What a Democratic Majority in the House Means for Asylum Seekers

by Jason Dzubow

When the 116th session of Congress opens on January 3, 2019, the Democrats will control the House of Representatives. Republicans still hold the Senate and, in case you didn’t notice, the Presidency. However, this is an important change from the last two years, when Republicans controlled both chambers of Congress. What will a Democratic House mean for asylum law and policy?

First, let’s talk about changes to the law. Since the time of the Refugee Act of 1980, which established our current asylum framework, there have been relatively few changes to our humanitarian immigration laws. In 1996, Congress amended the definition of “refugee” to include victims of forced abortion and forced sterilization, and in 2005, the REAL ID Act attempted to tighten up the legal requirements for a grant of asylum.

During the first two years of the Trump Administration, when Republicans controlled Congress and the Presidency, there have been no amendments to the nation’s immigration laws. Instead, the Administration focused on changing immigration policy based on executive orders–the travel ban, for example. It is curious that the same Republicans who criticized President Obama for his reliance on executive orders (such as DACA), failed to pass any legislation to further their own immigration agenda. Congress and the President could have acted to restrict the law vis-a-vis asylum seekers. For whatever reason, they did not, and now their window is closing. Given the hostility of the President and many Republicans towards asylum seekers, this is probably a good thing.

The beginning of a beautiful friendship. Or not.

Now, with the Democrats in charge of the House, any change in the law would need to be approved by them. This means that a purely punitive immigration reform is very unlikely to pass into law. So while the President can–and probably will–continue to impose hostile policy changes in terms of how the law is implemented, he will be constrained by the existing law. This means that, for the most part, non-citizens who fear persecution will remain eligible to seek and obtain asylum in the United States.

Another way that the Democratic House majority may help asylum seekers is in the area of oversight. With control of the majority comes the ability to issue subpoenas and more carefully oversee government agencies. This is important in the area of immigration, where many agencies–DHS, ICE, CBP, DOJ, EOIR–have engaged in questionable (or worse) practices with impunity.

The most high-profile example of agency malfeasance was the separation of children from their parents at the border. The policy was seemingly enacted as a way to deter asylum seekers, and the best thing you can say about family separation is that it was managed incompetently. Congress has thus far failed to investigate this fiasco, but that could change with Democrats in charge of the House.

Another area where Congressional oversight would benefit asylum seekers is at EOIR, which has been improperly hiring Immigration Judges based on their political leanings. Some of this is publicly known, but much of it has remained below the radar (though those of us in the business hear about it through the grapevine). My guess is that EOIR will be more careful going forward, given that House Democrats could subpoena employment documents to determine whether hiring officials acted improperly. Other agencies within the federal government will likely be similarly constrained.

House Democrats can also exercise oversight to protect the Immigration Judge’s union, which has been working hard to preserve judicial independence and resist the Administration’s efforts to turn their gavels into rubber stamps. I’ve heard rumors about a plan by the Administration to break the union. Whether this is true or not, I do not know, but House Democrats can potentially kibosh any such effort.

A third area where Democratic control of the House could affect asylum seekers is funding. Blocking and detaining immigrants is not cheap. The President’s most high-profile project is the border wall, but immigration enforcement in general is expensive. The Trump Administration has expanded the use of detention, and apparently plans are afoot to continue this trend. House Democrats can exercise some control by denying funding for the President’s more far-fetched projects. They could potentially limit funding for detention, investigate the private prisons where many non-citizens are held, and encourage the use of alternatives to detention. I suppose they could also grind deportations to a halt by reducing funding for Immigration Judges, though I doubt many Democrats are inclined in that direction.

In short, control of the House gives Democrats significant leverage over immigration matters. But it also comes with significant political risks. President Trump has effectively used the immigration issue to motivate his supporters, and if Democrats are seen as checking the President’s agenda, they can expect to be blamed for any real or imagined failures in the immigration realm. How this will translate in terms of votes, I do not know. President Trump and his surrogates raged about the caravan, but if that motivated their base, it was clearly not enough to archive success in the most recent election cycle.

Aside from simply blocking the President’s agenda, Democrats would do well to propose some positive legislation of their own. Of course, any reform would require bi-partisan support, since Republicans control the Senate and the Presidency. Whether such compromise is possible in the current climate, I do not know, especially since the President seems to view immigration in political, rather than policy terms. I expect he will be more-than-happy to let Democrats block his harsher proposals so he can use that to rally his base in 2020. But just maybe, after having lost in 2018, Republicans will conclude that their resistance to immigration reform is doing them more political harm than good. If so, perhaps there might still be a path towards constructive immigration reform.

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Fridtjof Nansen, WWI, and the Beginning of the Modern Refugee Regime

by Jason Dzubow

This week–on November 11–marked the 100th anniversary of the Armistice that ended World War I. In terms of refugee law, the Great War is usually eclipsed by WWII, which gave rise to the Refugee Convention (in 1951). The Convention forms the basis for our international and domestic humanitarian law up until today.

But the First World War was also foundational to our current refugee regime, and so it’s too bad that WWI developments in refugee law get short shrift. Upwards of 10 million people were displaced by the War and the subsequent rise of the Soviet Union. Many would never return home and would permanently resettle in other countries. This mass movement of civilians led to political, cultural, and social changes, and predictably, to a backlash against refugees (as a security, economic, and health threat) that sounds all-too familiar today.

Fridtjof Nansen serves meals to orphans in Armenia (apparently, he was also a good cook).

Probably the most prominent figure in post-WWI refugee resettlement was a Norwegian wunderkind named Fridtjof Nansen. Mr. Nansen was born in 1861. He was a record-breaking skater and skier. He studied zoology in university, and went on to become a world famous artic explorer. In 1888, he led the first expedition to cross Greenland, and in 1895, he came within 4 degrees of the North Pole, the furthest north anyone had traveled to date. After his career in the Artic, he turned to science, where he made important contributions to the fields of neurology and oceanography. Mr. Nansen served as a diplomat and advocated for separation of Norway and Sweden (which had been united since 1814). Norway became independent in 1905.

Norway was neutral during the First World War, and during those years, Mr. Nansen was involved in organizing his nation’s defense. In 1917, he was dispatched to Washington, where he negotiated a deal to help alleviate a severe food shortage in his country.

After World War I, Mr. Nansen successfully helped advocate for Norway’s involvement in the League of Nations, and he served as a delegate to that body. He became involved in the repatriation of prisoners of war, and between 1920 and 1922, led the effort to resettle over 400,000 POWs in 30 different countries. In 1921, Mr. Nansen became the League’s High Commissioner for Refugees and helped resettle two million Russians displaced by the revolution. At the same time, he was working to relieve a massive famine in Russia, but had trouble securing international aid (due largely to suspicion of the new Marxist government). He also assisted Armenian refugees after the genocide there, and devised a controversial population exchange between Turkey and Greece, which resolved a Greek refugee crisis, but also resulted in the expulsion (with compensation) of Turks from Greece.

Mr. Nansen created the “Nansen” passports in 1922, a document that allowed stateless people to travel legally across borders. By WWII, 52 nations recognized the passport as a legal travel document. Nansen passports were originally created to help refugees from the Russian civil war, but over 20 years, they were used by more than 450,000 individuals from various countries (including a number of well-known figures, such as Marc Chagall, Aristotle Onassis, G.I. Gurdjiieff, Rabbi Menachem Mendel Schneerson, and Igor Stravinsky). The passports served as a foundation for a clearly-defined legal status for refugees, and some scholars consider the creation of the Nansen passports as the beginning of international refugee law.

