Interview with an Immigration Judge: John F. Gossart, Jr.

by Jason Dzubow

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!).
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.

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How Halloween Helps Save the World (or at Least Some Refugee Children)

by Jason Dzubow

World War II left approximately 75 million people dead and up to 20 million displaced. Many of these displaced persons, or DPs, could not return to their countries. Hundreds of thousands were resettled to new homes in Western Europe and the United States. Two years after the war, there were still 850,000+ people living in DP camps. And as late as 1953–eight years after the War–more than 250,000 people continued to live as refugees. Of course, many DPs during the post-War period were children.

Through Trick-or-Treat UNICEF, the undead can help the living.
Through Trick-or-Treat UNICEF, the undead can help the living.

The civilian response to the DP crisis was led by the United Nations Relief and Rehabilitation Administration, which helped resettle hundreds of thousands of refugees. Private individuals were moved by the humanitarian tragedy as well.

In the Autumn of 1949, Mary Emma Allison was in downtown Philadelphia when she bumped into a children’s Halloween parade. She followed the parade into Wanamaker’s Department Store where she met a cow (yes, a cow). She then followed the kids and the cow to a booth for UNICEF, the United Nations International Children’s Emergency Fund. It turns out, the parade was promoting a campaign to send powdered milk to needy children overseas (hence, the cow).

After her chance encounter, Ms. Allison and her husband, Clyde Allison, a Presbyterian Minister, organized Trick-or-Treat for UNICEF. The idea was that if kids were already going around the neighborhood collecting candy, they might as well do some good while they’re at it.

The venture started modestly enough during Halloween in 1950, when the Allison’s three children collected money from their community. That first year, they raised $17.00 in nickels and dimes, which they donated to UNICEF (although the acronym has remained the same, UNICEF is now the United Nations Children’s Fund). The money went to help children displaced by World War II. In those days, a dime was all it took to buy 50 glasses of milk for needy children in Europe.

The effort grew from there. In 1960, President Kennedy noted “UNICEF has captured the imagination of our people, especially our nation’s children… ” Seven years later, President Johnson signed a proclamation that designated Halloween as National UNICEF Day. By the time Ms. Allison died, a few days before Halloween in 2010, Trick-or-Treat for UNICEF had raised more than $160 million. The program has continued since then, and by last Halloween, it had raised over $175 million. The money buys food, clean water, milk, medicine, and much else for children in more than 150 countries. These days, a $5-donation to UNICEF buys five days of food for a malnourished child; $100, measles protection for 100 kids; $400, a pump to give an entire village water.

Many of the children helped by UNICEF are refugees, and they have special needs. In Syria, for example, UNICEF is trying to prevent millions of children displaced by the war from becoming a lost generation. The agency has been on the ground since the conflict began, working with other organizations to provide education, physical protection, psychological support, and clothing to Syrian refugee children in Iraq, Jordan, Turkey, Lebanon, Egypt and other countries. UNICEF also helps immunize children against disease and provides millions of people with access to safe drinking water.

Trick-or-Treat for UNICEF is a great way for kids to help kids. After 65 years, the reasons for the program remain constant: To make Halloween meaningful as well as fun, to protect the lives of the world’s youngest and most vulnerable, and to inspire kids to discover their own ability to help other children like themselves. If you’d like to learn more, please visit the UNICEF website, here.

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Asylum Case Delayed Forever? Here Are Some Possible Reasons

by Jason Dzubow

These days, all asylum applicants face long waits prior to their interviews. After the interview, some applicants receive a decision in two weeks; others wait months; still others—thankfully, a minority—wait for years without a decision.

A helpful diagram of the U.S. asylum system.
A helpful diagram of the U.S. asylum system.

Why does it sometimes take so long to get a decision? Our dogged reporters at the Asylumist have come into possession of an internal Asylum Office document that sheds light on this question (ok, in truth, the document is publicly available, but it’s not so easy to find). The document is the Quality Assurance Referral Sheet, which lists the categories of cases that must be submitted to headquarters (“HQ”) for further review.

Cases submitted to HQ often face substantial delays. So if your case falls into one of the below categories, you can expect a longer wait for your decision. How long? I have no idea. Some of our cases that go to HQ receive decisions relatively quickly. Others languish for months; sometimes years. There seems to be no way to predict how long such cases might take.

Without further ado, here are the asylum-seeker categories that hopefully you don’t fall into:

Diplomats and Other High Level Officials: Any decision—grant, referral to court or a notice of intent to deny—in the case of a sitting diplomat to the U.S. or United Nations, other high-level government or military officials, high ranking diplomats to other countries, and family members of such people must have their cases reviewed by headquarters. The same is true for any asylum applicant who fraudulently obtained a diplomatic visa.

National Security/Terrorism-Related Inadmissibility Grounds (“TRIG”): Any decision in a case that would be granted but for a TRIG bar, regardless of whether an exemption to the bar is available, must go to HQ. The TRIG bar is quite broad and many people are potentially affected. This includes people who worked for or supported terrorist organizations (or more accurately, organizations that the U.S. government views as terrorists), and even includes people who “supported” terrorists under duress. An example might be someone who paid money as ransom or who was forced on pain of death to provide services to terrorists. TRIG is particularly tricky because some cases (recent numbers are not available, but last year’s numbers are here) are placed on indefinite hold, meaning the applicant will never receive a decision, at least not until the government gets around to enacting new regulations on the subject. If you think your case might be subject to a TRIG hold, you can email USCIS (the email address is here, at the bottom of the page). In my limited experience (two cases), USCIS has been responsive and has informed me whether my cases were being held due to terrorism-related grounds (they were not).

Other National Security: In order to grant a case involving national security concerns, where the concern was not resolved through vetting, the case must go to HQ. Aside from terrorism, national security concerns can include a wide range of activities, including suspected gang membership or involvement in other criminal activities.

Persecutor-related issues: Asylum grants are referred to HQ where the evidence indicates that the applicant may have ordered, incited, assisted or otherwise participated in acts of persecution or human rights violations, and the individual has demonstrated that he should not be barred as a persecutor. Also, before a credible applicant is referred to Immigration Court or issued a Notice of Intent to Deny letter based on the persecutor bar, the case must be reviewed by HQ. You might fall into this category if you served in the police or military of your country, if you were a prison guard or you interrogated prisoners, and if your government has a record of abusing human rights.

Publicized or Likely to be Publicized: High-profile cases that have had or are likely to have national exposure, not just local interest, are subject to HQ review. If your case is getting media attention, or if it could affect relations with your home country, the case will likely be sent to HQ before any decision (good or bad) is issued.

Firm Resettlement: If a person is “firmly resettled” in a third country—meaning, she has the ability to live permanent in a country that is not the U.S. and is not her home country—she is ineligible for asylum. Where the asylum office would have granted the case but for firm resettlement, the case is sent to HQ for review.

