimes, MCHs are scheduled months–or even years–in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.

First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone’s guess. Some IJs (and their clerks) are good about this; others, not so much.

Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.

Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don’t be surprised if your lawyer tells you that filing a motion will cost extra.

At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.

One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates–for example, if another case has been cancelled). Many lawyers (again, including me) don’t love this because it requires us to do all the work in advance, and it often does not help. Don’t be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers–and other humans–prefer to put off until tomorrow what we do not need to do today).

Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.

Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.

Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.

After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge’s schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal – see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or–if the Judge has an effective clerk–you can file a motion to advance, and the clerk will save it until a spot opens up for you.

Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).

Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.

Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.

Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.

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