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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Postcard from the Apocalypse: November 29, 2019

by Jason Dzubow

 

BEGIN TRANSMISSION: 

If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end. 

This is how the Immigration Court backlog ends.
This is how the Immigration Court backlog ends.

I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently. 

What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.

“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time. 

It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?

Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen. 

And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind! 

Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came. 

EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter. 

The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.

And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…

ERROR ERROR ERROR END TRANSMISSION 

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I Moved. Should I File a Change of Address?

by Jason Dzubow

If you have a case pending with the Asylum Office and you move, you are supposed to file a change of address (form AR-11) within 10 days. It should be that easy, but of course, these days at the Asylum Office, nothing is easy.

Does this count as a permanent address?
Does this count as a permanent address?

The first problem is that if you move and you file a change of address, it could affect your eligibility for an Employment Authorization Document (“EAD”)–a work permit. Once your case is received by the Asylum Division, the “Asylum Clock” starts to count time. When the Clock reaches 180 days, you are eligible for an EAD (you can mail your EAD application after 150 days, but unless the Clock reaches 180 days, you will not receive the EAD). The problem is that if you do anything to cause a delay in your case, the Clock will stop and you won’t get your EAD, at least not for a long time. [Update 04/12/2017: Moving your case to a new Asylum Office should not stop the clock; this rule was changed by USCIS].

The Clock stops if you fail to appear for an interview or a fingerprint appointment, or if you move your case to a different Asylum Office–all these things are considered applicant-caused delay. Therefore, if you move, and the move results in your case transferring to a different Asylum Office, you may lose your opportunity to get an EAD (to see whether a particular move will cause your case to transfer to a new Asylum Office, you can check here).

In theory, the solution to this problem is easy: Don’t move until after you receive your EAD. In reality, it is not always so simple. People who file for asylum often do not have stable addresses in the United States (they’re refugees after all), and so it can be difficult to maintain a permanent address for long enough to receive the EAD. If at all possible, you should find a long-term address and use that address when you file your case. This will potentially save you a lot of trouble down the line.

For those unlucky few who must move their case to a different asylum office, you have to make a choice: Change your address–as the law requires–and likely lose the EAD (if less than 180 days have passed on the Clock), or violate the law by either keeping the old address (assuming you can still get mail there) or using another address within the jurisdiction of the original asylum office. If you choose to violate the law, you will probably get the EAD, but you could be subject to civil and criminal penalties (a fine and up to 30 days in jail), and it could affect the outcome of your asylum case (“So, Ms. Asylum-Seeker, you lied to us about your address. What else are you lying about?”).

Another problem for people who change Asylum Offices is that the transfer can cause delay (though I’ve seen examples both ways – usually a move makes the case slower, but in other cases, it seems to make the case faster). It may also put you far away from the lawyer who initially prepared your case or other people who are assisting you. There is not much you can do about these things, but they are good to think about before you file the case.

A third problem occurs when you move for a temporary period of time. I see this a lot: People move to a new city for school or work, but they do not change their “permanent” address. In this case, it is sometimes difficult to know whether to file a change of address form. If you change your address again and again, you will potentially bounce around between different asylum offices and never get an interview. On the other hand, the Asylum Officer might be suspicious if you list your home address in one city, but you are working or studying in a distant city. When my clients make a “temporary” move, I advise them to keep as much of their documents at their “permanent” address as possible: Driver’s license, tax documents, bank accounts, etc. Even so, it is unclear whether we are violating the law by not informing DHS about the temporary move. Indeed, the law itself (INA § 265) provides little guidance. At least in my experience, the Asylum Office is fairly lenient on people who make temporary moves, as long as there is evidence that they have maintained the permanent address.

As a lawyer, of course, I cannot advise anyone to violate the law by not filing a change of address form. But I would offer that if you are thinking about violating the law in order to get your EAD or keep your case from being transferred, you should talk to a lawyer first about your specific case. It may seem easy enough to not inform USCIS of an address change, but I have seen this play out at asylum interviews, and I recently almost had a big problem for one client who failed to inform USCIS about his change of address (let’s just say I was chastised by the Asylum Officer, which made me feel kind-of bad (Jewish guilt and all that), but fortunately, the client received asylum).

In the end, the best way to avoid a problem is to file the asylum application using an address where you can remain for a while. In the days before the backlog, when cases only took a few months, this was not difficult. But now, like everything else related to asylum, it ain’t easy.

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Dilemma at the Gate: Family Detention vs. Open Borders

by Jason Dzubow

Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.

Powder blue is the new black.
Powder blue is the new black.

On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.

Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?

I can imagine circumstances where it would be justified to detain arriving asylum seekers–including children–and I think it is worth exploring the possible justifications, and whether they are legitimate. Let’s take a look at some of the reasons for family detention and whether they are justified:

1. Some of the people coming here are dangerous, and since we don’t know who the bad guys are, we should detain everyone – Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country’s safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.

2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country – This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.

3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders – The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.

To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.

