The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

by Jason Dzubow

In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.

Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.

Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”

Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”

First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.

Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.

And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.

The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.

I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.

 

Continue reading

131 Comments

DACA Reform and Its Hostages (i.e., Asylum Seekers)

by Jason Dzubow

President Trump recently sent a letter to Congress laying out his “Administration’s principles for reforming our Nation’s immigration system.” In effect, this is what the President wants in exchange for agreeing to legalize DACA recipients (also known as Dreamers). Whether this is an opening bid or a final offer remains to be seen, but many Democrats and some Republicans seem to view the proposal as a non-starter.

Haggling over brown people? Where have I seen that before?

While the President’s letter covers a wide range of topics–from the border wall to hiring more ICE agents to eliminating the DV lottery–I want to focus here on the possible effects on our asylum system. Specifically, Section 1-C of the letter, Asylum Reform, lists the Administration’s ideas for “correcting the systemic deficiencies that created that [asylum] backlog.” Would that these ideas were so benign.

Below, I have listed the text of the President’s letter in bold, and added my comments (and complaints) in italics. Without further ado, here is the President’s proposal with commentary:

The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes. It seems what the President means by “asylum loopholes” is the asylum process itself. But asylum is not a “loophole.” It is the law, which says that if a person is physically present in the U.S. and he fears persecution in his home country, he can apply for asylum and stay here until his case is adjudicated. An executive order from the President cannot nullify this, but Congress and the President together can change the asylum law. I have not seen any movement in that direction, at least not yet.

There are more than 270,000 pending cases in the asylum backlog before USCIS, and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created that backlog. I don’t get to say this too often, but I agree with Trump! The backlog is way too large, and we need to reduce it. The Administration wants to hire 370 new Immigration Judges and 1,000 ICE attorneys. I’ve written before about some constructive and low-cost ideas for reducing the backlog. If anyone in the Administration is interested, you can see my thoughts here.

i. Significantly tighten standards and eliminate loopholes in our asylum system. It’s not clear which standards would be tightened and which loopholes eliminated. There are plenty of changes that could be made. Some might be productive (such as cracking down on notario and attorney fraud); others would likely result in eligible aliens being denied asylum and returned to face persecution (raising the evidentiary bar, for example). One area of concern for the Administration is asylum seekers at the border who arrive here and are then paroled into the U.S. Whether we could block such people without violating our treaty obligations (and our moral values) is an open question. Of course, Congress has the power to override treaties, but the unintended consequences of such a move might do (additional) damage to our standing in the world. 

ii. Elevate the threshold standard of proof in credible fear interviews. Presumably, this will go beyond what the Trump Administration has already done to make it more difficult for asylum seekers arriving at the border or an airport. Again, how much can be done without abrogating our treaty obligations is unclear, but certainly Congress and the President can make it more difficult for people arriving here and requesting asylum upon arrival.

iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate. Why these two proposals did not warrant their own Roman numerals, I do not know. As for the first, there are already severe immigration consequences for filing a frivolous asylum application (including a bar to all benefits under the INA), but I suppose the penalties could always be made worse. Also, the Trump Administration has already set forth a policy on expedited removal, so perhaps the new proposal would incorporate those ideas (which basically expands the temporal and geographic boundaries of expedited removal). 

iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits. As you might imagine, the immigration law currently has no provisions what-so-ever to block terrorists from coming here. Amazing that no one noticed this before. Lucky for us, some keen-eyed Trump Administration official caught the problem, and so now we can finally make some rules blocking terrorists. Whew!

v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits. An alien convicted of an aggravated felony is ineligible for most immigration benefits, including asylum. I agree that the definition of aggravated felony could use some work–some offenses that might seem serious (like assault and battery against a police officer) are generally not aggravated felonies under the Immigration Act; other crimes that seem minor (such as shoplifting) might be an aggravated felony. It’s clearly not equitable. My fear is that the Trump Administration will blindly expand the definition of aggravated felony so that any crime–no matter how minor–will bar asylum seekers from the U.S. and will needlessly divide more families through deportation.

