What If Joe Biden’s Accuser Was Held to the Same Standard as Witnesses in Immigration Court?

by Jason Dzubow

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. 

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An Asylee on the Front Line of the Pandemic

by Jason Dzubow

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.

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The Executive Order “Suspending Entry of Immigrants”

by Jason Dzubow

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.

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No More Immigration? Let’s Wait and See

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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The Coronavirus Is Divine Punishment for Our Sins

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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On Luck

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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The All-or-Nothing Problem

by Jason Dzubow

The debate over immigration–legal and illegal–has become more divisive and seemingly more intractable in the face of the current Administration’s hard-line policies. In a democracy, ideally, people with different views about immigration would talk to each other and reach some type of compromise solution. That is difficult with any issue, but it is particularly problematic when it comes to immigration. There are many reasons for this, but for me, one reason stands out: Immigration is an all-or-nothing proposition.

What I mean is, under the immigration law, either a person gets to stay in the U.S. or they get deported. There is no middle ground. Contrast this with the criminal law. If a person robs a bank, for example, there are a wide range of responses available under our system of justice. The person could be sentenced to jail (for a short time or a long time), or fined (a lot or a little), or given probation. Perhaps the bank robber is a good candidate for rehabilitation and can be placed into a program to obtain appropriate services. In short, a criminal judge has many options, and can–theoretically–tailor a solution to fit the particular circumstances of the case. Immigration Judges have far fewer options.

When a person is placed into Immigration Court, it is for one reason: The U.S. government believes that the person should be deported from the United States. The charging document, called a Notice to Appear (“NTA”), lists the reason(s) why the “respondent” (the non-citizen) can be deported. If you look at the allegations in a typical NTA, you will see: (1) You are not a citizen or national of the United States; (2) You are a citizen and national of country X; (3) You entered the United States on a particular date with a particular visa (or without a visa); (4) You overstayed your visa and no longer have permission to remain in the U.S., or you committed some act (such as a crime) that makes you ineligible to remain in the United States. Sometimes, respondents deny the allegations. Maybe the government got it wrong. Maybe the person is not deportable. Usually, though, the allegations in the NTA are correct, and the respondent concedes removablity, and proffers some type of defense to being removed. Common defenses include asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, and adjustment of status. There are also other, less common, options. At the end of the day, the respondent will either be granted relief based on one of these defenses, or he will be ordered to leave the United States.

Making a reasonable argument in the immigration debate is like bringing a flower to a gun fight.

Under this legal regime, there is basically no opportunity for compromise. The respondent wins everything or loses everything. One exception (sort of) is the asylum applicant who receives the “lesser relief” of Withholding of Removal or protection under the United Nations Convention Against Torture (“CAT”). An applicant will receive “lesser relief” where she is ineligible for asylum. Committing a crime could render a person ineligible. So could missing the asylum-filing deadline. Asylum is the better form of relief, since asylees can bring immediate family members to the U.S., can travel, and can eventually get their green cards and become U.S. citizens. People who receive Withholding or CAT can stay in the country with a work permit, but they cannot bring their family members here, travel or obtain their green cards or citizenship. This type of “compromise” (if it can be called that) leaves the respondent in a strange limbo: Here, but not here. Unable to feel secure in their status or stable and safe in the U.S. It also seems unfair, at least to me, to “punish” asylum seekers with lesser relief when their only mistake was to file late for asylum. Why should such people be treated the same way as criminals under the asylum law? So for me, if “lesser relief” in an asylum case is a compromise, it is a poorly thought out compromise, which has little basis in equity or justice.

I wonder if there could be another model. Is there a moral middle ground that allows qualified respondents to stay and feel secure here, but that does not completely ignore past immigration misdeeds? In other words, is there a way to satisfy Americans who don’t want the government to grant amnesty to law-breakers, but at the same time, to provide a viable path for respondents seeking relief in Immigration Court?

