Among lawyers, there’s a certain skittishness when it comes to discussing fees. Speaking for myself, I don’t much care for the money-side of the business. We’re not trained to deal with client payments in law school, and the guidance we receive afterwards—from the bar association, for example—is related more to complying with lawyer-trust-account rules than to determining how much to charge.
If the lawyer spends more time counting your money than working on your case, you probably paid too much.
In the field of asylum law, attorney fees vary widely. Within my little community, for an affirmative asylum case, I’ve heard about lawyers charging anywhere from $900 to $10,000 (or more). For defensive asylum cases (in court), prices are usually higher. Sometimes these fees are flat fees, meaning you pay a set fee for the entire case. Other times, fees are hourly, meaning you pay for the lawyer’s time–the more time the lawyer spends on your case, the more you pay.
In my office, we charge a flat fee of $3,000 for most affirmative cases, which is fairly competitive with those few attorneys in Washington, DC whose main practice area is asylum. Our fee for defensive cases is usually $4,000 [update 01/10/18 – please note that these fees were from 2016 and no longer apply]. What’s ironic here is that lawyers who do not specialize in asylum—and who consequently have less experience in this area of practice—are actually able to charge more for each case (I remember telling one such lawyer about my fee and she burst out laughing; I took that as a sign that I should raise my rates – maybe one day). In our firm, the bread-and-butter cases are asylum, and so we need to do a lot of such cases. Thus, we have to keep the prices down. If our main practice area was business immigration, for example, we could charge more for each asylum case, since we would not need to do a large number of such cases to make a living.
So how do you know what is a fair fee for an asylum case? And what exactly do you get in exchange for giving money to an attorney?
The first question is difficult to answer. Hiring an attorney is not like buying a new car. Whether you buy the car from one dealership or another, it’s the same car. With a lawyer, you are paying for his work. Some lawyers are brilliant, honest, and hard working; others are poorly trained, lazy, and dishonest. Paying more money for a lawyer does not mean that you are hiring a better advocate. In fact, I find that there is little relationship between the amount of the fee and the quality of the service. Indeed, lawyers who charge higher fees for asylum are sometimes more interested in earning money than in helping their clients.
I suppose the first thing you’d have to know in deciding whether an attorney’s fee is fair is the quality of the service she provides. There are certain things a good attorney should do. For example, a good attorney will listen to your story and try to evaluate the strengths and weakness of your case; she won’t sugarcoat the case in an effort to get your business. A good attorney will make sure you understand the asylum process, the problem of delay, and the possible results in your case. She should also explore any alternatives to asylum that might be available to you. A good attorney will help you put together your case, write your affidavit with you, and advise you about what supporting evidence you should obtain. This point is crucial: The affidavit (or declaration) is the heart of your case, and an asylum applicant may not know what information is legally relevant to include in that document. If the attorney does not spend significant time helping you prepare the affidavit, she is not doing her job. Without a properly prepared affidavit, the odds of success go way down.
Also, a good attorney should prepare you for your interview by discussing possible questions and answers, and by helping you think through answers to problematic portions of your story. A good attorney should be relatively easy to reach; if you call and leave a message, she should call you back (pet peeve alert: If you call and don’t leave a message–like some of my clients–the attorney likely will not call you back, as she won’t know that you’ve called her – so leave a message!). If your lawyer is not providing these services, she is not doing her job, and whether her price is a lot or a little, it is too high.
A final point, and this is key: A good attorney will never encourage you to lie or agree to represent you if you tell him that you want to lie to the U.S. government. Any attorney who does that is untrustworthy and dangerous. If they are willing to lie to the government, you can bet that they will lie to you.
If your attorney is providing all the essential services, if you feel comfortable with the attorney, and if you can afford the fee, whatever it is, you are probably getting a fair deal. Maybe that is a cop-out answer, but as I’ve said, it is quite difficult to place a monetary value on a lawyer’s services.
I truly believe that there is little relationship between price and quality among asylum lawyers. If you find an attorney that you like, but his price is too high, then look for another attorney who is more affordable. Good, reasonably-priced lawyers are out there. But remember too that these cases are a lot of work. Most asylum lawyers who are dedicated to the field don’t expect to get rich, but we do need to make a living. And you do need to pay a fair price for their work. Now, if you’ll excuse me, I’m off to earn the big money… or not.
If you want to maximize your chances for winning asylum, where is the best place in the U.S. to apply?
It’s unfortunate that we even need to ask this question. In a perfect world, the approval rates for each Asylum Office would be about the same. But in the real world, approval rates vary–by quite a lot, it turns out.
Lies, damned lies, and statistics: Which are these?
Our team of mathematicians here at the Asylumist have been working hard to analyze the most recent data from the Asylum Office, and we’ve summarized our findings in the attached chart. You can see that the approval rate for the San Francisco office (76.5%) is significantly higher than for the other Asylum Offices. The next best offices are Arlington (51.8%) and Los Angeles (50.7%), followed by Chicago (38.3%), Miami (37.7%), and Newark (35.8%). The worst offices are Houston (27.6%) and New York (22.6%).
First, a word about methodology: We used monthly statistical information from the Asylum Division Quarterly Stakeholder Meeting to calculate the percentages. USCIS posts this information four times per year, and you can see the latest posting here. We looked at the numbers from the most recently available six month period: April to September 2015. To determine the approval rate, we removed from the mix (technically, from the denominator) asylum denials based on no-shows–in other words, where the applicant herself never attended the interview.
Just for fun, we added another column listing the length of delay before the interview at each office (as of February 2016 – one day, I will do an article about why the posted wait times are not good predictors of how long a new asylum applicant will wait for an interview). You can see that the Asylum Offices with the lowest grant rates (New York and Houston) also currently have the shortest waits for an interview (20 months and 21 months respectively). Perhaps there is a connection between grant rates and waiting periods, but I doubt it–the office with the highest grant rate (San Francisco) has the third shortest waiting time (25 months).
Based on the above analysis, the savvy asylum seeker might conclude that the best way to maximize his chance for a grant is to live within the jurisdiction of the San Francisco Asylum Office, or as a second choice, the Arlington, Virginia or Los Angeles Asylum Offices (to see which Asylum Office has jurisdiction over your case, check the Asylum Office Locator). But I think such a conclusion assumes too much. I also think there are other factors worth considering besides grant rates and wait times. Let me explain.
First, it’s difficult to know what’s behind the above numbers and how applicable they are to an individual case. Who is seeking asylum at each office? From which countries and for what reasons? Are applicants more likely to be represented by a lawyer (which increases the likelihood of a grant) at certain offices? Some types of cases are more difficult to win than others, and this might be reflected in the statistics. For example, supposedly the Houston office has a higher percentage of applicants fleeing persecution from criminal gangs in Central America. In general, such cases are difficult to win since applicants don’t easily fit into a protected category under the asylum law. If we could eliminate Central American cases from the mix, perhaps the Houston office would have a higher grant rate. So does this mean that if you have a different type of asylum case (say, an Iraqi fleeing religious persecution), Houston might not be a bad place to apply? Maybe. At least it probably is not as bad as the overall approval rate suggests.
Second, while USCIS provides limited information about why cases are denied, they do give us some information–most importantly, they provide the number of cases denied due to missed filing deadlines (asylum applicants are required to submit their applications within one year of arrival in the U.S. or meet an exception to this rule; otherwise, the Asylum Office will automatically deny the case and refer it to an Immigration Judge). For some reason, the New York office has a high percentage of “Filing Deadline Referrals.” Roughly 35% of all referrals in NY are due to the filing deadline. In most other offices, less than 20% of cases are referred on this basis. If you remove such cases from the calculus, the overall grant rate in NY goes from 22% to over 30%. So does this mean that more people are filing late in New York, or does it mean that New York is less likely to find an exception to the one-year filing requirement? While I suspect it’s the latter, we really don’t know. But if you are filing your application in a timely manner, the New York office may not be as bad as the chart above indicates.
The bottom line is, we don’t know a whole lot about what’s behind the Asylum Division’s statistics, and without a better understanding of the situation, it is difficult to make predictions in an individual case.
There’s another unknown factor at play here as well: These cases are taking a long time, and given the relatively short tenure of each asylum officer (two or three years, I’ve heard), the approval rate at a given office may change by the time the interview date arrives. So a good office today may be less good tomorrow (or vice versa).
