It’s less than two months since President Biden took office, and already it seems we are facing a new surge of arrivals at our Southern border. The increase is being attributed to the continuing dire conditions in Mexico and Central America, Mr. Biden’s promise to treat asylum seekers humanely, and pent up demand among migrants who were deterred by the Trump Administration’s harsh policies. Republican strategists are (predictably) teeing up Latin American migration as a “wedge issue” for the 2022 midterm elections, and so the situation at the border is not only a humanitarian crisis, but also a political crisis.
To address the problem, Mr. Biden is sending more resources to the border, expanding shelter capacity, and continuing a policy of the Trump Administration to turn away most adults and families based on the public health emergency (under Title 42 of the U.S. Code). His Administration is also trying to encourage would-be migrants to stay home. It seems pretty obvious that none of these measures will end the crisis. So what can be done? (more…)
The Trump Administration has implemented a new rule to reduce due process protections and make it easier to deport certain aliens who are in the United States unlawfully. Given its questionable legality, clumsy roll-out, and lack of notice, we can expect the new rule–which expands the use of “expedited removal”–to be challenged in court, and so whether it will remain in effect and how it will ultimately be implemented, we do not yet know.
While I don’t share the apocalyptic view of some of my colleagues, I do think there is a real danger that the rule gives too much authority to under-trained immigration agents, and that it will result in some non-citizens (and potentially some citizens) being improperly detained and deported in violation of the law. I also think it will further exacerbate the Asylum Office backlog. Worst of all, I expect the new rule will disproportionately impact and terrorize minority communities.
On the bright side, non-citizens will get some exercise carting around their papers.
Here, we will take a look at the new rule and what it might mean for asylum seekers and others. But first, we have to talk about “expedited removal.” The American Immigration Council describes expedited removal as follows–
Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain non-citizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.
Basically, a non-citizen who recently entered the U.S. either without inspection or through fraud, and who is encountered near the border, had less due process protections than someone who has been here for a longer time, who entered lawfully or who is in the interior of the country. People subject to expedited removal do not get to see an Immigration Judge–they are detained and deported quickly (though there are exceptions, discussed below). The new rule expands the use of expedited removal geographically and temporally–
As of July 23, 2019, expedited removal may be applied to individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension
What does this mean in practical terms? If you entered the U.S. lawfully with a visa, and did not commit fraud, expedited removal does not apply to you. Even if you entered unlawfully or without inspection, expedited removal does not apply to you if you have been in the United States for more than two years. These criteria beg the obvious question: How does an immigration agent know whether you entered fraudulently or whether you have been here for less than two years? As I read the rule, it seems that the burden of proof is on the alien. So if you entered legally, keep a copy of your passport, visa, and I-94 with you. If you entered unlawfully more than two years ago, carry evidence showing your length of residency–tax and employment documents, school records, lease agreement, bills, etc. This type of evidence will not protect you from being detained if you are out of status, but it should at least allow you an opportunity to present your case to an Immigration Judge, rather than facing summary removal (for information about what to do if you encounter an ICE agent, click here).
Let’s say you are subject to expedited removal and ICE stops you. Then what? If you have a fear of returning to your country, you can express that fear to the immigration agents and you should be afforded a credible fear interview (“CFI”). The CFI is an initial evaluation of eligibility for asylum; it is conducted by an Asylum Officer. If you “pass” the CFI, your case will be referred to Immigration Court where you can present your full asylum case to a Judge. If you “fail” the CFI, you can request an Immigration Judge to review that decision and potentially reverse the negative determination by the Asylum Officer (unfortunately, the likelihood of success for such cases varies significantly depending on the particular Court that hears your case).
If everything were to work according to the law, the new rule should not be too bad: People with a fear of return can still seek asylum and those here unlawfully would be quickly removed (such people generally do not have any defense to being deported). The problem–which is completely predictable since we have seen it before–is that things often do not work according to the law. ICE agents frequently lie to prevent non-citizens from exercising their legal rights. They also make mistakes, which result in people being denied their rights. Further, ICE often engages in racial profiling, and so we know which communities will bear the brunt of the new rule.
In addition, there is the problem of politicization of our nation’s immigration enforcement. Every time the President puts out a tough tweet about “illegals,” ICE has to scramble to make it come true (or not). The result, of course, is distress and terror in immigrant communities. The new rule seems tailor-made to increase such fears.
Finally, with this new rule, there is the problem of execution. I’ve described the Trump Administration’s approach to immigration as malevolence tempered by incompetence, and this new rule is no different. According to the Migration Policy Institute, there are nearly 300,000 immigrants in the United States who could be subject to expedited removal. When ICE starts detaining these people, we can expect many to ask for a CFI (which is usually their only option). Since CFIs are conducted by Asylum Officers, the new rule will shift resources away from “regular” affirmative asylum cases and will likely exacerbate the backlog (ironically, the whole point of the LIFO system was to deter frivolous cases by making the process faster–the new rule will have the exact opposite effect). Further, people whose CFIs are denied can ask an Immigration Judge to review that decision, thus taking additional resources from the Courts and causing more “aimless docket reshuffling.”
The new expedited removal rule seems to me predicated on two myths: First, that there is a pressing danger from non-citizens living in our country. Empirical data does not support this conclusion; rather, it is based on racist and xenophobic stereotypes perpetrated by the current Administration. Second is the myth that our country would be safer if we traded some of our liberty for more security. And make no mistake, when under-trained immigration officials are given near carte blanche to investigate anyone deemed “foreign,” we are–all of us–giving up some of our liberty. As my favorite Founding Father, Ben Franklin, once wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The new rule reduces our liberty, does nothing to enhance our safety, and sows more fear among our immigrant neighbors. It is another sad step towards the degradation of our great country.
Mahir Ahmed really wants you to know that he’s a “legitimate” asylum seeker. Not like those other people who are “deliberately breaking U.S. laws” and “jumping in line” ahead of good people like him. To confront this crisis, which has delayed a decision in his case, Mr. Ahmed declares his support for President Trump’s border wall.
I have some sympathy for Mr. Ahmed ‘s frustration at the slow pace of his case, since many of my clients are similarly delayed. But his desire to slam the door on certain asylum seekers who he considers illegitimate demonstrates a deep ignorance of our asylum system, not to mention a profound arrogance about his own moral standing.
First, let’s take a look at Mr. Ahmed’s “legitimate” asylum case. Mr. Ahmed is from Ethiopia. He was born Muslim, in a “community that is virtually 100 percent Muslim.” After he came to the U.S. (legally!), he converted to Christianity. He writes that his “decision to leave and criticize Islam publicly forced me to resort to asylum.”
Mahir Ahmed offers his new-found Christian love to all asylum seekers. Except those who get in his way.
As an asylum lawyer, I have done apostasy cases from many countries. In some places, apostasy is illegal, and can be punished by death. Ethiopia is not one of those places. In fact, Ethiopia is mostly Christian, and while Mr. Ahmed’s community may be “virtually 100 percent Muslim,” his country is only 34% Muslim. This means internal relocation is a real possibility. If Mr. Ahmed can live safely in some other part of Ethiopia, he is ineligible for asylum. Further, it is unlikely that Mr. Ahmed fears persecution from the Ethiopian authorities, and so if the government can protect him from his Muslim community, he would also be ineligible for asylum. This is not to say that his claim is illegitimate, but an apostate from a country like Iran, Pakistan or Afghanistan might consider Mr. Ahmed to be unfairly blocking up the asylum system when he could potentially live safely in his own country. Let he who is without sin cast the first stone. Or something like that.