In 1922, Mr. Nansen was awarded the Nobel Peace Prize. The Nobel Committee cited “his work for the repatriation of the prisoners of war, his work for the Russian refugees, his work to bring succour to the millions of Russians afflicted by famine, and finally his present work for the refugees in Asia Minor and Thrace.”

Mr. Nansen continued his involvement in the League of Nations through the 1920s, and he flirted with Norwegian politics, though he seems to have no major ambitions in that direction. In 1926, Mr. Nansen came up with a legal definition for refugees from Russia and Armenia, and his definition was adopted by several dozen nations. This marked the first time that the term “refugee” was defined in international law, and it helped set the stage for later legal developments in the area of refugee protection.

Fridtjof Nansen died on May 3, 1930. After his death, a fellow delegate from the League of Nations eulogized, “Every good cause had his support. He was a fearless peacemaker, a friend of justice, an advocate always for the weak and suffering.”

Even after his death, Mr. Nansen’s work continued. The League of Nations established the Nansen International Office for Refugees, which helped resettle tens of thousands of refugees during the inter-War years. The Nansen Office was also instrumental in establishing the Refugee Convention of 1933 (now, largely forgotten), the first international, multilateral treaty offering legal protection to refugees and granting them certain civic and economic rights. The 1933 Convention also established the principle of “non-refoulement,” the idea that nations cannot return individuals to countries where they face persecution. To this day, non-refoulement is a key concept of international (and U.S.) refugee law. For all this work, the Nansen Office was awarded the Nobel Peace Prize in 1938.

Fridtjof Nansen’s legacy lives on in many ways. There are geographic features named after him in the Artic, Antarctic, and various places around the globe. In space, there is a crater on the moon named in his honor, as well as an asteroid. The oldest ski club in the United States is named for Mr. Nansen, and there is a species of fish that bears his name (Nansenia). A museum in Armenia documents his scientific and humanitarian achievements. And each year, the United Nations bestows the Nansen Refugee Award on an individual or organization that has assisted refugees, displaced or stateless people. For me, though, Mr. Nansen’s most enduring achievement is his pioneering work to help establish international refugee law, a legal regime which protects us all.

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Ten Things I Hate About You-SCIS

by Jason Dzubow

Lee Francis Cissna, the Director of USCIS, is building an “invisible wall” to compliment his boss’s “big beautiful wall” along the U.S./Mexico border. The “invisible wall” consists of bureaucratic barriers to prevent people from obtaining immigration benefits in the United States. Ostensibly, the plan is to make America more secure and to protect our country’s workforce. From my perspective, though, much of it seems like gratuitous cruelty, which especially impacts families who don’t have the resources to hire a lawyer.

The bureaucratic changes at USCIS also impact attorneys, increasing our work load and our stress level. It’s now harder to advise our clients, since many USCIS decisions seem arbitrary. While cases are mostly still successful, the environment is decidedly less pleasant. And so without further ado, here are the top ten things I hate about the “new” USCIS:

(1) Asylum Seekers Must Report Arrests on the I-765 Form: The new I-765, a form used to request an employment authorization document (“EAD”), requires that asylum seekers–and only asylum seekers–indicate whether they have ever been arrested. Other EAD applicants, such as people waiting for a green card based on a family or work petition, are not required to report prior arrests. Why are asylum seekers so special? I have no idea, but it’s clear that the current Administration is no fan of asylum, and so perhaps this is another way to punish those who have the temerity to ask our country for protection. What’s wrong with asking about prior arrests? Aside from the arbitrary decision to single out asylum seekers for this additional burden, there are a couple issues: First, many asylum seekers have been arrested back home for their political opinion or religion (hence, they are seeking asylum). USCIS wants documents on all arrests, but it is often impossible to obtain documents for these “illegal” arrests, and this could potentially result in a denied EAD application. Another issue is delay. It takes extra time to process applications if there is more to review. We can expect this new requirement to slow down cases where the person has a prior arrest, and since extra resources will be devoted to such cases, we can expect a ripple effect for all EAD applicants. Finally, the new requirement might necessitate some EAD applicants to hire lawyers, which can be burdensome. And for those with lawyers, the extra work might result in higher fees. At its heart, this is an access to justice issue: In many cases, you receive the justice you can afford, and that is not fair.

A French immigrant is blocked by the invisible wall (and frankly, in this case, I’m good with that).

(2)  Delayed Work Permits After an Asylum Grant: I am not sure how widespread this problem is, but we’ve seen a number of examples lately where a person is granted asylum, and then waits months to receive her new EAD. The delay makes it more difficult to get or keep a job, and it can also block people from receiving a driver’s license.

(3) Disappearing Cases at the Texas Service Center: Most of our office’s affirmative asylum cases are filed at the Texas Service Center (“TSC”). But sometimes, cases are received at the TSC, and then vanish, like dignity from the Oval Office. This happens if the applicant had a prior asylum application, which we did not know about (sometimes, an applicant was a dependent on a prior case and did not know about the case), and it can also happen if we accidentally send an application to the TSC when it should have been sent to a different service center. Why the TSC can’t simply inform us about these errors, or just reject the application, I do not know (though there is an email to contact the TSC, and they recently assisted in one of our cases – Thank you, TSC!).

(4) Rejected Cases at the TSC: The TSC is also notorious for rejecting cases for small, insignificant errors. We once had a case rejected because we did not list the applicant’s siblings. He had no siblings (now, we make sure to write “n/a” in any empty boxes on the I-589). We’ve had instances where we forgot to check a box, and the application was rejected and returned to us. Now-a-days, we triple check the applications in the hope of avoiding such issues, but I imagine for pro se applicants, this is more frequently a problem. The shame of it is, most of these small errors could be resolved at the asylum interview; there is no reason to reject the entire case, causing additional delay and stress.

(5) Refusal to Accept Birth Certificates: Lately, we’ve seen examples of USCIS refusing to accept birth certificates that were not created at the time the person was born (we have not seen this problem for asylum cases, but we have seen it for asylees who are filing for a green card). It is common practice in many countries, that when you need a birth certificate, you request it from the local office. They look it up in a registry, and issue a birth certificate. This used to satisfy USCIS, but no longer. Now they want hospital records, letters from people who knew you when you were born, old school records, and lots of other difficult-to-obtain information about your birth. For me, the best evidence that a person was born is that the person currently exists. Shouldn’t that be enough?

(6) Denial of Advance Parole for Asylum Seekers: To get Advance Parole (“AP”) as an asylum seeker, you must show a “humanitarian” need for the travel. In the past, this was basically a formality. But now, all sorts of evidence seems necessary to obtain AP. In one of our recent cases, the client was seeking AP to visit her mother, who was ill. We submitted a doctor’s letter about the mother’s condition, but USCIS denied AP because the mother was not sick enough (the doctor’s letter indicated that the mother’s condition was “stable”). What was the purpose in blocking our client from visiting her sick mother? To me, this is simply another way to punish people seeking asylum in our country.