Juvenile: Where the asylum applicant is less than 18 years old at the time of filing, the case will be referred to headquarter if the Asylum Office intends to deny.

EOIR- Prior Denials: Where an applicant was previously denied asylum by the Executive Office for Immigration Review (the Immigration Judge and/or the Board of Immigration Appeals), the case must be reviewed by HQ before it can be granted.

Discretionary Denials/Referrals: If the Asylum Office intends to deny a case or refer it to the Immigration Court based solely on “discretion,” the case must be reviewed by HQ. This means that the asylum applicant met the definition of a refugee and is otherwise eligible for asylum, but is being denied or referred due to reasons that are not legal bars to asylum. A discretionary denial might be for a crime that does not bar asylum, like DUI or failure to pay child support, or for some other lack of good moral character.

National of Contiguous Territory/Visa Waiver Country/Safe Third Country: Where the Asylum Office intends to grant the case of an applicant from a contiguous territory (Canada or Mexico) and the case involves a novel legal issues or criminal activity by the applicant in the U.S. or abroad, the case must be referred to HQ. Also, cases of applicants from countries in the Visa Waiver Program must be referred to HQ before they are granted. In addition, grants of applicants who are nationals of countries with which the U.S. has a Safe Third Country agreement must be referred to HQ (the only country with which we currently have such an agreement is Canada).

Safe-Third Country Agreement: All cases in which evidence indicates the STC agreement may apply, irrespective of whether the applicant is eligible for an exception, must be referred to HQ. This means that anyone (regardless of country of origin) who was first in Canada (the only country with which we have a STC agreement) and then came to the United States for asylum, must have her case reviewed by HQ.

Asylum Office Request for HQ Quality Assurance Review: Any case for which the Asylum Office Director requests review from headquarters will be reviewed.

As you can see, there are many reasons why a person’s case might be referred to headquarters for more review (and more delay). It would be helpful if the Asylum Office could publish some data about HQ review—perhaps how long each category of review takes and how many cases are currently under review. I understand why HQ cannot easily predict how long the review will take for an individual case, but if more information were made public, it would help ease the wait for asylum applicants.

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The Iran Deal: Thoughts by An Iranian Journalist in Exile

by Jason Dzubow

Many of my clients were activists and leaders in their home countries. For me, one of the perks of my job is to hear their perspectives on the issues of the day. In this post, my former client Ali Anisi Tehrani, who is now a political asylee from Iran, gives his opinion of the recently-signed Iran Deal:

In the summer of 1988, the Islamic Republic of Iran drank what then-Supreme Leader Ayatollah Ruhollah Khomeini referred to as a “chalice of poison” when it accepted the terms of United Nations Security Council Resolution 598, which marked the end of the Iran-Iraq War. Despite eight years of brutal fighting between the two neighbors, Khomeini vowed that an end to the war would not be possible unless Saddam Hussein was removed from power. Anyone who lived in Tehran during this time would remember this quote–the message had been plastered across Tehran’s walls–as well as the constant onslaught of Saddam’s missiles. To the Iranian people, defeat was not an option. Khomeini finally relented, but only after military commanders convinced him that victory in the next five years was impossible.

Ali Tehrani: Author, Activist, Starship Captain.
Ali Tehrani: Author, Activist, Starship Captain.

Khomeini justified signing the UN-brokered ceasefire by framing it not as a concession of defeat, but as a necessity to preserve the Islamic Republic and protect the best interests of Islam. Still, it was a stunning and humiliating failure for the regime, which had come into existence only 10 years earlier as a result of the 1979 revolution. Having spent the majority of its young life embroiled in this war, a significant portion of the Islamic Republic’s national identity had developed around the war and opposition to Saddam’s Ba’athist Iraq. Furthermore, given the active support provided to Iraq by U.S. and other Western powers, as well as the West’s long failure to condemn Iraq for its use of chemical weapons, the Islamic Republic’s anti-Western–and particularly anti-American–stance was also strengthened by its opposition to Iraq.

Clearly, the Islamic Republic’s acceptance of the ceasefire was a major blow to the regime’s identity as well as to the authority of Khomeini, its charismatic leader and founder.

The nuclear deal: Another “poisoned chalice”?

Since Iran and the P5+1 signed the Joint Comprehensive Plan of Action (“JCPOA”) on July 14, the nuclear deal has occupied much of the world’s attention. Politicians and pundits speculate and opine constantly about the deal. Is it a good deal or a bad deal? Who will truly benefit, Iran or the West? Does it represent the best possible diplomatic move or a huge political mistake? Will it help to stabilize the region or instead enable Iran’s increased meddling in other countries’ affairs? Instead of weighing in on these debates, which deal largely with the politics of current affairs, I would like to analyze the deal from a different perspective, one that takes into account the complex power dynamics within Iran’s totalitarian society and the indirect repercussions that the deal may have for Iranian civil society.

Many in Iran compare the current nuclear deal to the 1988 ceasefire, particularly with respect to the Islamic Republic’s capitulation on a number of its long-held positions. I believe that this comparison can be extended to the ways in which the state has and will maneuver to reclaim legitimacy and authority in the eyes of its citizens in the wake of its many international political compromises.

What to expect next?

Oops, here is the real Ali Tehrani: Author and Activist; not a Starship Captain (at least not yet).
Oops, here is the real Ali Tehrani: Author and Activist; not a Starship Captain (at least not yet).

In the months surrounding the signing of the ceasefire with Iraq in 1988, Iran executed thousands of prisoners, almost all of whom had no death sentence, nor even lifetime imprisonment, when they were lined up on death row at the Ayatollah’s order. Amnesty International recorded the names of over 4,482 disappeared prisoners during this time. The mass executions compelled some top-ranking clergy to protest. Even Ayatollah Montazeri, Khomeini’s designated successor, challenged the executions to the point that Montazeri was removed.

In what I would argue is no coincidence, the number of executions in Iran has skyrocketed this year. The growth in rate of executions in 2015 is comparable to the years following the 2009 Green Movement, which saw massive protests in response to the fraudulent election that returned incumbent president Mahmoud Ahmadinejad to power. The Green Movement itself, as well as the massive repression unleashed on protesters by the state, received widespread international attention, and served as a major blow to the Islamic Republic’s legitimacy both inside and outside the country.

There are many ways for a state to assert authority, including by exercising power over the very bodies of its citizens or “subjects.” In Iran, this manifests through the deployment of hijab police to enforce laws around women’s dress; through severe punishments for minor crimes; or, through publicly visible executions. In the eyes of the state, this level of control over the bodies of its citizenry is necessary to reestablish the authority and legitimacy that is lost following a compromise on something so critical to the regime’s identity.