Now let’s take a look at some of Mr. Ahmed’s claims about these “law breaking” asylum seekers who have supposedly delayed the decision in his case. In fact, Mr. Ahmed was one of the lucky asylum seekers who received an interview quickly, based on LIFO. The Asylum Officer told him to return two weeks after the interview to collect his decision. Mr. Ahmed was excited: “You can imagine how thrilled I was knowing that no matter what the decision was, it would all be over within two months of filing. No more worrying, wondering, and being in limbo.” But then, the Officer called and informed Mr. Ahmed that he could not pick up the decision after all; it would come by mail. He “was told they have no idea when [the decision would be made] and that the fact that I had legal status might be a factor in the delay since priority is being given to illegal immigrants.” Mr. Ahmed was shocked: “I couldn’t believe that illegal immigrants would be given higher priority than someone who followed the law. It just seemed unfair to me that jumping in line would put you ahead.” More than seven months later, Mr. Ahmed is still waiting for a decision.
After doing a bit of research, Mr. Ahmed found that since the time he filed his case, “more than 460,000 illegal crossings took place” at the Southern border. The “vast majority of the crossers claimed asylum and basically got priority processing over everyone who filed their cases legally, myself included.” “That is exactly why I’m for the border wall,” he writes. “True asylum seekers will still be able to file for asylum at the ports of entry [and] maybe even in their home countries soon,” if a proposed anti-asylum bill becomes law.
There’s a lot to unpack here, and we only have time to address the major points of Mr. Ahmed’s thesis. Let’s start with his data–the 460,000 “illegal crossings.” If you look at his source for this number (Customs and Border Protection or CBP), you will see that this figure represents people “apprehended between points of entry” from October 2018 through April 2019. While Mr. Ahmed writes that the “vast majority” of these border crossers claimed asylum, a review of the latest asylum office data reveals a different story. During this period, about 70,000 people sought credible or reasonable fear interviews, which indicates their desire to apply for asylum at the U.S. border (this is an estimate since the asylum office data is not as current as the CBP data). Thus, even assuming Mr. Ahmed is correct that these “illegal crossers” are jumping ahead of him in line, the number of line jumpers is “only” about 70,000; not 460,000.
Regardless of the statistics, Mr. Ahmed misses a more fundamental point: The law makes no distinction between “legal” and “illegal” asylum seekers. It is legal to arrive at the border (at a point of entry or elsewhere) and seek asylum. It is also legal to enter the U.S. without inspection and file for asylum. The relevant legal statute, INA § 208(a)(1), states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival….), irrespective of such alien’s status, may apply for asylum.” And so these “illegal immigrants” that so concern Mr. Ahmed have the exact same legal right to file for asylum as he does.
Do “illegal immigrants” jump ahead of the line? Do they get priority over “legal immigrants,” such as Mr. Ahmed? In one sense, they do. When an alien arrives at the border and expresses a fear of return, she receives a credible fear interview or CFI (or if she was previously in the U.S., she receives a reasonable fear interview). This is an initial evaluation of asylum eligibility. Such interviews receive priority over “regular” asylum cases. The large number of CFIs in recent years is a major contributor to the backlog of asylum cases. In Mr. Ahmed’s case, however, he received an interview within a few months of filing. In other words, his case did not fall into the backlog. Thus, unlike other asylum seekers who filed and did not receive a timely interview, Mr. Ahmed’s case was not delayed due to “illegal immigrants” receiving CFIs.
Even for those “regular” asylum seekers who land in the backlog, I do not see how they have much basis to complain about CFIs. This is the system our country created to enforce its humanitarian immigration law. CFIs get priority because those applicants must either be approved and sent to Immigration Court for a full asylum hearing, or denied and deported quickly. If anything, people seeking asylum at the border need more protection than asylum applicants who are already in the U.S., since the latter are in no immediate danger of being returned to a country where they face persecution. As such, it makes sense to adjudicate CFIs first.
Mr. Ahmed also claims that a decision in his case was delayed because USCIS gives priority to “illegal immigrants.” He references a USCIS webpage, which indicates that “longer processing times may be required if you… are currently in valid immigration status.” First of all, this website lists several different reasons for post-interview delay, including “pending security checks” and headquarters review, which are common reasons for post-interview delay (especially, as far as I can tell, for cases involving Muslim–or formerly Muslim–men). Second, the reason a “legal” immigrant’s case may be slower than that of an “illegal” immigrant is because it requires more work to deny such a case. People in legal status receive a detailed Notice of Intent to Deny letter. People who are out of status receive a much less detailed Referral letter. Since it takes more work to create a NOID, it makes sense that such cases takes longer. A final note on this point: I have done many cases for people who are in status, out of status, and who have entered the U.S. illegally. At least in my anecdotal experience, I see no pattern of differences in processing times, and so I doubt that “illegal” cases are processed any faster than “legal” ones.
Based on his analysis, Mr. Ahmed endorses a border wall as a way to help “legitimate” asylum seekers like himself. But this “solution” has no relationship to the problem. If you want to prevent “illegal” aliens from seeking asylum, you need to change the law that allows such people to seek asylum. Perhaps by building a wall and increasing punitive measures, you can deter asylum seekers from coming here. This would help reduce the backlog (at the expense of our nation’s integrity), but you could achieve the same ends (more cheaply) by simply blocking aliens from coming here legally. If fewer people come here, fewer will ask for asylum. Indeed, the Trump Administration is trying to make it more difficult to obtain a visa if you come from a country that tends to produce visa overstays (had it been in place when he came to the U.S., this rule may very well have blocked Mr. Ahmed from coming here).
The bottom line for me is this: Anyone who reaches the U.S. and fears return to his country is a legitimate asylum seeker, and deserves to have his case carefully reviewed. Mr. Ahmed’s effort to distinguish himself from asylum applicants at the Southern border represents a basic misunderstanding of our country’s humanitarian immigration system and the values that that system represents. This is a difficult time for asylum seekers, and sometimes, among desperate people, there is an inclination to attack each other. Mr. Ahmed should resist this temptation. Instead of undermining his fellow asylum seekers, he should stand together with them. By supporting each other, we can improve the asylum system for all.
In case you haven’t noticed, President Trump is not a fan of asylum seekers. His Administration has taken a number of actions to block asylum seekers from coming to the United States and to reduce legal protections for those who are already here. Now, the President has issued a policy memo instructing the Attorney General and the (acting) Secretary of Homeland Security to propose new regulations and re-arrange resources to further discourage migrants from seeking asylum in the U.S. Let’s take a look at this most recent move, and how it might impact the asylum process.
As a preliminary matter, the news is not all bad. In Section 2 of the memo, the President re-affirms his commitment to the humanitarian immigration system: “It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.” While it may not be big news that the Administration will provide “relief or protection… for aliens who qualify,” since failing to do so would violate the law, we have to take our good news where we can find it.
“Pay for asylum? No problem. I’ll have my manservant write you a check whilst I finish my charcuterie platter and valet my Bentley.”
In addition, the thrust of the new proposals seem directed towards migrants arriving at the Mexican border. Indeed, the express purpose of the memo is to address the on-going “crisis” in “our immigration and asylum system… as a consequence of the mass migration of aliens across our southern border.” It appears that some of the coming changes will affect all asylum seekers–as opposed to only those entering from Mexico–but we won’t know for sure until the AG and the DHS Secretary draw up the new regulations.
