Asylum Seekers Need Pro Bono Lawyers Now More than Ever

by Jason Dzubow

The Trump Administration came into office with the express goal of tightening rules related to asylum eligibility. Their efforts have resulted in reduced due process protections for asylum seekers, along with increased evidentiary burdens. Since the advent of the COVID-19 pandemic, the Administration’s anti-asylum rule making has gone into overdrive. If recently proposed regulations go into effect, asylum seekers could be denied protection simply for having passed through a third country or for having failed to pay taxes. Worse, these new rules will likely apply retroactively, thus potentially disqualifying some asylum seekers for choices they made years ago. While the asylum process was never easy, all these recent changes have made it much more difficult to successfully navigate the system, especially for those without legal representation. Here, we’ll review some data about asylum grant rates, discuss the process of seeking asylum, and talk about how a lawyer can help.

Data on Asylum Seekers

Unfortunately, it has never been easy to obtain solid statistics about asylum grant rates. One problem is that different asylum cases are adjudicated by different agencies. “Affirmative” asylum cases (where the applicant is inside the United States and initiates a case by submitting an asylum form) and “credible fear” cases (where the applicant presents at the border and requests asylum) are adjudicated by the Department of Homeland Security, by an asylum officer. “Defensive” cases (where the applicant requests asylum as a defense to being deported) are adjudicated by an immigration judge at the Department of Justice. Different agencies track data differently, so we do not have solid statistical information about overall grant rates. But we do have some pretty good data demonstrating that asylum grant rates are trending down and that having a lawyer helps.

According to TRAC Immigration, a nonprofit that collects and analyzes data from our nation’s immigration courts, pro se asylum applicants in 2019 and 2020 were granted asylum in about 13 percent of cases. During the same period, represented applicants received asylum in about 30 percent of cases. So, having a lawyer more than doubles the likelihood of a positive outcome. Also, the data indicates that it is getting more difficult to win asylum. In 2012, about 55 percent of asylum cases (represented and pro se) were granted. Since then, grant rates have dropped—to 41 percent at the beginning of President Donald Trump’s term and to about 25 percent by March 2020.

The world’s most powerful superheroes (pro bono attorney, second from right).

The Asylum Process

As noted above, there are two basic paths to asylum: affirmative and defensive. In addition, asylum seekers who arrive at the border or an airport and request protection undergo a credible fear interview, which is an initial evaluation of eligibility for asylum.

In an affirmative case, the applicant completes a form and an affidavit describing his fear of harm, gathers and submits evidence in support of the claim, and is eventually interviewed by an asylum officer. For a defensive case, the applicant typically appears before an immigration judge two times. The first appearance is called a master calendar hearing, which only takes a few minutes. At that stage, the judge determines whether the applicant is “removable” from the United States and what relief she is seeking (asylum and/or other types of relief). The judge then sets a date for the individual hearing (the trial), where the applicant presents her claim for asylum through evidence and testimony. Neither process is fast, and it is common for an asylum case to take several years.

A credible fear interview is more truncated. Most applicants have little or no evidence when they first arrive, and so their testimony becomes more important. If they demonstrate a “credible fear” of persecution in their home country, they are referred to an immigration judge to present a defensive asylum case. If they do not demonstrate a credible fear, they are usually quickly deported from the United States.

Preparing an asylum case—affirmative or defensive—can be challenging. The attorney needs to work with the client to write a detailed affidavit describing the asylum claim. This often involves discussing painful events from the client’s past. Obtaining evidence from other countries can also be difficult, as witnesses are overseas and may be reluctant to risk their safety by writing a letter or sending documents. In preparing a case, the attorney needs to resolve any inconsistencies between the affidavit, evidence, and country conditions, since inconsistencies can lead to a finding that the applicant is “not credible.” Also, the attorney must articulate a legal theory for the case; not everyone who fears harm in the home country is eligible for asylum, and so the attorney must examine the facts and determine the basis for eligibility. Finally, some applicants may be barred from asylum—for example, because they failed to timely file their application—and so the attorney must identify and address any legal bars to asylum.

How Pro Bono Lawyers Can Help

All this can be daunting, even for a lawyer who specializes in asylum. So, how can a pro bono attorney—who may not be familiar with this area of the law—help?

On this front, the news is good. Most asylum cases are relatively straightforward, and anyone with legal training and a bit of guidance can make a positive difference in the outcome. Also, excellent support and mentoring is available for lawyers who decide to take on a case pro bono. In representing asylum seekers, most pro bono lawyers work with a nonprofit organization, and these organizations are expert at identifying compelling cases and providing support to attorneys who do not specialize in asylum. (For some ideas about where to volunteer, check out these immigration nonprofits). Finally, while asylum cases can take years (due to government delay), the amount of attorney time needed to properly prepare and litigate a case is quite reasonable. Total prep time for a case is usually between 15 and 30 hours. For an affirmative case, applicants have only one interview, and those usually take three to five hours. Court cases usually involve two hearings: The master calendar hearing might involve waiting around for an hour or two, but the hearing itself requires only about five minutes with the immigration judge. The individual hearing (the trial) typically takes two to four hours. So, all together, the time investment is not terribly burdensome.

As for credible fear interviews, because they are not full cases and because they take place within a day or two of the applicant’s arrival in the United States, they require even less attorney time. In some cases, there is no time to prepare in advance, and the attorney’s role is simply to make sure that the asylum seeker’s interview is fair. Other times, it is possible to gather country condition evidence or other evidence in advance of the interview.

What’s It Like to Do an Asylum Case?

Having myself represented hundreds of asylum seekers, what keeps me interested are the clients’ stories. Of course, many of these stories are sad, but they are also hopeful. Asylum seekers are survivors. They have escaped danger in order to build a better life. Many asylum seekers are well-educated, successful people: politicians; activists for democracy, women’s rights, or LGBTQ rights; interpreters who’ve served with the U.S. military; members of religious or ethnic minorities; journalists. Asylum seekers I have known tend to be very patriotic towards the United States, and my clients’ faith in the American Dream is a source of constant inspiration for me.

The asylum process today is more difficult than ever. Many applicants with valid claims will be denied and deported unless they have help from an attorney. Equally important, applicants need someone in their corner to answer questions and provide moral support. Representing an asylum seeker pro bono can help change your client’s life. It can also be one of the most rewarding experiences of your legal career.

This article is by Jason Dzubow and was originally published in GPS Solo, Volume 9, Number 12, July 2020. Copyright 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

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Where’s My Green Card? Where’s My Work Permit?

by Jason Dzubow

What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.

So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.

According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.

You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.

The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–

Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.

According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–

Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.

Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).

If you are waiting for a Green Card or an EAD, what can you do?

First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”

For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).

If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.

If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.

Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.

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Let’s Deny Asylum to Sick People!

by Jason Dzubow

Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.

Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture. 

Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”

Gesundheit! That’s German for “Asylum Denied.”

Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal). 

Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.

While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected. 

Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.

One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–

If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.

In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.    

The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.

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New (and Awful) Restrictions on Work Permits for Asylum Seekers

by Jason Dzubow

Let’s say I give you a million dollars (which I can easily do, given my lucrative earnings as an asylum lawyer). Let’s also say I put that money on the moon. Even though its yours, you can’t get it, and so it won’t do you any good. That’s basically what the Trump Administration is trying to do with asylum. 

Under U.S. law, non-citizens in our country have a right to seek asylum. But that right is meaningless unless applicants have the means to live here during the lengthy asylum process. On August 25, 2020, the Trump Administration plans to implement a new regulation, which denies Employment Authorization Documents (“EADs”) to some asylum applicants and delays the issuance of EADs to everyone else. The pretextual (lawyer-speak for bullshit) reason for the new rule is to prevent fraud. The real reason is to deter people from seeking asylum in the United States. Here, we’ll discuss the major provisions in this new regulation.

The first major change is the waiting period for an EAD. Until now, the regulations allowed asylum seekers to file their EAD application (form I-765) 150 days after their asylum application (form I-589) was received. Processing the I-765 usually took a few months, and so most asylum seekers would have their EAD card in hand within seven or eight months of filing for asylum. Under the new rule, asylum applicants must wait 365 days before filing for their EAD, and then wait a few more months for processing. This means that most applicants probably won’t have their EAD until at least 14 months after submitting the I-589. This new rule seems to apply to everyone who files for an EAD on or after August 25, 2020, even people who filed for asylum before that date. So if you are eligible for the initial EAD prior to August 25, you should file before that date. Otherwise, you will face an additional six months (or more) of delay.

No EAD? No problem. You can live off your trust account until you receive asylum.