Finally–and for me, this is the best argument against forum shopping–given the years-long waiting period before the interview, asylum seekers have got to live their lives. I often advise new clients that they should live as though they are going to win their cases. Why? Because it’s impossible not to–how can you put your entire life on hold for two, three or more years while you wait for an asylum decision? In some things (reunification with family, certain job opportunities), you may have no choice, but to the extent possible, you need to live your life while you are waiting for a decision. This means you need to live where you have a job or go to school, or where you have the support of family members and friends. If you choose where to live based on the local Asylum Office approval rate, you may have a hard time surviving the wait.
On the other hand, if all else is equal (or maybe if you just have a hankerin’ for some Rice-A-Roni), San Francisco is probably not a bad place to apply.
The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.
Mr. Wenger’s client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client’s family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger’s troubles stem from the client’s decades-old conviction for criminal sexual misconduct.
It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn’t work.
Now, Mr. Wenger is going to jail and the client–while still in the United States–faces an uncertain future.
Mr. Wenger’s tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as “sad,” and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I’ve known criminal defense lawyers, for example, who say that if you don’t go to jail for contempt once in a while, you’re not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job–and our duty–as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger’s story reminds us.
So I suppose I understand Mr. Wenger’s motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don’t see the point of lying about something that the government knows already.
The temptations faced by Mr. Wenger are amplified in my practice area–asylum–where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client’s own testimony. I’ve encountered this myself a few times when clients have asked me to help them lie (“Would my case be stronger if I said X?”). How to handle such a request?
The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client’s goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.
For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported–possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner’s disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.
When all is said and done, I will not lie for a client. I don’t think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer–and thus my ability to be an effective advocate–in all my other cases. I also feel that it damages the system, which hurts honest applicants.
In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer’s zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.
Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.
Nayla Rush, a Senior Researcher at the anti-immigration Center for Immigration Studies, has apparently been spying on the USCIS Asylum Division – and lying about what she has overheard.
I couldn’t find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.
First, a bit of background: As you may know, the Center for Immigration Studies or CIS (not to be confused with USCIS – the United States Citizenship and Immigration Services) is a group that wants to restrict immigration to the United States. Their writers are usually intellectually honest, though not always. I often disagree with their policy positions, and I have written about them a few times (here, here, and here). They also occasionally write about me.
Last week, I visited the CIS website and discovered Nayla Rush’s post about attending the USCIS Asylum Division Quarterly Stakeholder Meeting on December 11, 2015. The meeting was for “Stakeholders” in the asylum system: Advocacy groups, lawyers, even–I suppose–people who want to restrict the asylum process. But the meeting is specifically not for the media. The invitation reads, “Note to media: This engagement is not for press purposes. Please contact USCIS Press Office… for any media inquiries.”
It just so happens that I also attended the meeting in question, which was led by the Asylum Division Director, John Lafferty. About 50 people were present, including USCIS staff, private lawyers (like me), and representatives of various organizations involved with asylum law.
During the first part of the meeting, each person introduced himself and stated the name of his organization. If Ms. Rush introduced herself, I do not remember. But certainly she did not reveal that she was representing CIS – everyone there knows the anti-immigration group and her presence at the meeting would have raised some eyebrows.
Ms. Rush also did not reveal that she was attending in her capacity as a journalist. Perhaps she hoped to discover some dirt or some secret conspiracy between USCIS and asylum advocates. Maybe she covertly recorded the meeting, Planned Parenthood-style, with the hope of exposing something nefarious. Apparently, she did not find anything too damning, but fear not–in the absence of evidence, you can always make stuff up.
From the meeting, Ms. Rush claims to have learned that “Officers interview asylum seekers by phone in 60 percent of the cases (except for families who are already in detention centers).” In her piece, “Most Asylum Applicants Are Interviewed by Telephone. Feel Safer?“, Ms. Rush notes that it’s hard enough to assess an applicant’s credibility, but if the officers cannot even look the applicant in the eye, fraudulent asylum seekers–including potentially dangerous people–can scam their way through the system. “Call me skeptical,” she writes, “but I don’t see how this subjective assessment [of asylum seeker credibility] can be obtained through a telephone conversation.”
So the premise of Ms. Rush’s article is that 60% of asylum seekers are interviewed by phone. If this were true, it would be cause for concern. However, the actual number of asylum seekers interviewed by phone is more like 0%. That’s zero. Zilch. Nada. None. In fact, every asylum applicant interviews in-person, face-to-face, with an Asylum Officer. So what is Ms. Rush talking about?
My best guess is that she has confused (or deliberately conflated) asylum interviews and credible fear interviews (“CFI”). The purpose of an asylum interview is to determine whether an applicant may be granted asylum, and thus the legal ability to remain permanently in the U.S. The purpose of a CFI is to determine whether an applicant presents a prima facia case for asylum. If the applicant meets this minimal standard, she will then be sent to an Immigration Judge (or in the case of a minor, an Asylum Officer) to determine whether asylum should be granted. If the applicant fails the credible fear interview, she will be deported. Many credible fear applicants are interviewed by phone, but since this is only an initial evaluation of the case, and since the only purpose is to assess whether the person has articulated a fear of return to her country, credibility is not really a consideration. If the person “passes” the CFI and then presents her asylum case, she will have an in-person interview (or a trial) where credibility is carefully considered.
From all this, it seems that Ms. Rush is either so unfamiliar with the asylum process that she confused two basic concepts (asylum and CFI), or she understands the asylum process and she is a big liar. My guess is that it’s the latter. Why? Because the article is not the only instance of Ms. Rush’s dishonesty when it comes to refugees.
Take, for example, Ms. Rush’s recent report on the UN’s Role in U.S. Refugee Resettlement, where she claims that the “United States is entrusting the staff of the United Nations High Commissioner for Refugees (UNHCR) with the entire selection and pre-screening process of Syrian refugees eligible for resettlement in the United States” (the emphasis is mine). The implication is that the UN determines who comes to the U.S. as a refugee. This is completely false. The UN refers refugees to the U.S. government, which then independently screens them and performs background checks (I’ve written about this process here). Ms. Rush’s fear-mongering and dishonesty about Syrian refugees suggests that her motivation is to score political points, regardless of the facts.
Frankly, I am not particularly bothered by Ms. Rush attending the Asylum Division meeting under false pretenses and then writing about it. I happen to believe (like her, I think) that the system should be more transparent. What bothers me is that she would attend the meeting and then deliberately distort what she heard.
As I have written before, there are legitimate arguments for limiting the number of refugees and asylum seekers we admit into the United States. We as a country should be discussing these issues, and organizations like CIS have an important role to play in that conversation. But when CIS distorts the facts in order to advance its argument, it impoverishes the debate and damages its own credibility. Hopefully, in the future, CIS and Ms. Rush will be more responsible and more honest as we continue to discuss this important topic.
It’s rare these days that I actually have good news to report from the Asylum Office, but recently there have been a few small improvements that are worth noting. These are not earth-shattering changes, to be sure, so don’t get too excited, but they do represent movement in the right direction.
There are plenty of things you can do without an EAD.
First, as you may know, there are now long delays applying for and renewing the Employment Authorization Document (“EAD”) – the work permit. As the law now stands, you must wait 150 days after filing the asylum application before you can apply for an EAD. During this period, it is often impossible to get a driver’s license or a job, or to attend school, so the sooner the EAD arrives, the better.
We used to see clients get the EAD in a month or two after filing, but recently, it is more like four months. Combined with the 150-day waiting period, this means that asylum applicants are waiting about nine months from the time they file for asylum until the time they receive their EAD. That’s a long time to be without the ability to get a driver’s license or a job, and it is one of the hardest parts of the application process.
After the EAD is received, it must be renewed every year. The earliest a renewal can be submitted is 120 days before the current EAD expires. But the renewals also take about four months, so even if you remember to file the renewal at the earliest possible date, you may end up with a gap between the old work permit and the new. This could cause you to lose your driver’s license or your job, and it is quite stressful for many people.