Finally, it is important to note that none of the changes in the memo have gone into effect–yet. The President has ordered his team to propose regulations within 90 days, and after that, it will likely take additional time to implement those changes (and some may be challenged in court). So for the time being, none of the new rules listed in the memo are operational.
Turning now to the specifics, the memo calls for several significant changes:
First, as I read the memo, it requires all asylum applicants who pass a credible fear interview (an initial evaluation of asylum eligibility) to present their cases before an Immigration Judge. Previously, certain applicants–most notably, minors–could present their cases in the less-confrontational environment of the Asylum Office. Now, it seems, they must present their cases in court.
Second, the memo requires that, “absent exceptional circumstances, all asylum applications adjudicated in immigration court proceedings receive final administrative adjudication, not including administrative appeal, within 180 days of filing.” [please assume there is a long pause here, while I laugh and laugh, and eventually compose myself well enough to continue writing]. This ain’t gonna happen. No way. No how. It’s another iteration of what Judge Paul Wickham Schmidt famously calls “aimless docket reshuffling” or ADS. ADS is the process whereby a new Administration comes in and imposes its particular priorities on the Immigration Court system. The very predictable result of ADS is that cases get re-arranged, judges lose control of their dockets, and most everything gets delayed much longer than if management had just left well-enough alone. The Trump Administration is by no means the first to practice ADS, but they do seem to indulge in it more frequently than prior administrations.
Third, the memo calls for “regulations setting a fee for an asylum application not to exceed the costs of adjudicating the application… and for an initial application for employment authorization for the period an asylum claim is pending.” In other words, the government wants to charge asylum seekers to seek asylum (the affirmative asylum system is currently funded by other immigrants when they pay USCIS fees). How much this fee will be, we don’t yet know, but if the fee is meant to cover the cost of adjudicating the asylum application, it won’t be cheap. Will the fee include the cost of security background checks? Immigration Court proceedings? These processes are expensive, and few asylum seekers can afford to “do business” this way.
The memo does not indicate what happens to people who cannot pay, but we can’t just deport them. Indeed, the Immigration and Nationality Act (section 241(b)(3)) and the Convention Against Torture prohibit the U.S. from returning people to countries where they face certain types of harm (this is separate from, but similar to, the asylum law). Such people apply for relief using the same form (I-589) as asylum applicants. Will the government adjudicate these other types of humanitarian applications where the person is unable to pay for asylum? We don’t know this either.
Perhaps those who cannot afford to pay will be eligible for a fee waiver. That would help, but fee waivers require significant work to complete, and so, at a minimum, many lawyers would raise their fees (since we are paid for our time). This would make it more difficult for asylum seekers to obtain legal counsel.
As I read the memo, it also seems to be calling for a fee for the initial Employment Authorization Document (“EAD”). Currently, the first EAD for an asylum applicant is free. Renewals cost money (currently $410). EADs are valid for two years, and fee waivers are available, so this particular requirement, while harmful to asylum seekers, is probably not that damaging.
Fourth, the memo calls for regulations to “bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted, and to ensure immediate revocation of employment authorization for aliens who are denied asylum or become subject to a final order of removal.”
Currently, an alien is eligible for an EAD 180 days after she files for asylum (she can submit the application 150 days after she files for asylum). If the new memo is implemented, asylum seekers who “entered or attempted to enter the United States unlawfully”can no longer receive an EAD unless and until their cases are granted. As the memo is written, this provision would probably not apply to an alien who arrived in the U.S. with a visa, but that is not entirely clear. The phrase “entered or attempted to enter the United States unlawfully” is subject to interpretation, and if interpreted broadly, it could block some asylum seekers from obtaining an EAD, even if they entered the U.S. with a visa (for example, if the visa was procured by fraud).
Ironically, if the government succeeds in adjudicating asylum cases within 180 days (and I am skeptical about that), the EAD provision will become less important, since cases will either be granted or denied before the alien is eligible to obtain his EAD. If the case is granted, the alien will be eligible to work immediately, and if it is denied, he presumably (based on this memo) would be ineligible to work while the matter is being appealed. The problem will be for applicants who face long delays, and are unable to work lawfully. How will such people survive the wait?
Finally, the memo calls on the Secretary of Homeland Security to “reprioritize the assignment of immigration officers and any other employees of the Department as the Secretary deems necessary and appropriate to improve the integrity of adjudications of credible and reasonable fear claims, to strengthen the enforcement of the immigration laws, and to ensure compliance with the law by those aliens who have final orders of removal.” It’s unclear (at least to me) what this means, but it seems like another version of ADS. Perhaps the plan is to shift resources away from adjudicating immigration benefits and towards enforcement. While this would certainly cause even more delay for individuals, families, and businesses who rely on USCIS, any boost to the asylum or enforcement sections of DHS seems unlikely. There is just not a lot of cross-over between the different functions of DHS, and so there are only so many resources that can be shifted around. In other words, I doubt the DHS Secretary can arm Naturalization officers and enlist them to chase after aliens with final orders.
President Trump’s memo leaves many unanswered questions, and so we will have to wait for the new regulations to learn the specifics. While some of these changes may be blocked by courts, others will likely go into effect. The result will be a further erosion of our proud tradition as a beacon of hope to those fleeing harm.
To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.
You may already be familiar with the Ombudsman’s office–they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS “customers” (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.
In this posting, I want to discuss a few of the report’s findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.
First, some findings. The report summarizes where we are now:
A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.
All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).
Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person “passes” the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 – a four-fold increase. The Ombudsman notes that, “Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate.” The report continues:
These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.
Another reason for the backlog is that the rate of new affirmative asylum filings has grown. “In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS.” “In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase.”
In addition, between September 2013 and December 2014, the number of “Unaccompanied Alien Children” with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.
So what has USCIS done to address the delay?
First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).
Second, starting in late December 2014, USCIS now interviews cases on a “first-in, first-out” basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.
Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.
Finally, “USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times.” For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer’s time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants “pass” their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.
The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview “Short Lists:”
First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.
Lastly, I want to briefly discuss the report’s findings related to delays obtaining Employment Authorization Documents (“EADs”). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means–if possible–try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.
Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.
According to a letter from four members of Congress to DHS Secretary Jeh Johnson, a “recent disclosure [by USCIS] regarding the number of aliens found to have a ‘credible fear’ in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system.”
Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.
The “recent disclosure” from USCIS to the House Committee on Oversight and Government Reform revealed that “the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014.” The four Congressman–Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)–requested more information about the 638 aliens in question, including each aliens’ confidential A-file and whether and by what authority each alien was released from detention.
First, what’s this all about?
When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a “credible fear” interview–a preliminary evaluation of eligibility for asylum. The large majority of aliens “pass” the credible fear interview. Their cases are then transferred to an Immigration Judge and–in most, but not all, cases–they are released from detention. Aliens who do not pass the credible fear interview are deported.
In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground (“TRIG”). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden’s best friend). We don’t know–the TRIGs are very broad (as I’ve discussed here).
One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don’t know.
So what’s the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.
I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data–no matter how benign–to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).
Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.
Finally, the letter demands that the files be turned over before COB on June 3, 2015–two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time–while ensuring confidentiality–is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.
I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done.
