In order to “amplify” the President’s tough-on-immigrants campaign message and win votes, the Trump Administration is planning on conducting a series of ICE raids in “sanctuary” jurisdictions, such as California, Denver, and Philadelphia. What should you do if ICE (Immigration and Customs Enforcement) comes looking for you? Or if you get caught up in a raid?
Before we answer those questions, I want to note that people who have pending asylum cases, or who have cases in Immigration Court, are rarely targeted for arrest by ICE. The agency’s main targets are people who already have removal orders and people who have criminal issues (including very minor criminal issues). However, ICE also makes “collateral” arrests if they encounter other “illegals” in the course of pursuing their target. But unless you have already been ordered removed or you have criminal issues, it is unlikely that you will ever have to deal with ICE. That said, it never hurts to take precautions and to be prepared. So how do you do that?
In the old days, politicians would win votes by kissing babies.
First, a couple general rules to keep in mind. If you are stopped by ICE or the police, do not run away or resist. Keep your hands where the officers can see them. Be aware that in some states, you are required to give your name to law enforcement. Do not lie about your immigration status or present false documents. Trying to lie your way out of a situation rarely works, and is more likely to cause additional problems. The better approach is to inform the officers that you wish to remain silent and that you wish to contact a lawyer and/or your family. As you probably know, in the U.S., you have the right to remain silent, and anything you say to ICE or the police can be used against you in court. So the less you say, the better.
If the officers want to search you, you have a right to say no. However, if the officers have probable cause (for example, they suspect that you committed a crime and are carrying a weapon), they can search you. If ICE or the police want to search you, you can repeat that you do not consent to the search, but do not resist.
Non-citizen in the U.S. are required to carry proof of immigration status at all times (Green Card, work permit, asylum receipt, passport and visa, etc.). If an ICE officer asks for your immigration papers, you are required to produce your documents. If you do not have your papers with you, you can inform the officer that you wish to remain silent or that you wish to call an attorney. You also have a right to call your country’s consulate in the U.S. (though for asylum seekers who fear harm from the home government, this may not be a great idea). You might also scan your immigration papers or take pictures of them, and keep them on your phone or in your email. That way, even if you do not have the originals, you can at least produce copies. In addition, non-citizens in the U.S. illegally (and who do not have an application pending) can be subject to expedited removal if they have been in the U.S. for less than two years. So make sure to carry proof (or have it on your phone or in your email) that you have been in the country for more than two years. If you have been in the U.S. for less than two years, do not admit that. Stay silent and ask to speak to a lawyer.
One common way people get detained is during a traffic stop. If you are stopped for a traffic violation, the police officer can require you to produce your driver’s license, proof of insurance, and vehicle registration. Once the police have your information, they often check for outstanding arrest warrants. In some jurisdictions, they also check for immigration warrants and can detain people with outstanding criminal or immigration issues.
Today, politicians win votes by putting babies in jail.
It is less common for ICE to come to your home, but if that happens, you do not have to let them into your house unless they have a warrant signed by a judge. You can ask to see the officers’ ID and any warrant. Also, be aware that sometimes ICE officers will try to trick you into leaving your house or allowing them to enter. If ICE officers or the police force their way into your house, do not resist. Tell them that you do not consent to them entering your home, and that you wish to remain silent and contact a lawyer.
While it is probably unlikely that you will ever be detained by ICE, it is a good idea to have a plan in place just in case. What will you do about your children or other people that you take care of? Who will assist them? If you take medicine, make sure that someone can get it for you (including a copy of the prescription). What about bank accounts, vehicles, and property? You need to have someone to take care of your affairs in the event that you are detained, and that person needs to know what to do in case of an emergency.
In addition, keep your immigration and other legal papers somewhere where your family or friends can access them. Also, make sure your family members know or can find your Alien number. If you have a lawyer, your family members should have that lawyer’s contact information.
You can find more information (in many different languages) about encounters with ICE and the police at the ACLU “Know Your Rights” webpage.
Finally, if you are detained, you may be eligible for release on your own recognizance (meaning you are released and required to report back to ICE or an Immigration Court at some point in the future) or on a bond (meaning you pay money as a “guarantee” that you will appear for any future court date or for removal from the country). If ICE refuses to release you or set a bond, you can ask an Immigration Judge to do that. Depending on the circumstances, judges sometimes do not have the authority to release you. But in my experience, asylum seekers are almost always released unless they have criminal issues.
In short, while it is not impossible that a person with a pending asylum case will be detained by ICE, it is rare. Nevertheless, it’s a wise idea to have a plan in place and to be aware of your rights. That way, you will be ready for any eventuality.
A whistleblower named Brian Murphy recently got attention for his claim that DHS officials ordered him to stop investigating Russian interference in the 2020 election. Until he was demoted a few months ago, Mr. Murphy ran the DHS Office of Intelligence and Analysis (“DHS I&A”).
In the same complaint, Mr. Murphy also alleges that Acting USCIS Director Ken Cuccinelli ordered him to alter intelligence reports to downplay violence and corruption in Central America. These reports are used to evaluate asylum claims and by downplaying the violence, it would be more difficult for asylum seekers to win their cases. From page 9 of the complaint–
In December 2019, Mr. Murphy attended a meeting with Messrs. Cuccinelli and Glawe to discuss intelligence reports regarding conditions in Guatemala, Honduras, and El Salvador. The intelligence reports were designed to help asylum officers render better determinations regarding their legal standards. Mr. Murphy’s team at DHS I&A completed the intelligence reports and he presented them to Mr. Cuccinelli in the meeting. Mr. Murphy defended the work in the reports, but Mr. Cuccinelli stated he wanted changes to the information outlining high levels of corruption, violence, and poor economic conditions in the three respective countries. Mr. Cuccinelli expressed frustration with the intelligence reports, and he accused unknown “deep state intelligence analysts” of compiling the intelligence information to undermine President Donald J. Trump’s (“President Trump”) policy objectives with respect to asylum. Notwithstanding Mr. Murphy’s response that the intelligence reports’ assessments were consistent with past assessments made for several years, Mr. Cuccinelli ordered Messrs. Murphy and Glawe to identify the names of the “deep state” individuals who compiled the intelligence reports and to either fire or reassign them immediately.
Mr. Murphy refused to comply with this order, which he deemed illegal. What to make of this?
Looked at this way, the Trump Administration’s policies make a lot more sense.
The first question is whether Mr. Murphy’s claims can be trusted. Here, there may be some reasons for doubt: Mr. Murphy has himself been accused of altering intelligence reports to better align with the Administration’s agenda, and he has also been accused of compiling intelligence reports on journalists at the Portland, Oregon protests (allegations he denies). After this information became public, Mr. Murphy was demoted, and so there is some speculation that perhaps his whistleblower complaint was made in retaliation for the demotion. On the other hand, Mr. Murphy apparently raised many of the issues listed in the complaint well before his demotion. Also, given that the allegations raised in the complaint are largely knowable (since others beside Mr. Murphy witnessed the events in the complaint and can confirm or deny their veracity), it seems unlikely that Mr. Murphy would simply make this stuff up. But of course, I do not know for sure.
Mr. Murphy’s credibility aside, this would not be the first instance of the Trump Administration altering country condition reports to better serve its agenda. In 2018, the State Department issued reports for El Salvador, Guatemala, and Honduras that left out significant derogatory information about those countries. The bowdlerization of those reports was no secret–all you have to do is compare the previous year’s reports to the newer reports to see what has been removed. And so there is clear precedent for what Mr. Murphy is alleging.