One could argue–convincingly in my opinion–that the existing immigration system does not give immigrants a pass, even if they do receive relief. For one thing, it’s not cheap to obtain a green card or citizenship ($1,225 and $725, respectively, if you only consider direct fees to the government). Also, most immigration applications (with USCIS or with the Immigration Court) take a long time. If you do receive relief and then want your family members to join you here, that process will usually take additional years. So even in the best case, immigration to the U.S. is not easy and not cheap.

Although respondents pay a price (in money and time), the current immigration system does not provide the type of flexibility available to judges in criminal or civil cases. So what can be done?

One possibility is to impose fines on respondents who violate the immigration law. If relief is granted, the Immigration Judge can determine whether a law was broken, and if so, whether a fine is appropriate, and how much. Relief would then be conditioned on completing payment of the fine. Of course, a major criticism of fines (in civil and criminal cases) is that they are a tax on the poor, and that they prevent people from achieving financial stability. In the asylum context, fines would likely be inappropriate, since it is perfectly lawful for anyone–even people who do not have permission to enter the country–to seek asylum. But in other contexts, fines might make sense.

Another possibility is to impose a waiting or probationary period on people who are granted relief. This already happens in certain cases (and indeed, the green card itself might be viewed as a type of probation, since it can be lost for not following the rules). For example, there are only a limited number of green cards available through Cancellation of Removal, and so if such relief is granted, the applicant usually has to wait (for a year or two) before a green card is available. This is akin to “waiting your turn,” which seems so important to people concerned about immigrants “jumping the line.”

Finally, in some cases, it may be appropriate to impose certain conditions on people who receive relief in court. For example, if an applicant has a prior conviction for DUI, perhaps the Judge could require the applicant to attend AA meetings or complete community service. For people with other criminal issues, maybe anger management classes would be appropriate. In some cases, maybe English classes or job training would be important. Final relief could be contingent on fulfilling your court-imposed obligations.

All these ideas are imperfect and preliminary. Perhaps it’s a fool’s errand to try to satisfy those who oppose “amnesty” for non-citizens. Maybe the lesson of the Trump Administration is that policy is made by imposing our ideas on others and eschewing compromise. Maybe. But for me, I still have hope that we can reach a point where civil discourse and reasonable compromise are possible. And certainly, as the political landscape continues to change (hopefully, at some point, for the better), we should be thinking about ways to re-work our immigration system so that more Americans have a stake in that system and feel that it serves their needs. Giving Immigration Judges more flexibility may be one path towards that goal.

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Expediting Your Case with USCIS

by Jason Dzubow

It’s rare that you’ll find the words “USCIS” and “fast” in the same sentence, unless there’s a “not” in there somewhere. The agency that processes U.S. immigration benefits is not known for its lightning speed. But if you’re in a hurry, it is possible to expedite your case. USCIS does not always agree to expedite requests, but there is usually nothing to lose by trying.

In fact, USCIS has an entire web page devoted to expedite requests. Note that this page is not for asylum cases. I wrote about expediting asylum cases here. Also, the web page does not provide information about expediting cases outside the United States. For refugees (not asylees) outside the U.S., there is some limited information about expediting here. And for humanitarian parole applications for people outside the country, there is some information about expediting available here. Finally, if a case has already been processed by USCIS and is now with the U.S. Department of State, you can find some information about expediting here. Also, you can contact the relevant U.S. Embassy directly to ask for help.

For cases being processed inside the country, the USCIS web page provides guidance for how to make an expedite request. Such cases include Employment Authorization Documents (“EAD”), I-730 petitions, Advance Parole, Refugee Travel Documents, applications for Lawful Permanent Residency (the green card), and applications for citizenship.  

Regular USCIS processing.

USCIS considers all expedite requests on a case-by-case basis, and has sole discretion to decide to grant or deny such a request. This basically means that you are asking USCIS to do you a favor (expedite), and if they refuse, there is usually not much to be done. Also, in making an expedite request, USCIS requires documentation to support your claim. USCIS will not expedite any case where premium processing is available (usually, these are cases involving employment-based applications where you pay an extra fee for fast processing).