Fortunately, there is some relief in sight. Under new proposed rules, USCIS would automatically extend the EAD at the time the application for renewal is filed. In other words, when you submit the form I-765 to renew your EAD, you will receive a receipt after a few weeks, and this receipt will automatically extend the validity of your existing EAD. This rule also applies to EAD applications for refugees and asylees (people granted asylum), and a few others.
The rule has not gone into effect yet, and I am not 100% sure it is a done deal (though I do not see why they would change their mind). Perhaps if you are an asylum seeker who would like to see this rule implemented, you can tell USCIS about the hardship you’ve experienced due to EAD delays. Anyone is allowed to comment on the new rule by emailing USCISFRComment@dhs.gov. If you email them your story, you need to include the reference number of the rule in the subject line of your email, as follows: “DHS Docket No. USCIS-2015-0008”.
Perhaps coincidentally, I made this exact proposal for EADs a few months back. I presume that USCIS listened to me and they will be sending me a fruit basket to thank me for the good idea. Maybe they missed the other part of my proposal, where I suggested that EADs should remain valid for two years instead of one, but the automatic extension is a good start, and it will be a welcome relief for thousands of asylum seekers.
The second bit of good news is more minor, but it is still a positive development. It used to be that when submitting the asylum application (form I-589) and supporting documents, we were required to submit the original and two copies. The new rule is that we submit the original and one copy. OK, perhaps this is only something a true asylum geek can get excited about (and maybe “excited” is too strong a word), but it does save some money and some trees, so that is all good.
For me, these changes (particularly the change related to EADs) are a sign that USCIS recognizes the new reality created by the backlog: People are going to wait for a long time, and this is a hardship that needs to be addressed. If USCIS is willing to help out with EADs, I would hope that even more changes are coming. As I discussed previously, a few low-cost improvements might include prioritizing people separated from family members, making the Advance Parole process easier, and making the asylum application and waiting process more transparent. But that is a discussion for another day. For now, we can be happy that the burden on asylum seekers will be made a little lighter.
Some observers believe that one of the root causes for the war in Syria is climate change. Starting in the first decade of the current century, drought and warmer temperatures in Syria pushed about 1.5 million people to move from their farms into cities. This more volatile atmosphere helped lead to war.
Aquapalypse Now: Rising sea levels may create millions of new refugees
So one effect of climate change may be to increase competition for scarce resources. Increased competition = more wars = more refugees.
Another source of climate refugees is rising sea levels. As the water rises, certain areas and certain countries might become uninhabitable. People will have to be relocated. Many will be able to move within their own countries, but others will be forced to leave their homelands.
The potential for mass movements of people across national borders is very real, and some experts predict that the new flow of climate refugees will dwarf anything we’ve seen thus far. That’s a scary thought, and for those of us involved in refugee resettlement, it represents an existential challenge: If tens or hundreds of millions of people are on the move, how do we accommodate them?
And what about the current international legal regime? By definition, a refugee is a person who cannot return to his country owing to persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or particular social group. Many people fleeing Syria can meet this definition (some of our cases, for example, are shoe-horned in by presenting the claim as one based on imputed political opinion—even if they are not politically active, the Syrian government believes they are political opponents and that is enough for a grant). However, people who flee because their homes are flooded or because their crops have failed are not “refugees” as that term has been defined in international and U.S. domestic law. They are not being “persecuted” by anyone, except perhaps Mother Nature, but I don’t think that counts. So what do we do with them?
As we’ve seen with the exodus from the Middle East to Europe and, on a smaller scale, from Central America to the U.S., the mass movement of people creates many challenges—social, economic, political, and moral. There is also great resistance by many segments of the community to accepting large numbers of foreigners. If that is the case, what will become of the new climate refugees? Will they be confined to UN-supported camps in the countries of first arrival? Will they remain in such places indefinitely? What is the end game for people who can never return home? How will the world order be affected by millions of stateless refugees, who live without hope and who may become a destabilizing influence on the host countries?
Of course, I have no answers to any of these questions. Given the state of the problem today (over 59 million forcibly displaced persons worldwide, including about 19 million refugees) and the number of people who are annually resettled (about 626,000 were recognized as refugees or received some form of protection), I am not optimistic that we will accommodate millions more refugees in some dystopian (but probably not distant) future. One thing is true, if we see much larger numbers refugees in the world, we will have to deal with them in some way.
One solution is to close our doors and try to keep the problem as far away from home as possible. This is essentially the path favored by several main-steam restrictionists groups. Indeed, the Center for Immigration Studies (“CIS”) and the Federation for American Immigration Reform (“FAIR”) both originated from concerns about immigration and the environment. The leading founder of these groups, John Tanton, viewed the mass movement of people as a threat to the environment, and favored restricting immigration as a way to protect the environment. It also happens that he was a bit of a white supremacist, but I suppose that is not particularly relevant to the environmental argument.
As you might guess, I am not a fan of the environmental argument (or the white supremacist argument, for that matter). People who move from poor countries to rich ones probably use more resources in their new homes than if they’d stayed put, but they also have a better quality of life and they generally enrich the societies they move into (in 2014, for example, immigrants made up 12.9% of the U.S. population, but started 28.5% of new businesses). I am not sure how to balance this with the environmental impact, but when you add in the fact that many people are fleeing persecution or environmental disaster, the balance for me tips in favor of protecting people by allowing more migration.
That said, I’m also not convinced that the U.S. and Western Europe can or should absorb millions of new refugees. There is a limit to how many people we can resettle and still maintain our social cohesion. I am not sure what that limit is, though it seems clear that we can do more than we are doing now. But the West cannot do it alone–if we see mass migrations due to climate change, the task of assisting and resettling people will need to be distributed across the globe.
As a father and an uncle (and a person who is generally rooting for the human race), I hope that the world’s leaders will make genuine efforts to curb global warming. As someone concerned about refugees and migration, I hope that we will respond to climate refugees with compassion. Climate change is a great challenge to mankind. I hope that we can meet that challenge and retain our humanity.
Police officials in Cologne, German have received over 500 criminal complaints about attacks that occurred this past New Year’s Eve. Forty percent of the attacks involved a sexual offense, and a large majority of the victims were women. Most of the culprits “were said to have been of a North African or Middle Eastern appearance,” and so far, 22 of the 32 identified suspects are asylum seekers. Similar assaults were reported in other European countries.
Perhaps in this case, the solution is worse than the problem.
Not surprisingly, those who oppose refugee resettlement have seized on the attacks to denounce Germany’s generous asylum policy. There were also several xenophobic assaults on refugees, supposedly in retaliation for the New Year’s Eve incidents.
The whole situation seems a bit strange to me: What exactly did these asylum seekers (and others) do? Why did this happen now? Have there been previous attacks that we have not heard about? What explains this behavior?
First, based on the reports I have seen, I am really not sure what happened. Was this Spring-Break type debauchery exaggerated by anti-refugee hysteria, or something much worse (there is at least one report of Syrian nationals raping two girls at a New Year’s Eve party, but the suspects are not asylum seekers and the incident seems unconnected to the other attacks)?
I must admit that I am of two minds about this question. On the one hand, if scores of young women are reporting sexual assaults, that is deadly serious and must be addressed forcefully. On the other hand, I am wary of the old trope where the swarthy foreigner violates the innocent white female. This same story has been used many times to justify violence against “the other.” For example, last year a young man entered an African-American church in South Carolina and murdered nine people, yelling at them: “You rape our women… You have to go!” Jews have long dealt with this issue in Europe, where for many centuries, we were “the other” (until Hitler eliminated that problem). In those days (and unfortunately still today in some places), Jews were accused of killing Christian babies in order to use their blood for ritual purposes. These “blood libels” were notorious lies, but they were used as an excuse to harm Jews. There’s a tragic/comic joke about the blood libels that I’ve always appreciated:
In a small village in the Ukraine, a terrifying rumor was spreading: A Christian girl had been found murdered. Realizing the dire consequences of such an event, and fearing a pogrom [a murderous anti-Jewish riot], the Jewish community gathered in the synagogue to plan whatever defensive actions were possible under the circumstances. Just as the emergency meeting was being called to order, in ran the president of the synagogue, out of breath and all excited. “Brothers!” he cried, “I have wonderful news! The murdered girl is Jewish!”
You get the point. Obviously, this does not mean that the attacks in Cologne did not happen the way they have been portrayed, but it does urge us to be cautious in drawing conclusions, especially since there is so little publicly-available detail about those attacks.