vi. Expand the ability to return asylum seekers to safe third countries. The idea of sending asylum seekers back to the last “safe” country they passed through is not new. For various reasons, I doubt it is the magic bullet that some immigration resrictionists think it is. For one thing, it is difficult to know whether a particular country is safe, and so I suspect that such a provision might just shift the battle from the fear of persecution in the home country to whether the third country is “safe.” Also, whether the “safe” countries will agree to accept non-citizens we send their way seems doubtful.

vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied. This provision probably involves closing “loopholes” at the border. Here, some data might be useful. Is there any evidence that paroled aliens commit crimes? How often do such people fail to appear for court hearings? What is the cost of detaining such individuals? Making rational and effective policies requires answering such questions before taking action.

viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony. There is a waiver available to refugees and asylees who commit crimes (INA § 209(c)), including in some cases, aggravated felonies. However, BIA case law largely already prevents aggravated felons from taking advantage of the waiver. My main problem with eliminating the waiver is that it will result in people being deported to countries where they face harm, even for relatively minor crimes (many minor crimes are considered aggravated felonies already, and the Trump Administration plans to broaden the definition of aggravated felony even further).

ix. Require review of the asylee or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions. Asylees who return home are already subject to having their status terminated. So like many of the provisions listed here, this one seems like piling on. Also, there are legitimate reasons why some asylees need to return home–to see sick family members, for example. Also, in some cases, asylees do not fear their home government; they fear terrorist groups in their country. Such people can return home for a brief period, but if they remain in their country for the long term, they face great danger. The current law recognizes this, and makes some exceptions for asylees who return home. This seems more fair than a blanket prohibition. 

None of these provisions have yet been implemented or incorporated into law, and we will have to see how negotiations proceed. The Administration can argue that it is fair to bargain with the fate of DACA recipients in order to “reform” our immigration system (which certainly does need reforming). And perhaps that is the reality of politics. But I can’t help think there is a better way, and that it is not necessary to pit one minority group against another, and to hold so many innocent people hostage to a political agenda.

Continue reading

138 Comments

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

by Jason Dzubow

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

Moose limb ban.

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

Asylum Seekers

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

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

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

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

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

Asylees

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

I-730 Petitions

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

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

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

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

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

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

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

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

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

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

Continue reading

344 Comments

Advance Parole: Overseas Travel for Asylum Seekers

by Jason Dzubow

When government scientists invented Advance Parole (“AP”), they were not thinking about asylum seekers. Even today, if you look at the instructions to form I-131, the form used to apply for AP, you’ll find nary a word about asylum seekers (though asylees—people already granted asylum—can apply for a Refugee Travel Document using the same form). But fear not: People who have filed affirmatively for asylum and who are waiting for their interview can file for AP in order to travel abroad and return while their case is pending.

If your relative has a serious illness (or thinks he does), it may be enough for AP.

First, a brief word about asylum seekers who are not eligible to travel and return using AP. People who are in removal proceedings (i.e., in Immigration Court) cannot leave the U.S. and return, even if they have AP. If you are in removal proceedings, it means the government is trying to deport you, and if you leave, you are considered to have deported yourself. Thus, even if you apply for AP and receive the travel document, if you leave the United States, you will be deported, and thus barred from return. And yes, I am sure that there is a story about your third cousin’s best friend who was in Immigration Court, and who left and returned using AP. To that, I say: Talk to your cousin’s friend’s lawyer (and if you learn something, let me know!). My opinion is that if you are in removal proceedings and you leave the U.S., either you won’t get back here at all, or you will be detained upon arrival.

Another group that may be ineligible to travel using AP are J-1 visa holders subject to the pesky two-year home residency requirement. There are more people like this than you might imagine, and for such people, I recommend you talk to a lawyer about AP. Asylum basically “erases” the home residency requirement, but it is unclear (at least to me) whether this will work for purposes of AP while the asylum application is still pending.