All things considered, my sense is that Mr. Murphy’s allegations are probably accurate. If so, what then do we make of Mr. Cuccinelli, the Acting Director of USCIS?
Here, there are two points I want to discuss. First is Mr. Cuccinelli’s desire to alter the reports in order to downplay the “corruption, violence, and poor economic conditions” in the three countries. Since asylum adjudicators rely on these reports to reach their decisions, making the countries seem less bad will potentially make it harder to win asylum. I say “potentially” because there are plenty of other sources of information that give an accurate picture of country conditions in the Northern Triangle. And so if the asylum applicant submits evidence about country conditions or if the adjudicator has such evidence, white-washing the DHS reports may not make much difference in the decision.
But there is a more concerning element to Mr. Cuccinelli’s request vis-a-vis these countries: Either he really believes that the DHS intelligence analysts are lying, or he (Mr. Cuccinelli) wants the U.S. government to lie in order to better achieve the Administration’s goal of denying more asylum cases. Neither possibility is comforting.
If we rely on Mr. Murphy’s account, it seems that Mr. Cuccinelli actually thinks that “deep state intelligence analysts” are somehow undermining Mr. Trump’s asylum agenda. Given that there are many sources for information about the Northern Triangle, including newspapers, human rights reports, and previous years’ intelligence assessments, and all seem to confirm the dire situation in Central America, it is hard to believe that a rational person would find anything nefarious about the picture painted by the DHS I&A reports. Does Mr. Cuccinelli believe that all the various sources are part of the “deep state”? It’s strange, since Mr. Cuccinelli is a lawyer and should know how to evaluate evidence. If Mr. Cuccinelli really believes that a group of deep state agents is sabotaging the country reports, it seems to me that he is living in an alternate reality, and that his confirmation bias is so overpowering that he can’t accept the real world for what it is. I suppose this is a possibility, as he also denies the existence of man-made climate change, which requires a certain level of detachment from reality.
The other possible explanation is that Mr. Cuccinelli knows that the situation in the Northern Triangle is bad, but that he is simply lying in order to make it more difficult for applicants from those countries to obtain asylum. In other words, that the “means” of lying and returning migrants to face persecution is justified by the “ends” of keeping asylum seekers out of our country.
Unfortunately, the situation described in Mr. Murphy’s whistleblower complaint is emblematic of the Trump Administration, which has repeatedly used falsehoods to justify its policies. Whether it engages in those falsehoods knowing them to be false, or believing them to be true, probably doesn’t much matter. Either way, they are doing great harm to our democracy and to many of our nation’s most vulnerable people.
As you’ve probably heard, the Republican Party has not adopted a new platform for 2020. Instead, they resolved that the “Republican Party has and will continue to enthusiastically support the President’s America-first agenda.” I find this frightening.
The whole point of a platform is to get together (perhaps virtually) to discuss/debate the party’s priorities and then reach some consensus about how to proceed during the next four years. But now–in spite of significant new problems facing our country–the Republican Party has decided to simply defer to President Trump and stick with their 2016 platform. If you’re interested, I already wrote about the 2016 platform. In 2016. That an entire party, diverse in its opinions (if not its ethnic make-up), would take a pass on setting its goals, and instead agree simply to follow the leader, is deeply undemocratic.
That said, at least in terms of asylum seekers and refugees, we have a pretty good idea about what a second Trump Administration would do: Close the doors to America by every means at its disposal, including trampling due process of law (which endangers us all) and lying about the reasons why asylum seekers and refugees come here, who they are, and what they do once they get here (and of course, this never-ending mendacity also endangers us all).
Republican proposals include using a heat weapon to deter migrants.
So we have a general idea about what the Republicans would do with a second term, but what about specifics? Since the Republican Party itself won’t tell us its proposals related to asylum seekers and refugees, the intrepid reporters here at the Asylumist have scoured the internet to find out exactly what Mr. Trump has in mind if he is re-elected. Here is what we found–
The border patrol will deploy a heat ray weapon, which produces “agonizing pain” to those caught in its line of fire. The idea is that migrants caught in the device’s ray will turn back to Mexico before they become burnt toast.
ICE will continue to arrest thousands of non-citizen, thus demonstrating that it is more important to detain “illegals” in overcrowded, coronavirus-infected prisons, than to worry about public health. This also has the benefit of enriching the private-prison companies that hold immigrant detainees. In turn, those companies use their money to help bankroll President Trump’s re-election campaign. So it’s a win-win-win!
Since Mexico hasn’t paid for a wall (yet), Trump supporters have raised private funds through a group called “We Build the Wall,” which raked in $25 million from private donors who wanted to put their money where their hate is. How much wall they’ve actually built is anyone’s guess, but a number of the organization’s leaders–including ex-Trump aid Stephen Bannon–did manage to get themselves indicted for fraud. Despite this small hiccup, perhaps we can expect private funding of the border wall to continue under another Trump term.
During his first campaign, Mr. Trump famously opined that asylum seekers are bringing crime and drugs, and that they are rapists. “Some, I assume, are good people,” he said. But since most migrants are not good people, we have to continually treat them with suspicion. In that spirit, the Trump Administration wants to collect much more biometric evidence from non-citizens, including DNA samples. So essentially, immigrants will be forced to live in a surveillance state until they become citizens.
President Trump has gone back and forth about what to do for/to DACA recipients (people who came to the U.S. as children but who do not have status here). Recently, he proposed “taking care of people from DACA in a very Republican way.” Given how the Trump Administration has treated migrant children, asylum seekers fleeing gangs and domestic violence, and Muslims, the idea of being treated in a “very Republican way” does not seem all that appealing.
It’s unfortunate that we don’t have specifics from the Republicans about their immigration goals for the next four years. When a political party puts their proposals in writing, at least it requires members of the party to think through their plans, and it gives the public a clearer idea about what they hope to accomplish.
In the absence of a platform, we are left to speculate. And given the Trump Administration’s track record on asylum, refugees, and immigration, it seems unlikely that we can expect anything positive from them during a second term.
The Democratic Party has released its 2020 Party Platform, which represents the Democrats’ aspirations for the next four years. Separately, the Biden/Harris campaign has released its immigration plan. Both plans contain concrete policy suggestions (as well as plenty of hyperbole), and here I want to discuss the points that relate directly to asylum.
Before we get to that, let’s briefly look at the most important points related to immigration generally, since these proposals would also affect asylum seekers. In terms of immigration, the Democratic Party Platform seeks to accomplish the following–
Stop work on the border wall
End the Muslim ban
Protect Dreamers and parents of U.S. citizen children
End the public charge rule (form I-944)
Provide a path to citizenship for undocumented migrants living in the U.S.
Reduce immigration backlogs
Make it easier for spouses and children of Green Card holders to come to the United States
End the 3/10 year bar
Expand protections for victims of human trafficking and sex trafficking
Provide stronger work-place protections for non-citizen and undocumented workers
End workplace and community raids
Re-instate prosecutorial discretion in immigration cases
Prioritize alternatives to detention and end the practice of holding non-citizens for long periods
Consider expanding TPS (Temporary Protected Status) for people from war-torn countries
In terms of enforcement, prioritize criminals and others who threaten our national security
Reform employment-based visas for immigrant and non-immigrant workers
Provide more support services for new immigrants, so they can better integrate into U.S. society
End the use of for-profit detention centers
Increase the number of refugees admitted into the country
The Democratic Party Platform stands for the radical notion that non-citizens are human beings.