The second major change is that people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing” or unless the applicant is an unaccompanied child. Sine the one-year bar will usually not be adjudicated until the asylum case is adjudicated, this new rule effectively means that people who do not file for asylum within one year of arriving in the country will not get an EAD. Again, this provision applies only to people who file for asylum on or after August 25, 2020. Also, even if you clearly meet an exception to the one-year rule, you would not be eligible for an EAD if you were in the U.S. for more than one year before filing for asylum (examples of people who are ineligible for an EAD include those who have maintained lawful status during their entire stay in the U.S. before filing, and people who decide to seek asylum after circumstances in the home country changed, causing them to fear return).  

Third, applicants who “entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after August 25, 2020” are not eligible for an EAD. There are rare exceptions enumerated in the rule, but for the most part, people who enter the U.S. unlawfully and file for asylum will be barred from obtaining an EAD.

Fourth, it seems that people who move before they get an EAD are considered to have “delayed” their case if the move transfers their case to a different Asylum Office. They thus become ineligible for an EAD (“Delay” includes “A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address”). For this reason, you should try not to move out of your Asylum Office’s jurisdiction from the time of filing until you get the EAD (you can see your office’s jurisdiction here).

Also, previously, asylum seekers who were paroled into the United States after “passing” a credible fear interview were eligible for an EAD based on category c-11. The new rule eliminates this basis of EAD eligibility, though such parolees could still apply for asylum and then file for an EAD after the 365-day waiting period.

Other provisions of the new rule basically codify existing practice. For instance, people who cause delay in their asylum cases and people who have criminal issues will likely be denied an EAD. 

The new EAD rules are particularly damaging when considered along side another proposed rule, which would deny asylum to people who work unlawfully and fail to pay taxes. The combined effect of these new regulations will be that asylum seekers are either forced to work illegally, thus jeopardizing their asylum claims, or they are forced to find some way of surviving in the U.S. for 1+ years without the ability to earn money.

On the positive side (and these days, we sorely need positive news), people who have EADs can continue to renew them in two-year increments, even if their asylum case is referred to Immigration Court or if they lose their case in court and appeal to the Board of Immigration Appeals. 

Given these changes, if you are planning to file for asylum and you entered unlawfully or have a one-year bar issue, you should file before August 25, 2020, when these rules are scheduled to go into effect. Also, if you are planning to seek asylum, you should file your application within one year of arriving in the United States, even if you would qualify for an exception to the one-year bar (again, to be clear, you can still overcome the one-year bar and receive asylum, but you will not receive an EAD while you are waiting for a decision in your case).

One remaining question is whether these new regulations might be blocked by a federal court. I suspect that there will be a court challenge to the rules. If such a challenge succeeds, my guess is that it will succeed on procedural grounds–in other words, that the Trump Administration failed to adequately justify the new rule (this is the basic reason that the Administration’s efforts to end DACA failed). Asylum seekers have no right to an EAD. See INA § 208(d)(2). However, given that it is impossible to obtain asylum unless you have the ability to survive in this country during the pendency of your case, there may be a basis to challenge this new rule. Let’s hope so.

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All the Bad News that’s Fit to Print (Updated 06/17/20, 06/18/20 – and it ain’t all bad!, 06/19/20)

by Jason Dzubow

[Updates to this post will appear at the bottom of the article]

There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–

(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.

The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.

With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.

One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.

(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.

USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.

You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.

(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–

The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.

The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”

(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.

(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.

(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option. 

(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.

Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha! 

Update from 06/17/20

AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:

  • “I-485 interviews”; and
  • “I-485 interview waiver cases not already distributed”.

However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).

Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.

A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.

However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.

Update from 06/18/20

First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.

The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal. 

Update from 06/19/20

New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.

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Why Immigrants Should Support Black Lives Matters, and How to Do It

by Jason Dzubow

For years, advocates for asylum seekers have been discussing the degradation of our nation’s immigration system: Due process protections have been eroded (or eliminated), non-violent aliens have been detained (sometimes for years), and asylum applicants and other immigrants have been subject to humiliating and cruel treatment. Why should this be so? Our immigration laws and our Constitution are far from perfect, but they provide certain rights to non-citizens, including the right to due process of law, the right not to be denied immigration benefits for reasons that are arbitrary and capricious, and the right to humanitarian protection for those who qualify. Unfortunately, the government often fails to fulfill its obligations (repeat: obligations) under the law, and as a result, immigrants are being denied their rights–including their right to life-saving humanitarian protection.

Immigrants, of course, are not the only people whose legal rights have been violated by the government. The pattern of mistreating and disenfranchising minority groups goes back to the founding of our country (and before). In many cases, discrimination has been sanctioned by law–against African Americans, Native Americans, Chinese Americans, and women, to name the most obvious groups. Slowly, painfully, over time, laws have changed. The law now provides for much greater equality than it did at the founding of our Republic, and in practice, the situation has improved. But as we know, there is much more work to be done.

Trump: “I am your law and order President. I make the law and you follow my orders!” Bible: “Owww! Stop touching me – it burns!”

The Black Lives Matter movement is a part of that work. All Americans should listen to what BLM has to say. Even those who disagree or who think they know better should listen to the lived experience of people who feel threatened by our government. No Americans should have to feel this way. Something clearly needs to change. But why should immigrants and asylum seekers care?

For one thing, many immigrants are people of color, and so the issues BLM is addressing should be of concern to non-citizens, who might one day face similar problems themselves.

Also, when the government mistreats one minority group, no minority group is truly safe. If the government has the power and the willingness to take away rights for one of us, it can take away the rights of any of us. Indeed, the whole idea of “rights” is that they are inviolable; the government cannot take them away unless we are afforded due process of law. When a government agent kills an unarmed Black man without justification or when it deports an asylum seeker without due process of law, it is violating those people’s sacrosanct rights. It stands to reason then, that if we wish to support the rights of one person, we must support the rights of all.

The above arguments are based on self interest (I will help you because it helps me). But there is another reason for immigrants to support the BLM movement–it is the right thing to do. The asylum seekers and immigrants that I have known tend to be very patriotic people. They believe in the American ideal. That is why they came here in the first place. Part of that ideal is that we are all equal in the eyes of the law. No group should face harm or discrimination due to their race or ethnicity or religion or sexual orientation. It is un-American. And it is wrong. As citizens (or would-be citizens), it is incumbent upon each of us to help our nation move towards a more perfect union.

So what can be done to help?

Education: Learn about BLM’s goals and methods from leaders of the movement, rather than from secondary sources. Good starting points are the Black Lives Matter and Movement for Black Lives websites. There are also many movies, documentaries, and books that are worth checking out.

Protest: The ongoing protests are important, and will hopefully drive legislative and policy changes. Non-citizens can attend protests, and have a right to Freedom of Speech, the same as U.S. citizens. However, you should be aware that ICE agents have been deployed in response to protests and civil unrest. While these agents are (supposedly) not tasked with immigration enforcement, that is their raison d’etre, and so if you go to a protest, make sure to have evidence about your immigration status (such as a green card, work permit, I-94, filing receipt, etc.). If you have no status, make sure to have a plan in place in case you are detained (every non-citizen without status should have such a plan, whether or not they attend a protest).

Elections: As President Obama recently said, we have to mobilize to raise awareness and we have to vote for candidates who will enact reform. Non-citizens cannot vote. Indeed, such people can be deported for voting. So if you are not a U.S. citizen, please don’t try to vote. But this does not mean that you cannot participate in the upcoming elections. There is a lot you can do: Voter registration, canvasing, text-banking, phone-banking, etc. All this is important, as the outcome of the election will have life and death consequences for many people.

Contact Your Representatives: There is currently a bill pending in the House to condemn police brutality and racial profiling. The bill makes some good suggestions, including that the Justice Department should take a more active role investigating instances of police violence and discrimination, and for the creation of civilian review boards to provide community-based oversight of local police departments. Review the bill, and if you are so moved, contact your Congressional representatives and let them know. There is another bill pending in the Senate that aims to prevent discrimination by police and provide additional training. You can contact your Senators about this bill. Also, you can take action at the state and local level to push for reform.

Donate: For many of us, money is tight these days, but if you are able to make a donation, there are many worthy civil rights organizations that could use the support.