(7) Limitations on Advance Parole for Asylum Seekers: We have also seen examples of USCIS issuing AP for very limited periods of time. In one case, we received the approval, but AP was only valid for two days, thus making travel impossible. We try to avoid this outcome by requesting multiple trips, and timing the trips so that USCIS issues the document for a longer period, but what is the harm in issuing AP for one year (or longer)? Why make travel difficult for people who are already enduring difficult circumstances?

(8) The Four-Page Form G-28: Maybe this is a quibble, but why does it take four pieces of paper to enter my appearance as a lawyer using form G-28? All USCIS should need is my name and contact information, the client’s name and information, and space for some signatures. The form used to be two pages, which already seemed too long. Now, every time we enter our appearance, we have to waste four pieces of paper. The G-28 is just one example of USCIS form proliferation. The I-485 went from six pages to 18 pages. The I-130 went from two pages to 12 pages plus another six-page form for marriage cases. The Lorax would not be pleased. Neither am I. Also, of course, longer forms increase costs.

(9) Less Requests for Evidence, More Denials: A new USCIS policy memo makes it easier for the agency to deny cases, instead of issuing requests for evidence (“RFE”). Aliens are paying big bucks for a lot of their applications, and previously, if the applicant made a mistake, USCIS would issue an RFE to allow the person to correct her application. Now, USCIS will deny some such cases. As a result, some aliens will hire lawyers (and endure additional expenses that should have been unnecessary); others may have their cases denied, thus losing their fees and potentially jeopardizing their ability to remain in the U.S.

(10) Slower and More Unpredictable Processing Times: All the changes at USCIS have inevitably affected processing times. Applicants often want to know how long their cases will take, and how long they will have to wait to be reunited with loved ones. These days, processing times have become longer for most applications. Also, processing times have become more unpredictable. For example, if you are applying for a green card in Baltimore, Maryland, the processing time is between 11.5 and 27 months. That’s pretty long, and pretty unpredictable. It’s hard to plan your life in the face of such uncertainty.

I could go on, but I am sure you get the point. USCIS’s “invisible wall” is having its desired effect: It is making it more expensive and more difficult for people to come to the United States. People with fewer resources will suffer the most (as usual), but everyone is affected. Cases are still being approved, but these days, applicants need to be prepared for a more difficult journey to reach their goal.

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What Happens When Asylum Is Granted?

by Jason Dzubow

With all the bad news related to refugees and asylum seekers, I thought it might be nice to discuss something positive: What happens when an asylum case is granted?

One of my clients celebrates her asylum grant.

The fact is, despite the best efforts of the Trump Administration, people are still winning their cases. They are winning affirmatively at the Asylum Offices, and defensively in the Immigration Courts. There are some differences between an affirmative and a defensive grant, and we’ll talk about those first.

If an applicant wins at the Asylum Office, she receives a letter indicting that asylum was granted. The date on the letter and the date of the asylum grant are usually not the same. To find the date that asylum was granted, look in the body of the letter on the first page. It will indicate that “asylum was granted on” a certain date. This is the date that matters for purposes of applying for a green card and obtaining certain government benefits.

If asylum is granted in Court, the Immigration Judge will issue an order stating that asylum is granted. If the DHS attorney appeals, the case is not over, and will have to be adjudicated by the Board of Immigration Appeals. But if DHS does not appeal (or if the BIA has already indicated that asylum must be granted), then the case is over and the applicant has asylum. There is one more step that the applicant must take in order to complete the process. The person must bring his approval order and photo ID to USCIS, which will issue an I-94 indicating that the person has asylum, and will also create a new Employment Authorization Document (“EAD”). You can learn about that process here (check the link called post-order instructions).

As soon as asylum is granted, you are eligible to work in the United States, even if you do not have an EAD (see Working in the United States). You can also get an unrestricted Social Security number by contacting the Social Security office.

A person who wins asylum can file an I-730 petition for her spouse and children. To qualify for an I-730, the marriage must have existed prior to the date that asylum was granted. For a child to benefit from an I-730, the child must have been under 21 and unmarried at the time the asylum application was filed. If the child turned 21 before the asylum case was granted, he is still eligible to benefit from the I-730. However, if the child married after the case was filed, he is not eligible to bring his own spouse and children to the U.S. through the I-730 process.

One year after asylum is granted, the alien may file for her lawful permanent residency (“LPR”) (her green card) using form I-485. We used to advise people that they could file for the green card 30 days prior to their one-year asylum anniversary, and this used to work. But then we filed a green card application early, and USCIS rejected it. Since then, we have advised our clients to wait one full year before filing for their residency. Principal asylum applicants do not generally receive a green card interview, but dependents usually do. When you receive the LPR card, it will be back-dated by one year (so if you get the card on May 21, 2018, it will indicate that you have been an LPR since May 21, 2017). You can apply for U.S. citizenship based on the earlier date listed on the card.

A person who wins asylum can obtain a Refugee Travel Document using form I-131. This document is valid for one year and is used in lieu of a passport, but there are some limitations. For example, returning to the country of feared persecution can result in termination of asylum status or lawful permanent residency (I wrote about this here). Also, not every country will accept the RTD as a travel document, so you have to check with the country’s embassy in advance.

People granted asylum may also be eligible for certain government benefits, including referrals for short-term cash and medical assistance, job development, trauma counseling, and English as a Foreign Language services. The Office of Refugee Resettlement has a state-by-state collection of agencies that can help with these and other services (once you identify agencies near you, you have to contact them directly). For those granted asylum affirmatively, the Asylum Office sometimes holds meetings to explain the benefits available to asylum seekers. You would have to ask your local Asylum Office about that. Be aware that after the case is granted, you have a very limited time to access most services, and so the sooner you reach out to provider organizations, the better.

Asylees are eligible to attend university (asylum applicants who have an EAD are also eligible to attend most universities). In many cases, universities offer in-state tuition to people with asylum. There may also be scholarships available. You would have to reach out directly to the university to learn more about tuition discounts and scholarship money.

Asylees also have certain legal obligations. If you are a male asylee (or a dependent) between the ages of 18 and 26, you must register for Selective Service. LPRs and citizens are also required to register. Also, like everyone else, asylees have to pay taxes and follow the law.

Finally, asylees and LPRs must inform USCIS whenever they move to a new address. You are required to do this within 10 days of the move. You can notify USCIS of your new address by mailing them form AR-11 or filing it electronically. Either way, keep evidence that you filed the change of address form.

Especially these days, I view every asylum win not only as a victory for the individual, but also as a victory for our country. Whether our leadership understands it or not, our nation is defined in large part by how we treat those coming to us for refuge. So if you have been granted asylum in the U.S., thank you for still believing in the American Dream–it helps the rest of us keep believing as well. And of course, Welcome to the USA!

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Refugees and the Power of Stories

by Jason Dzubow

I’ve written here many times about the difficulties faced by asylum seekers in the United States. But the fact is, asylum seekers and refugees are not powerless. They need not sit passively while politicians and pundits impugn them as “rapists” and “terrorists,” and pretend that America’s problems are caused by “the other.” In fact, asylum seekers have a powerful tool at their disposal to fight back against such accusations: They have their stories.

Refugees have power! (Though maybe this guy is more of a DACA recipient than a refugee).