USCIS lists the following criteria for expediting a case–

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: (1) File the benefit request or the expedite request in a reasonable time frame, or (2) Respond to any requests for additional evidence in a reasonably timely manner;
  • Urgent humanitarian reasons;
  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
  • Clear USCIS error.

USCIS indicates that “severe financial loss to a company,” means that the company is at risk of failure. For an EAD, you would want to show an equivalent level of difficulty for the individual. Maybe the person will become homeless or be unable to cover medical bills. Whatever the reason, you must show that you are not able to “withstand the temporary financial loss that is the natural result of normal processing times.”

Cases can also be expedited based on “urgent humanitarian reasons.” The most common examples are health problems (mental or physical, for you or a family member) and safety issues (maybe you are petitioning for a relative who is in danger in his home country).

If you can link your case to a “compelling U.S. government interest,” that could be another reason to expedite. Maybe you are involved with U.S. national security work, for example, and you need to expedite on that basis.

Finally, if USCIS has made a clear error, you can ask them to expedite a case to correct the error, or maybe even a subsequent case that has been delayed due to the previous error.

Whatever the reason for the expedite request, you would want to provide documentation: A letter from the doctor or your employer, medical records, evidence that your family members are living in unsafe circumstances (letters from your relatives or others who know about the problem, police reports, medical reports, country condition evidence), evidence of financial hardship, a USCIS letter admitting to their error, etc.

Expedited USCIS processing.

You can make a request to expedite at the time you file your case or anytime after you receive the receipt.

The better approach is probably to make the expedite request when you file. Include a cover letter that clearly indicates that you want to expedite (you can highlight or underline the fact that you are requesting expedition). In the cover letter, include an explanation about why you need to expedite. I prefer to keep my explanations short. In part, this is because I am lazy, but also, I think busy people at USCIS are more likely to read a short and to-the-point explanation than a long, involved explanation. Finally, along with the other evidence required for your application, include documentation supporting your request to expedite. 

If you have already filed your application and now seek to expedite, the best approach is to call USCIS at 800-375-5283 (they also have a TTY line at 800-767-1833). To make this call, you will need the receipt number for your application. It is not so easy to reach a real person, but once you do, USCIS will create a service request and forwarded it to the appropriate office. After that, USCIS may request additional evidence in support of your request.

If, after making the expedite request at the time of filing or later on, you do not receive a timely response, you can call USCIS to follow up.

USCIS will (hopefully) agree to expedite the case. For applications that are completed in one step (EAD, Advance Parole, Refugee Travel Document), you should receive a decision in the case and–if all goes well–the requested document. For applications involving more than one step (an I-730 for a relative abroad, for example), the first step will be expedited, but subsequent steps will not necessarily be expedited. So for the I-730, you might still need to contact the State Department or the appropriate U.S. Embassy in order to keep things moving.

If USCIS denies the expedite request, it does not mean that they will deny the application. It only means that they will not reach a decision in an expedited time-frame (conversely, just because USCIS agrees to expedite a case does not mean that they will approve the application). 

In our office, we sometimes make expedite requests for our clients. It does not always work, but sometimes it does (this always surprises me), and it can save significant time. For asylum seekers and asylees, many of whom have urgent needs, this can be a real life saver. To maximize your chances for success, you need a strong reason to expedite and documents to support your request. For such cases, USCIS will evaluate the request and–sometimes–expedite your case.

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Ten Immigration Predictions for 2020

by Jason Dzubow

As you may have noticed, it’s 2020. I don’t have high hopes that this year will be any better than the last, at least in terms of immigration and asylum, but I do have some predictions for what to expect in the coming annum. While I am no Joan Quigley, I do expect that at least some of my prognostications will come true. If so, remember, you heard it here first. And now, without further ado, here are ten predictions for 2020–

1. All asylum grant letters will now feature a photo of Donald Trump giving you the finger.

2. Every 36 hours, USCIS will issue an updated version of form I-589. The new form will be exactly the same as the old form, except for the edition date. Old versions of the form will not be accepted.