Also, there was a group of people who were ineligible for AP, but who are now eligible. It is people who have six months or more of “unlawful presence.” If a person remains in the U.S. after her period of stay ends, she accrues unlawful presence (you stop accruing unlawful presence once you file for asylum). If she accrues six months of unlawful presence and leaves, she is barred from returning for three years. If she has one year or more of unlawful presence and then leaves, she cannot return for 10 years. Prior to 2012, if a person had six or more months of unlawful presence and left, she could not return to the U.S., even with AP. However, a decision by the Board of Immigration Appeals changed the rule, and so now, even if you have unlawful presence, you can leave the U.S. and return using Advance Parole. Thank you BIA!

There might be other people who are also ineligible to travel–people with criminal convictions or prior removal/deportation orders, for example. If you are not sure, you should certainly talk to a lawyer before applying for AP or traveling.

Next, let’s talk about what AP is and is not. If you get AP, you will receive a piece of paper with your photo on it. This paper works like a U.S. visa. It allows you to board the plane (or boat, if, like me, you hate flying), and pass through customs once you arrive at the port of entry. AP is not a passport or a Refugee Travel Document. You cannot use it to go to other countries or as a form of ID. If you travel with AP, you also need a passport. Keep in mind that traveling with a passport from a country where you fear persecution can raise questions at the asylum interview about why you would “avail” yourself of the protection of your country by using its passport. You should be prepared to respond to such questions, with evidence, during your interview.

So how do you apply for AP? Use form I-131. This one magic form can be used for all sorts of different applications: AP, Refugee Travel Document, DACA (at least for the next couple weeks), humanitarian parole. If you are applying for AP, complete only the portions of the form that apply to Advance Parole. You need to include evidence of a pending asylum case (receipts, biometrics notice), two passport-size photos, a copy of your passport or other government-issued photo ID (like an EAD card), and the filing fee (a whopping $575.00 as of this writing).

Also, you need to demonstrate a humanitarian need for the travel. It is not enough that you simply want to travel. A humanitarian reason might be that you are traveling to receive medical treatment or going to visit a seriously ill relative. It might also be because you are attending a funeral for a close relative. We have sought AP for people who needed to travel for work or education, though that was pre-Trump, and I would not feel particularly optimistic about such an application today.

To demonstrate a humanitarian need for AP, you need to provide a written explanation for the travel. You also need to provide evidence: A letter from the doctor, in the case of medical travel, or a death certificate if you are traveling for a funeral. If you are trying to travel for work or education, you need a letter from your job or school, plus an explanation of why the travel is “humanitarian.” In addition, if you are traveling to visit a sick relative, provide proof of the relationship, such as birth or marriage certificates connecting you to your relative.

On the form I-131, you need to state the dates of proposed travel. Don’t make the date too soon, or USCIS will not be able to process the paperwork before your travel date, and then they will send a request for evidence asking you to explain whether you still plan to travel since your departure date passed before AP was approved.

Also, it may be possible to expedite a request for AP, or even to get AP on an emergency basis, though you can bet that the bureaucrats at USCIS will not make the process easy. For more information about such requests, see the USCIS Ombudsman webpage.

Finally, and this is important, if you are an asylum seeker and you use AP to visit your home country, it will very likely cause your asylum case to be denied. Indeed, unless you can demonstrate “compelling reasons” for returning to your country, your asylum application will be deemed abandoned by the return trip. You can learn more about that here.

So there you have it. Most lawyers–including this one–discourage our clients from traveling with AP. There is always a risk when you leave the U.S. You might have trouble boarding a return flight. You could be detained upon arrival in the United States. Our capricious President might issue a new travel ban. But so far (knock on wood), we have not had any problems for our clients who traveled using AP. I do think it is better to stay in the country while your asylum application is pending, but given the long waits, some people must travel. If so, at least AP gives most people that option.