Talk to any asylum seeker or refugee, and you will hear a great story. It is often a tragic and depressing story, to be sure, but it is always a story about overcoming adversity, about survival, about perseverance. It is, more than anything, an American story. My ancestors fled pogroms in Russia or conscription in the Czar’s army. My wife’s grandfather escaped from a Nazi concentration camp in Austria. Many American families have stories like these.

The clients I talk to every day also have amazing stories: Eritreans who escaped national service (i.e., slavery) by outrunning military guards and then traveling through dozens of countries to reach the United States; Afghans who served shoulder to shoulder with American soldiers and who were then threatened by the Taliban; transgender women from El Salvador who face persecution from their families; journalists from Pakistan who were threatened by the ISI; a gay man from Rwanda who was subject to a bizarre and harmful exorcism ritual; a Chinese whistle-blower who exposed billions of dollars of corruption and then faced threats from powerful businessmen; democratic activists from Egypt imprisoned after the Tahrir Square crackdown; religious converts from Iran who face death for their apostasy. The list goes on and on.

Indeed, people don’t come to America because they’re doing great in their homeland. They come here because they want a better life, and the stories about why they left and how they came here are often riveting.

Here’s my theory: Even people who generally oppose immigration will support the immigrants that they know personally or who they feel a connection to. For example, the only legislative amendment to the legal definition of “refugee” came when pro-life advocates lobbied Congress to make asylum available to victims of forced family planning. Pro-lifers are not necessarily associated with liberal immigration policies, but through this legislation, they greatly expanded the number of people eligible for asylum. On a more interpersonal level, I have a friend who worked for Pat Buchanan, the anti-immigrant firebrand who once challenged President George H.W. Bush for the Republican nomination. My friend’s fishing buddy—an immigrant from West Africa—was arrested for assault and battery against a police officer. My friend referred the case to me, and when we ultimately won, my friend sent me a note: “You did the most important thing a person can do, you made me look good for recommending you.” I love that. The point, of course, is that even a Pat Buchanan supporter was sympathetic to the immigrant he knew personally.

Why should this be the case? Why should people who normally oppose—and even hate—immigrants still support the immigrants they know?

I think the simple truth is that immigrants are no different than anyone else. And for most people, when they hear stories of struggle and survival, and of love and gratitude for America, it’s difficult not to be sympathetic. In other words, if immigrants and their supporters can get people to listen to immigrant’s stories and to meet immigrants in-person, we win.

The difficulty lies in making the connection, and in getting people to listen. How can we do that?

First, I think we need to connect in-person, not through traditional or social media. The problem with the media is that it has become so Balkanized as to be largely useless for bridging ideological divides. In addition, media “interactions” are generally too superficial to change minds. Personal connections are harder to achieve, but they are far more powerful, convincing, and long-lasting.

Second, we need to invite people in and make them comfortable. We should not put them on the defensive. This means engaging them on their turf, not ours. It means listening to people with different points of view, and not judging them. Most people who oppose immigrants and refugees are not bigots and xenophobes. They are not irrational. But in many cases, they do not have all the facts. They do not personally know refugees, and have not heard their stories. We may not be able to change their minds, but at least we can provide them with more information, and give them a more complete picture (a picture, by the way, which is sorely lacking in our partisan media environment).

Finally, we need to accept that some people will not be persuaded, no matter how compelling the story, or how many statistics we cite. We need to respect that decision, and this often requires self-control. It also requires recognizing that it’s not easy for a person to change her views. Sometimes, all you can do is tell your story and accept that there is no perceptible change. Perhaps, though, we can hope that a positive interaction will at least plant a seed in the person’s mind, and maybe that is enough.

So how does this work in practice? If you are a regular reader of this blog, you know that my three favorite words are, I don’t know (in fact, I don’t even know if “I don’t know” counts as three words or four!). But here’s how I would imagine implementing this idea:

Refugees and asylum seekers (and their supporters) would reach out to a church, school or community association, and ask to come tell their stories. The purpose would not be to debate refugee or immigration policy. Instead, it would be to tell a personal narrative and express gratitude for what American has offered. Hopefully, the audience would consist of people with little exposure to non-citizens. Or better yet, an audience that is skeptical of “illegals.” Preferably, the speakers would be proficient in English (and presumably, if you’ve read this far, you are proficient in English). After the story, perhaps there could be a Q&A. And that’s it. It does not have to be political. It does not have to specifically touch on policy. It would just be individuals connecting, telling stories, and listening.

So maybe if you are an asylum seeker or refugee, and you’ve read this far, you would consider reaching out to your neighbors and telling your story. Or if you are a member of a religious or civic group that might benefit from hearing refugee stories, you’d consider contacting a refugee organization for a speaker. In this way, one person at a time, we can change the world for the better.

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A Poetic Response to the State of Our Union

by Jason Dzubow

Last night was the State of the Union address, a speech presidents give before Congress each year to assess where our country has been and where we are going. President Trump’s speech highlighted one of his favorite themes–the dangers to our economy and our security posed by non-citizens.

I recently came across a poem by Brian Bilston, which eloquently rebuts the President’s anti-immigrant and anti-refugee talking points, and so I wanted to share it here. If you would like to learn more about Mr. Bilston, check out his website. Without further ado, enjoy–

Refugees

They have no need of our help
So do not tell me
These haggard faces could belong to you or me
Should life have dealt a different hand
We need to see them for who they really are
Chancers and scroungers
Layabouts and loungers
With bombs up their sleeves
Cut-throats and thieves
They are not
Welcome here
We should make them
Go back to where they came from
They cannot
Share our food
Share our homes
Share our countries
Instead let us
Build a wall to keep them out
It is not okay to say
These are people just like us
A place should only belong to those who are born there
Do not be so stupid to think that
The world can be looked at another way
(now read from bottom to top)

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Asylum and the Limits of Mercy in a Nation of Laws

by Jason Dzubow

The case of Ded Rranxburgaj, a rejected Albanian asylum seeker living in Detroit, has been getting attention lately. Mr. Rranxburgaj arrived in the United States in about 2001 and applied for asylum. An Immigration Judge rejected his claim in 2006, and the BIA denied his appeal in 2009. Instead of deporting him, the government allowed him to remain in the U.S. for humanitarian reasons: He was the primary caretaker for his wife, who has multiple sclerosis. Mr. Rranxburgaj’s wife is wheelchair bound, and she recently suffered a stroke. Doctors say that she is too sick to travel.

Rev. Zundel: When life gives you ICE, make ice cream.

There seems little doubt that Mr. Rranxburgaj is a “decent, family man” who does not pose a danger to the United States. According to his wife, he is a “very good husband” who helps her “take a shower… change clothes [and] cook.” Besides his wife, he has two sons in the United States–a DACA recipient and a U.S. citizen.

Mr. Rranxburgaj was living here peacefully since his case ended in 2009, but events took a turn for the worse last year when ICE decided to implement his removal order. According to an ICE spokesman: “In October 2017, ICE allowed Mr. Rranxburgaj to remain free from custody while making preparations for his departure pursuant to the judge’s order, which he had satisfactorily done.” “He was again instructed to report to ICE [to be deported this week], but did not report as instructed.”