Lately, I’ve been worrying that asylum might become a victim of its own success. Thanks to lawyers pushing the law, the number and categories of people eligible for asylum has increased pretty dramatically: Victims of FGM and domestic violence, LGBT individuals, certain victims of crimes. This is a good thing, as many lives have been saved. But it has started to attract the attention of immigrant restrictionists, who think the asylum system is too generous. Could the tide be shifting? Might we be on the verge of a backlash?
The Romans aren’t all that popular this time of year.
There’s precedent for such fear dating back to antiquity. When the Roman Empire conquered Greece, the various city-states had a well-developed system of temple asylum. In short, if you were a slave fleeing abuse, you could go for protection to a Greek temple. Over time, the types of people who could claim protection in Greek temples expanded, so that basically anyone, including rebels and common criminals, could find refuge in a temple. The law-and-order Romans would have none of it. In 14 AD, Emperor Tiberius ordered the temples to produce evidence of their right to offer asylum. Most temples could not do so, and so Tiberius’s little bureaucratic maneuver essentially ended asylum in the Greek city-states. So much for the history lesson.
Late last month, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Immigration and Border Security Subcommittee Chairman Trey Gowdy (R-S.C.), and Congressman Jason Chaffetz (R-Utah) announced that they would be holding hearings on asylum and credible fear “abuse” by people arriving in the U.S. via Mexico. The press announcement does not sound promising:
It’s outrageous that members of Mexican drug cartels and others involved in illicit activity are so easily able to exploit our asylum laws and live in the U.S. virtually undetected. Our asylum laws are in place to help individuals who are facing truly serious persecution in their countries. However, dangerous criminals are gaming the system by claiming they have a ‘credible fear’ of persecution when often they’ve been the perpetrators of violence themselves. Their claims almost always get rubberstamped by the Obama Administration and once these individuals are in the U.S., the illegal activity doesn’t stop.
Unfortunately, it appears the Obama Administration is compromising our national security and the safety of our communities for its political agenda. The House Judiciary Committee plans to hold a hearing soon to closely examine this egregious abuse to see what can be done to put an end to it.
Over the last couple months, I’ve written pretty extensively about the influx of asylum seekers at the border, and there certainly seem to be issues that require attention. That’s why it’s disappointing to see such an overtly political description of the upcoming hearings. Hopefully, the hearings themselves will be more constructive (yes, for some reason, I am feeling unusually optimistic – maybe its The Season).
Not that anyone has asked, but I thought I would raise some issues that the Committee might explore:
– We need accurate statistics about who is seeking asylum and why: It is very difficult to know who seeks asylum, who receives it, who receives other relief, and who is denied. One problem is that the two agencies that track asylum cases–DOJ and DHS–use different metrics for calculating their numbers. Another problem is that there are no stats available on people who receive Withholding of Removal and Torture Convention relief (two benefits that are similar, though inferior, to asylum). Congress should mandate better record keeping on asylum cases: Where do asylum seekers come from? What is the basis for their grants or denials? How many are detained? How many leave of their own volition after receiving a denial? How many are deported? How many cases are re-opened for fraud or due to criminal convictions? Such information will allow us to improve our policy-making and will hopefully lead to a better and more secure system.
– We need to make some decisions about how to treat asylum applicants at the borders: There has been a significant increase in asylum applicants arriving at our Southern border. Currently, most are detained and–if they pass a credible fear interview–they are released with a date to return to Immigration Court. I have not seen specific examples of individuals who have entered the U.S. in this manner and then committed bad acts. But given the number of arrivals, the possibility for this to happen seems pretty high. So do we detain these asylum seekers until their cases are heard? Such an approach makes it much more difficult for them to prepare their asylum cases. It is also very expensive. Should each person be fitted with an ankle bracelet or some other tracking device? If we had more accurate data about asylum seekers, perhaps we could better answer these questions.
– We must decide how to treat people fleeing persecution where that persecution is not based on a protected ground: Many people arriving at the Southern border face real harm from gangs, cartels, and criminals. Many others face serious harm due to sexual violence. Often, such people do not fall neatly into one of the five protected categories. Most will not qualify for lesser forms of relief, such as the Convention Against Torture. So what to do with them? Of course, we could simply deport them as we are not obligated by our international agreements to protect them. But sending innocent people to their deaths seems not in keeping with our national values (or any other notion of morality). Could something be done for such people without creating an incentive for everyone South of the border to come to the United States?
– We need to plan ahead to deal with a potentially large refugee flow from Mexico: For years, we’ve been hearing discussion about the possibility of large refugee flows from Mexico due to the violence there. If this happens, our current asylum system will likely not handle the volume. Perhaps we need a contingency plan for how to deal with such refugees. Faced with refugee crises, other countries have created temporary camps for people, where they can stay until it is safe to return (though often that takes decades or longer, and then there is no where to return to). Maybe such a model would be appropriate if the situation in Mexico deteriorates further. Or maybe some type of TPS would be more appropriate. In any case, it seems to me that we can start thinking about this now, so that we are more prepared in case of a humanitarian disaster.
There is obviously more to say about these topics, but–since it is the season of miracles–I continue to hope that the Judiciary Committee will address these and other important issues related to our asylum system.
Last week when I wrote about Dream Activists and Asylum Seekers, I caused a bit of a kerfuffle. Hopefully, today, I will do better, and this post won’t be quite so kerfuffle-inducing (and yes, I plan to see how many times I can use the word “kerfuffle” in one post – according to Carl Kasell, so far that’s three).
First, a bit of housekeeping. If you have not read my post from last week, this entry will be harder to follow.
Probably the main objection to my posting last week was my insinuation that the asylum claims of the Dream 30 were not legitimate. However, based on the comments from their attorneys/advocates David Bennion and Mathew Kolken, it seems that the claims are legitimate, and so I will take that as a given for purposes of this blog post.
Explaining stuff helps us understand.
With that as background, there are two issues I want to discuss: (1) From a moral and policy point of view, is there any problem with using the Dream 30’s asylum cases to promote a political agenda (the Dream Act) when that agenda is unrelated to the substance of the asylum claim (fear of persecution in Mexico)? and (2) Will this strategy move the Dream Activists closer to their goal?
Political asylum cases are, by their nature, political (duh). This means that the claimants have a political agenda. Normally, that agenda relates to the substance of their claim. For example, I represented a Pakistani journalist who opposed the government and faced persecution because of his activities. After he received asylum, he spoke about his case in the media to try to gain attention for his cause. This seems perfectly legitimate.
The journalist’s case is different from the Dream Activists, in that the activists are not publicizing their cases to highlight the political situation in Mexico. Instead, they are highlighting the failure of the U.S. government to pass immigration reform. I worried that this use of asylum would somehow damage the asylum system. So are the Dream Activists under any obligation to justify their actions? And, if so, is there a justification for using the asylum system in this manner?
First, why should the Dream 30 be required to justify their use of the asylum system as a form of protest? They have legitimate reasons for seeking asylum, and if they want to use their cases to gain attention for the Dream Act or for any other cause, isn’t that their business? Speaking for myself, without such a justification, I find it very difficult to support their political action (though I certainly support their right to seek asylum, as per the letter from Bill Ong Hing). Although it may sound corny, having represented hundreds of asylum seekers, I believe that our system of asylum is, in some ways, sacred. It is a system that is designed to–and does–save lives. If that system is going to be used for some ulterior motive, I, for one, would like an explanation.