Continue reading

556 Comments

Translating Documents for Your Asylum Case

by Jason Dzubow

The word “translation” is derived from “trans,” meaning “across” two languages, and “elation,” meaning “to make your lawyer happy.” Or something like that. The point is, if your translations are correct, you are more likely to win your case and so you–and your lawyer–will be happy.

If you think accurate translations are not important, please stay away from my garden.

But many asylum seekers are unable (or unwilling) to pay for professional translations, which can be quite costly. Instead, they do the translations themselves, or they use a friend who speaks “good English” (technically, anyone who claims to speak “good English” does not speak English very well). The problem faced by these non-professionals is that translating documents is not as easy as it looks.

I ran into this problem recently, when a keen-eyed DHS attorney discovered that my client’s translations were incorrect. The client had submitted several translated documents when he applied for asylum at the Asylum Office (using a different lawyer). These documents included a newspaper article, a police report, and several witness letters. The quality of the translations was poor, and so we asked the client to obtain better translations. Unfortunately, the new translator embellished some of the translations. Instead of translating the documents literally, he tried to include what the writer meant (or what the translator believed the writer meant). This problem is all too common. Sometimes, I catch it, and other times, I don’t. In this particular case, the DHS attorney caught the inconsistency, which–to state the obvious–is not great for our case.

Poor translations can cause real problems for asylum cases. I have at least one case where an inaccurate translation resulted in the case being denied by the Asylum Office and referred to Immigration Court (where it remains pending 3+ years later–ugh).

So how do you ensure that your translations are correct? And what happens if you can’t afford a professional translator?

First, any document that is not in English must be translated into English. For each such document, you must submit a copy of the original document (in the foreign language), an English translation, and a certificate of translation (for an example certificate of translation, see the Immigration Court Practice Manual, Appendix H).

Second, the translation should be accurate. This seems like a no-brainer, but in my experience, it is not. Here, “accurate” means that the translator should–as much as possible–literally change each and every word of the original document into the equivalent English word. Some words are not easy to translate from one language to the next. Other words have symbolic, cultural or idiomatic meanings that may differ from their literal meaning (the word “jihad” is a good example). In that case, translate the word literally, and maybe include a footnote indicating the meaning or cultural significance of the word. The footnote should clearly indicate that it is not part of the translation (for example, it could say, “Translator’s note:” and then include the explanation). Other times, the original document is vague or unclear. In that case, the translator should again literally translate the words, but can include an explanatory note. Sometimes, documents contain illegible words. For them, the translator can include a bracketed statement indicating that the text is [illegible].

Third, while I think it is not required, I strongly prefer that the translated text look similar to the original (or sometime like a mirror image of the original, if it is a right-to-left language like Arabic). So bold or underlined words in the original should be bold or underlined in English. If the original text has different paragraphs, the English should follow a similar format. If some words in the original are centered, or shifted to one side or to a corner of the page, the translation should do the same.

Fourth, every word of the document should be translated. For documents where that is not possible (like a newspaper where you are only interested in using one article on the page), the translator should clearly indicate what portions of the document are being translated. In this case, I prefer to highlight the original document to make clear which parts are being translated. Also, for news articles, it is important to include (in the original language and in English), the name of the newspaper, the date, the title of the article, and the author, if any. Certain documents contain a lot of unnecessary boilerplate verbiage (I’m thinking of you, Salvadoran birth certificates), and so a summary translation might be more appropriate. If you use a summary translation, you need to clearly indicate that it is a summary, not a literal translation. Whether all Judges and Asylum Officers will accept summary translations, I do not know, but we use them now and again, and we have not had any problems.

Finally, countries sometimes use different calendars and even different clocks. In this situation, I think the best practice is to translate the date or time literally, and then include an explanatory note (for example, in the Jewish calendar, today is the second day of the month of Elul in the year 5777, and so if a Hebrew document contained that date, the English translation would look like this: “2 Elul 5777 [August 24, 2017]”). Some translators include only the date in our system (and not “2 Elul 5777”), and I have never had a Judge or Asylum Officer reject that, but I still think the better practice is the literal translation + explanatory note.