The Platform also contains a number of proposals that relate more specifically to asylum–
End policies that make it more difficult for victims of gang violence and domestic violence to receive asylum
End the criminal prosecution of asylum seekers at the border and stop separating families
End policies designed to force asylum seekers to apply for protection in a “safe third country”
End the Migrant Protection Protocols (the “wait in Mexico” policy)
Send humanitarian resources to the border to deal with the migration crisis
Send more Asylum Officers to the border, and for asylum seekers who “pass” a credible fear interview, have an Asylum Officer–as opposed to an Immigration Judge–review the full case
Double the number of Immigration Judges, court staff, and interpreters
This is an ambitious agenda, and it is certainly more pro-immigrant than what we saw during the Obama Administration. Whether these goals can realistically be implemented, I do not know.
As for the proposals related to asylum, you can see that they are largely designed to reverse policies of the Trump Administration, and they mainly apply to migrants arriving at our Southern border. Mr. Trump’s policies have been abhorrent and ineffective (and not always legal), and so we obviously need to do something different at the border. The risk is that by deploying more resources to the border, the government will be unable to interview affirmative asylum seekers, thus further increasing the backlog. Also, if Mr. Biden’s policies encourage more migrants to come here, that could further strain the system and result in a political backlash.
In terms of changing the asylum law, Mr. Biden’s only substantive proposal is to reverse Trump-era restrictions on asylum for victims of domestic violence and criminal gangs. This is an important issue, since so many asylum seekers (especially from Central America) are fleeing these types of harm. Persecution by criminals and domestic partners has not traditionally been a basis for asylum eligibility. Over years of litigation, the scope of asylum protection has expanded to include LGBT individuals, victims of female genital mutilation, and to a lesser extent, victims of domestic and gang violence (under the rubric of “particular social group”). But since President Trump came into office, his Administration has been rolling back these gains, particularly with regard to persecution by criminal gangs and domestic partners. If Mr. Biden is elected and reverses this trend, more people would qualify for protection and lives will be saved, but this could also encourage more people to seek protection in our country.
To deal with this concern, Mr. Biden’s plan includes an effort to address the root causes of migration from Central America (violence, lawlessness, impunity, and poverty). Hopefully that would help improve the situation in those countries and mitigate the number of people seeking protection in the U.S. But in terms of our immigration system, more needs to be done.
Specifically, we need an honest national conversation about who should be eligible for asylum and how many asylum seekers we should admit. Unfortunately, in the current environment, this seems impossible. But until we can have such a conversation, and reach some semblance of a consensus, asylum will remain a political wedge issue and asylum seekers will continue suffering from backlogs and shifting eligibility standards. In the event that Joe Biden takes office in January, I hope that this conversation will be part of his agenda, and that he will work with Congress and the public to reach a sustainable solution for asylum seekers.
Overall, Mr. Biden’s asylum plans seem largely reactive–he wants to reverse the damage caused by the Trump Administration. But he is also advocating for a broad immigration reform, which would benefit many non-citizens, including many asylum seekers. Even if all he did was speak truthfully about migration and respect the law, Mr. Biden would be a vast improvement over what we have now. Let us all resolve to do what we can to help Mr. Biden succeed in November and beyond.
The U.S. immigration system is a disaster. Hundreds of thousands of applicants are stuck in limbo, many cases are arbitrarily denied, and due process protections have been reduced or eliminated. While it is still possible to win individual cases, the Trump Administration has done everything possible–legal and illegal–to block asylum seekers and immigrants, and to undermine the fair implementation of our nation’s immigration laws. With the immigration system under attack, the only way to protect individual immigrants is to defend that system. But how?
Over the last 3½ years, non-citizens and their advocates have done their best to defend the immigration system. Lawsuits have sought to mitigate the Muslim ban, “remain in Mexico,” the public charge rules, and so on. Advocacy work has had some successes as well–allowing foreign students to remain in the U.S. and reducing the number of children in cages. All of these efforts have been something of a rear-guard action–trying to keep the retreat from becoming a route.
Now, with the election approaching, there is a chance to achieve real change. If Joe Biden and the Democrats take the White House, we can expect an end to many of the most egregious attacks on non-citizens. No one has a bigger stake in this election than asylum seekers and other non-citizens. But of course, as non-citizens, you are not permitted to vote or donate money to Mr. Biden or the Democrats. But that doesn’t mean you can’t participate in the election campaign. Here, we’ll talk about what you, as a non-U.S. citizen, can and cannot do. Let’s start with the cannots.
Before they can help us, we have to help them.
You cannot vote. It is illegal for anyone but a U.S. citizen to vote in a federal election. Non-citizens who vote can face fines, jail time, and deportation.
A “foreign national” cannot contribute money to a campaign, even if that contribution is indirect (for example, through a political action committee). “Foreign national” is defined as an “individual who is not a citizen of the United States… and who is not lawfully admitted for permanent residence.” Thus, if you are a non-citizen, but you have a Green Card, you are permitted to donate money to a political campaign. Note that if you have applied for a Green Card or asylum or any other immigration benefit, and you have not yet received that benefit, you cannot legally contribute money to a campaign. Even if you have an Employment Authorization Document (“EAD”), you are not eligible to make a contribution.
Also, foreign nationals cannot make “decisions concerning the administration of any political committee,” meaning basically that you cannot take a leadership or decision-making role in a campaign or an organization supporting a campaign or candidate.
Finally, foreign nationals cannot work for a candidate and receive compensation from anyone.
So much for the cannots. Now let’s look at what a non-citizen can do to help during the upcoming election.
The main thing you can do to participate in the election is to volunteer with a candidate. The Federal Election Commission (“FEC”) website provides guidance for foreign nationals who wish to volunteer during an election–
Generally, an individual (including a foreign national) may volunteer personal services to a federal candidate or federal political committee without making a contribution. The Act provides this volunteer “exemption” as long as the individual performing the service is not compensated by anyone.
What do volunteers do? The most important activity for volunteers is to encourage people to register and vote. You can do this by making phone calls to potential voters. Here, the ability to speak different languages might be very useful. There are many new Americans, who are eligible to vote, but who might be more comfortable speaking in their native language. The phone calls can be made from your own home (using an app, which does not reveal your personal phone number) and the people you are calling tend to be happy to hear from you, as they have been selected because they are predisposed to vote for a Democrat. The purpose of the call is to ensure that they are registered to vote, and that they know how to vote when the time comes.
You can also participate by sending text messages to prospective voters. Again, you can do this from home, and it really does help.
There are other volunteer opportunities available as well, not only for Joe Biden and Kamala Harris, but for “down ballot” candidates, whose election is also very important for protecting non-citizens (and all of us). For calling and texting, and other types of volunteer work, the Biden campaign provides training and support. To learn more, and get in touch with a volunteer coordinator, contact the Biden campaign here. Make sure they understand your immigration status, so they can put you to work in an appropriate capacity.
Finally, according to a federal court decision (penned by now-Supreme Court Justice Brett Kavanaugh no less), the foreign national ban–
does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.
Bluman v. FEC, 800 F. Supp. 2d 281, 290 (D.D.C. 2011), aff’d 132 S. Ct. 1087 (2012). Thus, it may be possible to make financial contributions to non-political “issue” organizations that do not mention candidates, political offices, political parties, incumbent federal officeholders or any past or future election. See AO 1984-41 (National Conservative Foundation). If you plan to contribute financially, check with the beneficiary organization to be sure that your immigration status is not a bar (and remember that Green Card holders may freely engage in political activity and make donations, as long as they do not vote).