One last point, and I think this is important, as I often hear objections about BLM in the media and in conversation: It is not necessary to support every aspect of a movement in order to support that movement. I personally do not support all the goals of the Black Lives Matter movement. I do not support all their tactics, and I do not support all their rhetoric. This does not mean that I do not support the movement. I strongly believe that our country should focus far less on incarceration and far more on providing opportunities for all people to live safe, healthy, and productive lives. I also strongly believe that our country has not properly reconciled with its past and ongoing sins against African Americans and other racial minorities. Most of all, I believe that our nation has an obligation to listen to marginalized people and to respond to their needs. Thus, even if you do not believe in all aspects of BLM, I do not think that absolves you from listening to members of that movement and of working for a better society. All of us have an obligation to help bend the arc of history towards Justice. The Black Lives Matter movement is doing just that, and its success is our nation’s success. 

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Asylum Offices and USCIS Will Start Reopening Next Week (Maybe)

by Jason Dzubow

As you might have noticed, USCIS offices have been closed for all in-person appointments–including asylum interviews and biometric appointments–since March 18, 2020. Now, USCIS has announced that it “is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.” What does this mean? What will the “new normal” look like at USCIS? Are we all going to die?

The first thing I notice about the USCIS announcement is that it is kind-of vague. “Some domestic offices” will reopen? I am not sure what this means. I suppose we will have to wait and see which offices actually reopen. Also, “on or after June 4” could be next week or it could be in 2099. In any event, it seems clear that USCIS is trying to get things moving again. Indeed, one of my clients is scheduled for an interview on June 29 in the Arlington Asylum Office and I have heard of other applicants receiving notices for interviews there as well. 

An Asylum Division manager explains how they will reopen their offices.

Second, it seems that the new interview process will be a bit different than what we are used to–

In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter and representative can fully and safely participate in the interview while maintaining social distancing.

This short description raises a few concerns related to (1) safety, (2) due process, and (3) security. In terms of safety, if the Asylum Officer is in his own room, that seems relatively safe, at least for the officer (though the officers still need to get to work and stay healthy in an environment with many coworkers). For the applicants, the situation is less clear. Presumably, they will have to wait in a waiting room. In normal times, we often spend considerable time waiting, as interviews are often delayed–sometimes for hours. I suppose applicants could be sent outside (to wander aimlessly?) and then contacted by phone when the officer is ready to see them. This would at least avoid overcrowding in the waiting area. Also, normally, asylum applicants have their fingerprints and photo taken when they check in to the interview. This often entails waiting in line while a staff member struggles with a fussy computer. Whether the offices have sufficient space to “social distance” while waiting to check in, I do not know.

During the interview, applicants are entitled to bring an interpreter and a lawyer. Will all those people share a room? No offense to my clients, but this is not very comforting. Will each of us have our own room? That seems to be the plan, at least in Virginia. Due to security concerns, Asylum Officers never left us unattended during interviews, even for a second, and so I am guessing that they will need empty rooms to put us into. But the rooms won’t be completely empty, since we will need video equipment (and hopefully chairs), and so I am not sure how that will work. Also, what stops us from leaving the room and wandering the halls of the Asylum Office (I myself might go in search of the mythical room where all my lost files are located). And where are they going to get all those empty rooms? My guess is that the “new normal” will involve far fewer interviews than the old normal, but I suppose the powers-that-be figure some interviews are better than none.

Another concern is due process. Asylum seekers are entitled to a fair procedure. I know from my experience in Immigration Court that video hearings are more difficult and less fair than in-person hearings, and I imagine the same will be true of asylum interviews. There is much that is easier in person. For example, at the beginning of the interview, the officer reviews the I-589 form and makes corrections. Sometimes, the officer wants to look at documents with the applicant. These things will be difficult to do if the officer and the applicant are in two different places. Also, if the lawyer, interpreter, and applicant are in different rooms, communication between them will be more challenging. Aside from this, it is simply more difficult to talk to a person by video (as we all now know from innumerable, interminable Zoom chats). This difficulty will be compounded if the applicant is wearing a mask, which may be necessary in the event she shares a room with her attorney or interpreter. All these protective measures will make it more difficult to interact with the Asylum Officer and will make an already stressful situation worse. In short, under the current circumstances, there will be significant barriers to receiving a fair adjudication.

An additional concern is security. Will the video equipment be secure, or might it be hacked by nefarious actors who want to harm asylum seekers? I do not know, but the federal government’s track record here is mixed, and for people seeking asylum, confidentiality is an important concern.

How does USCIS plan to keep asylum applicants safe? The agency has issued the following guidelines for entering USCIS facilities–

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points. 
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

My local office (Arlington) announced that telephonic appearances are not permitted for applicants because the Asylum Office must check identification. Also, the Asylum Office does not have any procedures for attorneys to appear telephonically (strange, since they do have telephones). All documents must be submit at least 72 hours before the interview, as there is apparently a new policy that requires 72 hours to pass before anyone can touch incoming mail. Finally, the Asylum Office will have a “very liberal” rescheduling policy, and so applicants can reschedule by email. Whether these same changes will apply at other offices, I do not know, but I imagine that all offices will follow similar procedures.

Like every other organization trying to reopen, USCIS is engaged in a difficult balancing act. How can they fulfill their mission and keep people safe? In my opinion, at the moment, they cannot do both. Given all the restrictions and contortions needed to make interviews happen, I expect they will only be able to interview a token few applicants. Under those circumstances, I do not see how it is worthwhile to endanger their staff and clientele (and anyone who comes into contact with them).

On the other hand, I know that many asylum seekers would be willing to take the risk. Not because they are reckless, but because they are so desperate to have their cases resolved and to reunite with family members. I can’t blame them for this.

There is no easy resolution to the dilemma. I hope USCIS will move cautiously, and I hope they will be able to keep people safe and provide them with fair interviews. We shall see.

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USCIS’s Budget Woes – And What Can Be Done About It

by Jason Dzubow

Due to the coronavirus pandemic and the Trump Administration’s harsh anti-immigration policies, USCIS–the agency that oversees much of the nation’s immigration and asylum system–expects that “application and petition receipts will drop by approximately 61 percent” through the end of the current fiscal year (September 30, 2020). As a result, the agency is seeking a “one-time emergency request for funding” from Congress for $1.2 billion “to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people.” The agency plans to pay back this money by “imposing a 10 percent surcharge to USCIS application fees.” Presumably, this is on top of the dramatically increased fees the agency announced late last year (but which have yet to be implemented).

Unlike most government agencies, USCIS is largely user-funded. Indeed, the agency derives 97% of its budget from fees paid by its “customers” (immigrants and petitioners). These fees also largely cover the cost of the asylum system, which is currently free to applicants (though USCIS’s recent fee proposal includes a $50 fee for asylum). According to a USCIS spokesperson, without the injection of cash from Congress, the agency “would be unable to fund its operations in a matter of months.” This could result in “drastic actions,” which might include staff reductions. Already, USCIS employees have been notified that the agency is “severely strapped for cash due to the low number of new applications being filed,” and overtime, travel, and purchases have been put on hold.

In short, things don’t look good for USCIS. So what can be done?

There are lots of ways USCIS can increase revenue without raising fees.

USCIS is seeking additional funding from Congress and plans to pay back the money by increasing fees. But it seems to me there are better and more equitable ways raise money.

One idea is to expand the use of premium processing. Currently, certain forms for employment-based immigration allow the petitioner to pay an additional fee ($1,440) and have their case processed more expeditiously. Cases that ordinarily take many months are processed within 15 calendar days (this is the equivalent of strapping a warp drive engine to a Conestoga wagon). Paying for premium processing does not necessarily mean you receive a final decision in 15 days, but at least you get a response–either an approval, a denial or a request for additional evidence. In my experience, even if you receive a request for evidence and your case takes longer than 15 days, it is still adjudicated much more quickly than if you did not use premium processing.

I have long advocated that premium processing should be available to asylum seekers, but why limit this service to certain types of cases? Why not make it available to all USCIS applications and petitions? The agency does not have to stick with its 15-day time frame or the current fee. Maybe there could be different levels of premium processing with different time frames and different fees. Maybe some types of applications are simply not amenable to premium processing. It seems to me that these things are knowable and could be explored.

The broader use of premium processing would benefit not just those aliens who can afford it (though they would benefit the most). The injection of additional money into the system would ultimately benefit everyone. Also, by removing premium-processing cases from the mix, USCIS would have fewer “regular” cases to deal with, which would presumably allow them to move more quickly through those cases.

The way I see it, premium processing is an all around win: It helps those who pay for it, provides an option for those who need it (since some people have very good reasons to expedite their cases), improves processing times even for those who do not pay for it, and brings more money into the system, which could help keep costs down for all of USCIS’s customers.