Instead, Mr. Rranxburgaj took refuge in the Central United Methodist Church in downtown Detroit. Since ICE generally does not arrest people from churches, Mr. Rranxburgaj apparently hopes to avoid removal by remaining there, at least until something can be done about his deportation order. His lawyer has requested a stay of removal from ICE, but there is no decision yet, and ICE does not appear willing to play nice. An agency spokesman says that Mr. Rranxburgaj is considered a “fugitive.”

Meanwhile, the church is standing with Mr. Rranxburgaj and his family. The Pastor, Rev. Dr. Jill Zundel, said that the decision was in line with the teachings of Jesus, who had “compassion for those who seek new hope in a new land.” Rev. Zundel, who–if I can say this about a member of the clergy–seems like a real bad ass, has a tattoo on her arm that reads, “When injustice becomes law, resistance becomes duty.”

There are different ways to look at Mr. Rranxburgaj’s case. On the one hand, he is a man who has been in the United States for 17 years, his immediate family members are all here, he takes care of his sick wife, and he does not pose a danger to our country. So he should be allowed to stay. On the other hand, he is a man whose asylum case and appeal were rejected, and who is violating the law by remaining in our country. Allowing him to remain here will only encourage others to follow his lead. Therefore, he must go.

In short, Mr. Rranxburgaj’s story lays bare the conflict between enforcing the immigration law and showing mercy in a sympathetic case.

This situation reminds me of another–much older–conflict between law and mercy (or, more accurately, between law and justice, but I think the concepts of mercy and justice are closely related). After he was unjustly sentenced to death, Socrates sat in his cell waiting to be executed. His friend Crito arrived to help him escape. In the ensuing dialogue (creatively named The Crito), Socrates argues that he cannot violate a law, even an unjust law. He says that he entered into a social contract with “The Law” by choosing to live in Athens, and he gained benefits accordingly. To violate the rules now would undermine the social contract and ultimately destroy the city. Rather than breaking the law to escape, Socrates believed he should try to persuade the authorities to let him go. Failing that, he must accept death, since he could not justly attack The Law (by escaping) on account of having been unjustly convicted. In other words, Socrates disagrees with Rev. Zundel’s tattoo.

So where does this leave us?

I must admit that my sympathies lie with Mr. Rranxburgaj and his family. They are not doing anyone any harm. What is the benefit of ripping the family apart, especially considering the wife’s vulnerable position? Thomas Aquinas writes that “Mercy without justice is the mother of dissolution; justice without mercy is cruelty.” In Mr. Rranxburgaj’s case, fealty to the abstract concept of “The Law” seems cruel in the face of family separation and the wife’s illness.

On the macro level, Mr. Rranxburgaj’s case begs the question whether there is room for mercy (justice?) in the enforcement of our nation’s immigration laws. Well, why shouldn’t there be? Every person convicted of a crime is not subject to the maximum penalty. Indeed, due to mitigating factors and prosecutorial discretion, very few criminals actually receive the maximum sentence. The same is true for government enforcement in the civil arena: Not everyone who breaks the speed limit receives a ticket. If there is room for mercy and justice in the implementation of the criminal and civil law, why can’t the immigration laws be interpreted in a similar manner?

Unfortunately, that is not the view of the Trump Administration, which seems hell-bent on enforcement. To be fair, restricting immigration was an important plank of Mr. Trump’s campaign, and so it makes sense that he would crack down on illegal immigration. However, in Mr. Rranxburgaj’s case, and in many other instances, the Administration’s policies defy common sense. In the rush to implement The Law, the Administration has lost sight of justice. And of humanity.

When our government replaces mercy with cruelty, it is not only “illegals” who will suffer. We all will. And so it is heartening to see brave people like Rev. Zundel and her congregation standing up for justice, even when it sometimes means disobeying the law.

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The Secret Refugee History of Casablanca

by Jason Dzubow

This month marks the 75th anniversary of the Hollywood classic Casablanca. The move has been acclaimed as one of the great films of all time, and in my (correct) opinion, it contains the greatest scene in movie history (more on that later).

French refugee Madeleine Lebeau: “Vive la France!”

Probably, you know the basic story. It’s 1942. France has fallen to the Nazis, and some French colonies, including the city of Casablanca in Morocco, are under Vichy control (the Vichy government of France collaborated with the Nazis). Refugees, freedom fighters, Nazis, smugglers, and numerous others pass through Rick’s Café in Casablanca. Many are seeking papers to escape to Portugal and then to freedom in the New World (the film’s technical director, Robert Aisner, actually took this route himself after he escaped from a German prison camp).

Rick–the owner of the café–is an American ex-patriot (played by Humphrey Bogart) whose loyalties through much of the movie are ambiguous. One day, Rick’s former lover Ilsa (Ingrid Bergman) appears with her husband, resistance leader Victor Laszlo (Paul Henreid), and Rick and Ilsa have to make some relationship decisions (“Of all the gin joints in all the towns in all the world, she walks into mine.“). If you don’t know how the movie ends, I’m not going to tell you here–you should see it for yourself (and you can thank me later).

What’s less well-known about Casablanca is that many of the actors in the film were themselves refugees. Of 75 people who had bit parts and larger roles in Casablanca, almost all were immigrants of one kind or another. And of the 14 who got screen credit, 11 were foreign-born. Here is the story of some of them:

Conrad Veldt was a well-known German actor who opposed the Nazis and left Germany with his Jewish wife in 1933. Before he departed, he had to complete a questionnaire about his race. Even though he was not Jewish, he listed himself as a Jew. The government offered him an opportunity to divorce his wife and align himself with the Nazis, but he refused. Mr. Veldt moved to Britain where he performed in anti-Nazi films. He eventually came to the United States, where he wanted to help persuade the U.S. to enter the war. Mr. Veldt donated the better part of his personal fortune to Britain to assist with the war effort. He played Major Strasser, the primary bad guy in Casablanca.

S.Z. Sakall and his wife Anne Kardos became American citizens in 1946: “Mama and I are happy, happy people today.”

Lotte Palfi played a desperate woman selling her jewels to raise money. In her only line in the film, she asks for “just a little more, please?” Ms. Palfi was a leading stage actor in German, but fled in 1934 because she was Jewish. She hoped to find success in America, which she viewed as a “melting pot” where the “great majority of the people… had emigrated from other countries.” So she initially thought her German accent “shouldn’t be any hindrance to [her] acting career.” “Of course,” she wrote, “I couldn’t have been more wrong.” Ms. Palfi married fellow Casablanca actor Wolfgang Zilzer (who grew up in Germany and only learned of his American citizenship when he was trying to secure a visa to escape from Europe). The couple divorced after 50 years when he wanted to return to Germany at the end of his life and she refused to go back.

S.Z. Sakall played Carl the waiter in Casablanca. He was a Hungarian Jew who worked on stage and screen in his native country, and also in Austria and Germany. He lost three sisters and many other relatives in the Holocaust. Known for his comedic performances and his shaking jowls (one of the Warner brothers made him adopt the nickname “Cuddles”), Mr. Sakall achieved success in Germany using broken German, and in America using broken English. He arrived in the U.S. just before the war, in May 1939, and appeared in 30 movies between 1940 and 1950. Mr. Sakall was immensely proud of his United States citizenship, and kept his naturalization documents on the mantel in his living room.