A related issue is letters from people who do not speak English, including the asylum applicants themselves. If a person does not speak English, but submits an English letter or affidavit, there must be a “certificate of interpretation stating that the affidavit or declaration has been read to the person in a language that the person understands and that he or she understood it before signing.” See Immigration Court Practice Manual, p. 48. “The certificate must also state that the interpreter is competent to translate the language of the document, and that the interpretation was true and accurate to the best of the interpreter’s abilities.” Id.

Lastly, many asylum seekers speak English and can translate documents themselves. This is fine. However, a person should not sign a certificate of translation for her own case. So if you translate your own documents, find a friend who speaks both languages to review the documents and sign the certificate of translation.

Accurate translations can enhance credibility and help you win your case. So either find (and pay) a competent translator or – if you do it yourself or use a friend – take the time to ensure that the translations are accurate and complete. Otherwise, documents that might help your case could end up doing more harm than good.

Continue reading

163 Comments

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

Continue reading

147 Comments

Seeking Asylum May Be Dangerous to Your Health, Your Children’s Health, and Even Your Unborn Baby’s Health

by Jason Dzubow

The asylum process was designed for speed. The regulations require that, absent “exceptional circumstances,” USCIS should adjudicate an affirmative asylum petition within 180 days. See INA § 208(d)(5)(A)(iii). That time frame went out the window with the “surge,” if not before, and these days, cases typically take a few years (and cases referred to Immigration Court can take even longer).

“I have to drink to forget.”

The effect of these delays on asylum applicants is about what you’d expect. I often hear from clients who are suffering from depression, anxiety, and other stress-related illnesses. Some have diagnosable conditions, and we regularly obtain letters from physicians to help us expedite cases. The situation is particularly dire for applicants separated from spouses and children, but few people seem immune to the stress caused by not knowing whether you (or your loved one) will be returned to a place where you fear harm.

Several recent studies have helped shed light on how the immigration process impacts people’s health, including the health of their children and even their unborn children.

One study stems from a well-known immigration raid in Postville, Iowa in 2008. Almost 400 undocumented workers—mostly Guatemalan—were arrested and charged with crimes such as identity theft and document fraud. Most were deported. Researchers at the University of Michigan at Ann Arbor examined the birth certificates of 52,000 children born before and after the raid. They found that “Latina mothers across the state were 24% more likely to give birth to undersized babies in the year after the raid than in the year before.” “The weight of non-Latino white babies stayed constant, suggesting that Latino populations were uniquely stressed by the incident.”

“Low birth weight is associated with developmental delays, behavioral problems and an increased risk of chronic disease,” among other problems.

Another study, currently in progress, will examine millions of birth certificates nationwide to “learn whether similar birth-weight patterns emerge when individual states enact laws targeting undocumented immigrants.”

A third study suggests that immigration raids can have deleterious effects on adults, as well. In November 2013, in the midst of an on-going health study of Latinos in Washtenaw County, Michigan, ICE conducted a high profile military-style raid on the local community. “The 151 people who answered the survey after the raids reported worse general health than the 325 who had already completed it…. Many said that after the raids, they were too afraid to leave their homes for food or medical care, and displayed symptoms of post-traumatic stress disorder.”

After President Trump signed the first executive order, the American Academy of Pediatrics warned that, “Prolonged exposure to serious stress — known as toxic stress — can harm the developing brain and negatively impact short- and long-term health…. The message these [immigrant] children received today from the highest levels of our federal government exacerbates that fear and anxiety.”

These reports focus on undocumented aliens who fear removal and their children, but my guess is that the results would be similar for asylum seekers, who also face uncertainty, especially in light of the Trump Administration’s rhetoric and stepped-up enforcement efforts. The reports also reflect what I am hearing from my clients.

So what can be done to help alleviate stress related to asylum delays?