Another idea to raise funds would be to create an online legal aid service within USCIS. There are currently private, internet-based organizations that provide fee-based assistance filling forms, filing applications, and in some cases, providing legal advice. Lawyers (such as myself) tend to be wary of these organizations, as some seem less-than legitimate and because they often cannot provide the comprehensive help needed to identify problems and resolve complex cases (also, of course, they undercut our fees, which most of us find less than endearing). But for ordinary cases, without undue complications, such services can provide cost-effective assistance to people who otherwise might not be able to afford a lawyer or secure pro bono counsel.

If private organizations can provide this type of limited legal assistance, why can’t USCIS? They certainly have the expertise. Also, it is not unprecedented for government agencies to provide help to their constituents. For example, the Department of Veterans Affairs maintains a list of accredited representatives who help veterans and their family members for no fee or a low fee. If the VA can offer this service for free, why can’t USCIS offer a similar service for a reasonable fee? The assistance could take the form of “smart” fill-able forms that provide comprehensive advice about how to do it yourself, and maybe a hot-line or in-person office, where the applicant could obtain help. Fees would vary–automated assistance might be inexpensive (or at least comparable to the existing private agencies that provide this service), while “live” help would be more expensive. If this model is economically viable for private organizations, I imagine it would turn a profit for the federal government as well.

Like premium processing, an in-house legal aid program would benefit everyone. It would directly help the people who could afford it, but it would also help reduce the burden on existing non-profit legal aid organizations, and so they could serve more people in need. 

There are plenty of other ideas as well. For example, USCIS could re-instate adjustment of status based on INA § 245(i), where a person who entered the U.S. illegally can pay a penalty and obtain their residency based on a family or employment petition (currently, and with rare exceptions, people who entered illegally need to leave the U.S. to obtain residency). Also, USCIS could also stop wasting manpower and postage by arbitrarily returning applications for minor mistakes (which previously were addressed at the interview).

As you can see, USCIS has different options for increasing revenue. But given the Administration’s hostility towards immigrants, it is not surprising that they are choosing to raise fees, which is the least equitable and most damaging path available to them. With a minimum of creativity, they could come up with alternative solutions that would raise money, improve efficiency, and benefit migrants. Unfortunately, the primary concern of USCIS is not really the agency’s economic well-being. Rather, USCIS wants to weaponize fees in the same way it has weaponized bureaucratic procedures–to reduce immigration and prevent eligible people from obtaining status in the United States. 

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Neuroscience, Memory, and Credibility in Immigration Court

by Jason Dzubow

This article is by Aldis Petriceks of Harvard Medical School, Erin Shortell of Harvard Law School, and Dr. Francis X. Shen, JD, PhD. Executive Director, Massachusetts General Hospital Center for Law, Brain, and Behavior; Instructor in Psychology, Harvard Medical School; Senior Fellow in Law and Applied Neuroscience, Harvard Law School Petrie-Flom Center.

The success of an asylum claim relies, to a large degree, on the perceived credibility of an asylum seeker’s memory. The Real ID Act of 2005 states that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” (emphasis added). Asylum officers and immigration judges are told, in a sense, to act as mind readers, subjectively deciding whether or not to believe the narratives of asylum seekers.

But how do judges and asylum officers assess credibility? Additional evidence, such as physical signs of abuse or country-level evidence of systematic torture, can bolster credibility in this context. But such evidence may not be available, and even if it is, credibility assessments still turn on asylum adjudicators’ subjective perceptions of asylum seekers’ memories.

Introducing your authors: Aldis Petriceks, Erin Shortell, and Francis X. Shen.

Credibility determinations thus often rest on the consistency (or lack thereof) in an asylum seeker’s story. The REAL ID Act provides that “ … a trier of fact may base a credibility determination on … the consistency between the applicant’s or witness’s written and oral statements … , the internal consistency of each such statement, the consistency of such statements with other evidence of record … , and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”

Asylum applicants will often recount their stories at multiple points in the legal journey, including immediately upon entry into the U.S.; in a subsequent written affidavit; and before an asylum officer or immigration judge. If inconsistencies or inaccuracies emerge, the asylum adjudicator often infers that the asylum seeker intends to deliberately mislead him or her.

There is, of course, a logic to this inference. If the story changes, one might reasonably infer that the storyteller is purposely crafting a narrative more favorable to a preferred legal outcome.

Intuition is important, but decades of research into the neuroscience of memory suggest that such intuitions need to be carefully examined. Research conclusively shows that memory is not a digital recording of our lives, and thus changes in asylum seekers’ narratives over time may not be due to deliberate deception but rather to the nature of human memory itself.

Autobiographical memories are not accessed as one might re-watch a scene from a movie. Rather, memories are “dynamically reconstructed mental representations,” and they change every time they are retrieved and recounted.

Memory scientists typically talk about three phases of a memory: Encoding (when the sensory systems first register the sights, sounds, smells and more of an event); storage (when that memory gets tucked away in the brain for later use); and retrieval (when the memory is consciously recalled). Context affects each of these stages. Of great relevance to asylum seekers’ credibility is the well-known finding that trauma and stress affect how memories are initially encoded, whether and how they are stored, and how we consciously recall them.

The bottom line for credibility is that inconsistencies in autobiographical recall may not reflect a willful attempt to bend the truth, but rather the biological reality that recalling memories usually involves modification of those memories in ways of which most people are not fully aware.

Do asylum adjudicators take notice of this neuroscience? In theory, they could. The Refugee, Asylum, and International Operations Directorate (“RAIO”) Manual for Officer Training tells officers that it is “[their] job to determine whether those inconsistencies and/or contradictions are due to a lack of credibility or may be explained by other factors.” One of these “other factors” is the basic neurobiology of trauma and memory. But in practice, it is difficult to gauge the extent to which asylum officers abide by this instruction.

What would it mean for asylum adjudicators to better understand the relationship between memory, narrative inconsistency, credibility, and the human brain? To begin, it would entail the realization that many asylum seekers have endured tremendous trauma, and that this trauma often has documented effects on memory. Asylum seekers who have experienced trauma in their home countries, on the way to the U.S., or upon entry into the U.S., are often burdened by these effects. Brain scan research on individuals with PTSD, for instance, finds decreased activity in the brain networks associated with autobiographical memory, and an associated decrease in specific autobiographical recall. Given the prevalence of PTSD among asylum seekers, it is likely that many otherwise credible refugees will fail to describe their journeys, fears, and traumas in a detailed, coherent manner across multiple interviews. This failure, however, does not necessarily indicate a lack of credibility.

Acute stress often interferes with autobiographical memory. People perform more poorly on memory tests after injections of hydrocortisone, a compound which mimics the effects of cortisol on the body. When faced with significant trauma, children often recount memories in a vaguer, less detailed manner, regardless of the presence or extent of primary psychological conditions.

It remains unknown exactly how trauma and memory are related in the brain. Some researchers believe that trauma leads to an over-general mode of autobiographical memory largely because the exclusion of detail might prevent re-traumatization. Others argue that trauma directly alters the activity of certain neurological networks, changing one’s ability to retrieve and recall specific memories. Regardless of the particular theory embraced, however, there is general agreement that people with histories of trauma have more altered capacities to remember specific details of events in their lives, and that those alterations are at least associated with measurable changes in neurological structure, function, and physiology.

So far, this neuroscientific knowledge has not been widely introduced to asylum officers or immigration judges. When these adjudicators determine that an applicant is not credible, “they overwhelmingly rely on inconsistencies within or among the various versions of the applicant’s story.” Can this gap between scientific understanding of memory and legal practice be bridged? At the MGH Center for Law, Brain, and Behavior, we think the answer is yes—with sustained effort and input from multiple disciplines.

Three areas are ripe for exploration. First, attorneys and judges need an improved understanding of how autobiographical memory works. To be sure, memory neuroscience cannot provide an asylum officer or immigration judge with an individualized “credibility detector.” But neuroscience can provide evidence for re-examining default presumptions that tend to equate inconsistency with deliberate falsehood.

Second, scientific articles standing alone are not sufficient to inform legal doctrine and practice. Actionable neuroscience requires the development of materials that can be readily adapted by lawyers to put forth arguments related to neuroscience, memory, trauma, and credibility.

Third, extended dialogue is required to explore both the promise and pitfalls of introducing neuroscience into asylum case law. For instance, might neuroscience memory research allow government lawyers to challenge otherwise consistent recollections? Just as a criminal defense attorney might call a “false memory” expert to aid his or her client’s defense, could similar arguments be made in the asylum context to undercut genuine claims of persecution? These and other concerns must be adequately addressed as part of an on-going law and neuroscience dialogue.