For the Islamic Republic, the two dominant narratives underpinning the regime have been confronting the West–namely the United States–and the pursuit of nuclear activities. Iran has adhered to the latter so strongly as to unite much of the world against it. The nuclear deal represents a major blow to both of these narratives, which have long defined the Islamic Republic. The weakening of this dominant ideology fundamentally hurts the legitimacy and authority of the ruler, who must act to mitigate damage to his image. By exercising power over the bodies of its subjects, the totalitarian regime attempts to reclaim power.

It is important to note that such attempts to reclaim power are not necessarily the product of conscious decisions by individuals within the government. Rather they are part of a systemic approach that is inherent to any totalitarian rule, which oversees not only what is visible, but also the feelings and minds of its subjects.

By observing the actions taken by the regime in the wake of the nuclear deal and comparing them to those surrounding the 1988 ceasefire, it may be possible to assess the evolution of the Iranian state and whether it has become more or less totalitarian.

Ali Anisi Tehrani is an Iranian journalist based in Washington, DC. His research is mainly around the theme of civil resistance and political power dynamics. Ali left Iran after the controversial Presidential election in 2009 and studied Digital Media in Sweden and the U.S. He has been living in the United States since 2012.

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Asylum and the DV Lottery (and DV Lottery Scams)

by Jason Dzubow

It’s Autumn, which means that it’s time again for the Diversity Visa Lottery. The Lottery was created by Congress to increase immigration from countries that have traditionally sent us few immigrants. Every year, 50,000 people “win” the lottery and are then (probably) able to immigrate to the U.S.

The only problem with winning the DV Lottery is that it's hard to fit the green card in your wallet.
The only problem with winning the DV Lottery is that it’s hard to fit the green card in your wallet.

Given the current state of affairs in the asylum world (delay, delay, delay), some people with asylum cases pending are wondering whether they can use the Lottery as an alternative to asylum. The answer: It depends.

First, not all countries are eligible for the Lottery. Countries that have sent us large numbers of immigrants in the past are not included in the Lottery. If you are from one of the following countries, you are not eligible for the DV Lottery:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

For China, please note that persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Even if you were born in one of the above-listed countries, you might be eligible for the Lottery if your spouse’s country does not appear on the list, if your parents were not born in one of the countries on the list, or if your parents were not lawful residents of a listed country at the time you were born. You can lean more about these somewhat annoying requirements here.

Besides country-of-origin restrictions, the other requirement for eligibility is that applicants must have a high-school degree or the equivalent, or have “two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.”

If you meet these two requirements, you can apply for the DV Lottery. This is free and actually pretty easy. Video instructions are here and you can apply here. You must apply before November 3, 2015. Winners are selected starting in May 2016.

There are also a number (probably a large number) of websites that will “help” you apply for the Lottery, for a fee. In the best case, this is a waste of money (it is just as easy to apply yourself). In the worst case, it is a complete fraud. You can learn more about these fraudsters and report scams to the U.S. government here.

Unlike most applications, I recommend that people do not use a lawyer for the Lottery and do not use a service. It is best to do it yourself.

However, if you win the Lottery, it is very wise to hire a lawyer to guide you through the green card process. Winning the Lottery does not guarantee that you will get a green card, and whether you can successfully take advantage of winning the Lottery depends on many factors and can be complicated–especially for people with asylum cases pending.

So let’s say you have an asylum case pending, should  you try the Lottery? The easy answer here is “yes,” there is no harm in trying the Lottery. If you happen to win, then things get complicated (the odds of winning are hard to come by, but appear to be less than 1%).

If you win the Lottery while your asylum cased is pending, you can potentially obtain your lawful permanent residency (your green card) and close out your asylum case. Your spouse and minor children can also get their green cards as your dependents. The problem is that not all asylum applicants will be eligible to “adjust status” and become residents of the United States, and this is where it gets tricky.

A DV Lottery winner who filed for asylum while she was still “in status,” meaning she was lawfully present in the U.S. at the time of filing, and who is still lawfully present here, can “adjust status.” “Adjusting status” means changing from a non-immigrant status to a lawful permanent resident without leaving the U.S.

Most asylum applicants will not be “in status” for long enough to take advantage of the Lottery. For example, if you came here on a B visa and filed for asylum, the B visa was probably valid for only six months, which means that you will be out of status after the six month period ends. The fact that you filed for asylum does not change the expiration date of your visa (the expiration date of your stay is not written on the visa itself; you can look it up on-line here). Since the Lottery process takes much more than six months, you will be out of status by the time your green card is available, which means you cannot “adjust status.” Instead, you would have to leave the United States and get the green card overseas.

Certain asylum applicants–those with long term visas, like F-1 students or H1B workers, who do not violate the conditions of their visas–might be able to remain in status long enough to adjust status and become lawful permanent residents without leaving the United States.

So if you are an asylum seeker who is out of status, can you leave the U.S. and collect your residency overseas? Maybe.

The key here is something called “unlawful presence.” Once your lawful stay in the U.S. expires, each day here is considered one day of unlawful presence. If you accrue more than 180 days of unlawful presence and then leave the U.S., you are barred from returning here for three years. If you accrue one year or more of unlawful presence and you leave, you cannot return for 10 years. This is known as the 3/10 year bar. A person who has an asylum case pending does not accrue unlawful presence. So for example, if you came on a B visa that was valid for six months, you overstayed your visa, and you filed for asylum four months after the visa expired (10 months after you arrived in the United States), you will have four months of unlawful presence. Once you file for asylum, you stop accruing unlawful presence, so even if your case takes two more years, you will still only have four months of unlawful presence, and you will not be subject to the 3/10 year bar if you leave (though you might be subject to other bars).

Assuming you are not subject to the 3/10 year bar, it may be possible to leave the U.S. and obtain your residency overseas based on the DV Lottery. However, for asylum seekers, this might mean returning to the country of feared persecution, which can be dangerous and might also raise suspicion at the U.S. consulate that your asylum case was not legitimate (if you can return to your country for the Lottery, maybe you never really feared persecution there). For asylum seekers (and others), it may be possible to leave the U.S. and pick up the green card in a third country, which would be the safer option.

If you are an asylum seeker who is subject to the 3/10 year bar and you leave to collect your residency, you will then need special permission to return (this is called a waiver). Such permission will be difficult–if not impossible–to obtain for most asylum seekers, and so people subject to the bar will most likely be unable to obtain their residency based on the DV Lottery.

Finally, asylum seekers who entered the United States without inspection are ineligible to adjust status and thus cannot take advantage of the DV Lottery (there may be a very narrow exception to this rule for people who meet certain conditions, including having been present in the U.S. since December 2000).