Alternatives to detention (“ATD”)–such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)–are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens’ appearance in court.

Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).

4. If we allow the migrants to enter, it will only encourage others to follow – Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years–have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.

The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save “the system.” 

As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.

Finally, I doubt that the restrictionists will ever be satisfied with President Obama’s efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.  

In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.

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Magna Carta and the Rights of Refugees

by Jason Dzubow

June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John’s request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system). 

The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.
The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.

What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states—

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In other words, the sovereign will not act against the subject without due process of law.

While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us. 

Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.

But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don’t want to admit people from China into our country, we don’t have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.

There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.

But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and–if that procedure is violated–they can petition the federal courts for redress. As the Supreme Court has held:

[T]he Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.

In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where–in the United States–the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can’t help but think that that would be a good thing.

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Congress: Asylum System Letting in Terrorists

by Jason Dzubow

According to a letter from four members of Congress to DHS Secretary Jeh Johnson,  a “recent disclosure [by USCIS] regarding the number of aliens found to have a ‘credible fear’ in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system.”

Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.
Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.

The “recent disclosure” from USCIS to the House Committee on Oversight and Government Reform revealed that “the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014.” The four Congressman–Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)–requested more information about the 638 aliens in question, including each aliens’ confidential A-file and whether and by what authority each alien was released from detention.

First, what’s this all about?

When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a “credible fear” interview–a preliminary evaluation of eligibility for asylum. The large majority of aliens “pass” the credible fear interview. Their cases are then transferred to an Immigration Judge and–in most, but not all, cases–they are released from detention. Aliens who do not pass the credible fear interview are deported.

In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground (“TRIG”). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden’s best friend). We don’t know–the TRIGs are very broad (as I’ve discussed here).

One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don’t know.

So what’s the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.

I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data–no matter how benign–to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).

Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.

Finally, the letter demands that the files be turned over before COB on June 3, 2015–two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time–while ensuring confidentiality–is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.

I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done. 

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A Military Solution to the Migration Crisis?

by Jason Dzubow

The European Union has been struggling to cope with a surge of migrants fleeing war and poverty in the Middle East and Africa. The high season has not yet begun, and already hundreds have died trying to cross the Mediterranean. Thousands more have arrived on the Continent to seek protection. In response, the EU is planning a combined military campaign by air, sea, and possibly land against the smuggling networks. Can such a plan succeed? And could the lessons of Europe be applied to our own migration crisis along the Southern border?

Just because you have a hammer does not mean every problem is a nail.
Just because you have a hammer does not mean every problem is a nail.

According to a recent article about the EU plan:

The campaign’s aim is defined as “to disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture, and destroy vessels and assets before they are used by smugglers … The operation will need to be phased in and will be heavily dependent on intelligence.

Military operations would focus on actions “inside Libya’s internal and territorial waters and the coast,” and possibly “ashore,” as well.

The downsides of such an operation are fairly obvious. As an EU planning document admits, the campaign could result in innocent people being killed: “Boarding operations against smugglers in the presence of migrants has a high risk of collateral damage including the loss of life.” There are also difficult practical problems—smugglers frequently rent boats from fisherman and then fill the boat with migrants shortly before they sail. So there is little time to identify which boats are being used for human cargo and to neutralize them before people are aboard. Also, the Libyan coast is dangerous. Different militias control different parts of the country, and some have the capacity to target European warships and aircraft. Finally, and maybe most significantly, the migrants are desperate people fleeing for their lives, so it is unclear whether they would be dissuaded from their journey if it were marginally more difficult.

On the other hand, large numbers of people are already dying at sea (about 2,000 so far this year), and there is little doubt that the impunity the smugglers enjoy encourages them to continue their activities. There is also some evidence that the smugglers are encouraging certain people to make the journey, when they would be better off staying put. But the question is, Can military force make the situation better?

First, I suppose it depends on how we define “better.” If we mean that Europe will have to deal with fewer migrants, then military action against the smugglers may make things “better,” at least to some degree. We’ve seen this story before in the militarization of the drug war. The costs to the drug smugglers goes up, the cost of the product goes up, and—perhaps—fewer drugs get through. The key difference between smuggling humans and smuggling drugs is that each person must be able to pay for the cost of his trip. If the cost to smuggle drugs goes up, the users pay, but if the cost of human trafficking goes up, the trafficked people must pay. If action against the traffickers increases the cost of passage, maybe fewer people will be able to afford the journey. And if fewer migrants reach Europe, the situation will be “better” in that Europe will not have to deal with it.

But if “better” means actually addressing the problem, interdicting smugglers will likely not make the situation any better. If the asylum seekers were merely economic migrants, they might be dissuaded from making the trip. But most of the people crossing the Med are fleeing for their lives–they are from places like Syria and Eritrea, where return to the home country is unthinkable. Cutting off the route to Europe will–at best–force them to go somewhere else.