As with any new endeavor, the path for neuroscience and law in asylum cases is not clear. But there is much promise, and we hope there will be much more dialogue in the future.

About the MGH Center for Law, Brain, and Behavior: The Center for Law, Brain, and Behavior works at the vanguard of applied neuroscience, making neuroscience actionable for the legal community in order to ensure just and positive outcomes for all those affected by the law. Though the brain and the law are both complex, our work is quite simple: helping judges, lawyers, case workers, enforcement agents and many other actors across the legal ecosystem determine the right solutions for the right people and cases. We promote and enable the sound application of accurate neuroscience to critical areas of the legal process: criminal trials and sentencing, juvenile justice, elder protection and immigration enforcement and asylum. For more, see clbb.org.

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No More Immigration? Let’s Wait and See

by Jason Dzubow

In response to the pandemic, President Trump has Tweeted that he will “temporarily suspend immigration into the United States.” What does this mean? Does President Trump have the authority to suspend immigration into the country? Will the order affect people who are already here? How long will this “temporary” suspension last?

The answer to most of these questions is that we don’t yet know. While the President likes to announce policy changes on Twitter, the announcement should not be confused with the policy change. We will need to wait for the Executive Order to know the details of this plan. But speaking generally, it seems to me that the President probably does have the authority to suspend immigration during a health emergency. As my friend Alex Nowrasteh, Director of Immigration Studies at the Cato Institute, states, “Title 42 of the U.S. Code enables the president to halt immigration for health reasons, while a recent Supreme Court decision upholding his travel ban gives him unlimited authority on immigration.”

Since the U.S. has more cases than any other country, it obviously makes sense to block immigrants from coming here.

Also, the President has broad authority over immigration as set forth in the Immigration and Nationality Act. For instance, INA § 212(f) provides, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Another section, INA § 215(a) states, “Unless otherwise ordered by the President, it shall be unlawful… for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” These sections are quite broad, and have not been tested in court, but given the Supreme Court’s position on immigration in recent cases, it seems likely that an order suspending immigration into the country during the pandemic would be upheld.

In practical terms, though, I am not sure what the suspension actually means. For one thing, immigration is effectively already suspended, given that U.S. Embassies are generally not issuing visas and most flights are canceled. Also, there are existing restrictions on travel from many countries, including China and the EU. So whether an executive order actually changes anything, I am not sure.

Finally, in terms of the unknowns, it is important to wait for the actual Executive Order. Once we have that, we can analyze the legality of the order and any practical effects. Speculating about what the order will say is not helpful, and will likely only result in unnecessary stress. The Trump Administration has been targeting immigrants from the get go, and so this is just one more effort in that direction. We do not know whether the order will impact people already in the U.S. who are seeking status (asylum seekers or applicants for permanent residency). We also do not know if it will affect people with pending applications or applications for work permits. We do not even know if the order will affect people seeking to enter the United States with a non-immigrant visa. Indeed, we know nothing except what was contained in one late-night Tweet.

The fact is, while the President has broad authority over immigration (especially given the deferential position of the Supreme Court), that authority is not unlimited. Under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” So for example, while there may be a rational basis to prevent people from coming into the United States during the pandemic, it will be harder to justify denying asylum or a Green Card to people who are already here (aside from that, given the time frame for most applications, the pandemic may be long over before they are adjudicated).

In short, despite the President’s ominous Tweet, we need to remain calm. It’s unlikely to make any real difference in the short term, and when the pandemic eases, which it inevitably will, the justification for an order limiting immigration will be much weaker.

It is truly unfortunate that our President seems only to have one solution for every problem: Blame foreigners. In the mean time, our country has become the epicenter of the pandemic, with more cases and more deaths than any other nation. Yet another attack on noncitizens will not help our economy and will not keep us healthy. For now, we will have to wait to see what the Executive Order says, but regardless, we the people must continue to support each other and to stand together against the coronavirus and against the unjust attacks on our noncitizen neighbors. 

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The Coronavirus Is Divine Punishment for Our Sins

by Jason Dzubow

There’s a long tradition in the U.S. (and around the world) of blaming minorities for natural disasters. Conveniently, the people targeted for this type of scapegoating are usually powerless, and are often already despised by the people doing the blaming. The present pandemic is no exception. A clergyman who teaches Bible classes at the White House recently posted a piece, asking in response to the coronavirus, Is G-d Judging America Today? The predictable answer is yes, and the predictable reason is related to “sins” such as “environmentalism” (gasp!) and “homosexuality” (double gasp!). 

But how do we know which sins result in divine punishment? And what communal penalty is appropriate for a particular sin? Was 9-11 heavenly retribution for abortion (per Jerry Falwell)? Did Hurricane Katrina devastate New Orleans in retaliation for that city’s support of a gay pride parade (John Hagee)? And was Hurricane Harvey sent to drown Houston because it elected a lesbian mayor (Kevin Swanson)?

I’m not normally a fan of attributing natural disasters to human sins, but since it’s Passover–a holiday where we remember ten plagues visited upon the Egyptians for enslaving Jews–I thought I might give the whole “divine retribution” thing a try.

A group of Bible scholars protests the government’s treatment of asylum seekers.

And now that I think about it, the idea that G-d is punishing us with a virus doesn’t seem all that far fetched. After all, the Egyptians suffered boils, so there is obviously precedent for sending a disease to smite wrongdoers. But which sin would trigger a coronavirus pandemic? Certainly not the “sin” of homosexuality. That causes hurricanes. Obviously.

When you look at what’s happening in our country and the world, it seems pretty clear which sin is responsible for our current troubles–the sin of xenophobia. What’s that you say? You object? You say that xenophobia is not a sin? Let’s take a look at our handy Bible to learn more–

Exodus 12:49 – There shall be one law for the citizen and for the stranger who dwells among you.

Exodus 22:20 – You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.

Leviticus 19:33-34 – When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.

Numbers 15:14-16 – There shall be one law for you and for the resident stranger; it shall be a law for all time throughout the ages. You and the stranger shall be alike before the Lord; the same ritual and the same rule shall apply to you and to the stranger who resides among you.

Deuteronomy 27:19 – Cursed be he who subverts the rights of the stranger, the fatherless, and the widow.

Etc., etc., etc. You get the idea. We are commanded–repeatedly–to treat the stranger as we treat the citizen. Those who mistreat the stranger will be cursed. So the Biblical foundation for our current troubles is clear.

But as our President loves to point out, the coronavirus began in China. Are they guilty of xenophobia? Indeed. Not long after Xi Jinping came to power in 2012, the Chinese government started implementing a series of increasingly restrictive measures against the Uyghur ethnic minority. These include forcing as many as one million men, women, and children into “re-education” camps in order to change their political and religious thinking to be more aligned with Communist Party ideology. To students of the Passover story, the persecution of the Uyghurs sounds eerily familiar–

Exodus 1:8-10 – A new king arose over Egypt who did not know Joseph [a leader among the Israelites]. And [the king] said to his people, “Look, the Israelite people are much too numerous for us. Let us deal shrewdly with them, so that they may not increase; otherwise in the event of war they may join our enemies in fighting against us and rise from the ground.”

And so the pharaoh enslaved the Jews. The rest, as they say, is history.

What about the United States? We are now the epicenter of the disease. Why are we being subject to G-d’s wrath? The obvious answer is that we have failed to treat citizens and strangers in a like manner. We have wronged the strangers who live among us. How?

Even before President Trump came to power, our country treated non-citizens and citizens differently. There are good reasons for doing so, of course: National security, preserving the welfare state, assimilating new arrivals in an orderly way. But some of the differences seemed less-well grounded in sound public policy: Mass immigration raids, private prisons, limited due process. Since President Trump’s ascension, though, our immigration policies have been driven by lies and xenophobia: Separation of children from parents, dramatically reduced protections for certain asylum seekers (particularly women fleeing domestic violence), the Muslim ban, the virtual elimination of due process at the Southern border, the draconian and nonsensical public charge rule, expansion of expedited removal, and on and on. We’ve also been subject to plenty of lies about non-citizens: Asylum seekers are rapists, criminals, and fraudsters, refugees burden our economy, Mexico will pay for the wall. Not to mention the coddling of white supremacists in Charlottesville and elsewhere. All this has resulted in a terrifying and inhospitable environment for non-citizens in the U.S. today.

Thus, it’s painfully obvious that we as a nation are failing to love the stranger as we love ourselves (Leviticus 19:34), that we are wronging and oppressing the stranger (Exodus 22:20), and that we have different laws for the stranger and the citizen (Numbers 15:14). Given all this, it’s not surprising that we have been cursed (Deuteronomy 27:19). The coronavirus is the manifestation of this curse; it is divine wrath for our sin of xenophobia. I suggest we put on sack cloth and self-quarantine for two weeks to repent.