The bottom line here is that if you win the Lottery, you need to consult with a competent attorney. For asylum seekers, the ability to adjust status–or possibly leave the U.S. and return with residency–is crucial. It is very difficult to navigate these waters without the advice of someone who knows what he is doing. It makes sense to apply for the Lottery on your own, but if you win, it’s time to hire a lawyer.

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More Syrian Refugees = More Asylum Seeker Delays?

by Jason Dzubow

The U.S. government recently announced that we will be raising the refugee cap and accepting thousands of additional refugees from Syria. We’re hearing the usual angry voices decrying the “invaders” and the “jihadists,” but that is not what I want to discuss today (I’ve already written about Muslim refugees here). Instead, I want to cover two topics: First, I want to discuss the process of how refugees get selected and screened to come to the U.S., and second, I want to discuss whether the additional resources necessary to process these new refugee cases will impact people seeking asylum in the United States.

For refugees, waiting is a way of life.
For refugees, waiting is a way of life.

So how does the U.S. government decide who gets resettled in our country? What is done to prevent terrorists and criminals (not to mention phony refugees who are simply economic migrants) from taking advantage of our generosity?

First, the U.S. Refugee Admissions Program (“USRAP”) is an interagency effort led by three government agencies: the U.S. State Department, the Department of Homeland Security, and the Department of Health and Human Services, Office of Refugee Resettlement. The process also involves the United Nations High Commissioner for Refugees (“UNHCR”), the International Organization for Migration, and a number of nongovernmental organizations that assist during various stages of the process.

A refugee case begins either through a referral or a direct application. Most cases (about 75%) are referred by UNHCR. Another 25% of cases come through direct applications under various programs. For example, there are programs for U.S.-affiliated Iraqis and for religious minorities from Iran and the former Soviet Union. There is also a program for certain Cubans. The newest program is for Central American minors who have a lawfully-present parent in the United States. In addition, a few cases are referred to the program by U.S. embassies and certain NGOs.

Each applicant must complete a series of mandatory steps before she can be resettled in the U.S. These include an in-person DHS interview, a security background check, and a medical exam. The process is labor-intensive and generally takes 18 to 24 months from referral to arrival in the United States. It’s not cheap either. Last year, the USRAP cost the U.S. government over $1.1 billion.

After the refugee is selected, she must be interviewed. The interviews are conducted by DHS officers, and take place at more than 70 locations worldwide. Before the interviews, the applicants are assisted by different NGOs, such as the International Rescue Committee and the International Organization for Migration, which collect biographic and other information that is forwarded to DHS for adjudication.

Next, all refugees undergo multiple security checks before they can be approved for resettlement in the United States. Refugees are subject to the highest level of security checks of any category of traveler to the U.S. The screenings are conducted by several agencies, including the National Counterterrorism Center, the FBI’s Terrorist Screening Center, DHS, and the Department of Defense. Details of the security checks are classified, and so we do not know a whole lot about the process.

Finally, refugees undergo a health screening, TB testing, and three days of cultural orientation (where, presumably, they learn about McDonald’s, Taylor Swift, and hot pockets).

Travel to the U.S. is arranged by the International Organization for Migration. The U.S. government pays IOM for the cost of air travel, but before departing for the United States, refugees sign a promissory note agreeing to repay the cost of their travel (whether they actually repay the loan, I have no idea).

Nine domestic agencies in about 180 communities throughout the United States work to resettle the refugees. Every week, representatives from the agencies review biographic and other information to determine where to resettle each refugee. The agencies welcome refugees at the airport and begin the process of helping them settle into their new communities. The agencies also provide reception and placement services in the first 30 to 90 days after arrival. This includes finding safe and affordable housing and providing services to promote self-sufficiency and cultural adjustment. The Office of Refugee Resettlement continues to offer support to the refugees for up to five years after arrival.

So that’s the basic process that each refugee—including the additional Syrian refugees—will go through to get to the United States. It is not a fast process because of the vetting, but it is designed to minimize the risk of terrorists and criminals infiltrating the resettlement system.

One concern for asylum seekers is whether increasing the number of people admitted under the refugee program will impact the asylum system.

The asylum office is funded by USCIS customer fees. If you have ever applied for an immigration benefit, you know that filing fees can be expensive. A small portion of the fee covers the cost of operating our asylum system. So if resources are shifted around to resettle additional refugees, the asylum offices should not be affected. They have a different, independent source of funding. That’s the good news.

The possible bad news is this: All the new refugees must undergo security background checks. This process is quite opaque, and therefore we know little about it. Whether the resources used for refugee background checks will impact the background checks for asylum seekers, we don’t know. It seems that refugees and asylum seekers are subject to many of the same security checks. If so, additional background checks for refugees might further slow the background check process for asylum seekers.

Thus, while the additional refugees probably will not slow down the asylum interview schedule, they might cause more delay for asylum seekers’ background checks. Whether and how much of an impact there might be, we will know soon enough.

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The BIA’s Tepid Response to Asylum Fraud

by Jason Dzubow

A recent Board of Immigration Appeals (“BIA”) decision upheld an Immigration Judge’s adverse credibility finding where the respondent’s affidavit was “substantially similar, and in some regards identical, to an asylum application previously filed by respondent’s brother in a different proceeding.” Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).

The BIA should think of more creative ways to prevent cheating.
The BIA should think of more creative ways to prevent cheating.

In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times–in 2004 and 2006–and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times–in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother’s case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.

After informing R-K-K- of the problem, the Immigration Judge (“IJ”) gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers’ “common backgrounds and experience,” and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.

The IJ did not accept R-K-K-‘s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.

The BIA affirmed the IJ’s decision and issued a published decision in order to set forth a “procedural framework under which an Immigration Judge should address… inter-proceeding similarities.” The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent’s credibility based on the totality of the circumstances. The shorter answer is, Who cares?

I do not know how often “inter-proceeding similarities” are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person’s case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.

But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it’s nice to have a framework to assess credibility when this issue comes up. But what about the missing “transcriber”? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.

Frankly, the BIA’s decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.

Some–perhaps most–of the fraudsters’ clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these “clients” are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand “the system,” and who have no support network in the United States.

So is R-K-K- a victim or a villain? We don’t know, and given the BIA’s “framework” for analyzing similar cases, I guess we never will.

How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.

There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don’t like it, but I’ll file a complaint when it’s justified. And–so the reasoning goes–if the offending attorney is barred from practice, his future clients/victims will be protected.

The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel–this ranges from a benign screw-up (which can–and does–happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else’s case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.

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Terrorism, Trump, and the Moral Cowardice of Our Time

by Jason Dzubow
History is filled with people who think that their ignorance should trump your life.
History is filled with people who think that their ignorance should trump your life.

It’s September, and for most of us, it’s a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

Since then, we’ve witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.

Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.

But one word that I have often heard used to describe terrorists is “cowardly.” I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but–at least to me–not cowardly.