I can image some possible justifications: Maybe the activists think publicizing these cases will help advance immigration reform; maybe they want to demonstrate that when undocumented immigrants leave the U.S., their lives are at risk; maybe they want to alert other Dream Act-eligible people to the possibility that they might avoid removal by seeking asylum; maybe they want to inspire other undocumented people to come forward; or perhaps there is another reason for their actions that I have not thought of. My point being, it would be nice to know what the Dream Activists want.
The second big question for me is whether the strategy of publicizing the Dreamers’ asylum claims will accomplish their political goal (whatever that might be). Assuming the goal is immigration reform of some kind, I have seen no explanation for how publicizing these asylum cases will move our country towards that goal.
Certainly, it could simply be that I am ill informed. However, I am more than a casual observer, and I am not a complete idiot (at least on my better days). So if I don’t get it, probably many others don’t either. The Dream activists have done an extraordinary job of publicizing the Dream 30 (and the Dream 9 before them), but they have failed to capitalize on this initial attention to move the discussion in a positive direction. Indeed, it seems to me that they have completely lost the initiative, as the discussion has bogged down in internecine internet warfare. Maybe if the Dreamers had been more clear from the beginning about their goals and strategy, the debate over these issues would not have taken such an unproductive turn.
It is not too late for the Dream Activists to re-take the initiative and extricate themselves from the unproductive tit-for-tat with other immigrant advocates. For a start, they need to clearly explain a few things: (1) When and under what circumstances did the members of the Dream 30 leave the U.S. and why are they seeking asylum (their lawyer David Bennion did a pretty good job of this in response to my blog post from last week); (2) What is the ultimate goal of the Dream Activists; and (3) How does the action at the border help achieve that goal.
For me–and, I suspect, for others–clear answers to these questions would be a good way to begin a productive dialogue about goals and strategy, and would go a long way towards bringing us on board with the Dream Activists’ plan. But for now, without a good explanation, I am simply not convinced that the Dreamers’ actions have done anything to advance the cause of undocumented people, asylum seekers, or immigration reform.
The following letter is from Bill Ong Hing to President Obama. Professor Hing is a well known advocate for immigrants. He is currently a professor of law at the University of San Francisco. Prof. Hing writes about the Dream 30 credible fear cases that were rejected (about eight cases have been rejected so far; one person was deported). He is concerned that the cases have been rejected based on an unfair and incorrect legal standard. He puts the Dream 30 cases into historical perspective and argues that the rejection of these credible fear applicants is reminiscent of previous failures by our government to protect refugees.
I am not fully convinced by his conclusions, as I discussed in my last blog entry (in short, I think there are–or at least, may be–legitimate reasons why the Dreamers’ credible fear applications would be denied at a higher than average rate). However, his analysis is important and deserves attention, especially since we would not want to repeat the tragic history that he recounts. His letter is kind of long (he is a law professor), but well worth a read if you are following this debate. Enjoy:
November 4, 2013
President Barack Obama
The White House
Washington, DC
Re: Dream 30 and Credible Fear
Dear President Obama:
I write to you today with grave concern for the “Dream 30”, young people who arrived at the Laredo Port of Entry on September 30th and requested both humanitarian parole and asylum. Twenty-six of these young people are currently detained at the El Paso Processing Center, and all have received credible fear interviews after expressing fear of returning to Mexico (or, in one case, Peru). However, seven have received negative determinations of credible fear and may now be subject to removal, and I am concerned that an unreasonable standard for credible fear has been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper, more generous credible fear standard be followed.
President Obama reads Professor Hing’s letter.
The immigration system allows for those who express a fear of return at our borders to receive a credible fear interview, rather than being summarily deported. This is essential to protecting those who may face danger abroad, but have little understanding of our legal system and few resources with which to prove their case. And it is essential to maintaining the United States as a safe haven for those who have been persecuted at home. The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture. For this very reason, the denial rate for credible fear interviews was less than 9 percent.
The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The apparent cursory fashion in which these negative decisions were made are reminiscent of three tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees, and Jewish refugees from Europe during World War II.
Treatment of Central American Refugees
The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9th Cir. 1990), reveals that immigration officials engaged in a strategy that foreclosed the opportunity to apply for asylum for Salvadorans during the 1980s.
Generally, after aliens were apprehended, either border patrol agents or INS officers processed them. INS processing of detained aliens consisted of an interrogation combined with the completion of various forms, including form I-213, “Record of Deportable Alien,” and the presentation of form I-274 “Request for Voluntary Departure.” Although the arrested Salvadorans were eligible to apply for political asylum and to request a deportation hearing prior to their departure from the United States, the vast majority of Salvadorans apprehended signed voluntary departure agreements that commenced a summary removal process. Once a person signed for voluntary departure in the course of INS processing, he or she was subject to removal from the United States as soon as transportation could be arranged. A person given administrative voluntary departure in this manner never had a deportation hearing, the only forum before which the detained person could seek political asylum and mandatory withholding of deportation.
The Smith court found that the widespread acceptance of voluntary departure was due in large part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity of most Salvadorans with their rights under United States immigration laws. INS agents directed, intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to procure voluntary departure, ranging from subtle persuasion to outright threats and misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure even when they had unequivocally expressed a fear of returning to El Salvador. Even when an individual refused to sign form I-214, “Waiver of Rights,” INS officers felt that they could present the person with the voluntary departure form.
The court also found that INS processing officers engaged in a pattern and practice of misrepresenting the meaning of political asylum and of giving improper and incomplete legal advice, which denied arrested Salvadorans meaningful understanding of the options presented and discouraged them from exercising available rights. INS officers and agents routinely advised Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that were available. Without informing them that voluntary departure could be requested at a deportation hearing, INS officers advised detainees that if they did not sign for voluntary departure they could be formally deported from the United States, and that such a deportation would preclude their legal re-entry without the pardon of the Attorney General.
INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they would remain in detention for a long time, without mentioning the possibility of release on bond. Similarly, without advising that an immigration judge could lower the bond amount and that there were bond agencies that could provide assistance, INS agents regularly told detainees that if they did not sign for voluntary departure they would remain detained until bond was posted. Some agents told individuals the monetary bond amount they could expect or the bond amount given to other Salvadorans, without telling them that the bond amount ultimately depended upon the circumstances of the individual.
INS officers commonly told detainees that if they applied for asylum, the application would be denied, or that Salvadorans did not get asylum. INS officers and agents represented that Salvadorans ultimately would be deported regardless of the asylum application. INS officers and agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to soldiers. INS processing agents or officers further discouraged Salvadorans from applying for asylum by telling them that the information on the application would be sent to El Salvador, and stating that asylum applicants would never be able to return to El Salvador. INS processing officers also used the threat of transfer to remote locations as a means of discouraging detained Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.
Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing the voluntary departure forms, although they acknowledged that aliens had this right. Even those Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary departure, as INS’ practice was to refuse to recognize the authority of counsel until a formal notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran detainees, it was often physically impossible for counsel to locate their clients and file Form G-28 before the client was removed from the country.