First, you can try to take some affirmative action. Ask to expedite and/or short-list your case. File a motion to advance. I have written about these options here (for the Asylum Office) and here (for the Immigration Court). Whether such efforts will ultimately make the case any faster is somewhat unpredictable, but taking action may be better than waiting helplessly.

Second—and I often tell this to my clients, most of whom have strong cases—try to live like you will win your case. Learn English, go to school, get a job, buy a house, etc. You really can’t put your life entirely on hold for years waiting for a decision in your asylum case. You have to live. Obviously, this is easier said than done, and I myself would have a very hard time following such advice, but those who can put the case out of their minds and go on with life will be better off than those who dwell on it.

Third, stay engaged. There are support groups for refugees, asylum seekers, and victims of persecution. There are also churches, mosques, and other institutions that can help. Being able to discuss problems, share information, and talk (or complain) to people who understand your situation is useful, and maybe cathartic. For a list of non-profits that might be able to refer you to a support group near you, click here.

Although cases do seem to be moving a bit faster lately, it seems unlikely that the long delays and uncertainty faced by asylum seekers will go away anytime soon. During the wait, it is important to take care of yourself and your family, and that includes taking care—as well as you can—of your mental health.

 

Continue reading

194 Comments

The “New” Travel Ban and How It Affects Asylees and Refugees

by Jason Dzubow

Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six “banned” countries–Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

Since the Court’s decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order (“EO”). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court’s decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.

Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.

Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the “banned” countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), “Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply.” (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.

Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), “Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection].”

The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for “those refugees who are in transit and booked for travel,” though these people will likely all be in the U.S. by now.

According to DHS (question # 29), refugees can still come to the U.S. if they have a “close” family relationship with someone already here. DHS interprets this to mean:

[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?

Also, a refugee with a bona fide relationship to an “entity” in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don’t), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

The EO’s impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation’s values, which these days seem in grave jeopardy.

Continue reading

153 Comments

Return of the Travel Ban

by Jason Dzubow

Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.

You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.

But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):

“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’

“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

“Who is likely to be allowed to enter the United States?

  • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
  • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
  • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
  • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
  • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

“Who may have trouble entering the United States?

  • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
  • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”

As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.

In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.

Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

Continue reading

143 Comments

I Don’t Know, I Don’t Know, I Don’t Know

by Jason Dzubow

If you are an asylum seeker waiting for your interview, repeat these words: I don’t know. Again: I don’t know. Say them out loud: I don’t know. One more time: I don’t know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.

“I appear wise because I do not think I know what I do not know” – Socrates. #BeLikeSocrates

I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says “I don’t know,” you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.

Asylum seekers also need to practice their I-don’t-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.

Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client’s assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).

Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don’t fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.

I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.

Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).

It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can’t, don’t be afraid to say “I don’t know.” As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.

 

Continue reading

158 Comments

Illogical Fears Generate Illogical Policies: Notes from the Center for Immigration Studies “Asylum Fraud” Panel

by Jason Dzubow

This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.

Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.

On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.

CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.

As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.

The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.

Immigrants are Dangerous

To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.

Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.

As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.

What Do the Numbers Tell Us?

A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”

So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.

One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.

The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.

Asylum Seekers vs. Refugees

I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.

Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.

For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?

“Pro-immigrant”

At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.

Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.

Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.

Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.

Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.

Ignoring the Elephant in the Room

Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.

Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.

This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.

Continue reading

137 Comments

Exposing the Grandma Menace

by Jason Dzubow

On April 26, the Department of Homeland Security launched its new Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will “assist victims of crimes committed by criminal aliens.” DHS Secretary John Kelly said in a statement, “All crime is terrible, but these victims are unique—and too often ignored. They are casualties of crimes that should never have taken place—because the people who victimized them often times should not have been in the country in the first place.” I suppose the same might be said of crimes committed by children born of unplanned pregnancies, but I digress.

Don’t mess with these ladies, especially if they haven’t had their nap.

The fact is, most credible reports show that immigrants commit crimes at a lower rate than U.S. citizens. But never mind that. Today, I am concerned with another group whose below-average crime rate masks its otherwise sinister nature. You guessed it, I’m talking about America’s grandmothers.