There is another, perhaps more profound, application of the label “coward” when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person’s humanity. It takes courage–sometimes great courage–to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed “us;” therefore we are justified to harm “them.” But this fails to account for the fact that there is no “them”–there are only people, living their lives day to day.

Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country’s systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I’d wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn’t. To meet and come to know your “enemy” destroys the very notion of us-versus-them. While it’s easy to project your hate and anger and fear onto “the other,” it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).

For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.

Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.

Mr. Trump–and the bevvy of Republican contenders racing to keep up with him–want to detain, deport, and deter many potential immigrants, including “illegals,” refugees, asylum seekers, and H1B workers. Of course it’s a whole lot easier to deport people you’ve labeled illegals, “rapists” and “killers.” It’s harder when you have to contend with actual human beings and their stories.

Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project–where we screen unrepresented cases and refer them to pro bono attorneys–and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).

Now maybe you believe that all “illegals” like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It’s a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported–our country has limited resources, we have to help “our own” before we help others, etc. But to create a straw man–an “illegal”–without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, “Deport them all,” you better know who it is that you are deporting and exactly what that means.

The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend’s friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: “You did the most important thing a person can do–you made me look good for recommending you.” I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of “illegals” is one thing. To know the individual is quite another.

Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, “You convinced me.” In the face of hearing their stories, even The Donald wanted to help.

To some degree, all of us are guilty of dehumanizing “the other.” It’s impossible not to. But when we advocate for positions that harm others without understanding–or even trying to understand–the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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The Curse of the “Recommended Approval”

by Jason Dzubow

In November 2012, we received a “recommended approval” from the Asylum Office for one of my Afghan clients–we’ll call him Dave, though as you might guess, that is not his real name.

Grant or grant not. There is no try.
Grant or grant not. There is no try.

We were pleased with the news. Dave had worked for the United Nations and as a contractor for USAID- and NATO-funded agencies in Afghanistan. The Taliban became aware of his work and threatened him. They contacted him by phone. They said he was an infidel and an American spy. They told him, “We are watching you. We know everything about you and your family. We know where you are.” A bearded stranger approached his children after school and tried to lure them away from their classmates. The threats escalated and so Dave decided to seek asylum in the U.S.

Dave had a United States visa, but his wife and children did not, so he came alone, in the hope that this would end the threats and that his family members could follow him later.

In those days–before the asylum backlog–cases moved more quickly. We filed the case in September 2012. Dave was interviewed the next month and received his recommended approval in November. So far, so good (but as Megadeth might say, “so what?”).

But what does it mean, this “recommended approval?” A person receives a recommended approval if the Asylum Office has determined that she is eligible for asylum, but for some reason the decision cannot yet be issued. The Asylum Office generally won’t give the reason why they cannot issue the decision, but in most cases, it seems to be because the security background check is not complete.

So what is the “security background check,” you ask. Every asylum applicant has their biometric and biographic data checked against several government data bases to determine if they might be terrorists or criminals. While these checks never seem to cause delay in Immigration Court cases (defensive asylum cases), they can take a long time for Asylum Office cases (affirmative asylum cases). Why is that? I don’t know. I asked once at a USCIS meeting, and they said it was because there are different checks at the Court and at the Asylum Office. I’ve never found anyone who could explain why the two agencies (DOJ and DHS) use different background checks, and because security issues are hush-hush, I doubt I’ll ever get a good answer on this point.

So Dave’s case was delayed while we waited for the final approval. In those pre-backlog days, the one benefit of a recommended approval was that the applicant could immediately apply for an EAD–an employment authorization document. In general, if an asylum applicant does not have a decision within 150 days of filing, he can apply for an EAD. With the current backlog, nobody gets a decision in 150 days and so everyone applies for the EAD. Prior to the backlog, many people received decisions in less than five months; others–like Dave–received a recommended approval in less than 150 days. Such people could immediately apply for the EAD. Dave applied for his EAD.

For asylum applicants with a recommended approval, the worst part about waiting is the uncertainty. When will the Asylum Office issue the final approval? Might something change so that the case is denied? For people separated from family members, the uncertainty and loneliness is extremely stressful.

As the months passed, our initial happiness with Dave’s recommended approval began to fade. When would the final decision come? I periodically made inquiries to the Asylum Office. We never received a substantive reply.

Then Dave’s wife got sick. He was worried about her, and worried about his children, but he decided to stay in the U.S. and hopefully get a decision soon. More time passed.

A year after we received the recommended approval, one of Dave’s children became seriously ill. We notified the Asylum Office and again requested a decision. We got no response. But Dave continued to wait and hope that he would receive his final approval so he could bring his family to safety.

The days and weeks and months continued to pass. Finally, as we reached the two-year anniversary of Dave’s recommended approval, he called me and told me that he had decided to return to Afghanistan. His children were suffering from health issues and he had not seen them (except via Skype) for more than two years. He was giving up on his asylum case and returning to his family, and to the danger.

So what can we learn from Dave’s story? My feeling about the whole fiasco is that Dave would have been far better off if the Asylum Office had simply denied his case in November 2012 rather than issue a recommended approval. Under U.S. law, a person does not have a duty to rescue another who is in danger. However, if a person undertakes a rescue, he is obligated not to act negligently. The U.S. has created a system for asylum. People like Dave rely on that system. In this case, the system failed Dave, and–at least for him–the lure of asylum and of safety created by the asylum system cost him and his family dearly: Two-plus years with his wife and children lost, other options for safety missed, savings exhausted.

There is an ironic denouement to the story. A few months after Dave left the U.S. and 2.5 years after the recommended approval, the Asylum Office sent a notice to get fingerprinted: “Please process the fingerprints as quickly as possible,” the note advised. Was this a cruel joke? I tried to have the fingerprints done at the U.S. Embassy in Kabul, but they could not (or would not) do it. We have still not heard from the Asylum Office about Dave’s case. I suppose it remains pending, but who knows? When last I emailed Dave (about the fingerprints), he replied, “I still have hope and… I am hopeful.”

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What Is “Persecution”?

by Jason Dzubow

Language is intensely personal. When I say the word “house,” I have one image in mind, and when you hear it, you have your own image in mind. Indeed, every person on Earth who hears the word “house” will have his own mental image of what that means. Despite all this, we manage to communicate.

The "comfy chair" constitutes persecution only in the Ninth Circuit.
The “comfy chair” constitutes persecution only in the Ninth Circuit.

But when we move from interpersonal communication to the more precise language of the courts, the problem becomes more acute. Perhaps it was best summed up by Supreme Court Justice Potter Stewart, who famously declined to define the term “pornography.” Instead, he stated, “I know it when I see it” (less well-known was his next line: “And I enjoy seeing it at least twice a day”).

In asylum law, we have a similar problem–not with pornography, heaven forbid–but with another “p” word: “persecution.”