Assuming that the initial reports are correct and the attackers are asylum seekers, what is going on here? Maybe one explanation is that the asylum seekers in question are young men from sexually repressive countries who have been living in instability for many months. Now that they are in safe, open societies, where men and women mix freely, they cannot handle the adjustment. Not to let them off the hook—if they are guilty of assault or other crimes, they should be punished—but when refugees behave badly, there are often underlying pathologies that need to be examined. Maybe it is too late for these particular refugees (who might be deported), but at least this highlights an issue that can be addressed for other asylum seekers with similar backgrounds.
Another explanation–the one favored by opponents of refugee resettlement–is that asylum seekers are a danger to the receiving communities, and that their values are incompatible with Western society. The New Year’s Eve attacks, under this theory, are just one iteration of the problem. I think this view is incorrect. Refugees are not perfect, but the evidence suggests that they are no more likely to commit crimes than anyone else.
But of course, many refugees are damaged people who have suffered trauma. They come from societies that are much more repressive and conservative than those in the West. While these factors may help explain criminal behavior among refugees, in my opinion, they do not in any way excuse it. Nevertheless, we need to keep this in mind when considering refugee resettlement. We need to help refugees deal with their trauma. We also need to help them understand and integrate into their new communities. This is easier said than done, especially in a situation like Germany’s, where tens of thousands of people are arriving each month.
In the U.S., our refugee numbers are much lower, and we are more able to help people adjust to their new lives. As a result, the overall crime rate for non-citizens seems to be the same as, or lower than that for native-born Americans. Vetting refugees and helping them integrate is the best way to protect ourselves, while at the same time meeting our humanitarian obligations and ideals.
The doors to Europe appear to be closing, and the New Year’s Eve attacks will only make things more difficult for all refugees. My hope is that we in the West will learn from this experience. Receiving countries should step up their efforts to recognize and pro-actively address the psycho-social needs of refugees, so that they will better acculturate to their new homes. This, to me, is the best way forward for everyone.
“If I am granted asylum, can I return to my home country?” I hear this question a lot.
The skeptic would argue that no legitimate asylum seeker should ever return home. Indeed, they might argue, asylum is reserved for people who cannot return due to the danger of persecution, and anyone willing to go back did not need asylum in the first place. I think this is wrong.
Your mother’s bunt cake is probably not a compelling reason to return home (tempting though it may be).
Many of my clients face long-term threats in their countries. For instance, I have clients from Afghanistan who have been threatened by the Taliban. These clients could return briefly to Afghanistan and remain relatively safe. However, to live there for any length of time would be extremely dangerous. Even where the threat comes from the government itself, clients can sometimes safely visit home for short periods of time. I’ve had Ethiopian clients who were wanted by their government, but who were able to return for a few weeks before the government realized that they were in the country. Ethiopia—like many developing countries—is not as adept at tracking people as the United States, and so it is possible to keep a low profile and avoid trouble, at least for a time.
And of course, there are valid reasons to return home. Most of my clients have left family members behind. Others have businesses or properties. Still others are political activists who wish to return home to promote democracy and human rights. There are all sorts of reasons people want to go to their home countries—when balanced against the danger, some reasons are better than others (and some people are more willing than others to take risks).
But what are the legal implications of a return trip for people with asylum? And does the calculus change if the person has a green card or is a U.S. citizen?
For an asylee (a person granted asylum), the U.S. government can terminate asylum status if it determines that the person has “voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country.” This means that asylum can be terminated if the person placed herself under the protection of her home government by returning to her country (or even by using the passport from her home country to travel to a third country). USCIS can also terminate asylum status if it determines that the person is no longer a refugee (for example, if country conditions have changed and it is now safe to return home) or if it determines that asylum was obtained fraudulently (there are other reasons for terminating asylum, as well). A return trip to the home country could trigger one (or more) of these bases for termination.
Even with a green card, USCIS can terminate asylum for the reasons listed above.
If you don’t run into trouble when you return to the U.S. from your trip, you could have problems at the time you file for your citizenship. When you complete the naturalization form (the N-400), you need to list all the countries you visited, and so the government will know whether you went home (and if you omit your travels from the form, you run the risk that the government will know about them from its own sources).
For U.S. citizens who originally obtained their status based on asylum, the risk of a return trip is much less—but it is not zero. If the return trip causes the U.S. government to believe that asylum was obtained fraudulently, it could institute de-naturalization proceedings. I have heard of the U.S. government de-naturalizing citizens based on fraud, so it can happen, but all the case I know about involved aggravating factors, like criminal convictions or human rights abuses. Nevertheless, if USCIS knows about a fraud, it certainly could take action.
So how do you protect yourself if you have to travel back to your home country?
First, it is worthwhile to consult an attorney before you go. Don’t go unless there is a very important reason for the trip. Also, keep the trip as short as possible. The less time you are in your country, the better. In addition, you should collect and save evidence about the return trip. If you went to visit a sick relative, get a letter from the doctor. If you returned home for only a short time, keep evidence about the length of your trip—passport stamps and plane tickets, for example. If you hid in your house and never went out, get some letters from family members who can attest to this. In other words, try to obtain evidence that you did not re-avail yourself of the protection of your home government and that you had a compelling reason to return home. That way, if USCIS ever asks for such evidence, you will be ready.
The safest course of action is to never return home after a grant of asylum. However, in life, this is not always possible. If you do have to go back, you should consult a lawyer and take steps to minimize the likelihood that your trip will impact your immigration status in the U.S.
For those of us involved with refugees, 2015 was not a great year. Never-ending turmoil in Syria, Iraq, and Afghanistan have resulted in unprecedented numbers of people fleeing their homelands. The flow of asylum seekers arriving at the Southern border of the U.S. from Central American and Mexico has not let up. Our Asylum Offices and Immigration Courts are increasingly backlogged, and it’s reached a point where the basic integrity of our humanitarian systems seem in jeopardy.
If you’re on a sinking ship, you should celebrate when you can.
Sometimes I think that in order to continue working in this field, you have to be either freakishly optimistic or pathologically disassociated from reality. I’m not sure I fall into either category, yet I’m somehow still in the game.
In any event, one thing that helps is to remind ourselves of our successes. In that vein, I thought I’d look back at a few pieces of good news we’ve had in my office during the past year:
Particular Social Group (Sexual Orientation)/Rwanda – I’ve always had an interest in folklore and magic, and so when there is crossover with an asylum case, it peaks my interest. This year I worked on the case of a young gay man from Rwanda, who was kidnapped by his family members and subjected to a bizarre and terrifying exorcism ritual. Rwanda is not a safe place for LGBT people in the best cases, and when your family is out to get you, it’s even worse. The asylum office recognized that my client suffered past persecution and granted him asylum.
Political Opinion/Haiti – My client was a political activist who had worked closely with Paul Farmer, a world-renown physician who founded Partners in Health and who is the subject of an award-winning biography, Mountains Beyond Mountains. Dr. Farmer wrote a two-page single-spaced letter describing my client’s persecution. I figured that the letter–and a ton of other evidence, including photos with the former president of Haiti–would have been enough for a grant at the Asylum Office. But unfortunately, our Asylum Officer failed to question my client about his past persecution, and when we asked whether the client should discuss it, she told us that it was not necessary, as she read about it in the written statement. She then denied the case because we failed to demonstrate past persecution. Needless to say, I was not pleased. But earlier this year, we went to court where the DHS Trial Attorney did not understand why the case had been referred to the Immigration Judge. She and the Judge agreed that my client should get asylum, which he did. The court hearing took all of three minutes.
Refugee Waiver/Cameroon – My client had come to the U.S. and received asylum due to political persecution in Cameroon. Unfortunately, he fell in with the wrong crowd and got involved in a fraudulent check cashing scheme. As a result, he went to jail for two years and was then put into ICE custody for deportation. Fortunately for my client, there is a waiver available for refugees under INA § 209(c), which is very effective (a waiver is a legal mechanism for requesting forgiveness from the U.S. government in order to avoid deportation). The Immigration Judge granted relief, and after almost three year in detention, my client walked free that afternoon.