To shed light on this menace, I’ve decided to create a new website called VOGUE – Victims Of Grandmothers’ Unscrupulous Ethics. The website will track crimes committed by mommoms, babas, memoms, geemas, and savtas throughout our great country. And I’m not just talking about the Little Old Lady from Pasadena, though her reckless driving certainly terrified everyone on Colorado Boulevard. Rather, I want the public to know that America’s bubbies are a real threat to our society. So in the spirit of disproving statistics with anecdotes, I present to you the Top 5 nana-related crimes of recent memory. Be afraid. Be very afraid:

(1) In 2010, a 64-year old Long Island woman was arrested for stealing boxes of jello, replacing the contents with sand and salt, and then returning the boxes for a full refund (of $1.40 each!). According to authorities, Christine Clement disposed of the evidence by cooking up and eating the contents of the boxes she had emptied. Ms. Clement’s husband of 40 years served as her get-away driver.

(2) Griselda Blanco was a drug lord (drug lady?) from Colombia who relocated to Miami where she dominated the violent cocaine-trafficking scene in the 1970s and 1980s. She was supposedly responsible for over 200 murders, including the murder of at least one of her husbands. Ms. Blanco was finally deported to Colombia where she was assassinated at a butcher shop in 2012. Catherine Zeta-Jones is slated to play her in an upcoming movie called The Godmother (fittingly, Ms. Blanco’s youngest son is named Michael Corleone Blanco).

(3) Velma Barfield, also known as “Death Row Granny,” used arsenic as her weapon of choice. She confessed to killing four people, including her mother and a boyfriend. It seems likely she also killed at least one of her two husbands. In 1984, she became the first woman executed by lethal injection and the first woman in the United States executed since 1962.

(4) Another killer who preferred poison was Nannie Doss, known as the “Giggling Granny.” All together, she killed four husbands, two children, her two sisters, her mother, a grandson, and a mother-in-law. The first murders took place in the late 1920’s and the last occurred in 1953, when she killed her fifth husband by poisoning his sweet-potato pie (given my own feelings about sweet potatos, I am unlikely to die this way).

(5) Career criminal Doris Payne has been a jewel thief for more than six decades. Her most famous theft involved a $500,000.00, 10-carat diamond ring, which she stole from a jewelry store in Monte Carlo in the 1970’s. More recently, in 2015, she allegedly stole another diamond ring valued at $33,000.00 from a store in North Carolina (at age 84!). Her modus operandi is to pretend to be a well-to-do person looking to buy jewelry. She has the clerk take out various pieces, and then somehow causes the clerk to lose track of a piece or two, which she carries away.

So as you can see, America’s grannies are a notorious bunch. Whether they’re clandestinely replacing our jello with sand, murdering rival drug lords and annoying husbands, or walking away with large diamonds, they clearly represent a danger to us all. But hopefully, VOGUE will help. By shining a light on a few bad (Granny Smith) apples, we’ll soon have you convinced that the whole barrel is spoiled. At least that’s what they tell me at DHS.

Continue reading

102 Comments

In Trump’s America, Are Asylum Seekers at Risk of Arrest?

by Jason Dzubow

A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.

If you see these guys at your asylum interview, it’s probably a bad sign.

Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”

I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.

Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.

Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).

It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.

In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.

So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.

First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.

If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.

If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?

Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

Continue reading

229 Comments

Expediting a Case in Immigration Court

by Jason Dzubow

For the last few years, the “hot topic” in asylum has been the backlog–the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.

Courts are still wrapping up the last of Justice Marshall’s immigration cases.

The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That’s a long time, especially if you are separated from family members while your case is pending. For what it’s worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).

Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, “Motions to advance are disfavored.” The motion should “completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.” Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).

Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.

