Prosecutorial Discretion in Immigration Court

by Jason Dzubow

The Department of Homeland Security (the prosecutor in Immigration Court) has been implementing new rules related to its “enforcement priorities.” These rules apply to people who have cases pending in Immigration Court, meaning that the U.S. government is trying to deport them. Not surprisingly, the government wants to deport some people more than others. Under the new rules, cases that are not a priority for removal may be dismissed as a matter of prosecutorial discretion or PD. When that happens, the government has stopped the removal/deportation process and the noncitizen is able to remain in the United States.

Here, we’ll talk about who might qualify for PD, the different types of PD, and how to request PD from DHS. (more…)

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Traveling With Your Passport When You Have Asylum

by Jason Dzubow

A common question for asylees (people who have been granted asylum) is whether they can travel using their home country passport. If all were right in the world, this would never be an issue. Asylees and Green Card holders who received their status based on asylum are eligible for a Refugee Travel Document, and it is best to use the RTD instead of your home country passport.

Unfortunately, the RTD is valid for only one year, takes 10 or 11 months to renew, and is not accepted by many countries. For these reasons, asylees (and people who received a Green Card based on asylum) are often unable to use the RTD and are left with a difficult choice: Either skip the trip or travel using the home country passport, which can potentially have negative implications for a person’s status in the United States.

In this post, we will talk about the RTD and then discuss travel using a passport from your home country. (more…)

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The Biden Administration Can “Fix” the Border–Even Without Congress

by Jason Dzubow

In a recent editorial, the Washington Post opined that Congress’s failure to pass immigration reform has led to the ongoing crisis at the U.S.-Mexico border. But even without Congress, the Biden Administration can use its regulatory power to better define the term “refugee” and thus better control who is eligible to enter the United States under our asylum law. (more…)

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Good News on Work Permits

by Jason Dzubow

A new rule in the federal register has temporarily increased the automatic extension period for Employment Authorization Documents (“EADs”) for asylum seekers and others from 180 days to 540 days. The 540-day extension applies to anyone with a pending EAD renewal, even those whose EAD and 180-day extension have already expired. This means that all asylum seekers with timely-filed renewals are able to work lawfully for 540 days beyond the expiration date on their current EAD card.

Starting on May 4, 2022, EAD receipts for certain categories–including c-8, asylum pending–will list the 540-day extension on the receipt itself. USCIS has also updated its website to reflect that EAD receipts listing the 180-day extension have been extended by an additional 360 days, to 540 days total. USCIS will not be sending out new receipts, and so if you need proof of the automatic extension for your employer or the DMV, you can show them this web page. In order to qualify for the automatic extension, you must file to renew your current EAD before it expires.                       (more…)

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Helping Ukrainians

by Jason Dzubow

USCIS recently announced a unique program to assist Ukrainians affected by the current war. Called Uniting for Ukraine, the program “provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily in a two-year period of parole.” The program is unique in that the Ukrainian beneficiaries must be chosen by U.S.-based sponsors. The government will vet the sponsors “to ensure that they are able to financially support the individual whom they agree to support” and then start the process of bringing the chosen Ukrainian to the United States.

Here, we’ll look at why the U.S. government created this program and how it works. (more…)

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AAAAAAAAAAAAAAAAAAAAAH!!!!!!!!

by Jason Dzubow

Let me tell you about some recent events in my office.

We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.

For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket. (more…)

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Failures and Solutions at the Asylum Office

by Jason Dzubow

A new report, Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers, raises concerns about the Boston Asylum Office and about the affirmative asylum system in general. Here, we’ll discuss some of the report’s findings and some suggested improvements to the system. I want to focus on one particular suggestion in the report, which has been on my mind lately: Whether asylum applications can be approved largely “on the papers,” with only a brief interview. But first, let’s take a look at the report’s main points. (more…)

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Affirmative Asylum Updates: Winners and Losers

by Jason Dzubow

If you are a regular or even occasional reader of this humble blog, you know my opinion of the affirmative asylum system–it is a disaster. There are currently more than 435,000 pending cases, representing upwards of 800,000 people. Some applicants have been waiting for their interviews for five, six, seven or more years, separated from spouses and children and living in existential uncertainty. Now, it seems that we are on the verge of a perfect storm, which will throw tens of thousands of new cases into the system at the same time as resources will be diverted away from affirmative cases. These changes will result in some winners and some losers. Here, we’ll discuss these new developments and how they might affect the asylum process. (more…)