Political Opinion/Nepal – My client had been a local activist with his political party. As a result, Maoists guerrillas attacked him in his home and sent him to the hospital. He came to the U.S., but did not seek asylum within one year (as is required). After having spent half-a-dozen years in the U.S., the Maoists resurfaced and threatened his wife. We applied for asylum and claimed that the new threat constituted “changed circumstances,” which is an exception to the one-year filing rule. Luckily for us, the Trial Attorney agreed that my client was entitled to an exception and asylum was granted.
Imputed Political Opinion/Syria – My client was affiliated with a man who the Syrian government deemed an enemy, and this was enough to cause him to fear return to his country. The problem was, he had to leave his wife and young child in a Gulf country because they could not get visas to the United States. After a long ordeal (thanks to the backlog) during which the child could not attend school or get medical treatment (thanks to the inhumane policies of the Gulf countries), we were finally able to get his case expedited. He was granted asylum and–after three years–he finally reunited with his family earlier this month.
Particular Social Group (Family)/El Salvador – My client was a young girl whose mother had testified against her former boyfriend, a member of the MS-13 gang. The ex-boyfriend and other gang members had been threatening the mother and my client from jail. My client’s family feared that she would be harmed once the ex-boyfriend was free, and so they sent her North. Because she was a minor, the Asylum Office (rather than the court) had jurisdiction over her case, and she was granted asylum. Now we’re waiting for her mother’s case, but since the daughter already received asylum on the same facts, we’re optimistic about the mother’s chances.
Religion/Afghanistan – My client was a well-known singer in his country. But since the Taliban are not fans of music and believe musicians are infidels, he ran into trouble. The Taliban threatened to kill him, and so he came to the U.S. for asylum. After a long delay, and a difficult separation from his family, the case was granted. We are now waiting for his family members to join him in the United States.
I rarely take time (or have time) to look back on completed cases, and it is encouraging to think about the people who have succeeded. I’ll try to keep some of these happy thoughts in mind as we move on to new challenges in 2016. Happy New Year!
Refugees–especially Muslim refugees–are big news these days. Are they a threat? Should we ban them from our country? Can they ever integrate into American society?
“A refugee from Palestine with his wife and child? They must be terrorists!”
Despite our collective amnesia on this point, the fact is, we’ve been asking these same questions about refugees for at least a hundred years. And I suspect that people around the world have been asking such questions ever since the first stranger arrived at a door seeking shelter. Since it’s almost Christmas, I thought it might be a good time to look back at one of the world’s oldest refugee stories–of Joseph, Mary, and Jesus, who fled from Palestine to Egypt.
Mathew tells us that around the time of Jesus’s birth, three wise men came from the East. They went to King Herod and asked, “Where is he that is born King of the Jews?” Herod was “troubled” by the question. Who was this child who was king of the Jews, and thus a threat to Herod’s throne?
Herod consulted his prophets, who predicted that the baby would be found in Bethlehem. The wily king told the three wise men. He also ordered the men to tell him when they found Jesus, so he (Herod) could “worship” the new king. Of course, this was a ploy–Herod wanted to find Jesus in order to kill him and eliminate the threat to his throne. The wise men (being wise) understood Herod’s plan. They found Jesus, but never told the king.
Because the wise men foiled his plan, Herod was unable to locate the newborn Jesus. He still wanted to protect himself from the perceived threat, so he ordered all the babies born in Bethlehem murdered. This event became known as the Massacre of the Innocents.
Luckily for Jesus and his family, an angel came to his father Joseph and warned him about the danger. Joseph took the family and fled to Egypt, where they received asylum. The family remained in Egypt until Herod died a few years later. They then moved to a different part of Palestine (Nazareth), to avoid living under the rule of Herod’s son, who was no better than his father.
The Book of Mathew contains nothing about Jesus’s time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt). In many parts of Egypt, it is possible to visit places where Jesus and his family sojourned. There are churches and other holy sites, like healing springs, caves, and sacred trees. One tree was possessed by an evil spirit, but when Jesus approached, the spirit fled. The tree then bent down to worship him.
Another ancient story says that as Jesus and his family entered Heliopolis, “the noise of a rushing mighty wind was heard, the earth trembled [and] the idols crashed from their pedestals.”
There is also a legend about how the Holy Family was traveling down the Nile River in a boat. At one point, they were sailing past a mountain when a large boulder appeared ready to fall on their boat. Jesus extended his hand and prevented the boulder from falling. The imprint of his hand appeared on the rock.
Another story tells of two robbers who surprised Jesus’s family on the road and tried to steal Joseph’s donkey. One of the robbers saw the baby Jesus and was astonished by his unusual beauty. He said, “If God were to take upon Himself the flesh of man, He would not be more beautiful than this child!” The robber then ordered his companions to take nothing from the travelers. Filled with gratitude toward this generous robber, Mary told him, “Know that this child will repay you because you protected him today.” Thirty-three years later, this same thief hung on the cross for his crimes, crucified on the right side of Jesus’s cross. His name was Dismas. On the cross, he repented for all the evil of his life and declared that Jesus was innocent and wrongly crucified. The Gospel of Luke records that Dismas was the wise thief. The man who spared Jesus in his childhood was granted entry into paradise.
Coptic tradition holds that “Egyptian conversion to Christianity two thousand years ago can be attributed to the historic visit of the Christ Child” and that “Egypt was chosen by God as a place of refuge; truly the people abiding there were richly blessed.” The people of Egypt were blessed because they offered refuge to Jesus and his family when they fled persecution. Perhaps this should remind us of our moral responsibility to help one another, and that the helper often receives as much (or more) of a benefit than the person who is helped.
I was in court recently for an asylum case where the DHS attorney offered my clients Withholding of Removal as a “courtesy” in lieu of asylum. DHS did not believe that my clients were legally eligible for asylum, but made the offer in order to settle the case. I negotiated as best I could for asylum, and I think the DHS attorney listened carefully, but ultimately, he was unmoved. When the Immigration Judge (“IJ”) learned that DHS would agree to Withholding, he remarked that the offer was “generous,” which I took as a sign that he wanted us to accept it. In the end, my clients did not agree to Withholding of Removal, and so the IJ reserved decision. We shall see what happens.
So what is Withholding of Removal? Why did the IJ view an offer of Withholding as generous? And why did my clients refuse this offer?
Stop complaining – You’re lucky we give you anything to eat at all.
Withholding of Removal under INA § 241(b)(3) is a lesser form of relief than asylum. If a person has asylum, he can remain permanently in the U.S., obtain a travel document, petition to bring immediate relatives here, and become a lawful permanent resident and then a U.S. citizen.
A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country. Normally, this consists of ICE ordering the person to apply to various countries for residency. This is essentially a futile exercise, and it usually involves hours of wasted time preparing applications and sitting around the ICE office. Maybe it is designed to intimidate the person into leaving, but at a minimum, it is another stressful hassle that the Withholding-of-Removal recipient must endure.
The bottom line for Withholding of Removal is that those who have it are never truly settled here. They risk losing their jobs and drivers’ licenses if their EAD renewal is delayed (which it often is). They cannot qualify for certain jobs or certain government benefits. They usually cannot get in-state tuition for school. They can never travel outside the U.S. to visit relatives or friends, even those who are gravely ill. They are here, but not really here.
For me, Withholding of Removal is more appropriate for some recipients than others: One reason a person gets Withholding instead of asylum is that he has criminal convictions that make him ineligible for asylum. In the case of a convicted criminal, it is easier to justify denying the benefit of asylum, even if we do not want to send the person back to a country where he could be persecuted.
In other cases, it is more difficult to justify Withholding. If a person fails to file for asylum within one year of his arrival in the United States, he generally becomes ineligible for asylum. He remains eligible for Withholding, but downgrading his status from asylum to Withholding because he failed to file on time seems a harsh consequence for a relatively minor infraction. Other people—like my clients mentioned above—might be ineligible for asylum because the government believes they were resettled in a third country before they came to the U.S. “Firm resettlement” is a legal construct and it does not necessarily mean that the person can live in the third country now (my clients cannot).