Hans Twardowski played a German officer in Casablanca. He began his career as a supporting actor in The Cabinet of Doctor Calgary, but had to flee Germany because he was gay. In the U.S., Mr. Twardowski was type-cast as a Nazi, and never worked as an actor after the war ended, but he always dreamed of returning to the stage.

Helmut Dantine played a young Bulgarian husband trying to earn travel money at the roulette table. In Austria, he led an anti-Nazi youth movement, and was rounded up after Hitler annexed his country in 1938. Mr. Dantine was only 19 years old. He spent three months in a concentration camp before he managed to get released based on family connections and medical reasons. His parents immediately sent him to Los Angeles, where they had a family friend. In the U.S., he worked as an actor and a producer.

Peter Lorre, born Laszlo Lowenstein in Hungary in 1904, played Ugarte, a black marketeer who hands Rick the letters of transit that Victor and Ilsa need to escape from Casablanca. Mr. Lorre moved with his family to Austria when he was young, and he began his career there. He eventually migrated to Germany where he acted on stage and screen. His breakout role was as a killer in Fritz Lang’s 1931 film M. With Hitler’s ascension to power, Mr. Lorre left Germany in 1933, and made his way to France, Britain, and eventually, the U.S., where he settled in Hollywood.

Anti-Nazi actor Conrad Veidt played a Nazi in Casablanca.

Marcel Dalio, who played Emil the croupier, had been a star in French cinema (Rules of the Game and La Grande Illusion), but fled the country ahead of the Nazi invasion (he was Jewish and feared persecution). The Vichy government used Mr. Dalio’s image to depict the stereotypical Jew on propaganda posters, but in the U.S., he was reduced to playing minor roles. Upon learning of the posters, he quipped, “At least I had star billing on the poster.” Mr. Dalio was promoted to playing Renaud (in the movie, this character was Renault) on the short-lived and largely forgotten Casablanca television serious (1955-56). Mr. Dalio’s mother and sisters were murdered at Auschwitz.

Madeleine Lebeau was the French woman seen crying (real tears) and shouting “Vive la France” during the greatest scene in movie history. In real life, she was a citizen of France who married Marcel Dalio when she was 16, and then fled the country with him after the German invasion. Their marriage was short-lived, and Ms. Lebeau returned to Europe after the  war, where she continued to act in France, Britain, and Spain. She died last year at age 92–the last surviving named cast member in Casablanca.

Seventy-five years after its release, Casablanca is recognized as one of the great films of all time. The emotion brought to the movie by so many real-life refugees from Nazism certainly contributes to the film’s power. Indeed, refugees helped shape the movie, and the movie helped shape our vision for the war (critic Pauline Kael once opined, “Our image of the Nazi was formed by the Jewish refugees”).

Finally, the undisputed greatest scene in movie history: A group of Nazi officers is singing a patriotic German song at Rick’s café. They are–they believe–the masters here. Resistance leader Victor Laszlo notices the men and marches over to the house band. He tells them to play le Marseille, the anthem of free France. The band looks to Rick, and he has another decision to make–keep out of it, or get involved. See what happens here.

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The Perils and Pitfalls of Applying for a Green Card

by Jason Dzubow

In the past few weeks, we’ve had two former asylum clients return to our office for help after USCIS denied their applications for citizenship. The applications were denied due to mistakes the former clients made on their I-485 forms (the application for a green card). These cases illustrate the danger of incorrectly completing the I-485 form, and this danger is particularly acute for people with asylum.

The new Green Card application process.

Let’s start with a bit of background. After a person receives asylum, she must wait for one year before applying for her lawful permanent resident (“LPR”) status (her green card). The form used to apply for the green card is the I-485. In the good old days (a few months ago), this form used to be six pages. Now it is 18 pages. The old I-485 form contained 32 yes-or-no questions; the new form contains 92 such questions.

Many of these questions are difficult for me to understand, and I am a trained lawyer who speaks reasonably decent English. So you can imagine that people with more limited English, who are not familiar with the complicated terms and concepts contained in some of the questions, might have trouble answering.

In my clients’ cases, two questions in particular caused them trouble (these are from the old I-485). The first question was, “List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday.” Both clients had been involved with political parties, but were no longer members of those parties in the United States. The clients did not carefully read the question, and instead of listing their “past membership,” they instead answered “none” (because they are no longer members).

The second question asked whether the clients had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In fact, my clients had never been arrested for “breaking or violating any law or ordinance.” They were arrested for exercising their supposedly-lawful political rights, and they were correct to answer “no” to this question. Nevertheless, USCIS viewed their answers as deceptive.

My clients’ problems were compounded by the fact that they were never interviewed for their green cards, and so a USCIS officer never went over the questions with them and gave them an opportunity to correct the errors.

The result of all this—confusing questions, carelessness, and no interview—was that my clients obtained their green cards, but also sowed the seeds for future problems. Five years later, these problems appeared when the clients tried to naturalize, and USCIS went back and carefully reviewed their prior applications.

To me, my clients’ errors were clearly honest mistakes. Indeed, in their asylum applications, the clients had already informed USCIS about their party memberships and about their arrests, and so they had nothing to gain—and everything to lose—by failing to mention these issues in the I-485 form. But that is not how USCIS sees things. To them, the errors were “misrepresentations,” which disqualified my clients for citizenship.

To solve the problem, my clients will likely need to apply for waivers (an expensive application to seek forgiveness for making misrepresentations). Given that they are asylees, and that the misrepresentations were relatively minor, I suspect the clients will ultimately qualify for waivers and—eventually—become U.S. citizens. But between now and then, they will face a lot of unnecessary stress and expense. Unfortunately, this is the reality now-a-days for all applicants: If you leave yourself vulnerable, USCIS will bite you.

So what can be done? How can you protect yourself when completing the form I-485?

The key is to read each question carefully and make sure you understand what it means. This is time consuming and boring, but given that USCIS is looking for excuses to deny cases and cause trouble, you have little choice if you want to be safe.

Even using a lawyer is no guarantee. Until recently (when USCIS started looking for reasons to deny cases), I had a tendency to gloss over some of these questions. I am more careful now, but it’s not easy. Many of the questions are ridiculous: Are you a prostitute? Did you gamble illegally? Were you a Nazi in WWII? But intermingled with these questions are others that require closer attention: Did you ever have a J visa? Have you ever received public assistance? Have you ever been denied a visa? It’s easy to skim over these, but the consequences of an erroneous answer can be serious.

Also, some questions are tricky, and can’t easily be answered with a “yes” or a “no.” For example, my clients indicated that they had not been arrested for a crime, and this was correct, but they had been arrested for their (lawful) political activities, and USCIS took their answers as misrepresentations. What to do? When we complete I-485 forms and we encounter questions like this, we normally check “no” (or “yes” if that seems more appropriate) and circle the question. Next to the question, we write, “Please see cover letter,” and on the cover letter, we provide an explanation (“I was never arrested for a crime, but I was arrested by my home government for political reasons”). At least this avoids the problem of USCIS labeling your answer a misrepresentation.

In the end, the only real solution here is to read each question carefully, make sure you understand the question, and answer it appropriately. If the question is not amenable to a yes-or-no answer, or if you think an explanation is required, circle the question and provide an explanation. If you don’t understand something or are not sure, ask for help. It’s best to get the form correct now, even if that involves extra time or money, than to make mistakes that will cost you later on.