In conclusion, the Smith court noted:
The record before this Court establishes that INS engages in a pattern and practice of pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC to request voluntary departure or voluntary deportation to El Salvador. There is substantial evidence of INS detention officers urging, cajoling, and using friendly persuasion to pressure Salvadorans to recant their requests for a hearing and to return voluntarily to El Salvador. That this conduct is officially condoned, even in the face of complaints, demonstrates that it is a de facto policy. The existence of a policy of making daily announcements about the availability of voluntary departure, coupled with the acknowledgement that the policy is designed to free-up scarce detention space, supports the conclusion that INS detention officers make a practice of pressuring detained Salvadorans to return to El Salvador. This conduct is not the result of isolated transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive practice akin to a policy. . . . This pattern of misconduct flows directly from the attitudes and misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the motives of class members who flee El Salvador and enter this country.
Thus, the court entered the following order:
1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge or other forms of coercion, or in any other way attempt to persuade or dissuade class members when informing them of the availability of voluntary departure pursuant to 8 U.S.C. § 1252(b). The prohibited acts include, but are not limited to:
(a) Misrepresenting the meaning of political asylum and giving improper and incomplete legal advice to detained class members;
(b) Telling class members that if they apply for asylum they will remain in detention for a long period of time, without mentioning the possibility of release on bond or indicating that bond can be lowered by an immigration judge and that there are bond agencies which can provide assistance;
(c) Telling Salvadoran detainees the amount of bond given to other class members, without indicating that the bond amount ultimately depends upon the circumstances of the individual class member;
(d) Telling class members that their asylum applications will be denied, that Salvadorans do not get asylum, or that asylum is only available to guerillas or soldiers;
(e) Representing to class members that the information on the asylum application will be sent to El Salvador;
(f) Representing to class members that asylum applicants will never be able to return to El Salvador;
(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do not elect voluntary departure;
(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that are available;
(i) Refusing to allow class members to contact an attorney; and
(j) Making daily announcements at detention facilities of the availability of voluntary departure.
The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991). As the New York Times reported on the case:
Such applications have long presented the Government with an embarrassing choice. The United States supports the Governments of El Salvador and Guatemala, and at the same time it is asked by asylum applicants to find that they have a “well-founded fear of persecution” if they are returned home. Every approval of an application for political asylum thus amounts to an admission that the United States is aiding governments that violate the civil rights of their own citizens.
Since 1980 the Government has denied 97 percent of applications for political asylum by El Salvadorans and 99 percent of those by Guatemalans. During the same time, applications for political asylum by Eastern Europeans, Nicaraguans and residents of other countries have a high percentage of approval. For example, 76 percent of applications by residents of the Soviet Union were approved, as were 64 percent of those by residents of China.
A settlement was reached requiring the INS to readjudicate the asylum claims of certain Salvadorans and Guatemalans who were present in the United States as of 1990, and who had sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a nationwide class action on behalf of Salvadorans and Guatemalans. The plaintiffs alleged that the INS and the Executive Office of Immigration Review were biased in their asylum adjudication process for those two nationalities. Under the settlement, these Central Americans were eligible for new asylum interviews.
Unfair Treatment of Haitian Asylum Applicants
In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982), the Fifth Circuit chastised the federal government for unfair processes that were imposed on Haitian asylum applicants. In response to the repressive Duvalier regime that caused political and economic havoc in Haiti in the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum once they reached the shores of Florida. A backlog developed, so INS officials implemented an accelerated program to deal with the situation. The program of accelerated processing to which the Haitians were subjected by the INS-termed the “Haitian Program”- embodied the government’s response to the tremendous backlog of Haitian deportation cases that had accumulated in the INS Miami district office by the summer of 1978. By June of that year between six and seven thousand unprocessed Haitian deportation cases were pending in the Miami office. These staggering numbers were not the result of a massive influx of Haitians to south Florida over a short period. Although significant numbers of Haitians had entered the United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of the INS in dealing with these aliens.
Many officials provided input in the planning process of the Haitian project. Assigned by the Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that processing could be expedited by ceasing the practice of suspending deportation hearings upon the making of an asylum claim. Salturelli acknowledged that this would contravene internal operations procedures, but suggested that those procedures should be cancelled or “at least be suspended insofar as Haitians are concerned.” One July 1978 report from the Intelligence Division of INS to the Associate Director of Enforcement advised in absolute terms that the Haitians were “economic” and not political refugees and, in belated recognition of the obvious, warned the Enforcement Division that favorable treatment of these Haitians would encourage further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find space for holding an increased number of deportation hearings and to discuss with Miami personnel the processing of Haitians. Out of those discussions arose recommended deterrence measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians, swift expulsion of Haitians from the United States, and enforcement actions against smugglers.
Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the basic mechanics of the accelerated processing already being implemented in the Miami district office. Among the specifics set forth were the assignment of additional immigration judges to Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.
In accordance with the goal of high productivity demanded of the Miami office, Acting District Director Gullage issued a memorandum to all personnel in the office, stating “processing of these cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby ordered to take whatever action they deem necessary to keep these cases moving through the system.” The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program only between one and ten deportation hearings were conducted each day. During the program, immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the program’s peak the schedule of deportation hearings increased to as many as eighty per day.
At the show cause or deportation hearing, the immigration judges refused to suspend the hearing when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in the show cause order and proceed to a finding of deportability. The order entered by the judge allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to request withholding of deportation from the immigration judge if the asylum deadline was not met. Failure to seek withholding in a timely manner effected automatic entry of a deportation order.
Deportation hearings were not the only matter handled during the Haitian program. Asylum interviews also were scheduled at the rate of forty per day. Immigration officers who formerly had worked at the airport were enlisted as hearing officers for these interviews. Prior to the program such interviews had lasted an hour and a half; during the program the officer devoted approximately one-half hour to each Haitian. In light of the time-consuming process of communication through interpreters, the court concluded that only fifteen minutes of substantive dialogue took place. Consistent with the result-oriented program designed to achieve numerical goals in processing, the Travel Control section in the Miami office recorded the daily totals of asylum applications processed. The tally sheet contained space only for the total number of denials; there was no column for recording grants of asylum.
Hearings on requests for withholding deportation also were being conducted simultaneously with asylum and deportation hearings, at several different locations. It was not unusual for an attorney representing Haitians to have three hearings at the same hour in different buildings; this kind of scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS was fully aware that only approximately twelve attorneys were available to represent the thousands of Haitians being processed, and that scheduling made it impossible for counsel to attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the INS decided that resolving the conflicts was “too cumbersome for us to handle” and adopted the attitude that everything would simply work out.
Under these circumstances, the court concluded that the INS had knowingly made it impossible for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The court found that adequate preparation of an asylum application required between ten and forty hours of an attorney’s time. The court further estimated that if each of the attorneys available to represent the Haitians “did nothing during a 40 hour week except prepare [asylum applications], they would have been able to devote only about 2 hours to each client.”
The results of the accelerated program adopted by INS are revealing. None of the over 4,000 Haitians processed during this program were granted asylum.
In the end, the federal court of appeals struck down the accelerated program as a violation of procedural due process. The government was forced to submit a procedurally fair plan for the orderly reprocessing of the asylum applications of the Haitian applicants who had not been deported.
Turning Away Jewish Refugees During World War II
In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of limitations on quotas.
The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a horrific example of how restrictionist views were manifested toward refugees at the time. In a diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for corrupt Cuban officials to deny them entry even after they had been granted visas. It was the objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews. The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor. As it sailed North, it neared United States territorial waters. The U.S. Coast Guard warned it away. President Franklin D. Roosevelt had said that the United States could not accept any more European refugees because of immigration quotas, as untold thousands had already fled Nazi terror in Central Europe and many had come to the depression-racked United States.
Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee assistance groups, the ship was allowed to land in Holland. Four nations agreed to accept the refugees—Great Britain, Holland, Belgium and France. Two months later, the Nazis invaded Poland and the Second World War began. Over 600 of the 937 passengers on the St. Louis were killed by the Nazis before the war was over. When the United States refused the St. Louis permission to land, many Americans were embarrassed; when the country found out after the war what happened to the refugees, they were ashamed.
Closing
Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown a significant possibility that that the applicant can meet the standard for asylum before an immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.
The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear” standard for asylum can be met even when a 10 percent chance of persecution is established. And the credible fear standard is meant to be an even lower burden than well-founded fear.
The Dream 30 are young people that deserve fair treatment. Your administration should not be associated with the tragic asylum eras of the past that I have outlined above. Politics should not get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give their cases due consideration. If they have a credible fear, they should be allowed to make a case for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge you to protect the integrity of the asylum system that has been designed to be symbol of hope and freedom throughout the world.
Sincerely,
Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, University of California, Davis
This letter was published with permission from Prof. Hing. The footnote has been omitted.
It seems that advocates for “Dreamers”–young foreigners who would benefit from the Dream Act–are trying a new tactic: Leaving the country and then returning to seek asylum. Not long ago, I wrote about the Dream 9, who presented themselves at the U.S./Mexico border and requested asylum. They were released and will have to appear before Immigration Judges, who will decide their cases. Now, we have the Dream 30, who have done pretty much the same thing. This new tactic holds promise and risk, both for themselves and for other asylum seekers.
“Dreamers” might be a particular social group, but I am not so sure about “dreamboats.”
Asylum, of course, is a legal tool that has been used and expanded by creative lawyers. When the modern asylum system was created by the Refugee Act of 1980, many people who routinely receive protection today–victims of female genital mutilation, LGBT individuals, victims of domestic violence–would likely have been ineligible for asylum. To the extent that their actions are not simply a type of civil disobedience, the Dreamers seem to be seeking to expand the category of protected individuals to include people who grew up in the U.S., and who face threats in their home countries because they are viewed as “American.” This strategy raises two basic questions: (1) Will it work? and (2) How will it affect other asylum seekers?
First, will it work? I think it might, at least in some cases. I’ve represented several asylum seekers who made claims similar to the Dreamers: A lesbian who had not been to her home country of Sudan since she was young, Afghan women (and a few men) who studied in the U.S. and who are viewed by extremists as “Westernized,” an Iraqi woman whose family was associated with the U.S. These applicants were successful (or their cases are still pending), but my guess is that their claims are stronger than most of the Dreamers’ claims. Nonetheless, the principle is the same.
A broader–and more radical–solution for the Dreamers might be if the Obama Administration defined them as a particular social group for asylum purposes. There is precedent for such a move: In 2009, DHS issued a brief in Matter of LR where it stated, “DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group…. This does not mean, however, that every victim of domestic violence would be eligible for asylum.” Prior to the end of DOMA, I (clumsily) advocated a similar approach to help LGBT couples.
If DHS agrees that deported Dreamers are a particular social group (defined as “young, Americanized Mexicans,” for example), they would then need to demonstrate that they face persecution in their home country based on their social group. DHS could potentially make a blanket determination that members of this social group would face persecution in Mexico, El Salvador or wherever, and – Voila! – Dreamers get asylum, and you effectively pass the Dream Act without Congressional action (and they could apply for asylum without leaving the U.S.).
Of course, there would be consequences to such an approach, which brings us to the second question: How will it affect other asylum seekers?
For one thing, unless significant resources were re-allocated, giving asylum to the Dreamers would completely overwhelm the asylum system. That system has already been ground to a halt by a few extra thousands arrivals at our border, so it certainly could not handle millions of new cases.
In addition, it would be very expensive. There are no government fees for asylum applications. Presumably, if the Dream Act becomes law, Dreamers will pay a fee to regularize their status. In general, USCIS is operated based on filing fees (that is why it has not been closed by the government shutdown), so these fees would be needed to adjudicate the Dreamers’ cases.
Third–and this for me is the real problem–it will harm (or destroy) the integrity of the asylum system. Asylum, by definition, is an individualized form of relief. While one person from a particular country may have a strong asylum case, another may have no case at all. To view these cases collectively sets a very bad precedent. Worse, to grant asylum to an entire group (i.e., Dreamers), many of whom probably would not otherwise qualify, turns the asylum system into a political tool for avoiding the normal legislative process (i.e., passing the Dream Act). Such a move would do great damage to the asylum system, a system that is supposed to be free from political influence.
Asylum as a blanket solution to the Dreamers’ dilemma is certainly not the best way to solve the problem. It would obviously be much better for Congress (specifically the House of Representatives) to pass the Dream Act and Comprehensive Immigration Reform. But as a strategic approach, perhaps the “threat” of giving asylum to all Dreamers might provide an incentive for the House to take up immigration reform. After all, the language of nihilism, self destruction, and ends-justifies-the-means is the only language that the House of Representatives seems to understand.
In the last couple posts, I wrote about how the asylum system is being strained by a significant uptick in the number of credible fear interviews and for other reasons. I concluded that the “new normal” for asylum seekers will be longer delays. This means longer separation from family, and greater stress and uncertainty. Today, I want to discuss some ideas for alleviating this problem.
The most obvious solution is probably the least likely–throw money at the problem. Of course we live in a time when politicians are falling all over themselves to cut spending. But if you will indulge an old (well, middle aged) lawyer, I’d like to suggest some reasons why the asylum program is worthy of more financial support.
Replacing Asylum Officers with computers is one way to save money. What could go wrong?
For one thing, there are over 45 million displaced people world-wide (this includes refugees and internally displaced people). As a world leader, the United States has an important role to play in the humanitarian realm. If we do not assist refugees and asylum seekers, other countries will follow suit. Fulfilling our international obligations is part of what makes us a world leader.
Second, while it obviously costs us money to resettle refugees and asylees, over the long run, I believe that most of these people greatly benefit our nation. Some of those we help (such as many of my clients) are men and women who assisted us in our missions in Afghanistan and Iraq. If we wish to maintain credibility with future allies, we cannot abandon those who helped us in the past. More generally, many asylum seekers are successful, talented people who will make important contributions to our country.
Third, we have created many of the messes that led to the large number of displaced people in the world today. That is particularly true in Central America where we toppled governments and supported dictators pretty much willy nilly. It’s also true to a lesser extent in Indochina and the Middle East. I am not saying that in many cases we did not have legitimate geo-political objectives, but since we (inadvertently) helped create the mess, we should help clean it up.
Finally–and this is probably the most important reason in my opinion–helping people in need is simply the right thing to do.
So for all those reasons, our asylum program deserves sufficient funding to fulfill its purpose without undue delays. The program assists incredibly vulnerable people, fulfills our international obligations, helps us maintain our leadership position in the world, and brings to the United States many ambitious, intelligent, and highly motivated people who will make our country a better place. Thus, my number one solution for reducing delays in the asylum process is to devote more resources to the system.
Some other–less expensive–thoughts on how to solve this problem:
– Issue work permits immediately: If the Asylum Offices know that cases will be delayed more than 150 days (the waiting period before an applicant can file for her work permit), why bother to make people wait? When the Asylum Offices know that a case will be delayed, they should allow the applicant to obtain a work permit immediately. This might require some creativity when it comes to the current law, but it should be do-able, and it would alleviate some of the pressure on asylum applicants.