There is a lot riding on the November election. Unfortunately, President Trump has used fear and division to mobilize many people. He has also attacked the rule of law, due process, and democracy itself. We need everyone–including non-citizens waiting to officially join our nation–to help elect Joe Biden and to preserve the republic for us all.
What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.
So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.
According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.
You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.
The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–
Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.
According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–
Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).
If you are waiting for a Green Card or an EAD, what can you do?
First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”
For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).
If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.
If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.
Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
For years, advocates for asylum seekers have been discussing the degradation of our nation’s immigration system: Due process protections have been eroded (or eliminated), non-violent aliens have been detained (sometimes for years), and asylum applicants and other immigrants have been subject to humiliating and cruel treatment. Why should this be so? Our immigration laws and our Constitution are far from perfect, but they provide certain rights to non-citizens, including the right to due process of law, the right not to be denied immigration benefits for reasons that are arbitrary and capricious, and the right to humanitarian protection for those who qualify. Unfortunately, the government often fails to fulfill its obligations (repeat: obligations) under the law, and as a result, immigrants are being denied their rights–including their right to life-saving humanitarian protection.
Immigrants, of course, are not the only people whose legal rights have been violated by the government. The pattern of mistreating and disenfranchising minority groups goes back to the founding of our country (and before). In many cases, discrimination has been sanctioned by law–against African Americans, Native Americans, Chinese Americans, and women, to name the most obvious groups. Slowly, painfully, over time, laws have changed. The law now provides for much greater equality than it did at the founding of our Republic, and in practice, the situation has improved. But as we know, there is much more work to be done.
Trump: “I am your law and order President. I make the law and you follow my orders!” Bible: “Owww! Stop touching me – it burns!”
The Black Lives Matter movement is a part of that work. All Americans should listen to what BLM has to say. Even those who disagree or who think they know better should listen to the lived experience of people who feel threatened by our government. No Americans should have to feel this way. Something clearly needs to change. But why should immigrants and asylum seekers care?
For one thing, many immigrants are people of color, and so the issues BLM is addressing should be of concern to non-citizens, who might one day face similar problems themselves.
Also, when the government mistreats one minority group, no minority group is truly safe. If the government has the power and the willingness to take away rights for one of us, it can take away the rights of any of us. Indeed, the whole idea of “rights” is that they are inviolable; the government cannot take them away unless we are afforded due process of law. When a government agent kills an unarmed Black man without justification or when it deports an asylum seeker without due process of law, it is violating those people’s sacrosanct rights. It stands to reason then, that if we wish to support the rights of one person, we must support the rights of all.
The above arguments are based on self interest (I will help you because it helps me). But there is another reason for immigrants to support the BLM movement–it is the right thing to do. The asylum seekers and immigrants that I have known tend to be very patriotic people. They believe in the American ideal. That is why they came here in the first place. Part of that ideal is that we are all equal in the eyes of the law. No group should face harm or discrimination due to their race or ethnicity or religion or sexual orientation. It is un-American. And it is wrong. As citizens (or would-be citizens), it is incumbent upon each of us to help our nation move towards a more perfect union.
So what can be done to help?
Education: Learn about BLM’s goals and methods from leaders of the movement, rather than from secondary sources. Good starting points are the Black Lives Matter and Movement for Black Lives websites. There are also many movies, documentaries, and books that are worth checking out.
Protest: The ongoing protests are important, and will hopefully drive legislative and policy changes. Non-citizens can attend protests, and have a right to Freedom of Speech, the same as U.S. citizens. However, you should be aware that ICE agents have been deployed in response to protests and civil unrest. While these agents are (supposedly) not tasked with immigration enforcement, that is their raison d’etre, and so if you go to a protest, make sure to have evidence about your immigration status (such as a green card, work permit, I-94, filing receipt, etc.). If you have no status, make sure to have a plan in place in case you are detained (every non-citizen without status should have such a plan, whether or not they attend a protest).
Elections: As President Obama recently said, we have to mobilize to raise awareness and we have to vote for candidates who will enact reform. Non-citizens cannot vote. Indeed, such people can be deported for voting. So if you are not a U.S. citizen, please don’t try to vote. But this does not mean that you cannot participate in the upcoming elections. There is a lot you can do: Voter registration, canvasing, text-banking, phone-banking, etc. All this is important, as the outcome of the election will have life and death consequences for many people.
Contact Your Representatives: There is currently a bill pending in the House to condemn police brutality and racial profiling. The bill makes some good suggestions, including that the Justice Department should take a more active role investigating instances of police violence and discrimination, and for the creation of civilian review boards to provide community-based oversight of local police departments. Review the bill, and if you are so moved, contact your Congressional representatives and let them know. There is another bill pending in the Senate that aims to prevent discrimination by police and provide additional training. You can contact your Senators about this bill. Also, you can take action at the state and local level to push for reform.
Donate: For many of us, money is tight these days, but if you are able to make a donation, there are many worthy civil rights organizations that could use the support.
One last point, and I think this is important, as I often hear objections about BLM in the media and in conversation: It is not necessary to support every aspect of a movement in order to support that movement. I personally do not support all the goals of the Black Lives Matter movement. I do not support all their tactics, and I do not support all their rhetoric. This does not mean that I do not support the movement. I strongly believe that our country should focus far less on incarceration and far more on providing opportunities for all people to live safe, healthy, and productive lives. I also strongly believe that our country has not properly reconciled with its past and ongoing sins against African Americans and other racial minorities. Most of all, I believe that our nation has an obligation to listen to marginalized people and to respond to their needs. Thus, even if you do not believe in all aspects of BLM, I do not think that absolves you from listening to members of that movement and of working for a better society. All of us have an obligation to help bend the arc of history towards Justice. The Black Lives Matter movement is doing just that, and its success is our nation’s success.
Due to the coronavirus pandemic and the Trump Administration’s harsh anti-immigration policies, USCIS–the agency that oversees much of the nation’s immigration and asylum system–expects that “application and petition receipts will drop by approximately 61 percent” through the end of the current fiscal year (September 30, 2020). As a result, the agency is seeking a “one-time emergency request for funding” from Congress for $1.2 billion “to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people.” The agency plans to pay back this money by “imposing a 10 percent surcharge to USCIS application fees.” Presumably, this is on top of the dramatically increased fees the agency announced late last year (but which have yet to be implemented).
Unlike most government agencies, USCIS is largely user-funded. Indeed, the agency derives 97% of its budget from fees paid by its “customers” (immigrants and petitioners). These fees also largely cover the cost of the asylum system, which is currently free to applicants (though USCIS’s recent fee proposal includes a $50 fee for asylum). According to a USCIS spokesperson, without the injection of cash from Congress, the agency “would be unable to fund its operations in a matter of months.” This could result in “drastic actions,” which might include staff reductions. Already, USCIS employees have been notified that the agency is “severely strapped for cash due to the low number of new applications being filed,” and overtime, travel, and purchases have been put on hold.
In short, things don’t look good for USCIS. So what can be done?
There are lots of ways USCIS can increase revenue without raising fees.
USCIS is seeking additional funding from Congress and plans to pay back the money by increasing fees. But it seems to me there are better and more equitable ways raise money.