In 2020, DHS will adopt a new logo, which more accurately reflects its current mission.

3. Having re-written The New Collosus, Ken Cuccinelli will set to work on other popular pieces of Americana: America, the Beautiful will be changed to America the Brutal Is Full. Hail to the Chief becomes Sieg Heil to the Chief. And My Country Tis of Thee will become My country, Muslim free, Sweet land for whites only, Of thee I sing.

4. The Board of Immigration Appeals will be replaced by the 1985 Chicago Bears defense.

5. The abbreviation EAD will be changed from “Employment Authorization Document” to “Employment Americans Detest.” The new EAD will only allow non-citizens to work in jobs that Americans won’t do, such as picking watermelons, washing old people, and serving in the Trump Administration.

6. The Correction Corporation of America will issue a new child-friendly cage. Each cage will be equipped with a tin cup for drinking, a week’s supply of gruel, and a doll to play with–Oliver for boys and Annie for girls.

7. To better track aliens in the U.S., the Trump Administration will require all non-citizens to tattoo their A-number to their forearm.

8. Continuing a trend from last year, in 2020, I-589 forms will be rejected unless all boxes are filled. If there is no answer to a question, you must write “n/a”. If “n/a” is not written correctly, the form will be rejected. Incorrect versions of “n/a” include “N/a”, “n\a”, “NA”, and “n/a”.

9. The wait time for an asylum-pending EAD will be increased to one year. After sending the receipt, biometric letter, and approval letter to your correct address, USCIS will mail the card to the wrong address. After it is returned by the post office, you can re-file and start the process over again.

10. In 2020, the fee for asylum will be $50.00. But fear not. For those who do not have the money, the new form I-666 allows USCIS to harvest your organs in lieu of payment. You really didn’t need that extra kidney anyway, did you?

So that’s it. As you can see, it looks like 2020 is shaping up to be a banner year for immigrants and for us all. On the bright side, it’s already January 7th. That means we only have 359 days left to go… 

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USCIS – The (Mostly Awful) Year in Review

by Jason Dzubow

Earlier this month, United States Citizenship and Immigration Service (“USCIS”) issued a news release touting its accomplishments for FY 2019, which ended on September 30, 2019 (a belated Happy FY 2020 to all!). According to the agency, “FY 2019 has been a historic year for USCIS and we have achieved many of President Trump’s goals to make our immigration system work better for America.” Here, we’ll take a look at some of USCIS’s “accomplishments” and explore what that means for asylum seekers.

First, I can’t help but note the hostility towards Congress and towards asylum seekers expressed in the news release and by Acting USCIS Director Ken Cuccinelli. Here are a couple quotes—

In the face of congressional inaction, we’ve taken significant steps to mitigate the loopholes in our asylum system, combat fraudulent claims and strengthen the protections we have in place to preserve humanitarian assistance for those truly in need of it.

Absent congressional action to provide targeted fixes to our immigration system, USCIS rushed personnel and resources to our southern border and implemented a number of significant policy changes and reforms designed to help reduce the loopholes in our nation’s asylum system that allowed for crisis levels of abuse and exploitation.

USCIS is correct that Congress has failed to pass comprehensive (or partial) immigration reform, which has been sorely needed for years. However, to blame only Congress, without considering the erratic leadership (or lack thereof) from the Executive Branch looks like a case of the pot calling the kettle black. Also, USCIS again points to “loopholes” and “crisis levels of abuse and exploitation” without specifying what that means. Clearly, the Acting Director wants to deter asylum seekers from coming here, but that is a separate question from whether asylum seekers themselves are exploiting loopholes or abusing the system. 

In anticipation of more e-filing, USCIS has added extra hard drives to its computer.