While Europe does bear some of the blame for the current mess in the Middle East and Africa (due to colonialism and economic exploitation), I don’t believe that the Europeans can be expected to accept every migrant who come their way. However, I do think Europe–and the rest of the world–has a moral obligation to help legitimate refugees fleeing violence and persecution. Perhaps European interests would be better served by using its military and logistical power to establish better safe havens for refugees, and to create an orderly resettlement process for those who will likely never return home.

And what of America? Is there a military solution to our own migrant crisis? Much of the migration to our country is driven by gang and cartel violence in Central America and Mexico. Last year, the Congressional Research Service published a report about the U.S. government’s role in combating Central American gangs. The report details our efforts on the law enforcement and preventative sides of the gang problem. In short, it seems that a law enforcement-only approach (such as Mano Duro in El Salvador) is not as effective as a more holistic approach, and so the effectiveness of throwing additional military forces against the gangs seems doubtful.

Perhaps the border itself could be further militarized, but it is difficult to see how this would make much difference either. The number of agents at the border is at an all time high, and the number of apprehensions has dropped to 1970s levels (indicating fewer people attempting to enter illegally). The bigger problem these days is the large number of people surrendering at the border and requesting asylum, and of course this is not a problem amenable to a military solution.

For us and for the Europeans, the influx of asylum seekers presents a serious challenge. Rather than using military force to attack smugglers and deflect the problem, we would be better off addressing root causes and protecting vulnerable people from harm.

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Update on the Asylum Backlog

by Jason Dzubow

If you’ve visited this website before, you know that I’ve written about the asylum backlog again and again… and again and again and again and again. And yet again. And once more. And probably a few other times in-between. USCIS recently released some new statistics on asylum, and so I thought I would share them here and discuss the current situation.

Measured in smoots, the backlog is 86.9 miles long + one ear.
Measured in smoots, the backlog is 86.9 miles long + one ear.

First off, despite the efforts of the Asylum Division, the backlog continues to grow. In January 2015, the total number of backlogged cases was 76,446. By the end of March 2015, there were 82,175 backlogged asylum cases nationwide. The numbers have only increased since then.

The main cause of the backlog has been large numbers of people–mostly young people–coming to the United States from Central America. These young people are detained at the border and receive a credible fear interview, which is an initial assessment of eligibility for asylum. If they pass the credible fear interview, their case is referred to an Immigration Court, which then fully reviews their asylum application. The credible fear interviews are conducted by Asylum Officers, and because they are detained at government expense, the young people are given priority over other (non-detained) asylum seekers. Because the Asylum Division must devote resources to these credible fear interviews, they have been unable to keep up with the more traditional asylum cases. Hence, the backlog.

I keep expecting the number of young people coming here to wane, but so far that has not been the case. Indeed, the number of people coming from Central America this year is nearly identical to the numbers we saw last year. And given that summer is traditionally a busier time for migration from Central America, we can expect more young people to arrive at our border in the next few months. Thus, it seems likely that the backlogged cases will keep piling up.

According to the latest statistics, the least backlogged offices are Houston (3,971 backlogged cases), Arlington (5,791), and Chicago (6,485). The most backlogged office is Los Angeles (17,042), followed by Newark (14,924), New York (13,568), Miami (11,366), and San Francisco (9,028). Wait times in these offices roughly correlate with the number of cases backlogged, so Houston is currently the fastest office and Los Angeles is the slowest.

Of course, obtaining a (relatively) quick interview date is of little value if the case is denied. In terms of grant rates, the fastest offices are not necessarily the most likely to grant asylum. Although the statistics on this vary, the offices in Chicago, Houston, Miami, Newark, and New York all grant asylum less than 33% of the time. Arlington and Los Angeles grant about 50% of their cases, and San Francisco grants over 60% of its cases.

So what is the Asylum Division doing to address the backlog?

For one thing, they have been hiring more Asylum Officers. Since the backlog began in 2013, the number of staff members has increased by 90% and they continue to hire and train more officers. It appears that the Asylum Division will continue to add new officers through 2016. So if–and it is a big if–we see a drop in credible fear interviews at the border, the asylum offices should be well positioned to make some progress on the backlog.

The Asylum Division is also making an effort to keep the public more informed about the backlog. For some months now, there has been discussion about providing more information about processing times at the different asylum offices (for example, the Arlington, Virginia office is currently interviewing cases from July 2013). Because workloads are unpredictable, the asylum offices do not know when they will interview an individual case, but they do know which cases they are processing now. By posting this information, at least asylum seekers will have some idea about where they stand in the queue (the Department of State has a similar system for family- and employment-based immigration visas).

The asylum offices have also created some very limited ways to expedite cases. I have discussed those here.

As an advocate for asylum seekers, of course I believe that more should be done. Most importantly, I would like to see the asylum offices give higher priority to people separated from their immediate relatives. I would also like to see more resources devoted to processing I-730 petitions, which allow approved asylum seekers to bring their spouses and children to the U.S. Also, given that asylum cases are moving slowly, I would like to see USCIS issue work permits (EADs) for two or more years, instead of just one year. Finally, I would like to see responsibility for credible fear interviews moved from the Asylum Division to a separate unit or–better yet–the elimination of credible fear interviews altogether (CFIs are basically rubber stamps and thus a waste of resources; it would be better if such cases were adjudicated in the first instance by an Immigration Judge).