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Asylum for Witches

by Jason Dzubow

Just in time for Halloween, the Witchcraft & Human Rights Information Network (“WHRIN”) has released a report called “Witchcraft Accusations and Persecution; Muti Murders and Human Sacrifice.” The report was prepared for the United Nations Expert Workshop on Witchcraft and Human Rights, which was held last month, and it discusses the wide-spread and under-reported human rights problems related to witchcraft and other harmful traditional practices. From the WHRIN report–

Persecution.

In numerous countries around the world, harmful witchcraft related beliefs and practices have resulted in serious violations of human rights including, beatings, banishment, cutting of body parts, and amputation of limbs, torture and murder. Women, children, the elderly, and persons with disabilities, such as persons with albinism, are particularly vulnerable. Despite the seriousness of these human rights abuses, there is often no robust state led response.

The report indicates that the “exact numbers of victims of such abuses is unknown and is widely believed to be underreported.” “At the very least,” the report continues, “it is believed that there are thousands of cases of people accused of witchcraft each year globally, often with fatal consequences, and others are mutilated and killed for witchcraft-related rituals.” The number of cases—and the level of violence against victims–seems to be rising, and no area of the world is immune, though most of the documented cases are found in India (120 reported cases in 2016), Nigeria (67 cases), Zimbabwe (29), and South Africa (28).

This is all very sobering, and sad. In my work, I have represented a number of victims of traditional practices who have filed for asylum in the United States. One memorable case involved a young man from Rwanda who was gay. His family decided that he was possessed by demons, and so they had him kidnapped and held in a rural area where he was subject to a three-week exorcism ritual by some type of priest. The ritual involved beatings and starvation, among other things. We argued that all this amounted to past persecution on account of a particular social group—gay people. The government accepted our argument and approved the man’s application for asylum.

The success of our case was due, perhaps, to the fact that our client easily fit within a protected category for purposes of asylum (there are five protected categories—race, religion, nationality, political opinion, and particular social group, and under U.S. law, it is well-established that LGBT individuals can constitute a particular social group; unless a case fits within a protected category, asylum will be denied). Not all victims of witchcraft-related persecution fit so neatly into the asylum scheme, as the WHRIN report makes plain—

Those accused of witchcraft, or at risk of such accusations, are not a well-recognised vulnerable group [under the asylum law], and they do not accrue specially recognised rights as such. They do, however, benefit from human rights protections which are available to all people. Those who face persecution in this way may flee and seek protection in other countries, but their situation is precarious even in exile.

The WHRIN report primarily discusses British law, but asylum applicants in the U.S. could face a similar problem. I have not seen a case where “witches” or “people accused of witchcraft” has been found to be a particular social group (“PSG”) for purposes of asylum, but it seems that a strong argument could be made in favor of such a PSG. Persecution of “witches” might also be couched in terms of imputed religion—maybe the persecutors view the alleged witch in religious terms and would harm her for that reason. If there is an ethnic or racial component to the persecution, that might also allow the applicant’s case to fit into a protected category.

Besides witchcraft, the WHRIN report discusses other harmful traditional practices: Human sacrifice and murder for body parts, which are used in certain magic rituals (sometime called Muti murder). People with albinism are particularly vulnerable to such attacks (I wrote about that here), and they would likely constitute a PSG under U.S. asylum law. But other people targeted in this way might not easily fit into a PSG.

To win asylum, the applicant must show that she faces harm “on account of” a characteristic that the applicant herself possess (for example, her race) or on a characteristic that the persecutor “imputes” to the victim (for example, maybe the persecutor incorrectly believes the applicant is a government opponent and seeks to harm her for that reason). In the case of some traditional practice, the victim may not be able to show that the harm is “on account of” a characteristic or an imputed characteristic, and then asylum would be denied. In our exorcism case, for example, we had a relatively easy job, since our client was gay and was harmed due to his sexual orientation. But what if he was not gay and he was being “exorcised” for some other reason–maybe he was an unruly child and his parents wanted to “cure” him? Such a case would present a real challenge under U.S. asylum law.

Fortunately, there are some resources available. The WHRIN is the obvious starting point. The Forced Migration Current Awareness blog also has a list of resources, and UNHCR has a comprehensive report about witchcraft accusations against children. Given the severity of the harm and the likelihood that the problem is spreading, it seems to me that more work needs to be done in this area. The recent attention from the UN is a good start. Hopefully, we will see those efforts continued and expanded.

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The Self-Fulling Prophecy of Demonizing Immigrants

by Jason Dzubow

In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.

“Don’t make me angry. You wouldn’t like me when I’m angry.”

Prof. Roth recently elaborated on his theories in the Washington Post. He writes–

When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.

He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community’s faith in our governing institutions–

The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.

During the 2008 election, Prof. Roth predicted that “the homicide rate in America’s cities would drop because of what [Barak Obama’s] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas.” Prof. Roth also “worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president.” Data from President Obama’s time as president now seems to support the Professor’s prediction (at least according to Prof. Roth–and I believe him).

So what does this mean for immigrants and asylum seekers?

Maybe the answer is fairly obvious–If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle–the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.

We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.

Prof. Roth, writing after the massacre in Las Vegas, notes that “most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society…. We have all played a part in creating them.”

If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it’s not all that difficult. It’s what teachers teach in our schools every day. It’s what we require in our workplaces. It’s what we see in our places of worship.

Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you’ll see what I mean. Politicians–most notably our Commander-in-Chief–have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.

Prof. Roth’s work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.

I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.

Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth’s theory is correct, the current Administration’s nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It’s up to us–those of us who stand with immigrants–to continue offering them help and hope, and to try to break this cycle before it begins.

 

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The New Travel Ban, Asylum Seekers, and I-730 Petitions

by Jason Dzubow

As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the “banned” countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.

Moose limb ban.

Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here’s how things look now:

Asylum Seekers

The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to…  any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

Asylees

People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees’ rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

I-730 Petitions

When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their “following to join” family members here may be problematic, at least as I read the President’s order. Section 3(a) states–

[S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

Basically, this means that people outside the U.S. from a “banned” country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don’t see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further–

A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

The proclamation gives some examples of when a waiver might be appropriate, including where the “foreign national has previously established significant contacts with the United States” or where “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.” None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

UPDATE – October 9, 2017 – The U.S. State Department has issued guidance indicating that I-730 beneficiaries will not be affected by the new proclamation, and so following-to-join beneficiaries will still be able to join their asylee family members in the United States. Thank you to “Jabi” for letting us know about the good news.

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Trump Administration Lies About the Economic Impact of Refugees

by Jason Dzubow

There’s a Yiddish expression, “A halber emes iz a gantse lign,” which means, “A half-truth is a whole lie.” A recent article from the New York Times demonstrates that the Trump Administration is using half truths in order to justify its plan to reduce refugee admissions to historically low levels for the upcoming fiscal year. From the Times article:

President Trump is taking Simon and Garfunkel’s advice a bit too literally: “Lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie, lie.”

Trump administration officials, under pressure from the White House to provide a rationale for reducing the number of refugees allowed into the United States next year, rejected a study by the Department of Health and Human Services that found that refugees brought in $63 billion more in government revenues over the past decade than they cost.

In other words, political officials suppressed a study from HHS because the results of that study did not support Mr. Trump’s policy goals.