“Persecution” is not defined by statute, and the Board of Immigration Appeals–the agency tasked with interpreting the immigration law–has failed to provide much useful guidance (as usual). And so the buck has been passed to the various federal circuit courts.

A recent article by Scott Rempell, an Associate Professor at South Texas College of Law/Houston, surveys the landscape with regards to definitions of “persecution.” Prof. Rempell finds that while certain conduct is universally viewed as persecution, there exists “staggering inconsistencies” between the various federal appeals courts: “eleven different appellate courts independently pass judgment on EOIR’s assessments of whether harm rises to the level of persecution—a significant number of spoons stirring the persecution pot.” The study revealed what Prof. Rempell calls an “unequivocal chasm” in the consistency of persecution decisions:

For example, the results [of the study] illustrate how a one-day detention involving electric shock compelled a finding of persecution, while a ten-day detention involving electric shock did not. Similarly, while several weeks of psychological suffering necessarily established persecution, several years of even greater psychological suffering failed to cross the persecution threshold.

To those of us who have litigated these cases in the federal courts, Prof. Rempell’s observation rings all-too true. But quantifying the problem is quite difficult because, as Prof. Rempell notes, the cases are so fact-specific:

Courts… compare and contrast to previous persecution cases. And due to differing opinions on what the harm threshold should be, panels are free to emphasize or deemphasize any factual nuance they choose between the cases that they are reviewing and previous cases they have decided.

Despite this problem, the article attempts to categorize the different types of harm and discern areas of consistency and inconsistency. Prof. Rempell finds five broad areas of consistency–conduct that all courts consider persecution:

(1) Brutal and systematic abuse, where the applicant has sustained harm on a consistent basis over a prolonged period of time; (2) Sufficiently Recurrent Combination of Cumulatively Severe Harms, where there is an ongoing pattern of physical, psychological, and other types of harm, as long as the harms cumulatively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, where there are multiple incidents of relatively severe harm that culminates in particularly egregious harm; (4) Sufficient Harm Preceding a Substantiated Flight Precipitator, where a series of harmful events culminates in a credible and substantial threat of harm, causing the applicant to flee; and (5) Sufficiently Severe or Recurring Sexual Abuse.

The problem with this list (aside from the fact that I did not give you all the details of the Professor’s analysis) is pretty obvious–we are stuck using words to describe harm, and this is difficult. One person’s idea of “brutal and systematic abuse” may not be the same as the next person’s. Nevertheless, the list gives us the broad parameters of what constitutes persecution in all federal courts.

When the persecution is less severe–as it is in most contested cases–things become even more tricky. Prof. Rempell identifies four areas where the appellate courts produce inconsistent decisions:

(1) A single instance of physical abuse and detention; (2) Psychological harm where there is a single fear-inducing incident; (3) Psychological harm where there are continuous fear-inducing incidents; and (4) “Other Harm Inconsistencies,” where courts looked at similar incidents and reached opposite conclusions concerning persecution.

The disparities between judges and circuits when it comes to determining persecution are stark. For example, the First Circuit (New England) reversed the BIA’s persecution finding in just 5% of cases. The Ninth Circuit (California, et al) reversed the BIA’s findings in 65% of cases.

Prof. Rempell attributes much of the disparity to “the way courts interpret the meaning of persecution, and how they characterize and measure harm.” “The fact that decades of adjudications involving over a million asylum claims have failed to yield a consistent approach on the systematic harm question is nothing short of astounding.” So what’s to be done? 

The article suggests some preliminary reforms, but the bottom line is this: Immigration agencies–and specifically the Board of Immigration Appeals–need to provide “guiding principles” on what constitutes persecution. Of course these inquiries are fact specific, and of course it is difficult to quantify physical or psychological harm, but as Prof. Rempell says, the “fact-intensive nature of persecution inquiries… should not act as a shield to prevent the creation of general severity principles, by means of regulation or adjudication.”

As a lawyer who frequently encounters the question “What is persecution?,” I believe Prof. Rempell’s article is important. He has quantified a problem that we have all experienced in our practice. Now it’s time for the BIA to do something about it.

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Asylum Offices Publish Waiting Times (and the News Is Not Good)

by Jason Dzubow

For some time now, we’ve been hearing from the Asylum Division that they would post a “Scheduling Bulletin” to give affirmative asylum seekers a better idea about wait times. Well, the Bulletin has finally arrived, which is–in a sense–good news. But it’s also bad news, since now we see exactly how slowly things are progressing at most asylum offices.

First off, if you’re curious about the status of your asylum office, check out the Bulletin here. What you’ll see is a breakdown of each asylum office and which cases they are currently interviewing (as of July 2015). So, for example, in July 2015, the Arlington Asylum Office was interviewing cases originally filed in August 2013. The chart also lists which cases each office was interviewing over the past few months, so you can see how quickly (or not) each office is moving through its cases.

Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).
Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).

Reviewing the Bulletin, a few things jump out at me. First, and most distressing, cases are moving very slowly at most asylum offices, and a few offices–notably Chicago, Los Angeles, and Miami–have made no discernible progress in the last four months. One mitigating factor here is that it’s summer, a time when the Southern border is particularly busy. Hopefully, once the number of asylum seekers arriving at the border wanes (as it generally does in autumn), the asylum offices will start interviewing more backlogged cases (if you are not familiar with the “asylum backlog,” please see this posting).

Another point worth noting is that the two asylum offices with jurisdiction over the Southern border states–Los Angeles and Houston–represent the slowest and the fastest offices, respectively. Los Angeles is currently interviewing cases filed in August 2011 (which is slower than I realized–I had thought they were interviewing cases from 2012) and they have been stuck on the August 2011 cases for the last four months. On the other hand, Houston, Texas is the fastest asylum office. They are interviewing cases filed in April 2014, though they have made almost no progress in the last four months either. What’s strange is that there is such disparity along the Southern border. I do not know why resources cannot be distributed more evenly to give some relief to asylum seekers at the LA office.

The only asylum office that has shown significant movement over the last four months is New York. In April 2015, the NY asylum office was interviewing cases filed in January 2013. By July 2015, they were interviewing cases filed in June/July 2013. Newark, New Jersey has also done reasonably well, advancing from December 2012 to April 2013 during the same period.

Rescheduled cases and cases involving children (many of the asylum seekers at the Southern border are children) receive priority over “regular” asylum cases. And according to the Bulletin, the asylum offices in Chicago, Houston, Los Angeles, and Miami have had many such cases. Presumably this explains the lack of progress in those asylum offices.

Finally, for people with cases pending at one of the sub offices, the Bulletin notes that it “currently does not include asylum interviews occurring outside of the eight asylum offices or the Boston sub-office (e.g. interviews occurring on circuit rides).” “Asylum offices schedule circuit ride interviews as resources permit.” The Bulletin suggests that applicants contact the “asylum office with jurisdiction over your case for more detailed information” about the schedule at sub offices. You can find contact information for each asylum office here.