Despite the limitations of Withholding of Removal, many IJs (and DHS attorneys) seem to view it as a generous benefit, and they encourage asylum applicants to accept Withholding as a way to settle removal cases. They also tend to take a dim view of applicants who refuse an offer of Withholding: If the person is so afraid of persecution in the home country, why won’t she accept Withholding and avoid deportation to the place of feared persecution? I understand their perspective, but I think it fails to account for the very basic desire of people like my clients to make the U.S. their home. They don’t want to live forever unsettled and uncertain. Having escaped danger, they want to live somewhere where they can make a life for themselves and—more importantly—for their children. Withholding does not give them that.
Frankly, I think that most IJs and DHS attorneys underestimate the difficulty of living in the U.S. with Withholding of Removal. And these difficulties are not limited to practical problems related to jobs and driver’s licenses, attending and paying for school, and the indefinite separation from family members. For my clients at least, Withholding of Removal does not alleviate the stress of their situation. They have fled uncertainty only to find more uncertainty. Will they be deported to a third country? Will they lose their job if the EAD renewal is delayed? If their driver’s license expires and they must drive anyway, will they be arrested? Can their children afford college? If they buy property and invest in life here, will they ultimately lose it all? Such uncertainty would be bad enough for the average person, but we are talking here about people who have already had to flee their homelands. Asylum is a balm to this wound; Withholding of Removal, in many cases, is an aggravating factor.
Perhaps if IJs and DHS attorneys knew more about the consequences of Withholding of Removal, they would be more understanding of asylum applicants who are reluctant to accept that form of relief, and they would be more generous about interpreting the law to allow for a grant of asylum whenever possible.
The recent attacks in Paris have opened the floodgates of anti-Muslim and anti-refugee sentiment in the U.S. Language that was once the province of white-supremacist screeds has become part of our mainstream dialogue. For me, however, what’s worse than the xenophobia and the hate, are the lies.
The New York Times recently editorialized about Donald Trump’s repeated and vile mendacity: “it’s become a full-time job just running down [his] falsehoods…. It’s no easy task for journalists to interrupt Mr. Trump with the facts, but it’s an important one.”
What if cheating at politics was as dangerous as cheating at poker?
Mr. Trump is a presidential contender, and thus subject to some scrutiny. But the internet abounds with lies, and given the atomized nature of social media, it’s easy to immerse yourself in this fictitious and paranoid world. It’s also easy and, in a way, comforting to have your own world view go unchallenged, and to believe that you are among the privileged few who knows The Truth. The Lame-stream media be damned!
There are, of course, websites devoted to correcting inaccurate internet rumors, but how can they possibly keep up with the torrent of falsehoods that daily flood our in-boxes? And even if they could respond to each phony news story, the people who accept such stories are unlikely to read—or believe—the fact-checkers.
Given the futility of the task, there’s probably little point in posting a few internet rumors here and then debunking them. But one of my two favorite fictional heroes is Don Quixote, and so I thought I might tilt at a couple of wind mills (if you must know, my other favorite fictional hero is Rocky Balboa – Yo). Anyway, here are a few “news” stories that arrived in my in-box post-Paris, and some thoughts on their veracity:
– From Brian Hayes at Right Side News: “BREAKING: They’re Here! First Load of 10,000 Syrian Refugees Has Arrived in New Orleans…” Accompanying the article is a photo showing dozens of swarthy young men, looking vaguely dangerous. Have these young jihadists landed in New Orleans? Are 10,000 Muslims invading the Big Easy? No, in fact, the photo of the young men was taken in Hungary in September 2015 and has nothing to do with refugees in New Orleans. Also, while President Obama has committed to accept 10,000 Syrian refugees, very few have arrived in the U.S. What we know is that over the last four years, the U.S. has resettled a total of 2,070 Syrian refugees as part of the regular refugee admissions process. As for New Orleans, it appears that two Syrian families have arrived and one more family is expected. So much for the 10,000 young jihadists.
– From Jeffrey T. Kuhner of the World Tribune: “Obama welcomes an Islamist Trojan horse: Consider who is selecting our refugees.” This article claims that under the President’s plan “millions [of refugees] could be allowed to flood our country” and that “the United Nations High Commissioner for Refugees… in coordination with the Organization of Islamic Cooperation… selects which refugees can be settled within our country.” It also states that “Mr. Obama now poses a clear and present danger to America [because of his] stubborn insistence on resettling so-called ‘refugees’ from Syria.” Where to even begin with this nonsense? First, 10,000 ≠ 1,000,000. Mr. Obama has been president for almost seven years. Until the recent announcement about the 10,000 Syrian refugees, he has continued the same refugee policy as President Bush. So don’t try to tell me that all of sudden, in his final year in office, somehow “millions” of refugees will arrive on our shores. Second, while refugees are often referred to the U.S. by UNHCR, the United States (through the State Department, DHS, and the Office of Refugee Resettlement) conducts the background checks and decides which refugees to accept. Neither the Organization of Islamic Cooperation nor the UN decides which refugees will be allowed to resettle in our country. Finally, what the hell is a “so-called” refugee? I suppose the implication is that the people fleeing the Syrian civil war are not really refugees. Maybe the whole “so-called” civil war in Syria is just a farce to send jihadists to the West. They sure put on a good show, those Syrians.
– From Andrew C. McCarthy in the National Review: “Refugee ‘Religious Test’ Is ‘Shameful’ and ‘Not American’ … Except that Federal Law Requires It.” Mr. McCarthy writes–
Under federal law, the executive branch is expressly required to take religion into account in determining who is granted asylum. Under the provision governing asylum (section 1158 of Title 8, U.S. Code), an alien applying for admission must establish that … religion [among other things] … was or will be at least one central reason for persecuting the applicant.
In reality, 8 U.S.C. § 1158 states that, in order to qualify as a refugee, a person must establish that she faces persecution on account of race, religion, nationality, particular social group or political opinion. It is not a religious test at all. If you fear persecution on account of religion (any religion-including Islam), or any other protected ground, you can qualify for asylum. Either Mr. McCarthy has no understanding of the Immigration law or–more likely–he is twisting the language of the law into something it is not. Either way, he has no business writing about this subject.
Professional liars like Mr.Hayes, Mr. Kuhner, and Mr. McCarthy clearly have an agenda–to inflame passions against Muslim refugees. They create an alternate reality where President Obama is “willing to potentially sacrifice countless Americans on the altar of liberal multiculturalism [and] is gambling with our lives.” Well then, it sounds like he must be stopped–by any means necessary.
But of course the “alternate reality” described above is not reality. It is a false story, planted to paint Mr. Obama as a “clear and present danger” to our republic. Had Mssrs. Hayes, Kuhner, and McCarthy bothered with the facts, they would have found a much more nuanced situation, where reasonable people can disagree on policy, and where no one is evil.
The danger of all this should be obvious. When we falsely label other Americans as the enemy, when we use inflammatory and divisive language, and when we forgo efforts at understanding those who disagree with us, we damage our democracy and impoverish our national debate. In the black-and-white world of the fear-mongers, it makes sense to open fire on a Planned Parenthood Clinic. And if “so-called refugees” are actually disguised jihadists, wouldn’t it make sense to subject them to the same treatment?
Reality is complicated and messy. The straw men we create to comfort and enrage ourselves rarely comport with reality. There are legitimate grounds to oppose refugee resettlement, and the more rationale opponents of refugees rely on such arguments. But that is not what we are talking about here. There are far too many liars and charlatans involved in the refugee debate. Their false alarms are designed to turn Americans against each other. And that is a real threat.
Since the vicious attack last week by Muslim extremists in Paris, attention in the U.S. has focused on our country’s refugee policy and President Obama’s decision earlier this year to admit an additional 10,000 Syrian refugees (above the normal refugee ceiling of 70,000). More than half of the nation’s governors have indicated that Syria refugees are unwelcome in their states. Paul Ryan, the new Speaker of the House, is pushing legislation to hinder the admission of Syrian and Iraqi refugees. And most Republican presidential candidates have expressed their opposition to resettling Syrian or Muslim refugees in our country. Senator Ted Cruz has called the plan “absolute lunacy.”
When we say “no” to a refugee, what does it say about us?
As an immigration attorney who specializes in political asylum, I represent clients whose lives have been profoundly disrupted by war and terrorism, who have been threatened or harmed by extremists, and who have lost loved ones to terrorist attacks. Many of my clients come from Muslim countries, such as Syria, Iraq, Afghanistan, and Egypt. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. Indeed, I suspect that many of my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of U.S. policy than the American commentators who routinely disparage them.