OK, before we get to the various approaches for advancing a court case, let’s start with a bit of background. A case commences in Immigration Court when the Notice to Appear–or NTA–is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, “remove”) someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing (“MCH”). At the MCH, the alien–hopefully with the help of an attorney–tells the Immigration Judge (“IJ”) whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.

If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an “A number”). The system will tell you whether your case is scheduled and the date of the next hearing.

If the system indicates that your “A-number was not found,” this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.

If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.

While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.

If the MCH is scheduled: Sometimes, MCHs are scheduled months–or even years–in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.

First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone’s guess. Some IJs (and their clerks) are good about this; others, not so much.

Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.

Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don’t be surprised if your lawyer tells you that filing a motion will cost extra.

At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.

One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates–for example, if another case has been cancelled). Many lawyers (again, including me) don’t love this because it requires us to do all the work in advance, and it often does not help. Don’t be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers–and other humans–prefer to put off until tomorrow what we do not need to do today).

Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.

Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.

Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.

After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge’s schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal – see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or–if the Judge has an effective clerk–you can file a motion to advance, and the clerk will save it until a spot opens up for you.

Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).

Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.

Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.

Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.

Continue reading

332 Comments

Help Celebrate the Launch of a New NGO to Assist Asylum Seekers

by Jason Dzubow

The community of asylum seekers (people waiting for their asylum cases) has grown exponentially over the past few years. Across the U.S., something like 540,000 people–including many asylum seekers–are waiting for their Immigration Court cases, and over 150,000 otehrs are waiting for their cases to be decided by the Asylum Office. Because this “backlog” is relatively new, there is a dearth of services available for such asylum applicants. A new non-profit aims to help fill that gap.

There are more people in the backlog than in Cleveland, Ohio (and which group is worse off, I am not sure).

The Asylum Seeker Assistance Project (“ASAP”) is a community-based nonprofit providing comprehensive services to support the estimated 50,000 individuals pursing asylum in the Washington, DC-Metro region. The group launched in 2016 and received its 501(c)(3) non-profit status earlier this week (so donations are tax deductible). Its mission is to provide services that support the safety, stability, and economic security of asylum seekers and their families. ASAP’s programs include:

Employment: ASAP’s employment program combines individualized career planning, 30-hours of job readiness training, and job placement services to address common employment barriers encountered by asylum seekers. The goal is to equip asylum seekers with the knowledge, skills, and resources needed to secure and retain safe, legal, and purposeful employment.

Community: ASAP’s community program facilitates opportunities for asylum seekers to connect with each other, ASAP volunteers, and the larger community. The group also maintains a list of asylees willing and able to provide support and guidance to newly arrived asylum seekers.

Legal: ASAP offers asylum law trainings, legal information sessions, and “Know Your Rights” workshops on demand to clients, attorneys, law students, and community partners. ASAP can also provide targeted referrals to pro bono and low bono immigration legal service providers.

Outreach: ASAP conducts educational awareness events co-facilitated by asylum seekers and asylees. The organization has given talks and presentations to audiences ranging from elementary school-aged children to adults. By engaging audiences of all ages, ASAP works to plant the seeds of social change.

Social Services (Coming 2018): ASAP works with clients to create a comprehensive assessment of their life in the U.S. in order to identify client needs, recognize strengths, and prioritize goals. ASAP works with a coalition of community partners to provide information, resources, and referrals to ensure client safety and stability.

To celebrate this new organization and to congratulate ASAP’s first class of asylum seekers who will have completed an intensive one-week job readiness training, the group is holding an event called Together We Rise: A Family-Friendly Celebration on April 29, 2017 from 3:00 to 6:00 PM in Bethesda, Maryland. You can sign up for this free event, or make donations, here. The celebration will include food and friends, and activities for the younger guests, such as face-painting, fishing for ducks in a “pond,” and henna art.

To learn more about the party and ASAP, visit the group’s Facebook page here, or email them at asylumprojectdc@gmail.com. Also, if you would like to make a donation to this worthy cause, please contact them at asylumprojectdc@gmail.com.

Continue reading

118 Comments