So there you have it. The Bulletin will be updated monthly so you can track how quickly each asylum office is moving through the backlog. Though the current situation is discouraging, at least the Bulletin provides some information about where we stand now, and maybe some hope for those who are waiting.

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A Statistical Look at the Asylum Office

by Jason Dzubow

My associate Ruth Dickey continues her review of data from our cases filed at the Arlington Asylum Office. She reports her findings here:

One of the biggest sources of client frustration is delay after the asylum interview. Clients are often separated from family members who remain in danger. They feel as though the future is uncertain, and they see no end in sight to their ordeal. The lack of a final decision is stressful and depressing.

Attorneys also face stress and extra work due to delayed decisions. For example, we repeatedly contact the Asylum Office about our clients’ cases, we answer client questions, and we renew employment authorization documents. We have resisted charging more money for this extra work, but it makes operating a business very difficult. Also, we have almost no power to make the decisions arrive faster, and so we feel the stress of our clients’ frustration without being able to do much about it.  

Looking at data from 136 of our cases—filed in 2013 and 2014 in the Arlington, Virginia Asylum Office—we can see that about one-third of the cases have been interviewed but are still awaiting decisions. The charts below compare cases filed in 2013 with cases filed in 2014:

Chart A1

 

ChartA2

The Arlington Asylum Office is working through cases filed in 2013. But unfortunately, it is moving very slowly—we currently have no cases scheduled for interviews in Arlington.

The Asylum Office generally has a goal of issuing its decision two weeks after the interview takes place. Our data shows that they usually do not meet this goal. Of our interviewed cases, only about 1-in-5 applicants received a decision within two weeks of the interview:

Chart A3

For clients who have been interviewed and have received decisions, wait times vary widely. The median wait time for 2013 and 2014 cases was 34 days – but ranged up to 719 days (and keep in mind that this does not include data from people who have been interviewed and who are currently waiting for a decision). The following chart shows the wait time until a decision was made, by interview date:

Chart A4

Of course, dozens of our clients have not gotten decisions yet, and so we do not know how long they will ultimately wait.

As the next chart shows, we currently have several clients who have been waiting over a year for a decision, and a few who have been waiting for more than two years. If these clients’ information were added to the chart above, it would tell an even more dismal story since they have already waited far longer than the median wait time for cases where a decision was issued.

Chart A5

Lastly, let’s look at recommended approvals. Recommended approvals are issued in cases where the Asylum Office is convinced that a case meets the standard for asylum, but the background check is not yet complete. People with recommended approvals can apply for employment authorization, but cannot sponsor their family members who are waiting to join them in the U.S. The following chart shows how long our clients have waited from the date of the recommended approval to the date of the final decision (never mind how long they might have already waited to get the recommended approval). Information about people who have received recommended approvals and who are still waiting for their final decisions are also shown in the same chart:

Chart A6

Despite making numerous inquiries about our pending cases, we have never received a specific answer as to why delays occur. Usually, the Asylum Office informs us that the delay is due to the security background check. However, it is unclear why the background checks take so long for affirmative asylum seekers, but do not cause delays for other applicants seeking benefits from USCIS. Interestingly, asylum seekers in Immigration Court do not face these types of delays either, even when they come from conflict zones or countries where terrorism is a concern. Only affirmative asylum seekers seem subject to these inordinate delays.

Can we draw general conclusions about the operation of the Arlington Asylum Office based on our data? It is difficult to say. Many of our clients come from places like Afghanistan and Iraq, where security-background-check delays are more burdensome. Also, our sample size is relatively small. Nevertheless, our findings comport with what we hear from other attorneys and applicants with cases in Arlington (and other asylum offices).

Since the backlog began in 2013, the Asylum Division has been working to improve the situation by hiring more officers and modifying some of its procedures. We are hopeful that the asylum system will continue to change to better meet applicants’ needs. Until then, we will continue to analyze data from our cases.

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Lawyers vs. Clients

by Jason Dzubow

Presenting an asylum case to an Immigration Judge or an Asylum Officer can be tricky business. There are an infinite number of ways to tell the story: How much detail to include, what to keep out, how to deal with derogatory facts. Not surprisingly, sometimes lawyers and their clients have different ideas about how the case should look. So what happens when lawyers and clients disagree?

CYA
CYA

First, we should acknowledge that there are areas where the lawyer’s interest and the client’s interest are in harmony, and other areas where those interests diverge. For example, both the lawyer and the client want to win the case. They both would like to finish the case as quickly as possible. They both want a good relationship with the other.

There are also areas where the lawyer’s and the client’s interests differ. The lawyer often wants to do less work on the case, while the client wants the lawyer to do more work. The lawyer has to deal with many cases, but the client wants her case, and her phone calls and emails, to receive the highest priority. The lawyer has her own ideas about how the case should be presented; the client may have a different idea. For attorneys in private practice (like yours truly), the lawyer wants to charge more money; the client wants to pay less. A good (i.e., ethical) attorney generally puts his own interests behind those of his client, but only to an extent, and when discussing “lawyers vs. clients,” it is helpful to acknowledge that there are inherent tensions in the relationship.

Here, though, I am less interested in the tension related to workloads and fees, and more interested in conflicts that arise between the attorney and her client with regards to strategy—how to present the case. But that conflict does not exist in a vacuum. Rather, it must be viewed in the context of all the other tensions inherent in the relationship, and—to make matters worse—it exists in the stressful environment of an asylum case, which can have life-changing implications for the client and her family. All this, we must keep in mind.

So what to do when the lawyer and the client cannot agree?

It happens to me periodically that I have a client who has his or her own idea about how a case should be presented, and that idea conflicts with what I think best. It is perhaps one of the downsides of experience, but the more cases I do, the less patience I have for clients who question my judgment. The problem with this attitude, of course, is that I am sometimes wrong, and if my experience blinds me to that fact, I am clearly disserving my client. For this reason, I try to practice humility and always carefully consider the client’s viewpoint. As the old prayer goes: “Lord, give me patience, and give it to me right now!”

Sometimes, however, the client is simply wrong about something: A “friend” told the client to hide her trip to Iran from the U.S. government; a person who is still legally married but separated wants to claim that he is single on an immigration form; someone with a criminal conviction wants to explain to the Judge that “it wasn’t my fault!” In cases like these, the lawyer needs explain the problem, and usually the client understands (the U.S. government probably already knows about the trip to Iran, so trying to hide it is a mistake; even though you are separated, you need to indicate “married” unless the marriage is terminated by death or divorce; the Judge wants to hear you take responsibility for the crime, apologize, and explain how you will not repeat the same mistake).