USCIS points to two major policy reforms for FY 2019. The first is the Migrant Protection Protocols (“MPP”), which were designed to stop asylum seekers from “attempting to game the immigration system.” Again, evidence that anyone is “gaming the system” is lacking. “Under MPP, aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. during their immigration proceedings.” Sadly, the MPP has done real damage to our asylum system and to our nation’s moral standing. The program has forced thousands of people to wait in tents in Mexico, where they are subject to violence and extortion at the hands of cartels, which have a powerful presence near the border. Also under the MPP, asylum seekers are routinely and blatantly denied due process of law.

The other major policy reform is the Third Country Transit Asylum Rule, which is designed to–

enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, with limited exceptions, the rule bars aliens, who entered along the southern border, from receiving asylum in the U.S. if they did not apply for asylum in at least one other country they transited through. This rule aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.

Like the MPP, this rule degrades (and arguably violates) our asylum system by forcing asylum seekers who arrive at the Southern border to file for asylum in a country that they pass through on the way to the U.S. This might be fine if the countries in question were safe and had operating asylum systems of their own, but for the most part, they aren’t and they don’t. What I find most offensive about this pronouncement, though, is the last part–the claim that the policy “aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.” It does no such thing. Instead, the rule arbitrary seeks to block all asylum seekers by forcing them to seek protection in third countries. There is no effort to distinguish legitimate asylum seekers from those who are somehow not legitimate (whatever that means). Why USCIS can’t simply say this, and be honest about their goal of making asylum more difficult for everyone, I do not know.

The news release also gives us some statistics. “In FY 2019, the Asylum Division received more than 105,000 credible fear cases – over 5,000 more than in FY 2018 and a new record high.” A credible fear interview or CFI is an initial evaluation of asylum eligibility. People who arrive at a border or an airport and request asylum receive a CFI. If they “pass,” they are referred to an Immigration Judge for a full asylum hearing. If they “fail,” they are removed from the U.S. The fact that USCIS performed a record number of CFIs signals that the government’s deterrent efforts are not working. If people were being deterred from coming to the U.S. for asylum, we should see lower numbers of CFIs.

Another statistic relates to hiring– 

In FY 2019, USCIS executed an ambitious plan to hire 500 staff for the Asylum Division by the end of December 2019 to reach authorized staffing levels. New strategies are in development to more specifically target individuals with relevant experience and skill sets, including those with prior military and law enforcement expertise.

The Asylum Division has been “staffing up” for probably half a dozen years, and whether they expect to actually achieve their goal this time, they do not say. If so, this could help reduce the asylum backlog, which would be good news. On the other hand, the idea that they are recruiting people with “law enforcement expertise” rather than human rights experience, points to the type of candidate they may be seeking.

Also in FY 2019, the “Asylum Division trained and deployed U.S. Border Patrol agents and USCIS officers from outside the Asylum Division to supplement staffing on the southern border and assist with the Asylum Division’s workload.” Whether Border Patrol agents and USCIS officers have the training necessary to properly do Asylum Division work is an open question, and is an issue of concern for advocates. I personally have my doubts. But on the positive side, I suppose it will free up “real” Asylum Officers to do more affirmative cases.

Finally, the news release discusses some plans for FY 2020. One point of interest for asylum seekers is that USCIS plans to continue the transition to on-line filing, and will make it possible to e-file the I-589 asylum form. If done properly, this would be a great benefit to asylum seekers, since it would make filing easier and more reliable, and would hopefully avoid the problem of USCIS losing documents, which has been a big issue in the past. Given all the bad news from USCIS, let’s end here, with happy thoughts of e-filing in FY 2020. 

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President Trump’s Attack on Ilhan Omar Is an Attack on All Naturalized Citizens

by Jason Dzubow

This is a guest post by Katharine Clark, Managing Attorney for Immigration at the Silver Spring, MD office of Ayuda. She has previously worked on citizenship and nationality issues at the U.S. Department of Justice. The views and opinions expressed herein are solely those of the author, and not necessarily those of any organization, employer, or agency.