One idea is to expand the use of premium processing. Currently, certain forms for employment-based immigration allow the petitioner to pay an additional fee ($1,440) and have their case processed more expeditiously. Cases that ordinarily take many months are processed within 15 calendar days (this is the equivalent of strapping a warp drive engine to a Conestoga wagon). Paying for premium processing does not necessarily mean you receive a final decision in 15 days, but at least you get a response–either an approval, a denial or a request for additional evidence. In my experience, even if you receive a request for evidence and your case takes longer than 15 days, it is still adjudicated much more quickly than if you did not use premium processing.
I have long advocated that premium processing should be available to asylum seekers, but why limit this service to certain types of cases? Why not make it available to all USCIS applications and petitions? The agency does not have to stick with its 15-day time frame or the current fee. Maybe there could be different levels of premium processing with different time frames and different fees. Maybe some types of applications are simply not amenable to premium processing. It seems to me that these things are knowable and could be explored.
The broader use of premium processing would benefit not just those aliens who can afford it (though they would benefit the most). The injection of additional money into the system would ultimately benefit everyone. Also, by removing premium-processing cases from the mix, USCIS would have fewer “regular” cases to deal with, which would presumably allow them to move more quickly through those cases.
The way I see it, premium processing is an all around win: It helps those who pay for it, provides an option for those who need it (since some people have very good reasons to expedite their cases), improves processing times even for those who do not pay for it, and brings more money into the system, which could help keep costs down for all of USCIS’s customers.
Another idea to raise funds would be to create an online legal aid service within USCIS. There are currently private, internet-based organizations that provide fee-based assistance filling forms, filing applications, and in some cases, providing legal advice. Lawyers (such as myself) tend to be wary of these organizations, as some seem less-than legitimate and because they often cannot provide the comprehensive help needed to identify problems and resolve complex cases (also, of course, they undercut our fees, which most of us find less than endearing). But for ordinary cases, without undue complications, such services can provide cost-effective assistance to people who otherwise might not be able to afford a lawyer or secure pro bono counsel.
If private organizations can provide this type of limited legal assistance, why can’t USCIS? They certainly have the expertise. Also, it is not unprecedented for government agencies to provide help to their constituents. For example, the Department of Veterans Affairs maintains a list of accredited representatives who help veterans and their family members for no fee or a low fee. If the VA can offer this service for free, why can’t USCIS offer a similar service for a reasonable fee? The assistance could take the form of “smart” fill-able forms that provide comprehensive advice about how to do it yourself, and maybe a hot-line or in-person office, where the applicant could obtain help. Fees would vary–automated assistance might be inexpensive (or at least comparable to the existing private agencies that provide this service), while “live” help would be more expensive. If this model is economically viable for private organizations, I imagine it would turn a profit for the federal government as well.
Like premium processing, an in-house legal aid program would benefit everyone. It would directly help the people who could afford it, but it would also help reduce the burden on existing non-profit legal aid organizations, and so they could serve more people in need.
There are plenty of other ideas as well. For example, USCIS could re-instate adjustment of status based on INA § 245(i), where a person who entered the U.S. illegally can pay a penalty and obtain their residency based on a family or employment petition (currently, and with rare exceptions, people who entered illegally need to leave the U.S. to obtain residency). Also, USCIS could also stop wasting manpower and postage by arbitrarily returning applications for minor mistakes (which previously were addressed at the interview).
As you can see, USCIS has different options for increasing revenue. But given the Administration’s hostility towards immigrants, it is not surprising that they are choosing to raise fees, which is the least equitable and most damaging path available to them. With a minimum of creativity, they could come up with alternative solutions that would raise money, improve efficiency, and benefit migrants. Unfortunately, the primary concern of USCIS is not really the agency’s economic well-being. Rather, USCIS wants to weaponize fees in the same way it has weaponized bureaucratic procedures–to reduce immigration and prevent eligible people from obtaining status in the United States.
In 1993, Tara Reade was a legislative aid for then-Senator Joe Biden. In 2019, she went public with an allegation that Mr. Biden “used to put his hand on my shoulder and run his finger up my neck.” She says she complained about the behavior after it happened, but then faced retaliation, which caused her to leave her job. In March of this year, Ms. Reade stated that on one occasion, when she was alone with Senator Biden, he pushed her against the wall “and then his hands were on me and underneath my clothes. And then he went down my skirt, but then up inside it and he penetrated me with his fingers. And he was kissing me….” In her 2020 statement, Ms. Reade indicated that she made a contemporaneous complaint alleging sexual harassment, but not sexual assault. Several people–including Ms. Reade’s brother and a friend–have stated that she told them about the assault years ago, and there is some evidence that Ms. Reade made a complaint during her time in the Senate.
Ms. Reade’s allegations got me thinking: How would her testimony and evidence be evaluated under the standard applied to asylum seekers testifying in Immigration Court? Let’s start with the legal standard, as set forth in INA § 208(b)(1)(B)(iii)—
[A] trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record… and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
For-Biden touching or Reade-iculous allegation? You decide.
So right away, we can see an issue: Ms. Reade states that she complained about sexual harassment in 1993 and she publicly claimed sexual harassment in 2019, but then in 2020, she stated that she was also the victim of a sexual assault. This is an inconsistency.
But an inconsistent statement is not necessarily fatal to a credibility determination. Applicants must be given an opportunity to explain any inconsistencies. In our case, Ms. Reade stated that she did not disclose the assault in 1993 because she was traumatized, and that she did not mention it in 2019 because she was uncomfortable with the interviewer’s questions and fearful of a backlash against her. She decided to reveal the full story in 2020 because she felt she needed to do so for her daughter and for other victims of sexual assault, and because she felt Joe Biden should apologize.
Once a witness provides an explanation, the decision-maker has a certain amount of leeway to evaluate that explanation. According to the Board of Immigration Appeals, “An Immigration Judge is not required to accept a respondent’s assertions, even if plausible, where there are other permissible views of the evidence based on the record.” Where does this leave us? Nowhere too helpful, I would submit.
On the one hand, we could find Ms. Reade’s testimony incredible, since it has changed over time and her most recent (and most serious) allegations are different from what she allegedly claimed in 1993 and what she described in 2019. On the other hand, she has presented an explanation for the inconsistency, which is based on the trauma and shame she suffered, as well as on her fear of further harm. Given this evidence, a reasonable fact-finder could decide either way on credibility, and such a decision would likely survive an appeal (where factual findings are subject to a “clearly erroneous” standard of review).
Since the decision-maker could go either way, what would account for a particular decision? In Ms. Reade’s case, the decider’s view of sexual assault in general would be one factor. Do victims make false accusations? Do perpetrators deny their guilt? How much evidence is enough? In this particular case, I imagine partisan loyalty would also be a factor for many decision-makers, especially in such a hot political environment where an allegation of sexual assault could impact the upcoming election. And speaking of partisan loyalty, what about Ms. Reade’s political views? Are they relevant to impugning or bolstering her claim? What about the fact that she is exposing herself to terrible harassment (and maybe worse). How do we weigh these factors in terms of evaluating her motive? Also, how do we account for other women accusing Joe Biden of inappropriate touching? Do these allegations weigh against him (because he engaged in inappropriate conduct) or in his favor (since that conduct seems not to have risen to assault)? In short, it seems to me that the decision about Ms. Reade’s credibility tells us more about the fact-finder’s views than about the facts of her case.