Other situations are more subtle: The client wants to add too much irrelevant information to her asylum affidavit, for example. In a situation like this, I explain my point of view (the fact-finder will become frustrated if they get bogged down in unimportant details and it will distract from the thrust of the case) and usually the client agrees. If not, as far as I am concerned, it’s the client’s case and ultimately it’s his decision to make. My concern is that the client’s decision is made knowingly (maybe this is why lawyers are called “counselors” and not “deciders”).

In cases where the client and I cannot agree, and where I think the client’s decision will negatively affect the outcome of the case, I write down my position and make the client sign it. It’s rare that I have to do this, but I want to have a record of what happened in case the client decides to blame me for losing the case (the technical term for this is CYA – “cover your ass”). Also, if I make the client sign such a document, it helps underscore the seriousness of the client’s decision, and hopefully dissuades him from harming his case.

My feeling is that it is better to avoid a conflict with the client before it begins. So what can be done to minimize conflicts related to case presentation?

The most obvious solution is communication, and this is primarily the lawyer’s responsibility. As lawyers, we need to be transparent about what we do. If we over-sell our services, and promise the client the moon and the stars, we really can’t complain when the client expects us to deliver. It’s the same with case presentation. The client needs to understand the lawyer’s role, and what the lawyer can and cannot do (we can’t help a client lie, for example). I find it helpful to show potential clients examples of my work, so they have an idea how their case will look at the end of the process. I also outline how we will prepare the case, what we need from the client, what my assistants will do, and what I will do. I also try to give them an idea about what we don’t know–primarily, how long the case will take, given the very long backlog. To paraphrase the old ad, a well educated client is our best customer.

For many–if not most–asylum seekers, the process is stressful and scary. They are separated from loved ones and living with great uncertainty. As lawyers, we absorb some of that stress. By communicating effectively with our clients, we can reduce their stress and our own, and we maximize the chances for a successful outcome in their case.

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A Statistical Look at the Arlington Asylum Office

by Jason Dzubow

My intrepid associate, Ruth Dickey, has been analyzing data from our cases filed at the Arlington Asylum Office during the past few years. She reports her findings here:

In December 2014, USCIS announced that it would address the asylum backlog in a new way: “First in, first out.” Prior to this new policy, the Asylum Offices were trying to complete as many cases as possible within 60 days. Cases that could not be interviewed within 60 days fell into the backlog. Over time, the number of cases entering the backlog grew and grew. Nationally, as of May 2015, over 85,000 applications are stuck in the backlog.

When we learned about the new “first in, first out” policy, we were hopeful that our oldest cases would be interviewed one after another in quick succession. Unfortunately, that didn’t happen—at least not yet (hope springs eternal, even for asylum lawyers). Let’s take a closer look at what is going on at the Arlington Asylum Office, the office where most of our cases are pending.

During 2013 and 2014, we filed 136 cases that are analyzed here (some cases—where the applicant moved to a different jurisdiction, for example—were excluded from the analysis in order not to skew the data). As you can see from the chart below, a large percentage of our cases fell into the backlog during those years, particularly during the second and third quarters of 2013. The low interview numbers in mid-2013 are likely due to the summer “border surge,” when many Central Americans started arriving at our Southern border and requesting asylum. The surge continued into 2014 and continues up until today. Especially in the beginning, USCIS was not prepared for the surge, and so we suspect the low interview numbers during the second and third quarters of 2013 are due to the government’s inability to deal with the sudden increase in applications.

Chart 1

As you can see in the next chart, a higher percentage of our cases were interviewed in 2014 than in 2013, suggesting that the Asylum Office was handling the volume more effectively. Even so, a significant portion of our cases—almost 40%—fell into the backlog in 2014. Given that the government has already interviewed the majority of cases from the fourth quarter of 2013 and from 2014, we are hopeful that once the Asylum Office reaches those cases, it will move through that portion of the backlog more quickly (the Arlington Asylum Office is currently interviewing cases filed in August 2013—about half way through the third quarter).

chart 2

Since the change to the “first in, first out” policy, things have been moving slowly in Arlington. Only 16 of our backlogged cases have been scheduled for interviews during the first six months of 2015. As a point of comparison, during the same period in 2014, we had exactly twice that many—32 cases—interviewed.

For those people in the backlog who have been scheduled for an interview in 2015 (since the implementation of the new policy), how long did they have to wait? From the date the application was received until the date of the interview, the median wait time was 678 days. The following chart shows the wait times (in days – on the vertical axis) for our clients who were interviewed in 2015. You can see that there is some variability in wait times:

The family that had to wait the longest—809 days—had been scheduled for an earlier interview, but was rescheduled because their file was apparently not in the Asylum Office (where it disappeared to, we don’t know). It took an additional four months to retrieve the file and get the interview. Hopefully, we won’t see this problem again. Another of the longer-delayed cases had been scheduled for an earlier interview, but was rescheduled by the Asylum Office without explanation. This happens periodically, and we even saw it on occasion in the good old days, prior to the backlog.

Once people are finally interviewed, how long does it take to get a decision? The Asylum Office generally tries to make decisions in two weeks. Of the 16 cases from 2015, eight have received decisions. Sixteen cases is a very small number, and so we can only draw limited conclusions from this data. However, the oldest case in the group of 16 has been languishing since January. And, unfortunately, this person is not alone. Many others who were interviewed in 2013 and 2014 are still waiting for their decisions.

So that is a look at what we know now. As we continue to analyze the data, we will post what we learn.

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Asylum and EAD Delays – An Update from the Ombudsman

by Jason Dzubow

The Office of the Citizenship and Immigration Services Ombudsman recently released its 2015 annual report to Congress. The report discusses all aspects of USCIS operations, and provides some new information about the asylum backlog and the government’s efforts to improve the situation.

To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.
To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.

You may already be familiar with the Ombudsman’s office–they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS “customers” (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.

In this posting, I want to discuss a few of the report’s findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.

First, some findings. The report summarizes where we are now: 

A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.

All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).

Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person “passes” the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 – a four-fold increase. The Ombudsman notes that, “Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate.” The report continues:

These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.

Another reason for the backlog is that the rate of new affirmative asylum filings has grown. “In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS.” “In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase.”

In addition, between September 2013 and December 2014, the number of “Unaccompanied Alien Children” with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.

So what has USCIS done to address the delay?

First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).

Second, starting in late December 2014, USCIS now interviews cases on a “first-in, first-out” basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.

Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.

Finally, “USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times.” For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer’s time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants “pass” their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.

The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview “Short Lists:”

First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.

I discussed these ideas, and a few others, here.

Lastly, I want to briefly discuss the report’s findings related to delays obtaining Employment Authorization Documents (“EADs”). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means–if possible–try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.

Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.

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