The Asylum Division is faced with a very difficult–if not impossible–task: To continue adjudicating asylum cases while dealing with an unpredictable and overwhelming number of credible fear cases, all the while, with a hostile Congress looking for excuses to reduce asylum protections. For the sake of our asylum system and those who need protection, I hope they can navigate these treacherous waters.

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Is the Asylum System to Blame for Migrant Deaths?

by Jason Dzubow

We think of spring in the Northern hemisphere as a time of rebirth and renewal. But in the Mediterranean, for refugees attempting to reach Europe by sea, it is a time of dying.

Deporting children protects them. Vaccines cause Autism. Ketchup is a vegetable.
Deporting children protects them. Vaccines cause Autism. Ketchup is a vegetable.

Last month, over 800 people died when an overcrowded boat sank en router from Libya to Southern Europe. That brings the number of migrant deaths at sea during this season to 1,780 people, as compared to 96 people during the same period last year.

By contrast, deaths at the U.S. border are down from previous years. The Associated Press reports that, “The number of people who died trying to cross the U.S.-Mexico border has dropped to the lowest level in 15 years as more immigrants turned themselves in to authorities in Texas and fewer took their chances with the dangerous trek across the Arizona desert.” In FY 2014, the government recorded 307 deaths at the border. Although this is significantly lower than what we are seeing in Europe, hundreds of people are still dying each year on their journeys to the United States (and of course this figure does not include people who die on the route to the U.S. before they reach our border).

In many cases, the migrants coming to Europe and the United States are fleeing severe violence in their home countries. They are desperate people seeking safety and a better life in the West. And although in many ways the U.S. and Europe are hostile to asylum seekers, we do provide strong “pull factors” that encourage people to make the journey. We offer such people asylum.

So it’s fair to ask: Does the very fact that we offer asylum provide an incentive for people to risk their lives–and sometimes die–to reach our country?

A recent bill proposed in Congress and passed by the House Judiciary Committee seems to answer this question in the affirmative. The bill, called the Protection of Children Act of 2015, would “protect” unaccompanied minors who come to the U.S. by sending them home more expeditiously. One of the bill’s sponsors, Congressman Bob Goodlatte (R-VA) explained the rationale for this new legislation:

The Obama Administration’s immigration policies have given confidence to parents who are in the U.S. illegally that they can stay and have encouraged them to bring their children, who are still in Central America and beyond, to the United States unlawfully. These children, often assisted by smugglers, face many dangerous situations as they travel through Mexico and then walk miles across a hostile border environment. We need to take action to stop these children from risking their lives to come to the United States unaccompanied and unlawfully. The Protection of Children Act makes common sense changes to our laws to ensure minors who travel to the U.S. alone are returned home safely and quickly.

While the bill will not, in fact, protect any children (rather, it will harm them), the Protection of Children Act is–at least in part–an effort to reduce the incentive for people to come to the U.S. for asylum and thus an effort to reduce the number of people who die attempting to reach our country.

But still, the question remains: Do our asylum laws encourage people to come illegally to the United States and risk their lives in the process? Is our generosity killing people?

One way to look at the question is to explore the motivation for asylum seekers’ coming to the U.S. Which is more important, the “push” of danger in the home country or the “pull” of asylum in the United States? If the “pull” is more important, we would expect that people from similar countries would come to the U.S. in similar numbers, regardless of violence levels in those countries. So for example, we would expect to see people coming to the U.S. in similar numbers from El Salvador, Guatemala, Honduras, and Nicaragua (all poor Central American countries). A review of the data, however, indicates that this is not the case. Many more people come to the U.S. from the more violent countries (El Salvador, Guatemala, and Honduras) than from the less violent one (Nicaragua) (I have written more about this here). 

Some of the disparity may be because there are more people from El Salvador, Guatemala, and Honduras in the U.S. than there are people from Nicaragua, and so perhaps migrants are not fleeing violence, but instead are coming here for family unity. There is no doubt that this is part of the equation. However, according to the Pew Foundation, there are roughly 408,261 Nicaraguans in the U.S. By comparison, there are 774,866 Hondurans, 1,265,400 Guatemalans, and 1,969,495 Salvadorans in the United States. I could not find recent data on the number of Nicaraguans coming to the U.S., but for December 2014, Nicaragua was not even in the top 10 sending countries for asylum seekers. In that month, 333 people filed for asylum from Honduras, 495 from El Salvador, and 546 from Guatemala. One hundred and fifty four people filed for asylum from India, which is # 10 on the list, so we know that even fewer people sought asylum from Nicaragua. Given the significant number of Nicaraguans living in the U.S., if family unity was the main “pull” factor, we would expect greater numbers of migrants from Nicaragua.