The draft study was completed in July but never publicly released. Instead, it was leaked to the NY Times. The study was meant to look at the costs and benefits of refugee resettlement to our economy. How much do refugees cost us for things like public benefits, education, and law enforcement? How much do refugees contribute through taxes? Are refugees a net gain or a net loss, at least in terms of dollars spent and received?

The 55-page draft study found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. Taking into account resettlement and other costs, the report estimates that “the net fiscal impact of refugees was positive over the 10-year period, at $63.0 billion.” When refugees and their family members were counted, the benefits were more modest, but still positive, at $16.9 billion. These results align with another recent study on the economic impact of refugees conducted by two professors at the University of Notre Dame.

The final, three-page report that HHS ultimately submitted includes only money spent by the government on refugees, without including revenue–literally, half the truth (and that’s being generous, since they reduced the size of the report from 55 pages to three). Maybe I can do the same thing on my own taxes–include only my expenses, but leave out revenue. I am not sure how that would go over with the IRS, but I’m guessing not well.

This strategy–of promoting the negative by leaving out the positive–is nothing new for the Trump Administration. Last Spring, the Department of Homeland Security launched the Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will, “Provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.” So we get to see the negative impact of aliens on the United States, but we hear nothing about the positive contributions made by such people (and of course, the evidence is pretty conclusive that aliens commit crimes at lower rates than native-born Americans).

Not all government employees are on board with the Trump Administration’s anti-refugee program. The most obvious dissenter is the anonymous person who leaked the HHS report to the NY Times. More publicly, the State Department’s Director of Refugee Admissions told an audience at the Heritage Foundation, “We see… that refugees do very, very well, and it’s one of the reasons that we would like to see more long-term studies about refugee success and perhaps failure so that we can really see those areas that we should focus on more…. They’re taking jobs that are otherwise unfilled, and refugees, frankly, do quite well.”

There also seems to be internal disagreement about how many refugees we should admit to the country. For FY 2017, President Obama raised the refugee ceiling from 85,000 to 110,000, but President Trump has proposed reducing refugee admissions to 45,000 for FY 2018, which starts on October 1. Interestingly, officials at the National Security Council, the State Department, and the Department of Defense have lined up to oppose such a precipitous drop, presumably because they recognize the benefits of our refugee program.

By next week, we should know for sure how many refugees President Trump plans to admit in FY 2018. I’m not optimistic about the numbers, but I understand that reducing immigration was one of Mr. Trump’s core promises when he ran for president. What probably bothers me most about the whole process, though, is the blatant dishonesty of the President, who is trying to justify his refugee policy based on half truths and whole lies. An honest discussion might not result in a different outcome in terms of numbers, but it would be far better for our country and our democracy.

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New Rule Spells Potential Trouble for Asylees

by Jason Dzubow

There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

The State Department has a long tradition of blocking visas for people facing persecution (if you don’t believe me, Google “Breckinridge Long”).

To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as “dual intent” visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

[If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to “bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.”

I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

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In a Time of Hate, My Refugee Clients Give Me Hope

by Jason Dzubow

As an ordinary citizen, it is not easy to decide the best way to confront a Nazi march. Show up to peacefully protest? That might give additional attention to the other side. Protest violently? Not only could that elevate the Nazis, it might also de-legitimize the resistance to the Nazis (even those who peacefully resist). Ignore them? That might be viewed as condoning their views. Reasonable people can differ about what to do, at least as far as the peaceful responses are concerned.

As a great American philosopher once said, “I hate Nazis.”

But when you are a public figure, especially an elected official, the decision about how to respond is clear: First, ensure safety and free speech. Second, denounce the evils of Nazism and make it plain that Nazis, Klan members, and anyone who might march side-by-side with such people are un-American, illegitimate, and unworthy of a seat at the table of public discourse.

Fortunately, the vast majority of our country’s elected leaders knew what to say in response to the Nazi march last weekend. But unfortunately, there was one important exception–our President, Donald J. Trump. To me, Mr. Trump’s contemptible silence, followed by a reluctant “denunciation” of the Nazis, followed by a denunciation of the “denunciation” is an utter disgrace. It is a green light to Nazis. It is yet another attack on common decency and on our shared national values. It is complicity with Nazism. By the President of the United States. (As an aside, one of my lawyer-friends at the Justice Department told me–perhaps half jokingly–that she wanted to post a sign in her office that reads, “Nazis are bad,” but she feared it might get her into trouble–that is where we are under Mr. Trump.)

Frankly, I am not particularly worried about the Nazis themselves. They certainly can do damage–they murdered a young woman and injured many others. But they do not have the power or support to threaten our democracy. This does not mean we should take them for granted (few would have predicted Hitler’s rise when he was sitting in prison after the Beerhall Putsch), but we should not be unduly fearful either.

On the other hand, I am very worried about our President’s behavior. His governing philosophy (perhaps we can call it, “trickle down histrionics”) is poisoning our public debate, and it weakens us domestically and internationally. Thus far, his incompetence has served as a bulwark against his malevolence, but that can only go on for so long (see, e.g., North Korea). So there is much to be concerned about.

Here, though, I want to talk about hope. Specifically, the hope that I feel from my clients: Asylum seekers, “illegals,” and other immigrants. There are several reasons my clients give me hope.

One reason is that they still believe in the American Dream. Despite all of the nastiness, mendacity, and bigotry coming from the White House, people still want to come to America. They are voting with their feet. Some endure seemingly endless waits, often times separated from their loved ones, in order to obtain legal status here. Others risk their lives to get here. They don’t do this because (as Mr. Trump suggests) they want to harm us. They do it because they want to join us. They want to be part of America. My clients and others like them represent the American ideal far better than those, like our embattled President and his racist friends, who disparage them. When I see my country through my clients’ eyes, it gives me hope.

My clients’ stories also give me hope. Most of my clients are asylum seekers. They have escaped repressive regimes or failing states. Where they come from, the government doesn’t just tweet nasty comments about its opponents, it tortures and murders them. The terrorist groups operating in my clients’ countries regularly harm and kill noncombatants, women, children, and even babies. My clients have stood against this depravity, and many of them continue to fight for democracy, justice, and human rights from our shores. My clients’ perseverance in the face of evil gives me hope.

Finally, I have hope because I see the courage of my clients, who refuse to be cowed by the hateful rhetoric of our Commander-in-Chief. Since the early days of his campaign, Mr. Trump has demonized foreigners and refugees, and after he was sworn in as President, these individuals were the first to come into his cross hairs. If he can defeat people like my clients, he can move on to new targets. But many refugees and asylum seekers have been subject to far worse treatment than Mr. Trump’s bluster, and they are ready to stand firm against his bullying. Their fortitude encourages others to stand with them. And stand with them we will. The fact that vulnerable, traumatized people are on the front lines of this fight, and that they will not surrender, gives me hope.

I have written before about the tangible benefits of our humanitarian immigration system. It demonstrates to the world that our principles–democracy, human rights, freedom, justice–are not empty platitudes. It shows that we support people who work with us and who advance the values we hold dear. When such people know that we have their backs, they will be more willing to work with us going forward. And of course, that system helps bring people to the United States whose talents and energy benefit our entire nation. Add to this list one more benefit that asylees and refugees bring to our nation in this dark time–hope.

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