On July 14, President Trump tweeted that four members of the House of Representatives – known as “The Squad” – should “go back” to “the crime-infested places from which they came.” The tweet targeted three representatives who were born in the United States, and one naturalized citizen, Rep. Ilhan Omar.

Given Omar’s naturalized status, it’s no accident that Trump and his supporters have settled on her as the long-term focus of their racist ire, chanting “Send her back!” at subsequent rallies beginning on July 17, in reference to Omar alone.

Katharine Clark

Much ink has already, rightly, been spilled about how Trump’s tweets and the crowd’s chants were racist, Islamophobic, detrimental to national rhetoric, and offensive to refugees and naturalized citizens. For example, the LA Times in July focused on how the racialized aspects of Trump’s immigration policies, including his denaturalization task force, are likely to suppress political opposition because these efforts are disproportionately concentrated in jurisdictions where naturalized citizens tend to vote Democratic. Jelani Cobb in the New Yorker explored how Trump’s rhetoric aligns with past efforts in the U.S. to make citizenship provisional for non-whites, U.S.-born and naturalized alike.

These are important points, but I believe there is another, more specific legal action that Trump may be proposing in his ongoing comments about Rep. Omar. He is not just using his tweets to energize his base in advance of the 2020 election. More particularly, I believe Trump and his followers are calling for Rep. Omar to be denaturalized and removed to Somalia.

The Legal Context of “Send Her Back”:

There are two ways to lose United States citizenship. Any U.S. citizen, born in this country or naturalized, can voluntarily renounce citizenship under 8 U.S.C. § 1481. However, renunciation requires a citizen to follow strict procedures for abandonment (it is also possible to lose citizenship after a conviction for treason or a similar criminal offense).

Unlike renunciation, which is initiated by the citizen, denaturalization is a civil action initiated by the federal government under 8 U.S.C. § 1451. To denaturalize a citizen against his or her wishes, a federal court must find that the citizen’s naturalization was illegally procured or procured by willful misrepresentation of material fact.

If a person willfully misrepresents a material fact on a naturalization application, or on the application for a green card that preceded the naturalization application as required under 8 U.S.C. § 1421(c), that misrepresentation can provide a basis for denaturalization many years later. Not only that, the consequences can pass from generation to generation. Under 8 U.S.C. § 1451(d), children who naturalized through their parents can be denaturalized if their parents are found to have procured their naturalization through willful misrepresentation of a material fact.

History of Denaturalization:

Historically, denaturalization actions have been extraordinarily rare. These cases were primarily instituted against war criminals, such as Nazi concentration camp guards, who hid their crimes when they applied for green cards or citizenship. The New York Times reported that from 2004 to 2016, the Justice Department initiated only 46 denaturalization cases.

Denaturalization cases are not only rare, but also difficult for the government to win. This is true by deliberate judicial design. In denaturalization cases, courts hold the government to a very high burden of proof and do not afford great deference to lower court findings of fact on appellate review. Baumgartner v. United States, 322 U.S. 665 (1944); United States v. Zajanckauskas, 441 F.3d 32, n.5 (1st Cir. 2006). As the Supreme Court explained, “rights once conferred should not be lightly revoked,” particularly where the right in question is as “precious” as citizenship. Schneiderman v. United States, 320 U.S. 118, 125 (1943).

Ultimately, then, denaturalization has long been reserved for people who told serious lies, often about their crimes against humanity, in order to become citizens. In other situations, citizenship has been treated as a settled question once naturalization occurs.

Denaturalization Task Force:

This trend began to shift in 2018, when the Trump administration created a denaturalization task force within United States Citizenship and Immigration Services, to review the A-files of naturalized citizens for previous fraud. In the first few months of its existence, the LA Times reports, the task force referred at least 100 cases to the Justice Department for initiation of a civil action.