All this leads to the conclusion that violent conditions in Guatemala, El Salvador, and Honduras are “pushing” people to come to the United States. And, by the way, this squares with anecdotal evidence from the asylum seekers themselves and the lawyers (like me) who represent them.

So what does it all mean? If people are coming here mainly due to “push” factors (violence) and not “pull” factors (asylum), then making it more difficult for them to claim asylum in the U.S. (or Europe) is unlikely to dissuade them from making the journey.

Most asylum seekers, like most people, are rational and respond to their environment in rationale ways. If conditions are violent and they fear for their lives, people will flee. If there is somewhere safe for them to go, they will go. The Protection of Children Act does nothing to protect such people. It merely shifts the problem somewhere else. To help reduce the number of asylum seeker deaths, the United States and Europe need to do more to address the root causes of violence. Making life even more difficult for those fleeing harm will only make a bad situation worse.

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Refugees Come to America–To Sing!

by Jason Dzubow

One of my more memorable cases involved testimony from my client’s uncle, a well-known singer from Ethiopia who had been living in exile in Sweden and the U.S. since 1974. He was testifying about conditions in Ethiopia and whether it was safe for his nephew (my client) to return home. He mentioned that even after 40 years away, many of his songs were about Ethiopia. I asked him about his feeling towards his homeland. “I love my country,” he responded. Did he want to return? “If I could, I would return tomorrow.” It’s a beautiful and sad testament to a life lived in exile, and it is not an uncommon story.

The Refugee All Stars embody the old proverb, "It ain't about how hard you hit. It's about how hard you can get hit and keep moving forward. How much you can take and keep moving forward." (Balboa 3:16).
The Refugee All Stars embody the old proverb, “It ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. How much you can take and keep moving forward.” (Balboa 3:16).

It seems there is a natural connection between exile and art. Some artists are forced into exile after their art offends the powers that be. Others create art to remember their previous lives or to help heal themselves and their loved ones. I suppose there are as many motivations for art as there are artists, but memories of a homeland lost are a particularly powerful muse. 

In that vein, one of my favorite musicians is Enrico Macias, an Algerian Jew who had to leave his country during the war of independence in 1961. He has not returned to Algeria since, but many of his songs reference his homeland and the loss he experienced by leaving. 

Recently, I’ve learned about a band called the Refugee All Stars, which is currently touring American (their schedule is here). Members of the band are from Sierra Leone, and their story is inspiring: 

Throughout the 1990s, the West African country of Sierra Leone was wracked with a bloody, horrifying war that forced millions to flee their homes. The musicians that would eventually form Sierra Leone’s Refugee All Stars are all originally from Freetown, and they were forced to leave the capital city at various times after violent rebel attacks. Most of those that left the country made their way into neighboring Guinea, some ending up in refugee camps and others struggling to fend for themselves in the capital city of Conakry.

Ruben Koroma and his wife Grace had left Sierra Leone in 1997 and found themselves in the Kalia refugee camp near the border with Sierra Leone. When it became clear they would not be heading back to their homeland anytime soon, they joined up with guitarist Francis John Langba (aka Franco), and bassist Idrissa Bangura (aka Mallam), other musicians in the camp whom they had known before the war, to entertain their fellow refugees. After a Canadian relief agency donated two beat up electric guitars, a single microphone and a meager sound system, Sierra Leone’s Refugee All Stars were born.

Now, the band tours worldwide and works with many well-known musicians and producers. They have also performed benefits for Amnesty International and the World Food Program, among others.

Like many people who have experienced war and exile–including many of my clients–it seems that the band members’ desire to carry on with their lives and work to improve the world has not been dimmed:

The senseless deaths and illnesses of friends and family, including some of the band’s original members, and the slimming hope for great change in their country as a result of peace, has only strengthened the resolve of Sierra Leone’s Refugee All Stars to do what they can to turn their country around. Their weapon in this struggle is music, and their message, while offering critique and condemnation of wrongdoing, remains positive and hopeful. Optimism in the face of obstacles, and the eternal hope for a better future motivates their lives and music.

Given the world’s current refugee situation and all the problems in the U.S. asylum system, optimism is in short supply. But it’s needed now more than ever.

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Asylum for the Jews of France?

by Jason Dzubow

Over the past few years, there have been a number of deadly and horrific attacks against Jewish people in Europe. Targeted by radical Muslims, Jews have been murdered in a Kosher market, outside a synagogue, and at a Jewish daycare facility. They have been targeted for attack at a Jewish Community Center, and there have been hundreds of lesser (but still frightening) instances of anti-Semitism.

The Jews of France are not alone. But is that enough?
The Jews of France are not alone. But is that enough?

In response, some (non-French) Jews have suggested that there is no future for Jews in Europe and that they should leave. On one level, this suggestion is based on genuine concern. But on another level, it is quite insulting. It’s as if an African leader came to the U.S. and told American blacks that—in light of Ferguson, Treyvon Martin, and Eric Garner—they should abandon their homeland. My feeling is that a French Jew, an African American, or any other put-upon individual should have the right to make his own decision about whether to leave his country. Unless and until he decides to go, we should do everything possible to help him stay.