In the face of barbarism from ISIS and other extremists, we as Americans should not abandon our friends or shrink from our humanitarian commitments. As the leader of the Free World, we must lead not only with the sword. We must also lead by demonstrating our values, and by showing the world that we do not abandon those values in difficult times.
During the refugee crisis that followed World War II, the U.S. committed itself to assisting displaced persons. Since then, we’ve absorbed—and been enriched by—tens of thousands of refugees from Western Europe, the Soviet Union, Indochina, Africa, the Middle East, and the Americas. We are, to a great extent, defined by our generosity towards the dispossessed: “Give me your tired, your poor, your huddled masses yearning to breathe free.”
Allowing ourselves to be intimidated into compromising these humanitarian values would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. Indeed, our asylum and refugee programs are probably more secure than any other aspect of our immigration system.
Also, many of the Muslims who have sought sanctuary in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, no one will cooperate with us going forward.
Finally, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.
In the aftermath of the Paris attack and the claim by ISIS that it will send infiltrators to the West disguised as asylum seekers, the desire to re-examine security procedures is understandable. But as we evaluate our humanitarian policies, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.
We should not allow the evil deeds in France to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. When considering Muslim refugees and asylum seekers, we should be guided by our highest ideals, not by the dark vision of our enemies.
When the backlog began in 2013, no one quite knew what was happening. How long would the problem persist? How would the delays affect asylum seekers? How would the delays affect the integrity of the asylum system?
It’s that time of year, when annoying relatives and (marginally less) annoying lawyers, give you advice.
Two-and-a-half years later, we have some sense for what is happening, and the Asylum Division has made some adaptations to the new reality. It probably comes as no surprise that asylum seekers–and their representatives–are not satisfied with the current situation. Hence, I offer here my own ideas for improving the system. The only criteria for the below suggestions is that they do not cost anything (or at least, not much). It would be easy to propose expensive solutions (hire lots more asylum officers!) but in the current climate, I don’t think that is realistic. Anyway, without further ado, here are my humble suggestions to save the world:
Don’t Create Unrealistic Expectations: Most Asylum Officers are nice, and nice people do not like to make other people feel bad. And so what we frequently see is Asylum Officers giving a time frame for the decision. More often than not, this time frame under-estimates the wait time; sometimes, by a lot. As a result, asylum applicants have their expectations raised and then dashed. It would be far better to avoid this altogether. Unless they really know for certain, Asylum Officers should refrain from giving a time frame for the decision. If the decision comes quickly, the applicant will be (hopefully) pleasantly surprised; if it comes slowly, at least there will not have been an expectation of a quick decision.
Distribute Workloads More Evenly: Waiting times between Asylum Offices vary widely. Houston is currently interviewing people who filed their cases in May 2014; Los Angeles is interviewing people who filed their cases in August 2011. On it’s face, it appears that people in LA wait about three years longer than people in Houston. It should be possible to assign cases in a way that reduces this disparity. Much of the delay is due to credible fear interviews, which take place remotely (by video conference or phone). Why can’t these be processed in the faster offices, so that the slower offices can focus on their backlogs? In this way, perhaps wait times could be made more equitable.
Prioritize People Separated from Family Members: It is much easier to tolerate a long delay if you are not separated from your spouse and minor children. The asylum form, I-589, requests information about the applicant’s spouse and children. In cases where the spouse and minor children are outside the U.S., the Asylum Offices should prioritize those cases. It is really intolerable to remain separated from small children for 2, 3, and 4 years, or more. By the time you see your child again, she won’t even know you. Not to mention that in many cases, the family members are living in unsafe conditions. This is by far the worst part of the backlog, and the Asylum Division really should address the problem.
Standardize the Process of Expediting Cases, and Make the Process More Transparent: It is possible to expedite an asylum case. One way to do this is through the “short list.” When an applicant adds his name to the short list, he will be called for an interview if a slot opens up. The short list can be faster than the regular queue. However, short lists open and close, and not all offices have short lists. The Asylum Offices should post information about the short lists on their websites. Perhaps the short lists can be limited to people separated from their family members. At the minimum, each Asylum Office could post on their website whether a short list is available, and whether it is open to new applicants.
It is also possible to expedite a case for emergent reasons (health problems, family members overseas in jeopardy, etc.). However, there are no hard and fast rules related to expediting cases. Each Asylum Office should have a set of rules for expediting, and those rules should be posted on their websites: What are the criteria for expediting a case? What evidence is required? How and when will a decision to expedite be made? Currently, we are in the dark about these questions. The result is that applicants are trying again and again to expedite, which wastes Asylum Office time (and attorney time) and which creates unrealistic expectations about whether a case might be expedited.
Make the EAD Valid for Two Years and Have the Receipt Automatically Extend the Old EAD: Employment Authorization Documents–EADs–are currently valid for one year. There are also delays for people applying for and renewing EADs. The result is that many people see their EAD expire before they receive the new card. This causes them to lose their jobs and their driver’s licenses. If EADs were valid for two years (or longer), it would greatly reduce the problem. Also, USCIS should adopt the same policy for EADs as they have for the I-751: The receipt for the EAD should automatically extend the existing EAD until the new card arrives.
Create a FAQ Page: Tens of thousands of asylum applicants are waiting for their interviews or decisions. Waiting is difficult enough, but waiting in the absence of reliable information is even worse. The Asylum Office Scheduling Bulletin was a good start—at least now we know who is being interviewed today. But why don’t the Asylum Office websites have a link to the Scheduling Bulletin? And why don’t the paper asylum receipts include the Asylum Office website addresses? The little information that is actually available should be made more accessible.
In addition, the Asylum Division should create a FAQ page (Frequently Asked Questions). What has caused the delay? Why are there delays after the interview? How do I inquire about the status of my case? How do I request expedited review? What happens if I move? How do I travel outside the United States? These are common questions, and there really are very few places to find reliable answers, especially for those applicants who cannot afford an attorney.
The benefit of providing reliable information to asylum seekers is hard to underestimate. If I might analogize to my own fear of flying. I hate to fly (which is annoying, since I like to be in other places), and it’s especially bad when there’s turbulence. But if the pilot announces,“We’re experiencing some normal turbulence. We should pass through in 10 minutes,” I immediately feel better. The psychological benefit of being informed is a real benefit, and the psychological harm of not knowing, is a real harm. Providing more information to asylum seekers, from a reliable source, would be a big help.
Finally, I will add one “bonus” suggestion, which I’ve made before. USCIS should allow for premium processing of asylum applications. I believe the primary objection to this idea is the appearance of impropriety: It looks bad when an asylum seeker is able to pay money to expedite his case. However, I still believe that the benefits of premium processing outweigh this concern. Those who oppose the asylum system will never be convinced, and there is little point in trying to appease them, especially when the cost of appeasement is further harm to people seeking asylum.
OK, Asylum Division, there you have it. Now, let’s see what you can do.
In 2014, Immigration Judge John F. Gossart, Jr. retired after more than 30 years on the bench. Judge Gossart sat in Baltimore, where he was well-known and well-liked by attorneys on both side of the aisle (I myself had many cases with him), and his absence is still felt in his Court. Aside from his judicial work, Judge Gossart was (and is) an adjunct professor of law and a legal educator in the wider community. The Asylumist caught up with Judge Gossart to ask about his career, some memorable moments, and his opinions on the issues of the day in Immigration Court:
A photo of the official photo of Judge John F. Gossart, Jr. (it’s the best we could do!).
Asylumist: How did you get to be an IJ? And why was this position interesting for you?
John F. Gossart: I came to immigration law totally by accident. I wanted to work for the Department of Justice, in public sector law, and I applied for a position there. While I was waiting, I hung my own shingle and practiced law out of my house. When DOJ hired me to work at INS (the Immigration and Naturalization Service), I couldn’t even spell immigration.
My first position there was as a Naturalization Attorney. At the time, applicants for naturalization had to file their petitions in U.S. District Court and present two character witnesses. I would interview the petitioner and the witnesses, and make recommendations about whether the applicant should be permitted to naturalize. I remember one Judge in the Eastern District of Virginia—“Roarin” Orin Lewis—who roared at all the attorneys. In those days, homosexuals were ineligible to naturalize because they were considered “sexual deviants.” I argued for a grant of naturalization for an admitted homosexual because he abstained from sexual activities. The petition was denied by Judge Lewis. In another case involving two Russian “swingers” who had admitted to adultery, Judge Lewis called me into his chambers and read me the riot act. The two were consenting adults, but that didn’t matter to Judge Lewis. He denied the case. At the time, the statute held that persons who committed adultery lacked good moral character.