Of course, I don’t really believe that the pandemic is divine retribution for the sin of xenophobia (or for any other sin). However, it’s hard to escape the conclusion that our mistreatment of “the other” is making things worse. Why do certain Immigration Courts remain open, forcing non-citizens and everyone involved in the system to risk their health? Why are we continuing to detain asylum seekers in unsafe conditions, even those who do not pose a danger to the community? Why do we deny economic relief to some immigrants (health care workers, agricultural workers, service industry employees) who are on the front line of the fight against the disease and who are working to keep the rest of us safe and fed?

As I see it, there is great wisdom in the words of the Bible, which make clear that we are all in this together. We will succeed or fail against the disease not as citizens and strangers, but as people, united in our common effort. The coronavirus does not discriminate based on nationality or race. Neither should we.

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Some Asylum Seekers Will Qualify for a Stimulus Payment

by Jason Dzubow

In response to the economic disaster caused by the coronavirus pandemic, Congress has passed a $2.2 trillion aid package. Part of that package includes direct payments to individuals. Most U.S. citizens and lawful permanent residents will receive a payment, but what about asylum seekers and asylees?

First, for all potential beneficiaries, the payment is dependent on your income. From the Washington Post—

Individuals with adjusted gross incomes up to $75,000 a year will be eligible for the full $1,200 check. Reduced checks will go out to individuals making up to $99,000 a year (the payment amount falls by $5 for every $100 in income above $75,000).

Married couples are eligible for a $2,400 check as long as their adjusted gross income is under $150,000 a year. Reduced checks, on a sliding scale, will go out to married couples who earn up to $198,000. Married couples also will receive an additional $500 for every child under 17.

People who file as a “head of household” (typically single parents with children) are eligible for a $1,200 check if they have an adjusted gross income up to $112,500 a year. Reduced checks on a sliding scale are available for heads of household earning up to $136,500 annually. Heads of household will also receive an additional $500 per child under 17.

You can calculate how much you and your family will receive here.

“Imagine how much TP I could buy with $1,200.00!”

Second, assuming you qualify for the payment based on your income, you must also have a valid Social Security number. For married couples, it seems that both spouses must have SSNs. According to the Tax Policy Center, “If one spouse has an SSN, but the other does not, the couple is ineligible for the payment (there is an exception for military families).”

Third, you would have had to file taxes for 2018 or 2019. If you did not file, you are ineligible for the payment. However, if you were not required to file taxes in those years, you can now file a “simple tax return” in order to establish your eligibility for the payment (presumably, this means filing the IRS form 1040 or the 1040-SR if you are over 65 years old). For those who should have filed taxes in 2018 or 2019, but failed to file, you can file now and still qualify for the payment. The IRS urges people who file to include direct deposit banking information on their tax return, in order to facilitate the payment.

Also, if you need help with issues related to back taxes and filing, you may be able to get assistance from your local Low Income Tax Clinic (many of which are apparently still operating in some capacity through the pandemic).

Fourth, to qualify for the payment, you must be a U.S. citizen or a lawful permanent resident (i.e., a Green Card holder) (though some LPRs who have spent significant time outside the U.S. might not qualify for the payment). Others who reside lawfully in the U.S., such as asylees and asylum seekers, may also be eligible for the payment, as long as they are not “nonresident aliens,” as defined (in a very confusing manner) by the IRS. According to the Internal Revenue Service—

An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test.

The Green Card Test states that an LPR is considered a resident of the United States for tax purposes (and is thus eligible for the stimulus payment) as long as he or she spent at least one day in the U.S. during the relevant tax year.

The Substantial Presence Test is a little trickier. For that, you need to have at least 31 days in the United States during the current year and 183 days in the U.S. during the three-year period that includes the current year and the two years immediately before that. However, when counting towards the 183 days, days in prior years count for less, according to the following formula—

A. Current year days in United States x 1 =_____days

B. First preceding year days in United States x 1/3 =_____days

C. Second preceding year days in United States x 1/6 =_____days

D. Total Days in United States =_____days (add lines A, B, and C)

If line D equals or exceeds 183 days, you have passed the183-day test.

So for example, let’s say you were physically present in the U.S. for 120 days in each of the years 2017, 2018, and 2019. To determine if you meet the substantial presence test for 2019, count the full 120 days of presence in 2019, 40 days in 2018 (1/3 of 120), and 20 days in 2017 (1/6 of 120). Since the total for the three-year period is 180 days, you are not considered a resident under the substantial presence test for 2019, and would likely not qualify for the stimulus payment. A word of caution here: I am not a tax lawyer (thankfully) and so there may be arguments to make here in order to qualify for the payment. If you do not receive the payment and feel you should have, you may want to seek help from a tax professional.

My sense from all this is that asylees and asylum seekers who have been here and paid taxes in 2018 and/or 2019 will likely qualify for the payment (unless they have spent substantial time outside the U.S., which is rare for such people). Asylum seekers and asylees who have been in the U.S. for a shorter period of time, or who did not have a work permit until recently (or who did not yet get a work permit) will likely not qualify for the payment.

If you do qualify, you should not have to do anything to receive the payment–it should be credited to your account or mailed directly to you. Some people–such as those who did not pay taxes in 2018 or 2019–may need to take action, as discussed above. Also, the IRS has created a webpage to provide updates and information about the stimulus payments. At present, the webpage is pretty sparse, but the IRS says it will be updated with additional information soon.

One final point, asylees and asylum seekers are not subject to the “public charge” rules that went into effect in February. Therefore, receiving this payment (or any other type of assistance, including unemployment benefits or means-tested aid) will have no effect on an asylum case, or on an asylee’s application for a Green Card. For non-asylees, it seems pretty clear that the stimulus payment and unemployment benefits would not impact the public charge analysis. Other types of benefits could create a public charge issue (again, this is for people who are not asylees or asylum seekers). Talk to a lawyer if you are not sure or need help with this.

To say the least, these are difficult times for everyone. But the situation is particularly hard on those who are most vulnerable, including many immigrants and asylum seekers. I hope that the stimulus program will provide help to those most in need, and that we will see better days ahead soon.

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The Asylum Seekers’ Guide to Surviving Coronavirus

by Jason Dzubow

The current pandemic is unprecedented in modern American history. Maybe the closest analog is the influenza epidemic at the end of World War I. My grandmother was hospitalized during that affair–in 1919, when she was just six years old–and I remember a story she told me about looking out the window and watching nurses walk up and down the alleyway with soldiers who had been blinded by mustard gas during the war.

Our society has changed a lot since those antediluvian days, but fear, uncertainty, and misinformation seem as pervasive today as in accounts of those earlier times. For me, I draw inspiration from my grandmother, Evelyn Weiss, who lived to be 92. I also feel inspired by my asylum-seeker clients, many of whom have lived through difficult, dangerous, and stressful times, and gone on to build meaningful and successful lives.

For most of us, I daresay, this is a confusing and frightening time. But for non-citizens living in the U.S., far from their support systems and possibly with limited English, I imagine the situation is even more challenging. This is particularly true for people with pending cases, whose status in the U.S. is not secure.

A couple weeks at home with my family. What could go wrong?

Here, I want to provide some resources for asylum seekers and other non-citizens who are navigating life in the age of coronavirus. One word of caution–the situation with regards to the virus and the government’s response is rapidly evolving. For that reason, rather than post much about what is happening now (information that likely will be stale in a few hours), I have focused below on providing links to government websites and other resources, which may be of use. So check those pages, as they should provide up-to-date information about the ongoing crisis.

Immigration Court Cases: As of late last night, all non-detained hearings have been canceled through April 10, 2020. When those cases will be rescheduled, we do not know.

If you have a case scheduled after April 10, 2020, you can check whether your hearing will go forward online or by calling 800-898-7180 and entering your Alien number on the phone keypad. You can also check whether particular courts are closed or partially closed, here. If you are still unsure, you can call the court directly and try to talk to a clerk (this is not always easy). 

For detained cases or cases scheduled after April 10, 2020, you may be able to postpone your hearing, if necessary. To do that, you (or hopefully, your lawyer) would file a motion for a continuance. Normally, this is a burdensome and uncertain process, though presumably if the emergency persists, most Judges will be flexible about honoring such requests (though not all Judges are so cooperative).

If you are without an attorney and you need help with your case, there may be pro bono (free) assistance available. I wrote about that here. 