Here, however, I am concerned not with the existential issue of European Jewry. Rather, I want to discuss a more narrow question: Whether a French Jew–and I am choosing France because that country has seen the most instances of anti-Semitism–could qualify for asylum under U.S. immigration law.

Asylum decisions are highly dependent on the specific facts of each case; so it is difficult to answer this question in the abstract. However, we can look at general country conditions to get an idea for whether an individual might qualify. Also, where there is a “pattern and practice” of persecution against a specific group, and the asylum applicant demonstrates that she is a member of that group, she can receive asylum (for example, during the 1994 genocide in Rwanda, if an asylum applicant demonstrated that she was Tutsi, she could receive asylum).

To demonstrate a “pattern and practice,” the applicant would have to show that the persecution is systemic, pervasive or organized. Although radical Muslims have attacked Jews in France on several occasions, and the unpredictable nature of the attacks makes everyone feel vulnerable, I think the problem is not systematic, pervasive or organized enough to qualify as a “pattern and practice” of persecution under U.S. asylum law. The recent attacks have been by individuals or small groups; not (as far as we know) the systematic work of an organization. There is a much more widespread problem with harassment, threats, and vandalism. These problems–while frightening–probably would not constitute “persecution” as that term is generally understood. For all these reasons, I believe that a French-Jewish asylum seeker would have a hard time proving that Jews in France suffer from a pattern and practice of persecution.    

In the absence of such a pattern and practice, our theoretical French Jew would need to show that he faces a reasonable fear of persecution based on his religion (or other protected ground). If the persecutor is not the government—and here, it is not—he also must demonstrate that the government is unable or unwilling to protect him.

First, it seems clear that the Jews who have been targeted were targeted because they were Jews. Persecution on account of religion is a basis for asylum. So the real question is whether there is a reasonable likelihood of persecution.

Courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average French Jew would be able to show that he faces a 10% chance of persecution. There are nearly half-a-million Jews in France, and only a small number have been harmed. And even in countries with much higher instances of violence–Iraq and Syria, for example–a person can generally not qualify for asylum without an individualized threat. Although the average French Jew would probably not meet this standard, some Jews–those who have received specific threats or who hold high-profile positions, for example–might be able to prove that they face a likelihood of harm.

If our theoretical French Jew demonstrates a likelihood of harm, the next question is whether the government of France is able and willing to protect him. While there are surely people within the French government who do not like Jews, the French government as a whole clearly wants to protect Jewish people. After the Kosher supermarket and Charlie Hebdo attacks, the government deployed thousands of troops to protect Jewish sites. But given the nature of the attacks (random and against soft targets), there is a good argument that the government of France is unable to stop the terrorists.

In the end, it seems that most French (or European) Jews would not qualify for asylum, but some might: Those who have received threats or who are high profile, and who their governments–unfortunately–cannot protect. 

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Syria of Blessed Memory

by Jason Dzubow

The Greek philosopher Heraclitus tells us that you can never step into the same river twice. We often find ourselves returning to places we visited long ago, though of course those places have changed and so have we. At least that’s how it is for me with Syria.

A dashing young traveler visits the Old City of Damascus.
A dashing young traveler visits the Old City of Damascus.

I visited Syria with two friends way back in April 1990, when I was a student at Hebrew University in Jerusalem. We left Israel during our Passover break, making the reverse commute, as it were, to Egypt, where we got new passports without Israel stamps (people with Israel stamps were not admitted to Syria–and they could be arrested). We then crossed Sinai and the Red Sea, spent some time in Jordan (where we further rid ourselves of evidence that we’d been living in Israel), and finally took a bus to Syria.

In those days, Syria was ruled by Hafez Asad, father of the current dictator. His Droopy-Dog image adorned buildings, money, walls, and calendars. This was eight years after Asad put down an uprising in Hama, killing thousands in the process. Syria in 1990 was repressive, but it was safe for tourists and very welcoming. I don’t remember what I expected before I went, but as a young Jewish student visiting Israel’s number one enemy and finding human beings–friendly ones at that–I found myself changed forever. I’m reminded of a line from Christmas in the Trenches, a song about World War I: “The walls they kept between us to exact the work of war / Have been crumbled and are gone for ever more.”

Aside from the friendly reception, Syria was a wonderful place to visit: the Old City of Damascus, the 1300-year-old Umayyid Mosque, the Citadel and covered souk in Allepo, the Crack de Chevalier (a medieval castle), the Roman ruins of Palmyra. Over the years, I had many occasions to think about my trip to Syria, and how it affected me. However, despite the repressive nature of the regime, I never had any Syrian clients.

That changed after the Revolution began in 2011. I started receiving cases from Syria, and I started thinking about the country in a new way.  

Since then, some of my most tragic cases have come from Syria. Many of my clients have lost family members–siblings, parents or children. Others were detained and tortured during the early days of the Revolution (now, it seems, the regime no longer releases detained opponents–it kills them). Many have had their homes destroyed, their property looted, and their businesses seized. All have had their lives profoundly disrupted.