Then, after a stint as Deputy Commissioner of Naturalization, I became a trial attorney for INS. Eight years later, I had the opportunity to become an Immigration Judge. On October 30, 1982, I was appointed an IJ by Attorney General William French Smith.
As an IJ, I rode circuit and heard cases in many locations: Baltimore, DC, Philadelphia, Pittsburg, Buffalo, Hartford. I loved the job. I enjoyed the challenge and I loved dealing with people. One concern for me was that the private bar might view me as a prosecutor in a judge’s robe. On the other hand, sometimes when I ruled in favor of the respondent, people at INS complained that I had “crossed over.” In fact, I don’t think I played favorites; I just tried to follow the law. My mantra was to be “Fair, Firm, Decisive.”
Asylumist: Are there any cases that you worked on that were particularly memorable?
JFG: I was the IJ in two Nazi war criminal cases. In the case of George Theodorovich, the trial lasted 3½ weeks. He was a Ukrainian police officer who came to the U.S. under an executive order. He denied all charges and claimed that the case against him was a Russian plot. I went to the Russian embassy to review documents, and at trial, several Survivors testified. I entered a 154-page decision (my longest decision) where he was found deportable. He appealed to the BIA. While the case was on appeal, Theodorovich fled the U.S. and went to Paraguay.
Asylumist: As an IJ, what are some common problems that you see when lawyers present cases?
JFG: Dr. Stanley Sinkford, a renowned doctor and professor at Howard Medical School, always told his medical students, “Proper Preparation Prevents Poor Performance,” meaning it is usually a lack of preparation that leads to problems. Some lawyers become too comfortable with their role; they think they can come into court and wing it. Also, proper vetting of clients and—more importantly—witnesses is very important. You cannot meet the witnesses 30 minutes before the hearing and hope everything goes well. I’ve also seen instances where the lawyer did not know the applicable law. This was a particular problem among lawyers who dabble in immigration law. A number of attorneys came before me who thought that the IJ has equity powers. They would ask the court to allow the respondent to stay in the U.S. even where there was no basis to allow him to stay. I fear that such lawyers portray this idea to their client—that the IJ can let you stay, even without a legal basis for relief.
Asylumist: How do you handle cases where you feel that the applicant may have relief, but lawyer errors and/or ineffective assistance of counsel might cause the alien to lose?
JFG: As an IJ, you almost never want to admonish an attorney in public; it is better not to be on the record or in the presence of the client. I have talked to lawyers in chambers, however. I’ve told them, “If you are not familiar with law, you need to become familiar. You have a duty to do your best for your client.” Also, if I am aware that the client appears eligible for another form of relief, I will ask why the attorney is not pursuing it. Attorneys appreciate that a Judge is willing to talk to them in private.
Asylumist: Have you had cases where your gut tells you to rule one way, but the evidence requires that you rule the opposite way? How do you deal with that?
JFG: That is when a judge feels stressed, alone, and badly about the decision he must render. Such decisions are difficult; I suppose that’s why we’re paid the big bucks. But we are judicial officers, and we are required to follow the law. It’s been said by the Supreme Court in Knauf v Shaughnessy, “Judicially we must tolerate what personally we regard as a legislative mistake,” but that is our role as an administrative judge. Your gut may tell you one thing, and you may have sympathy for the person in front of you, but unless that person satisfies the requirements for relief under the law, you cannot get to discretion, and you cannot provide equitable relief. As a Judge, we have to make these kinds of difficult decisions. It is what the law requires. Ultimately, to do justice, you have to read, know, and follow the law.
Asylumist: Over the past couple years, we’ve heard reports about the problem of IJ burnout. Was that a factor for you? How did you protect yourself?
JFG: I was constantly assessing myself, and I remained on-guard for burnout. Whenever necessary, I took a recess from court, or I took a day off. My colleagues were very supportive in this regard; it was helpful to have someone to vent to.
EOIR recently held a conference in Washington, DC—the first live conference in five years. Such events are very important. Judges are able to bond with colleagues. They brought a psychologist to discuss stress.
Asylumist: What do you think EOIR could do differently to better support IJs and make the system more efficient?
JFG: First, we need more judges and this should be done promptly. Preferably, we need candidates with a strong immigration or judicial background. More than 50% of the IJ bench is currently eligible for retirement. So we need regulations for phased retirement and we need to implement the Moving Ahead for Progress Act. This Act would permit IJs to work part time, which is something many IJs are interested in.
Also, we should institute senior status for IJs, so retired IJs could return to the bench to help with the workload. I had proposed this idea several years ago, but personnel felt it would be difficult to do. However, in the last year, EOIR has instituted a recall program, which allows Department of Justice attorneys with sufficient experience to fill temporary judgeships. This program seemingly targets BIA staff attorneys and OIL attorneys; it has not been extended to retired IJs. The Immigration Judges’ Association has been advocating for senior status as well, so retired IJs could return to help address the backlog or cover for a Judge who is absent. Imagine how efficient it would be for someone like me to step in and work for a week or a month while another IJ was on detail or leave. We have a number of IJs who are retired. They have decades of experience and are willing and able to do this.
In addition, we need to provide courts with adequate support staff, and IJs need more administrative time to keep up with motions, read case law, and stay on top of the profession. Judges also need more training—one live conference in five years is not adequate.
I would also like to see implementation of the sanction recommendation that was part of the 1996 statutes. This would give IJs more authority to sanction attorneys for misconduct. They could impose fines. Some lawyers need this type of lesson as a wakeup call. If we are to implement a sanction process, it should apply equally to private attorneys and government counsel. DHS had wanted sanctions only against the private bar, but IJs generally oppose that idea—you have to treat both sides the same.
Asylumist: The definition of a particular social group (“PSG”) has expanded pretty significantly in the last 20 years, mostly through litigation. What is your opinion of this? How do “flood gate” arguments influence IJ thinking regarding PSGs?
JFG: Since the 1980 Act came into effect, it has been litigated and litigated. I think this is healthy. PSG is the most difficult provision of the statute; other protected categories are more self-explanatory.
As to the flood gate argument, as an IJ, we cannot have that as a factor for consideration.
One area I struggled with was PSG cases involving domestic violence. We are still waiting for the government to issue regulations to help guide us. Maybe domestic violence cases would be better addressed through legislation instead of trying to fit them into a PSG, especially when we have such little guidance. Such cases are difficult because they are often very sympathetic. Perhaps it might be better to pass legislation to benefit the abused, rather than to try to figure out how to craft this group of abused individuals into a particular social group.
Asylumist: It seems fairly common for cases referred from the Asylum Office to the Court to be granted by IJs. Do you think this is a systematic problem? Might there be some sort of “fix” that could take place between EOIR and the Asylum Offices?
JFG: To do that, you would have to change the administrative asylum process, and this is a question of resources. When an asylum case is presented to the Asylum Office, there are no witnesses, there are time constraints, the applicants must bring their own interpreters (who may be good—or not). It is an imperfect system.
When the case is referred to Court, many applicants get a lawyer—and that makes a big difference. Attorneys know what evidence to include, they present witnesses, they can get a psychological evaluation. This evidence is often not presented at the Asylum Office. The system we have in Court is a more perfect system. But of course, we like the Asylum Office. Every case they grant is one less case on the Court’s docket.
If you don’t want applicants to get two bites at the apple, you can require asylum applicants who are out of status to go directly to Court.
Asylumist: Do you have any thoughts on how to reduce the backlog?
JFG: DHS could better prioritize which cases are prosecuted. We could have more pre-trial hearings. Why have a lengthy hearing if DHS won’t oppose the case in the end? There could also be more stipulations and more administrative closures. Of course, there is always the issue of Monday-morning quarterbacking. What if a person whose case is admin closed commits a crime? The government does not have the resources to prosecute all cases, but how do we know which cases to pursue? I do think if DHS had more time for stipulations, it would ultimately save time for everyone.