– Prioritize cases based on family separation, past harm, and strength of the case: While such an evaluation would necessarily be imperfect, giving priority to cases that meet certain criteria would be better than doing nothing. Especially in cases of family unity, moving certain cases more quickly would make a big difference to the more needy applicants.
– Help Mexico: Many asylum seekers come through Mexico, a country that has been making some efforts to improve its asylum law. I wrote about this two years ago, but with all the problems in Mexico, we have not heard much about this lately. If Mexico could fully implement an effective asylum law, asylum seekers could be required to ask asylum in Mexico instead of passing through to the U.S. Something tells me that Mexican asylum law will not be up to speed in the near future, but if our goal is to reduce the number of people seeking asylum in the United States, one way to do that is to assist Mexico in getting their humanitarian act together.
– Eliminate or reform the Cuban Adjustment Act: As I have written before, I am not a fan of the CAA–I think that Cubans should apply for asylum like everyone else. But if we are going to keep this law, it should be reformed. Presently, for various reasons, many Cubans end up in the asylum system while they wait for adjustment under the CAA (they have to be here one year before they can adjust status and obtain their U.S. residency). Since they will obtain status based on the CAA, there is no need for them to have any involvement with the asylum system. It is a complete waste of resources. I don’t think this is a major factor in creating delay, but it certainly wouldn’t hurt to segregate Cuban cases from other asylum cases, as there really is no reason for them to be using any asylum seeker resources.
– Eliminate forced family planning asylum: The largest number of asylum seekers in the U.S. come from China. One reason for this is because we have a law offering asylum to victims of forced abortion and forced family planning. The anecdotal evidence suggests that a high percentage of these cases is fraudulent. If the special provisions for Chinese asylum seekers were eliminated, it would likely reduce the number of applicants and the instances of fraud.
So there you have it. We seem to be in a time of change for the U.S. asylum program. I am hopeful that our system is flexible enough to deal with the current (hopefully temporary) changes and that we will continue to serve as a refuge for people fleeing persecution. It is our responsibility and our privilege. And it is the right thing to do.
Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?
I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:
“Don’t worry. The Asylum Office will get to your case before you’re my age. Probably.”
First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).
Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.
Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.
All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.
For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.
In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.
Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.
Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system.
All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.
Last time, I wrote about the Dream 9–nine Dream Act activists who were detained at the border when they tried to enter the U.S. without permission. They were released from detention after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the Asylum Officer that they fear persecution in their home country based on race, religion, nationality, particular social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an Immigration Judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asylum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”
Here are some recent statistics from the Department of Homeland Security:
Fiscal Year
Number of Credible Fear Cases Completed
2009
5,523
2010
8,926
2011
11,716
2012
13,607
2013
22,775
So you can see that over the last several years, the number of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done–these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:
Month in FY 2013
Number of Credible Fear Cases Completed
October
1,596
November
1,242
December
1,603
January
1,795
February
1,921
March
2,139
April
3,124
May
3,336
June
3,776
Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?
It seems the system is one wafer thin mi(gra)nt away from bursting.
The most obvious explanation (and one that other commentators and I have discussed before) is that escalating violence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source (and their report has been called into question), the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but–at least based on the statistical data we have now–that does not seem to be a factor.
Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smugglers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point. And why not? We are already seeing organizations in the U.S. trying to make money before the reform has even passed (check out this website, which purports to know what the reform will be, what the fees will be, and will charge you a mere $3,000.00 + $2,500.00 in fees to Get Started Now!).
Further evidence that smugglers are driving the increase in arrivals can be found by examining the source countries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals (AILA members can see all these stats here). Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from multiple countries indicates that “pull” factors (i.e., the immigration reform debate) are playing a larger role than “push” factors (problems in the source countries).
The increasing number of people arriving in the United States and expressing a credible fear of persecution is straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local Asylum Office (Arlington, VA), for example, the interview process has basically ground to a halt. I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that in the next posting.
This blog entry is by ace reporter Maria Raquel McFadden. Ms. McFadden is also a freelance business, legal, and immigration interpreter with 10 years experience. She has interpreted in various forums including courts, immigration interviews, depositions, and business meetings. Ms. McFadden is registered with the State of Maryland and can be reached at: Office: 202-709-3602 or Cell: 202-360-2736; mcfadden.maria@gmail.com.
Asylum seekers are often fraught with misgivings and anxiety about providing information that they feel might make them victims of reprisals should their claim be denied. It is important that besides being informed of attorney-client confidentiality, asylum seekers be made aware that the entirety of the asylum process is protected by confidentiality laws and regulations. Interpreters are not only bound by these rules but also by their cannon of ethics and standards, which also requires confidentiality.
Like many other professionals, interpreters must follow certain standards of practice while on the job. Despite the fact that the number and order of cannons in the interpreters’ “Code of Ethics” can vary a bit among accrediting bodies and hiring agencies, a perennial tenet is the one of confidentiality.
Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance.
Interpreters often have access to protected, restricted, private and/or sensitive information. The oath taken by professional interpreters to adhere to confidentiality assures asylum seekers and all connected to the case (including witnesses) that the facts and circumstances they share with the private bar attorneys, immigration judge or immigration officers, and other U.S. government personnel will not be divulged by the interpreter to an outside party.
No matter whether the process is an asylum hearing, a credible fear or reasonable fear determination hearing, an interpreter may not share any information he/she has learned (whether orally or in writing) before, during or after the proceeding.
From time to time, for educational purposes, interpreters do and should share language issues that arise. However, it is important they never share any identifying information which can include the name of the asylum seekers, the judge, officer, or representing attorney.
Frequently during the process (at interviews at the asylum office or during attorney-client meetings for example), non-professional “interpreters” are used. Attorneys and asylum officers should remind those interpreters of their duties in respect to confidentiality.
When an asylum seeker understands the importance that the court, USCIS, and attorneys place on confidentiality, asylum seekers can be reassured and thus feel more comfortable disclosing all the details of their case, making the process work better for all involved.
Under INA § 235(b), an alien who appears at the border and claims asylum or expresses a fear of persecution must be interviewed. The Refugee Protection Act would require DHS to record these interviews.
A DHS employee demonstrates the agency's latest recording equipment
Currently, asylum interviews at the border (or the airport) are generally not recorded. As a result, there are often disputes about what the alien said at the interview. For example, I worked on a case recently where an Ethiopian asylum seeker entered the United States at the Mexican border. He was immediately detained and requested asylum. His friend and traveling companion served as my client’s interpreter. The Border Patrol agent wrote down the client’s responses to the agent’s questions. The written statement was not consistent with my client’s statements in court, and the IJ found the client’s testimony incredible; she denied asylum. On appeal, the BIA reversed and remanded the case for, among other things, a more thorough examination of what happened at the border. Had the border conversation been recorded, the IJ could have more definitively determined whether an inconsistency existed, and could have made a more accurate credibility determination.
IJs often rely on prior inconsistent statements to make adverse credibility findings, and I have worked on a number of cases where prior statements were used for impeachment purposes. Such statements are often not recorded (neither the Border Patrol nor the Asylum Office records interviews). Thus, the accuracy of the prior statements is frequently an issue. If the interviews were recorded, we would have a more accurate record, and hence, more accurate credibility determinations. The RPA provides for recorded interviews at the border. It should also provide for recorded interviews at the Asylum Office.
Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance. 