On one level, it is difficult to square the destruction and the terrible stories from Syria with my memories of the place. I was there during peace time, and I’ve come to view my time in the Middle East in 1990—and especially my trip to Syria—as a dividing line in my life. For me, it marks the transition from childhood to adulthood.

Maybe because my trip to Syria came at a significant time in my life, the difficulties of my Syrian clients has affected me more deeply. Or maybe it is because I became a father–with all the new emotions that entails–not long before the Revolution began. Or maybe it’s simply that the stories from Syria are so heartbreaking. I suppose the “why” doesn’t much matter. For anyone who deals with Syrians–even one so far removed as me–it is impossible not to be moved by the human tragedy that we are witnessing. And for those of us who have visited Syria, the loss is somehow more vivid.

It’s Passover again, and once again my family and I are celebrating the holiday of freedom. This year, I am remembering my trip to Syria a quarter century ago. I am also thinking of my clients, and the millions of others, who have been harmed by the current war. It seems impossible that the war will ever end, but one day it will. Until then, I hope we will continue to protect refugees from Syria. As we are reminded each Passover:

When strangers sojourn with you in your land, you shall not do them wrong. The strangers who sojourn with you shall be to you as the natives among you, and you shall love them as yourself; for you were strangers in the land of Egypt.

Chag Sameach. Happy Passover.

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Where the [Expletive Deleted] Is My Work Permit?

by Jason Dzubow

If you look at the processing times on the USCIS Texas Service Center website, you will see something interesting. The website indicates that USCIS will complete an asylum seeker’s I-765 form–the application for an Employment Authorization Document or “EAD”–in three weeks. Perhaps USCIS views this time frame as aspirational. I view it as metaphorical. Or maybe delusional.

EAD ETA? WTF.
EAD ETA? WTF.

The reality is that EADs are not processed in three weeks. If you’re lucky, it will take three months. If you’re not lucky, it may be a lot longer than that. Indeed, it seems of late that processing times for EADs have become much slower. As a result, some of our clients have lost their driver’s licenses (which are tied to the EADs) or their jobs. The problem has caught the attention of the American Immigration Lawyers Association, which is investigating (and if you are an attorney whose client’s EAD is delayed for more than 90 days, you can report it here). 

So why is this happening? As usual, I have no idea. USCIS doesn’t explain such things. What can be done about it? A few things:

– If you are filing to renew your EAD, you should file as early as possible. The instructions indicate that you can file the application 120 days before your old card expires. That would probably be a good idea. However, you should be careful not to file any earlier than 120 days ahead of time. EADs filed too early might be rejected, which will result in further delay (because you have to wait for the rejection notice and then re-file).

– If you already filed for your EAD and the application has been pending more than 75 days, you can contact USCIS customer service and ask that an “Approaching Regulatory Timeframe ‘service request’ be created.” Supposedly USCIS will route the service request to the appropriate office for review. You should note that if you receive a request for evidence and then respond, the “clock” starts over for purpose of calculating the 75-day period. You can see more about the obscure and exciting calculation of the 75-day period here.

– If you are applying for your first EAD based on a pending asylum case, you can file 150 days after your asylum application was initially filed (the date of filing is on your receipt). However, if you have caused a delay in your case (by rescheduling an interview, for example), the delay will affect when you can file. The I-765 instructions explain how applicant-caused delay affects eligibility for an EAD. Please note that the 150-day waiting period is written into the law and cannot be expedited.

– If your case is in Immigration Court, and you cause a delay (by, for example, not accepting the first hearing date offered to you), the Asylum Clock might stop, and this could prevent you from receiving an EAD. I have written about the dreaded asylum clock before, but if you are in court, you’d do well to consult an attorney about your case and about your EAD.  

– If you entered the country at the border and were detained and then “paroled” in, you might be eligible for an EAD as a “public interest parolee”: see page 4 of theI-765 instructions. This one can be tricky, so you might want to consult with a lawyer before you file under this category.

– If you already have asylum, but your EAD expires, fear not: You are still eligible to work. You would present your employer with your I-94 (which you received when you were granted asylum) and a state-issued photo ID (like a driver’s license). For more information, see the Employer Handbook, pages 13 and 50.

– If you are a refugee (in other words, you received refugee status and then came to the United States), you can work for 90 days with your I-94 form. After that, you must present an EAD or a state-issued ID. For more information, see the Employer Handbook, pages 13 and 50. 

– If all else fails, you can try contacting the USCIS Ombudsman about the delayed EAD. The Ombudsman’s office assist USCIS customers and tries to resolve problems. Normally, they want to see that you have made some effort to resolve the issue through regular channels before they intervene, but if nothing else is working, they may be able to help out.

The last thing I will say about asylum seekers and EADs is this: If you do not have an EAD, you are not eligible to work lawfully. However, if you are able to find a job without the EAD, it should not affect your asylum case. In other words, working without permission does not block a person from obtaining asylum. It may affect your ability to obtain other types of immigration benefits, and if you have questions, you should consult a lawyer.