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Anatomy of an Asylum Office Inquiry: Expedite Requests

by Jason Dzubow

Let’s imagine a not-so-hypothetical scenario: You filed for asylum at the Asylum Office, and your case has been pending for years without an interview. Or here’s another one: You finally had an interview at the Asylum Office, but you have been waiting months or years without a decision. Today and in an up-coming post, we’ll talk about the most effective ways to make an inquiry in these situations. (more…)

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Russian Asylee Puts Bounty on Putin’s Head

by Jason Dzubow

In the late 1990s, I was a law clerk in the Arlington, Virginia Immigration Court. My most memorable case involved a wealthy Russian businessman named Alex Konanykhin and his wife, Elena Gratcheva. Mr. Konanykhin made his fortune–around a quarter billion dollars–in the Wild West of post-Soviet Russia, but was then chased from his country by former KGB agents and criminals intent on stealing his money. The Individual Hearing that I attended took a full week, which is almost unheard of in Immigration Court. Mr. Konanykhin’s attorney was the legendary Michael Maggio, who I got to know a bit during the trial. My role was to sit in the courtroom and take notes. After the hearing, I helped the Immigration Judge write up the decision granting asylum.

There was more to this case, including an appeal to the BIA, improper behavior by several U.S. government officials that resulted in a $100,000 payment to Mr. Konanykhin, an unsuccessful attempt by the couple to evade border authorities and enter Canada, and several different federal court cases. When the dust finally settled from this ten-year odyssey, Mr. Konanykhin received asylum in the U.S. (around the same time, his wife–who was a dependent on his case–passed away). (more…)

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Asylum for Russian Defectors

by Jason Dzubow

Last week, Vladimir Putin and his supporters launched a vicious and unjustified war against Ukraine. The war is an act of mass murder and terror against the people of Ukraine. Given Mr. Putin’s history of oppression at home and violent interventions abroad, there is little reason to be optimistic about how (or when) this war will end. And of course, there is a real danger that the situation will escalate into something much larger.

It is unclear how much support the war has from ordinary Russians. Perhaps many within Russia have been misled by “President” Putin’s propaganda machine, which has repeatedly and falsely accused the Ukrainian government of persecuting Russian speakers in Ukraine, and which has painted the war in terms of Russia standing up to the West. While Mr. Putin’s popularity seems to have increased before fighting started, there are signs that many Russian’s are not buying what he is selling. Indeed, protests have continued throughout the country despite a government crackdown.

And what of Russians living abroad? They are less likely to be swayed by Mr. Putin’s false propaganda, as they have access to more reliable sources of news. My sense is that most Russians in the diaspora oppose the current war.

In this post, I am interested in a specific sub-set of Russians living outside their country: Diplomats and other government employees. If such people defect to protest the unjust war against Ukraine, would they be eligible for political asylum or some other relief in the United States? (more…)

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The Cheater’s Guide to Video Hearings in Immigration Court

by Jason Dzubow

Due to the pandemic, many Immigration Court hearings now take place via WebEx, which is similar to Zoom. There are certainly disadvantages to presenting an asylum case by video. It’s more difficult to relate to the Immigration Judge (“IJ”), for instance. And it’s not easy to submit additional evidence at the last minute. On the other hand, in the words of John Adams, “Every problem is an opportunity in disguise!” In our case, WebEx presents some interesting new opportunities.

Having now done a couple WebEx hearings, I have been thinking of how to use the new service to my clients’ advantage. Below are some ideas that I have yet to implement, but which could assure victory, even in the most difficult case. If we try any of these strategies in my office, I’ll be sure to let you know how things turn out… (more…)

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Persecuted for Seeking Asylum in the United States

by Jason Dzubow

A new report from Human Rights Watch documents the fate of dozens of Cameroonian asylum seekers deported to their country between 2019 and 2021. According to HRW, people deported to Cameroon “faced arbitrary arrest and detention; enforced disappearances; torture, rape, and other violence; extortion; unfair prosecutions; confiscation of their national IDs; harassment; and abuses against their relatives.” In addition, many also “reported experiencing excessive force, medical neglect, and other mistreatment in Immigration and Customs Enforcement (ICE) custody in the U.S.” Sadly, none of this is particularly surprising.

The portions of the report that I want to discuss here relate to asylum seeker confidentiality (or the lack thereof) and to the persecution of returnees because they sought asylum in the United States. (more…)

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