If I am correct about Ms. Reade’s claim, what does this mean for credibility in asylum cases? In some ways, the situations are analogous. We have to listen to a witness and evaluate credibility. It’s also fairly common for asylum applicants to change their stories over time. This may be legitimate (it often takes time and trust to extract painful details from a traumatized person) or not (some applicants seek to bolster their claims by lying). As with Ms. Reade’s case, there is often additional evidence, which also needs to be evaluated for credibility and evidentiary value, and in cases where this evidence is strong, it may be determinative of credibility. In other cases, the credibility determination will depend largely on the decision-maker’s inherent biases. I suspect this is largely what accounts for the arbitrariness of asylum adjudication.
In Ms. Reade’s case, I doubt we will ever see a definitive answer about her claims. They are too old and too subsumed by partisanship to be resolved with much confidence. Many asylum claims are also not amenable to a definitive conclusion due largely to limited resources (of the applicant and the adjudicator). In both situations, we are left with our own biases, which are a poor substitute for knowing the truth.
I first met David (not his real name) in 2012. He had come to the United States from a Middle Eastern country and decided to seek asylum here. At the time, many democracy activists from his country were fleeing a government crackdown. One of David’s family members—a prominent member of the pro-democracy movement—referred him to me. David is a member of a religious minority, and he is a Biomedical Engineer by training. In his home country, he and his family members faced some pretty harrowing instances of persecution on account of their religion and their democratic leanings.
Fortunately, David’s asylum case was granted. He later became a lawful permanent resident, and he is currently in the process of becoming a U.S. citizen.
Police officers pay tribute to David and other hospital workers.
In the mean time, he obtained his equivalency degree, which allows him to work in his field in the United States (this is a somewhat obnoxious process, whereby a private agency certifies that a foreign degree “is equivalent to” a degree from an institution in the U.S.). He got a job as a Biomedical Engineer at a large hospital in the United States, and was promoted several times over the course of a few years.
When the pandemic started, David was tapped to lead a medical equipment project at the hospital’s command center, and to build up a new department to deal with the crisis. He and his team are working around the clock to receive, assemble, build, inspect, and install equipment such as ventilators, IV pumps, bed side monitors, servers, and more.
Fueled by obscene amounts of espresso, in one week, David and his team installed and uploaded drug libraries for 1000 IV pumps and installed 600 IV poles. They also installed and inspected more than 200 ventilators and 200 ICU beds. In addition, to get ready for COVID-19 patients, they prepared and installed medical equipment–such as central bedside monitors, ICU beds, nurse call devices, and ventilators–for three new departments at the hospital. All this while working in an environment where the coronavirus is a ubiquitous threat.
Medical equipment prepared by David and his team.
I asked David how he feels about all that he has accomplished since the pandemic began, and despite the difficult circumstances, he uses words like “great” and “awesome” because, he says, he is not just doing a job, he is really helping to save lives. Also, he is proud that even though he has only been at the hospital for a few years, he is responsible for critical parts of the mission and for training a team that is working through the pandemic.
David’s work is incredibly impressive. He is helping to save many lives. But the fact is, he is not all that unique. According to a 2019 study in Health Affairs, 1 in 4 healthcare workers in the United States is foreign-born. It’s ironic that at a time when immigrants and asylum seekers are under assault by the federal government, they are playing such an outsize role in our fight against the coronavirus. I only hope that more Americans will come to appreciate how people like David are selflessly working to protect Americans from the deadly pandemic.
Espresso kept the team going.
One final point, and I think this speaks to David’s character and his bravery during this difficult time. I remember when we were preparing his asylum case, I asked him about whether he faced any harm in his country. He mentioned a few incidents and could not think of anything more. Then, his relative asked, “Didn’t the extremists shoot you?” Yes, he responded, they did try to shoot him, but the bullet passed over his shoulder and hit a wall behind him. Since they missed, David hadn’t really paid much attention to the incident. I imagine that this type of grace under fire (literally) is serving him well in his current role.
If you would like to support David in his life-saving work, consider making a donation to Direct Relief, a national non-profit that has been helping to get protective gear and critical care medications to as many health workers as possible.
When the President issues an executive order, he first enlists experts to review the data and determine the exact nature of the problem. He then commissions a study to examine possible solutions and look at the pros and cons of each option. He carefully considers the law and takes into account dissenting points of view. His staff then crafts an order to achieve the desired ends, while avoiding as many negative externalities as possible.
I’m joking of course.
In the case of the new Executive Order, President Trump issued a late-night Tweet. Then, his staff, caught by surprise, scrambled to implement their boss’s vision and voila! An Executive Order was born.
America: Banning immigrants since 1882 (hows that working out for you?).
The new EO, issued yesterday evening, is based not on the Trumpian trope that immigrants bring disease. Rather, the order is justified based on the current economic crisis. Indeed, the title of the EO is Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This was probably a wise move, as we are now the epicenter of the pandemic, and so it would be difficult to justify keeping people out of our country due to health concerns. The economic justification, on the other hand, will be easier to defend (recall that under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law”). While there is ample evidence that immigrants start more businesses than native born Americans and that 51% of start-ups worth $1 billion or more were founded by foreign-born entrepreneurs, there is some (less convincing) evidence that immigration depresses wages for certain groups, such as blue collar workers. But given the low threshold of the Administrative Procedures Act, this is probably enough of a justification for the EO to pass muster, particularly in the Supreme Court, which has been very deferential to the President’s authority vis-a-vis immigration.
So let’s talk about what the EO does and–more importantly–what it does not do.
First, who is blocked from obtaining a Green Card? As far as I can tell, the only people blocked from obtaining a Green Card are those who are currently overseas and who currently do not have a U.S. visa or other travel document. Essentially, this means that U.S. Embassies will stop issuing new travel documents for immigrants to come to the United States. For immigrants who already have their visa or travel document, they can still come to the U.S. Also, spouses and unmarried, under-21 year old children of U.S. citizens are excepted from the ban and can still immigrate to the United States. Other relatives, such as parents, siblings, and older children of citizens are blocked. Also blocked are family members of Green Card holders and most people seeking residency through employment. However, the ban does not apply to medical professionals and their immediate family members, EB-5 investors, adoptees, spouses and children of members of the military, aliens entering on a Special Immigrant Visa, and aliens whose admission is in the national interest or who are assisting a law enforcement investigation. In short, this is a fairly narrowly-tailored suspension of immigration, though for those people who are blocked, it will be difficult.
Second, how long does the “suspension” last? The EO indicates that it will remain in effect for 60 days. After that, depending on economic conditions, it could be extended.
Third, it is important to understand who is not affected by the EO. People seeking non-immigrant visas are not affected. Permanent residents (i.e., people who already have a Green Card) are not affected, whether they are currently in the U.S. or overseas. No one who is currently inside the United States is affected by the EO. This includes permanent residents, asylum seekers, asylees, refugees, and people applying for immigration benefits (inside the U.S.), such as a Green Card or asylum (one exception here might be people who wish to leave the U.S. and return using a provisional waiver). Also, the EO has no effect on Employment Authorization Documents (“EAD”) or on the right to seek humanitarian protection. Indeed, the EO specifically states–
Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.
Fourth, there are still parts of the EO that are not clear. One important question is whether I-730 beneficiaries are subject to the ban. Based on the above language, my sense is that they will not be affected, but I am not sure. Also, I am not sure about K-1 fiances, but since the K-1 is technically a non-immigrant visa, I expect that fiance-beneficiaries will not be affected. Finally, the biggest question is whether the ban will end in 60 days, or whether it will be extended if–as seems likely–the economic crisis persists. A 60-day suspension of immigrant visas will be manageable for most effected people. However, if the ban is extended, the harm to families and business will increase significantly.