It is unclear to me how an asylum seeker is expected to survive without a job or a driver’s license. With all the problems in the asylum system, you’d think USCIS could do something to make life easier for people waiting for their cases to resolve. One thing to be done is to process the EADs in a timely fashion. Another would be to make the EADs valid for the length of the case, so there is no need to re-apply (or at least make them valid for two years instead of one). For now, however, it is up to asylum seekers to fend for themselves: Apply as early as you are allowed for the EAD and hope that it is granted quickly.

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In Defense of the Homeschoolers’ Asylum Bill

by Jason Dzubow

Last week, the House Judiciary Committee passed a bill that would grant asylum to families of homeschoolers who are persecuted by their governments. The bill, sponsored by Congressman Jason Chaffetz, would also make it more difficult for others fleeing violence to obtain asylum in the U.S. by (among other things) raising the bar for credible fear interviews and blocking all government funding for child refugees who need lawyers. Congressman Louis Gutiérrez criticized the bill’s restrictions: “Shouldn’t children who are fleeing child abuse and violence be afforded the same protection as a child who is denied homeschooling?”

While I personally find this bill distasteful, it seems to me that it falls within the grand tradition of asylum. One of the unique characteristics of asylum is that, by granting asylum to an individual, we implicitly condemn the actions of his home country. You can’t have asylum without a bad guy—a persecutor. When, for example, we grant asylum to a member of a religious minority from China, we send a message that the Chinese government persecutes its own people based on religion. Thus, asylum is inherently political: We make a political statement about another country, and at the same time, we demonstrate our own values.

Guttierrez Chaffetz 2
Gutierrez to Chaffetz: “You’re like a homeschooler on a school day – No class.”

Historically, the political nature of asylum has played an important role in the development of our law. For example, the 1951 Convention on the Status of Refugees (which we helped create and upon which our current law is based) limited asylum to the five protected categories: Race, religion, nationality, political opinion, and membership in a particular social group. This definition had the effect (probably intended) of helping people fleeing from persecution in the Soviet Union (because they generally faced a type of persecution that fit within a protected category) without offering much to people fleeing from persecution in the West (because such people generally faced “persecution” in the form of economic harm or crime, which does not qualify them for refugee status).

What’s more, we’ve never been particularly subtle about the political nature of asylum. During the Cold War, we gave asylum to “trophy refugees,” high-profile people who defected from the Soviet Block to the West. Such refugees helped demonstrate Western moral superiority over the Communists, and so we were happy to take them.

More recently—in the mid-1990s—Congress amended the definition of refugee to include victims of forced family planning. This amendment was a direct refutation of China’s one-child policy. And it was an expression of our country’s (or at least Congress’s) opposition to abortion.

Except for the forced-family-planning amendment, Congress has never modified the definition of refugee. But courts—prompted by creative lawyers—have expanded the definition to include gays and lesbians, victims of female genital mutilation, and people facing domestic violence, among others. While these changes have helped many people, they were not driven by a desire to make a political statement about other countries. And certainly they are not based on our collective desire—as expressed by Congress—to send a message condemning behavior that offends us. Rather, they are based on the idea that people fleeing persecution should be treated equally.

Most lawyers—including yours truly—are big fans of equality. If the state offers a benefit to Joe (be it a tax break, the right to marry, a lenient criminal sentence, or asylum), it should offer the same benefit to Mary. My belief in equal treatment for asylum seekers leads me to oppose special preferences for certain groups, like victims of forced family planning and people fleeing Cuba. In my opinion, such people do not need special laws to protect them. They can request asylum like everyone else. In short, I believe that asylum should not be about sending a political message; it should be about protecting people from harm. If a person demonstrates that she faces harm, she should receive asylum.

The problem is that democracy and equality don’t always go together. The Equal Protection clause protects Americans from the tyranny of the majority, but equal protection does not apply in the context of asylum. Congress could, for example, offer asylum only to people from certain regions or to people of certain religions.

Perhaps we can call it the Realpolitik theory of asylum versus the Equality theory. The Homeschoolers’ asylum bill falls on the Realpolitik side, in that it is designed to further our country’s political agenda by offering a humanitarian benefit to a group that we deem worthy of protection.

Should  it become law, the bill would also represent a democratic development of asylum law, something we have not seen in almost 20 years. Wouldn’t it have been nice if some of the other developments in the law–protecting gays and lesbians, for example–had been accomplished democratically instead of by lawyers pushing the boundaries of asylum in court?

To be sure, I don’t like this bill. I don’t like how it restricts most asylum seekers (especially children) while offering special benefits to people who I think should apply for asylum like everyone else. But my opinion is clearly not the point. The Homeschoolers’ bill falls within the democratic, Realpolitik tradition of asylum. It helps a group of individuals who “We the People” view as deserving of protection and it places restrictions on another group that is deemed less deserving. It also sends a message about American values, for better and for worse.

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