If you are interested in learning about the dangers facing detained asylum seekers (most of who have no criminal issues), here is a good piece from NPR.

Asylum Office Cases: As of this writing, Asylum Offices will be closed to the public until at least April 1, 2020. For interviews scheduled before that time, applicants will receive a cancellation notice, and the case should be rescheduled once normal operations resume (in normal times, rescheduled cases are given the highest priority for a new interview date, but I have not seen an announcement about how rescheduled cases will be handled during the emergency). In addition, there will be no in-person decision pick-ups. Instead, all decisions will be mailed out (so make sure that if you move, you update your address). If you need to inquire about your case status, you can do so by email–you can find the appropriate email address here. For any communication with the Asylum Office, make sure to include your name and Alien number. If you plan to submit additional evidence for a case, it is probably best to wait until normal operations resume, but if you must submit evidence, do so by mail (you can find the mailing addresses for the various offices here, but be careful, as some offices have different mailing and physical addresses).

Aside from in-person appointments, USCIS is making an effort to continue normal operations, and so presumably, you can still file new asylum cases and receive receipts (but biometric appointments are not currently being scheduled). Also, if you are eligible to apply for a work permit based on a pending asylum case, you should be able to do so.

Once normal operations resume, note that the Asylum Offices have a liberal postponement policy, and you are urged to postpone your interview if you do not feel well or you believe you might have been exposed to coronavirus. At least for the time being, there is no penalty for postponing a scheduled asylum interview, and it will not stop the clock for purposes of work authorization.

Other USCIS Cases: All in-person appointments with USCIS are canceled until at least April 1, 2020. This includes interviews, biometric appointments, and naturalization oath ceremonies. However, USCIS is still operating, and so you can file new cases and receive receipts.

Once normal operations resume, you can cancel your appointment if that is necessary. For more information about canceling an appointment, see this link. USCIS states that there is no penalty for rescheduling, though we do not know the time frame for when cases might be rescheduled.

ICE Check-ins: For those required to check-in with ICE, the agency indicates that you should contact your local field office prior to your appointment. You can find that contact info here. It seems that different offices have different policies, and unless you can confirm in advance that reporting is not necessary, it is best to appear for any appointment. Hopefully, ICE will issue more useful guidance soon, as it is difficult to communicate with field offices, and they are endangering people (including their own workers) by failing to create a coherent plan.

Traveling Outside the United States: Advance Parole (“AP”) is a way for people with pending asylum cases to travel overseas and then return to the U.S. (I wrote about it here). Given the pandemic, you probably can’t get a flight out of the U.S. anyway, but if you can, it is probably a bad idea to travel with AP. Given the restrictions currently in place blocking people who have traveled through China, Iran, and the Schengen area, if you leave the U.S. with AP, you face the real possibility of being unable to return. If you are prevented from returning and your AP expires, there may be no way back to the country (except to apply for a new visa, and you know how hard that is).

For people who have asylum, you can get a Refugee Travel Document (“RTD”), which allows you to leave the U.S. and return. However, as I read the travel restrictions, I do not feel confident that people with an RTD will necessarily be able to return to the United States if they are coming from an affected area. There are exceptions to the travel restrictions–for U.S. citizens, lawful permanent residents, and several other categories of people–but there is no specific exception for asylees or refugees with an RTD. While it makes sense that such people can return to the United States, this Administration has taken a very hard line towards non-citizens, and without an explicit exception to the restriction, I think you have to be extremely cautious about leaving the country at this time, even with a valid RTD.

Healthcare: Healthcare for people without legal status in the U.S. has always been a challenge, but now the situation has become critical. If any one of us cannot get the health care we need, all of us are potentially affected. The fact is, there are resources available to everyone, even people who are not in lawful status or who have pending cases. If you need to find a health clinic, the National Association of Free and Charitable Clinics is a good place to start. On their website, you can find medical clinics based on your zip code. On a longer term basis, certain non-citizens–including asylum applicants–might be able to qualify for government-subsidized health insurance.

If you think you may have coronavirus, you can contact a government-funded health center. Such centers serve everyone, regardless of immigration status, and provide reduced-fee or free healthcare services. You can search here by zip code to find a health center near you.

If necessary, you can also go for help to the emergency room of your local hospital. From the National Immigration Law Center website–

Under federal law, hospitals with emergency rooms must screen and treat people who need emergency medical services regardless of whether they have insurance, how much money they have, or their immigration status. Similarly, anyone can seek primary and preventive health care at community health centers regardless of whether they are insured, their ability to pay, or their immigration status.

The NILC website has a list of additional resources for non-citizens in need of healthcare or assistance. Finally, the Center for Disease Control has advice about what to do if you are sick and about how to protect yourself from getting sick in the first place.

Unemployment Insurance and Other Assistance: If you are legally authorized to work and you lose your job, you may be eligible for unemployment insurance. Details about obtaining unemployment insurance vary by state, and you can learn more here. The federal government also provides helpful information about unemployment insurance.

In addition, some non-citizens may be eligible for other benefits, such as Supplemental Nutrition Assistance Program (SNAP, formerly known as the Food Stamp Program), nonemergency Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). You can learn more about the legal requirements for such benefits here. To get help obtaining such aid, you might start by reaching out to a local non-profit that assists immigrants. Such organizations might be able to point you in the right direction.

Staying Safe: I am no health expert, but given that those in the know recommend “social distancing” as a way to check the epidemic, it seems to me that (after much dithering) USCIS and EOIR made the right call to postpone in-person appointments and non-detained cases (and hopefully, ICE will follow suit). For many people waiting for their cases, this is another blow, and will be very painful. Once the crisis abates, you can try to expedite your asylum office case, your USCIS case or your court case. Until then, stay safe and if you find any toilet paper, send it my way!

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On Luck

by Jason Dzubow

For years, practitioners and academics have complained about inconsistent decisions at the Asylum Offices and the Immigration Courts, and there’s plenty of data to back up this concern. Recently, two sets of cases in my office brought this problem home, and illustrated how luck impacts who receives protection in the U.S. and who does not.

The first set of cases involves two siblings whose uncle was a well-known member of the political opposition. As a result of the uncle’s activities in the early 2000’s, his siblings–including my clients’ father–were all arrested and held in jail for years. Thus, for a good portion of their childhood, my clients grew up without their father. After he was released, the father resumed his life and his children (my clients) eventually came to the United States to study. While they were here, the father was re-arrested for seemingly pretextual reasons. Fearing for their own safety, the siblings filed for asylum. Both cases were referred to Immigration Court, and the siblings hired me for their cases. As far as I could tell, the cases were exactly the same. Neither sibling had engaged in political activity; both cases were based on the relationship with their high-profile uncle and the home government’s persecution of the entire family. Also, we submitted the same evidence in each case and both applicants were found credible. The only difference between the two cases is that the siblings had different Immigration Judges. The first case was before a judge with a 62% denial rate and the second case was before a judge with a 91% denial rate (according to TRAC Immigration). We won the first case and DHS did not appeal,. So in a sense, the second case was different in that one sibling had already been granted asylum. Unfortunately, that was not enough. DHS opposed asylum in the second case (even though they had not appealed the grant in the first case) and the IJ denied relief. The case is currently on appeal.

Sometimes, it may make sense to try to change venue.

The second set of cases involves members of a religious minority who faced persecution by their government and by extremists in their country. These cases were before the Asylum Office. The lead applicants were all related, either as siblings or in-laws, they were members of the same congregation back home, and they faced mostly the same persecution. Also, we submitted similar evidence in each case and all the applicants were deemed credible. Out of four cases in 2019 and 2020, we received three grants and one denial. The main difference between the four lead applicants was that the person who was denied had the strongest case due to past imprisonment in his country. Also, the denied case was the most recent decision, and so we had informed the Asylum Office that other family members were granted asylum on basically the same facts. In the denied case, the Asylum Office found that the applicant suffered past persecution, but found that country conditions had changed, such that the situation was now safe. It seems odd that the Asylum Office would find changed country conditions in one case, but not the others. The referred case is now before an Immigration Court.

So here we have two situations where the applicants presented nearly identical cases, but received different results. Why did this happen? As far as I can tell, the reason is luck: Some adjudicators are more likely to grant asylum than others, and this gives us inconsistent results. Also, some adjudicators seem to be inconsistent from one case to the next, in that their mood at a given moment may influence their decision. And so, the outcome of a case is dependent–at least in part–on the luck of the draw.