Given that embassies are already mostly closed, numerous travel restrictions are already in place, and many flights are canceled, I’d venture that the new EO will have very little real-world impact. What then is the point?
On its face, the EO is meant to protect American workers from foreign-born competitors, but given all the exceptions to the ban, I doubt the order will result in a significant drop in immigration (beyond what we’ve already seen as a result of the world-wide shutdown). Thus, even if you buy into the proposition that immigrant labor has a negative impact on the job prospects for U.S. citizens, I do not see how the EO will protect many American workers.
If all this is correct, then the only remaining purpose of the EO is to frighten non-citizens and to delight nativists. Unfortunately, I suspect it will accomplish both of those goals. But to my immigrant friends, it is important to understand that for all its sound and fury, the Trump Administration has achieved little with this new Executive Order. Perhaps that fact can provide some level of comfort in these dark times.
In response to the pandemic, President Trump has Tweeted that he will “temporarily suspend immigration into the United States.” What does this mean? Does President Trump have the authority to suspend immigration into the country? Will the order affect people who are already here? How long will this “temporary” suspension last?
The answer to most of these questions is that we don’t yet know. While the President likes to announce policy changes on Twitter, the announcement should not be confused with the policy change. We will need to wait for the Executive Order to know the details of this plan. But speaking generally, it seems to me that the President probably does have the authority to suspend immigration during a health emergency. As my friend Alex Nowrasteh, Director of Immigration Studies at the Cato Institute, states, “Title 42 of the U.S. Code enables the president to halt immigration for health reasons, while a recent Supreme Court decision upholding his travel ban gives him unlimited authority on immigration.”
Since the U.S. has more cases than any other country, it obviously makes sense to block immigrants from coming here.
Also, the President has broad authority over immigration as set forth in the Immigration and Nationality Act. For instance, INA § 212(f) provides, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Another section, INA § 215(a) states, “Unless otherwise ordered by the President, it shall be unlawful… for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” These sections are quite broad, and have not been tested in court, but given the Supreme Court’s position on immigration in recent cases, it seems likely that an order suspending immigration into the country during the pandemic would be upheld.
In practical terms, though, I am not sure what the suspension actually means. For one thing, immigration is effectively already suspended, given that U.S. Embassies are generally not issuing visas and most flights are canceled. Also, there are existing restrictions on travel from many countries, including China and the EU. So whether an executive order actually changes anything, I am not sure.
Finally, in terms of the unknowns, it is important to wait for the actual Executive Order. Once we have that, we can analyze the legality of the order and any practical effects. Speculating about what the order will say is not helpful, and will likely only result in unnecessary stress. The Trump Administration has been targeting immigrants from the get go, and so this is just one more effort in that direction. We do not know whether the order will impact people already in the U.S. who are seeking status (asylum seekers or applicants for permanent residency). We also do not know if it will affect people with pending applications or applications for work permits. We do not even know if the order will affect people seeking to enter the United States with a non-immigrant visa. Indeed, we know nothing except what was contained in one late-night Tweet.
The fact is, while the President has broad authority over immigration (especially given the deferential position of the Supreme Court), that authority is not unlimited. Under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” So for example, while there may be a rational basis to prevent people from coming into the United States during the pandemic, it will be harder to justify denying asylum or a Green Card to people who are already here (aside from that, given the time frame for most applications, the pandemic may be long over before they are adjudicated).
In short, despite the President’s ominous Tweet, we need to remain calm. It’s unlikely to make any real difference in the short term, and when the pandemic eases, which it inevitably will, the justification for an order limiting immigration will be much weaker.
It is truly unfortunate that our President seems only to have one solution for every problem: Blame foreigners. In the mean time, our country has become the epicenter of the pandemic, with more cases and more deaths than any other nation. Yet another attack on noncitizens will not help our economy and will not keep us healthy. For now, we will have to wait to see what the Executive Order says, but regardless, we the people must continue to support each other and to stand together against the coronavirus and against the unjust attacks on our noncitizen neighbors.
There’s a long tradition in the U.S. (and around the world) of blaming minorities for natural disasters. Conveniently, the people targeted for this type of scapegoating are usually powerless, and are often already despised by the people doing the blaming. The present pandemic is no exception. A clergyman who teaches Bible classes at the White House recently posted a piece, asking in response to the coronavirus, Is G-d Judging America Today? The predictable answer is yes, and the predictable reason is related to “sins” such as “environmentalism” (gasp!) and “homosexuality” (double gasp!).
But how do we know which sins result in divine punishment? And what communal penalty is appropriate for a particular sin? Was 9-11 heavenly retribution for abortion (per Jerry Falwell)? Did Hurricane Katrina devastate New Orleans in retaliation for that city’s support of a gay pride parade (John Hagee)? And was Hurricane Harvey sent to drown Houston because it elected a lesbian mayor (Kevin Swanson)?
I’m not normally a fan of attributing natural disasters to human sins, but since it’s Passover–a holiday where we remember ten plagues visited upon the Egyptians for enslaving Jews–I thought I might give the whole “divine retribution” thing a try.
A group of Bible scholars protests the government’s treatment of asylum seekers.
And now that I think about it, the idea that G-d is punishing us with a virus doesn’t seem all that far fetched. After all, the Egyptians suffered boils, so there is obviously precedent for sending a disease to smite wrongdoers. But which sin would trigger a coronavirus pandemic? Certainly not the “sin” of homosexuality. That causes hurricanes. Obviously.
When you look at what’s happening in our country and the world, it seems pretty clear which sin is responsible for our current troubles–the sin of xenophobia. What’s that you say? You object? You say that xenophobia is not a sin? Let’s take a look at our handy Bible to learn more–
Exodus 12:49 – There shall be one law for the citizen and for the stranger who dwells among you.
Exodus 22:20 – You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.
Leviticus 19:33-34 – When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.
Numbers 15:14-16 – There shall be one law for you and for the resident stranger; it shall be a law for all time throughout the ages. You and the stranger shall be alike before the Lord; the same ritual and the same rule shall apply to you and to the stranger who resides among you.
Deuteronomy 27:19 – Cursed be he who subverts the rights of the stranger, the fatherless, and the widow.
Etc., etc., etc. You get the idea. We are commanded–repeatedly–to treat the stranger as we treat the citizen. Those who mistreat the stranger will be cursed. So the Biblical foundation for our current troubles is clear.
But as our President loves to point out, the coronavirus began in China. Are they guilty of xenophobia? Indeed. Not long after Xi Jinping came to power in 2012, the Chinese government started implementing a series of increasingly restrictive measures against the Uyghur ethnic minority. These include forcing as many as one million men, women, and children into “re-education” camps in order to change their political and religious thinking to be more aligned with Communist Party ideology. To students of the Passover story, the persecution of the Uyghurs sounds eerily familiar–
Exodus 1:8-10 – A new king arose over Egypt who did not know Joseph [a leader among the Israelites]. And [the king] said to his people, “Look, the Israelite people are much too numerous for us. Let us deal shrewdly with them, so that they may not increase; otherwise in the event of war they may join our enemies in fighting against us and rise from the ground.”
And so the pharaoh enslaved the Jews. The rest, as they say, is history.