This is obviously not a good thing. While I agree with former Chief Immigration Judge MaryBeth Keller that we “don’t want decisions on asylum made according to mathematical formulas as if by computers,” I do think disparities are a serious problem, which should be addressed at the policy level. But what can individuals do about the problem of luck in asylum cases?

In thinking about this question, I am reminded of Reinhold Niebuhr’s Serenity Prayer–

G-d, grant me the serenity to accept the things I cannot change,
Courage to change the things I can,
And wisdom to know the difference.

But how do we know what we can change? Some things are obvious: We can gather the evidence needed for a case, make an appropriate legal argument, try to weed out inconsistencies, prepare testimony beforehand, dress appropriately for court, etc. For those who can afford it, having a competent attorney can make a big difference. For those who cannot afford legal help, securing pro bono (free) assistance is important (though finding pro bono help is often not easy).

Some things are harder to control. For Immigration Court, it is possible to get an idea about the asylum grant rate for your particular judge (for newer judges, data may not be available). If you find your judge has a particularly high denial rate, you might consider moving to a new jurisdiction in order to change venue to a different court, where you will hopefully get a better judge. I rarely recommend this option to my clients, as moving is largely a crap shoot–the IJ may refuse to transfer the case, you may end up with a worse judge despite the move (and a judge who may be “bad” for most applicants might be “good” for certain types of cases), and you may substantially delay the case. Also, of course, moving to a new state is disruptive and expensive. Despite all this, if you have a particularly difficult judge, it may make sense to try to move the case.

Forum shopping is even less useful for cases at the Asylum Office. While there is some data about the overall grant rates for the different offices, there is no information available about the individual Asylum Officers. Even if such data existed, it would be of little value, since you won’t know who your Officer is until the day of the interview, when it is too late to switch. While it is possible to move to a jurisdiction with an “easier” Asylum Office, given all the variables, this often makes little sense. On the other hand, if you have the flexibility to live anywhere, why not live somewhere with a good Asylum Office?

For the most part, then, you are stuck with your adjudicator, but you have a fair bit of control over the case you present. In my experience, it is more productive to focus on the case itself, rather than worry about who will decide that case. In the end, the absence of control is a fact of life for asylum seekers and for us all. Perhaps a quote from another of my favorite theologian–Saint Augustine–provides an appropriate conclusion here: Pray as though everything depends on G-d. Work as though everything depends on you. At least in this way, you cover all your bases.

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New Data Shows that Most (But Not All) Asylum Offices Are Getting Tougher

by Jason Dzubow

Last fall, the Asylum Division cancelled its quarterly stakeholder engagement meeting and postponed the release of data about the various Asylum Offices. Now, finally, that information has been released. The news is generally bad (who would have guessed?), but the data contains some bright spots and surprises–as well as a few mysteries. Here, we’ll take a look at the most recent news from our nation’s Asylum Offices.

First, the data. The Asylum Division has released statistics for FY2019, which ended on September 30, 2019. The data shows that despite the Trump Administration’s hostility towards asylum seekers, many people continue to seek protection in the United States–through the fiscal year, a total of 82,807 new affirmative asylum applications were filed (and remember that some of these cases include dependents, so I imagine the total number of people filing for asylum in FY2019 is well over 100,000). Case completions are still not keeping up with new filings, and the overall asylum backlog continues to grow: From 323,389 at the beginning of the fiscal year, to 339,836 at the end. Throughout the year, the number one source country for new asylum cases was Venezuela. China was number two for most of the year, followed by Guatemala, Honduras, El Salvador, and Mexico.

In terms of grant rates, the news is fairly negative, but not uniformly so. As an arbitrary base-line, I will use a post I did in February 2016 about Asylum Office data from the second half of FY2015 (April to September 2015). I calculated the percentage of cases granted at each Asylum Office. In crunching the numbers, I discounted cases that were denied because the applicant failed to appear for an interview, but I included cases that were denied solely because the applicant failed to meet the one-year asylum filing deadline. I’ve made the same calculations for the period April to September 2019, and compared the grant rates for both time periods in the chart below. 

Whenever a lawyer does math: Beware!

As I mentioned, I did not include “no shows” in my data. For this reason, government statistics about the asylum grant rate will be lower than my numbers, since they include people who failed to appear for their interviews. If I had included “no-shows,” the FY2019 grant rate in Arlington would be only 19.5% (instead of 26.5%, as shown in the chart). The New York grant rate would drop to a paltry 7.1%, and the grant rate in San Francisco–the “best” asylum office–would fall to a still-respectable 54.0%. Arguably, it makes sense to include “no shows,” since some people may not appear due to no fault of their own. However, I chose to leave them out, since I suspect most have either found other relief or have left the country, and I don’t think it is useful to evaluate Asylum Offices based on denials where the applicant never appeared for an interview.

One problem with my comparison is that there are more asylum offices today than there were in 2015. The two new offices are Boston and New Orleans. The Boston office was previously a sub-office of Newark, and the New Orleans office was part of the Houston office (though in truth, I am not sure whether all of New Orleans’s jurisdiction was covered by Houston, or whether some was covered by Arlington). To account for this, the first numbers listed for Houston and Newark for FY2019 is the percentage of cases granted in that office. The numbers in parenthesis for Houston and Newark include cases that would have been within the jurisdictions of those offices in FY2015 (i.e., the New Orleans cases are included with Houston and the Boston cases with Newark). Thus, the parentheticals are useful only for comparison with the FY2015 numbers; if you are just interested in the percentage of cases granted in Houston and New Orleans in FY2019, look only at the first number.

The same chart, but here, I have removed one-year bar denials (reminder: Beware!!).

As you can see, there is an overall decline in the grant rate at most offices. In some cases, this decline is quite significant. One office–Houston–bucked the trend and actually granted a higher percentage of cases than in FY2015.

But perhaps things are not quite as bad as they appear. The numbers in the first chart include cases denied solely because the applicant failed to file asylum on time (remember that you are barred from asylum unless you file within one year of arriving in the U.S. or you meet an exception to that rule). In the second chart, I factored out cases that were denied solely because they were untimely (the Asylum Offices have been identifying late-filed cases and interviewing them; unless the applicant overcomes the one-year bar, the case is referred to Immigration Court without considering the merits of the asylum claim; since they are interviewing many such cases, this is pushing overall denial rates up). Comparing the two fiscal years in chart two, the decline in grant rates is much less severe. Indeed, three offices granted a higher percentage of timely-filed cases in FY2019 than in FY2015.

So what’s happening here? Why did grant rates generally decline? Why did some offices improve? What does all this mean for asylum seekers?

First of all, these numbers must be taken with a big grain of salt (and not just because I am an incompetent mathematician). A lot is going on at each Asylum Office. Different offices have different types of cases, including different source countries, greater or fewer numbers of unaccompanied alien children (“UAC”) cases, and different policies in terms of interviewing untimely applicants. As a result, some offices may be interviewing more “difficult” cases, while other offices are interviewing more “easy” cases. Offices that interview many Central American cases, or many UAC cases, for instance, will likely have lower grant rates than other offices. This is because Central American cases and UAC cases are more likely to be denied than many other types of asylum cases. Also, some offices are more aggressive than others in terms of identifying and interviewing untimely asylum cases. Offices that interview more late-filed cases will likely have a higher denial rate than offices that interview fewer late-filed cases.

Despite all this, it is fairly clear that the overall trend is negative. One obvious reason for this is a series of precedential cases and policy changes during the Trump Administration that have made it more difficult for certain asylum seekers, particularly victims of domestic violence and people who fear harm from Central American gangs. In addition–and I think this is probably less of a factor–the leadership at DHS and DOJ has repeatedly expressed hostility towards asylum seekers and encouraged the rank-and-file to identify and deny fraudulent applications.

Finally, as my colleague Victoria Slatton points out, it’s possible that the negative trend is worse than what the numbers above reflect. In FY2015, the Asylum Division gave priority to UAC cases. Since such cases are more likely to be denied, interviewing more of them may have pushed the overall grant rates down. In FY2019, UAC cases were not given priority, meaning that (probably) fewer UACs were interviewed. All things being equal, fewer UAC cases should mean a higher overall approval rate, but that is not what happened at most Asylum Offices. This may mean that more non-UAC cases are being denied today than in FY2015.

As you can see, there are a lot of moving parts, and a lot is going on behind these numbers. In one important sense, though, things have not changed much in the last four years. Strong cases still usually win; weak cases often fail. For asylum seekers (and their lawyers), we can only control so much of the process. Submitting a case that is well prepared, consistent, and supported by evidence will maximize your chances of success. And as the numbers above show, success is still possible even in these difficult times.  

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