What about the United States? We are now the epicenter of the disease. Why are we being subject to G-d’s wrath? The obvious answer is that we have failed to treat citizens and strangers in a like manner. We have wronged the strangers who live among us. How?
Even before President Trump came to power, our country treated non-citizens and citizens differently. There are good reasons for doing so, of course: National security, preserving the welfare state, assimilating new arrivals in an orderly way. But some of the differences seemed less-well grounded in sound public policy: Mass immigration raids, private prisons, limited due process. Since President Trump’s ascension, though, our immigration policies have been driven by lies and xenophobia: Separation of children from parents, dramatically reduced protections for certain asylum seekers (particularly women fleeing domestic violence), the Muslim ban, the virtual elimination of due process at the Southern border, the draconian and nonsensical public charge rule, expansion of expedited removal, and on and on. We’ve also been subject to plenty of lies about non-citizens: Asylum seekers are rapists, criminals, and fraudsters, refugees burden our economy, Mexico will pay for the wall. Not to mention the coddling of white supremacists in Charlottesville and elsewhere. All this has resulted in a terrifying and inhospitable environment for non-citizens in the U.S. today.
Thus, it’s painfully obvious that we as a nation are failing to love the stranger as we love ourselves (Leviticus 19:34), that we are wronging and oppressing the stranger (Exodus 22:20), and that we have different laws for the stranger and the citizen (Numbers 15:14). Given all this, it’s not surprising that we have been cursed (Deuteronomy 27:19). The coronavirus is the manifestation of this curse; it is divine wrath for our sin of xenophobia. I suggest we put on sack cloth and self-quarantine for two weeks to repent.
Of course, I don’t really believe that the pandemic is divine retribution for the sin of xenophobia (or for any other sin). However, it’s hard to escape the conclusion that our mistreatment of “the other” is making things worse. Why do certain Immigration Courts remain open, forcing non-citizens and everyone involved in the system to risk their health? Why are we continuing to detain asylum seekers in unsafe conditions, even those who do not pose a danger to the community? Why do we deny economic relief to some immigrants (health care workers, agricultural workers, service industry employees) who are on the front line of the fight against the disease and who are working to keep the rest of us safe and fed?
As I see it, there is great wisdom in the words of the Bible, which make clear that we are all in this together. We will succeed or fail against the disease not as citizens and strangers, but as people, united in our common effort. The coronavirus does not discriminate based on nationality or race. Neither should we.
For years, practitioners and academics have complained about inconsistent decisions at the Asylum Offices and the Immigration Courts, and there’s plenty of data to back up this concern. Recently, two sets of cases in my office brought this problem home, and illustrated how luck impacts who receives protection in the U.S. and who does not.
The first set of cases involves two siblings whose uncle was a well-known member of the political opposition. As a result of the uncle’s activities in the early 2000’s, his siblings–including my clients’ father–were all arrested and held in jail for years. Thus, for a good portion of their childhood, my clients grew up without their father. After he was released, the father resumed his life and his children (my clients) eventually came to the United States to study. While they were here, the father was re-arrested for seemingly pretextual reasons. Fearing for their own safety, the siblings filed for asylum. Both cases were referred to Immigration Court, and the siblings hired me for their cases. As far as I could tell, the cases were exactly the same. Neither sibling had engaged in political activity; both cases were based on the relationship with their high-profile uncle and the home government’s persecution of the entire family. Also, we submitted the same evidence in each case and both applicants were found credible. The only difference between the two cases is that the siblings had different Immigration Judges. The first case was before a judge with a 62% denial rate and the second case was before a judge with a 91% denial rate (according to TRAC Immigration). We won the first case and DHS did not appeal,. So in a sense, the second case was different in that one sibling had already been granted asylum. Unfortunately, that was not enough. DHS opposed asylum in the second case (even though they had not appealed the grant in the first case) and the IJ denied relief. The case is currently on appeal.
Sometimes, it may make sense to try to change venue.
The second set of cases involves members of a religious minority who faced persecution by their government and by extremists in their country. These cases were before the Asylum Office. The lead applicants were all related, either as siblings or in-laws, they were members of the same congregation back home, and they faced mostly the same persecution. Also, we submitted similar evidence in each case and all the applicants were deemed credible. Out of four cases in 2019 and 2020, we received three grants and one denial. The main difference between the four lead applicants was that the person who was denied had the strongest case due to past imprisonment in his country. Also, the denied case was the most recent decision, and so we had informed the Asylum Office that other family members were granted asylum on basically the same facts. In the denied case, the Asylum Office found that the applicant suffered past persecution, but found that country conditions had changed, such that the situation was now safe. It seems odd that the Asylum Office would find changed country conditions in one case, but not the others. The referred case is now before an Immigration Court.
So here we have two situations where the applicants presented nearly identical cases, but received different results. Why did this happen? As far as I can tell, the reason is luck: Some adjudicators are more likely to grant asylum than others, and this gives us inconsistent results. Also, some adjudicators seem to be inconsistent from one case to the next, in that their mood at a given moment may influence their decision. And so, the outcome of a case is dependent–at least in part–on the luck of the draw.
This is obviously not a good thing. While I agree with former Chief Immigration Judge MaryBeth Keller that we “don’t want decisions on asylum made according to mathematical formulas as if by computers,” I do think disparities are a serious problem, which should be addressed at the policy level. But what can individuals do about the problem of luck in asylum cases?
In thinking about this question, I am reminded of Reinhold Niebuhr’s Serenity Prayer–
G-d, grant me the serenity to accept the things I cannot change, Courage to change the things I can, And wisdom to know the difference.
But how do we know what we can change? Some things are obvious: We can gather the evidence needed for a case, make an appropriate legal argument, try to weed out inconsistencies, prepare testimony beforehand, dress appropriately for court, etc. For those who can afford it, having a competent attorney can make a big difference. For those who cannot afford legal help, securing pro bono (free) assistance is important (though finding pro bono help is often not easy).
Some things are harder to control. For Immigration Court, it is possible to get an idea about the asylum grant rate for your particular judge (for newer judges, data may not be available). If you find your judge has a particularly high denial rate, you might consider moving to a new jurisdiction in order to change venue to a different court, where you will hopefully get a better judge. I rarely recommend this option to my clients, as moving is largely a crap shoot–the IJ may refuse to transfer the case, you may end up with a worse judge despite the move (and a judge who may be “bad” for most applicants might be “good” for certain types of cases), and you may substantially delay the case. Also, of course, moving to a new state is disruptive and expensive. Despite all this, if you have a particularly difficult judge, it may make sense to try to move the case.
Forum shopping is even less useful for cases at the Asylum Office. While there is some data about the overall grant rates for the different offices, there is no information available about the individual Asylum Officers. Even if such data existed, it would be of little value, since you won’t know who your Officer is until the day of the interview, when it is too late to switch. While it is possible to move to a jurisdiction with an “easier” Asylum Office, given all the variables, this often makes little sense. On the other hand, if you have the flexibility to live anywhere, why not live somewhere with a good Asylum Office?
For the most part, then, you are stuck with your adjudicator, but you have a fair bit of control over the case you present. In my experience, it is more productive to focus on the case itself, rather than worry about who will decide that case. In the end, the absence of control is a fact of life for asylum seekers and for us all. Perhaps a quote from another of my favorite theologian–Saint Augustine–provides an appropriate conclusion here: Pray as though everything depends on G-d. Work as though everything depends on you. At least in this way, you cover all your bases.