In some ways, the administration’s focus on denaturalization is simply one small part of the United States’ long history of failing to respect citizenship rights. This history includes laws denying birthright citizenship to Americans of Chinese descent, and forced “repatriation” of US citizens of Mexican descent during the Great Depression.

However, Trump’s threat to Rep. Omar is also uniquely insidious. If Trump is, indeed, calling for Rep. Omar’s denaturalization, we are witnessing the chief executive of our nation, calling for the denaturalization of a duly elected representative on account of her race, religion, and political opinion. This is, to my knowledge, unprecedented.

Trump’s history of policy-making by tweet demonstrates why this threat is so serious and sinister. In this context, Trump’s tweet can be seen as a directive to the U.S. Attorney for the District of Minnesota, to USCIS, and to the Office of Immigration Litigation, to investigate and prosecute Rep. Omar for denaturalization. Ken Cuccinelli’s new role at the helm of USCIS does nothing to reassure me, given his 2008 attempt to repeal birthright citizenship while serving in the Virginia legislature, by calling for a Constitutional convention.

Ilhan Omar:

One’s opinion of Rep. Omar’s politics simply do not matter here. I have never seen her immigration file and I am not her attorney, so I have no specific insight into her case.

What is clear from press reports about her naturalization is that, if there were any problems with her immigration or naturalization, they would have occurred before she was old enough to play any meaningful part in the process. Media reports all indicate that Rep. Omar was born in 1982 in Mogadishu, came to the U.S. in 1992, received asylum in 1995, and naturalized in 2000 as a 17-year-old child.

This means that Trump is explicitly threatening, and implicitly assigning his task force to investigate, the possibility of bringing an extraordinarily rare denaturalization action, historically reserved for war criminals, against a political opponent based on immigration applications filed when she was a child.

If the Administration today threatens to denaturalize duly elected representatives, who have the protections of visibility, it will not only make all naturalized citizens provisional, and second-class under the law. It will also demonstrate the Administration’s full intention to use citizenship – by birth and naturalization alike – as a weapon of political war. If this does not make us concerned for the very foundations of our democracy, then we are not paying attention.

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Asylum for People With Serious Medical Conditions

by Jason Dzubow

In the latest outrageous move against non-citizens, the Trump Administration seems to be eliminating a long-standing program that allows people with serious medical conditions and their caregivers to remain in the United States beyond the normal period of stay. The change means that children and adults with cancer, leukemia, AIDS, and other serious health problems could be deported to their deaths.

The program on the chopping block is known as deferred action. It is basically a form of prosecutorial discretion. The government simply chooses not to initiate deportation proceedings against a person who is in the U.S. without status. In some cases, the person may receive permission to work. A person could receive deferred action for different reasons, but for the cases at issue here, the non-citizens were permitted to remain in the U.S. due to serious–and often life-threatening–health problems. Here is a statement from USCIS, as conveyed to the American Immigration Lawyers Association–

USCIS field offices will no longer consider non-military requests for deferred action, to instead focus agency resources on faithfully administering our nation’s lawful immigration system. This redirection of agency resources does not affect DACA or other deferred action requests processed at USCIS service centers under other policies, regulations, or court orders (such as VAWA deferred action and deferred action related to the U nonimmigrant status waiting list). As deferred action is a type of prosecutorial discretion used to delay removal from the United States, USCIS will generally defer to the DHS component agency responsible for removing individuals from the United States – U.S. Immigration and Customs Enforcement (ICE) – to make most non-DACA, non-military deferred action determinations.

USCIS confirmed that this change became effective on August 7, 2019, and that no public notice about the change was issued. The public is being informed about the change on an individual, case by case basis.

The Trump Administration has also announced a plan to turn excess children into a nutritious snack.

This basically means that medial patients and their caregivers who applied for deferred action may now be denied. The denial letters that I have seen in the press indicate that applicants have 33 days to leave the United States or face removal proceedings. The letters do not indicate how these medical patients can apply to ICE for deferred action, and at this stage, it is unclear whether ICE is even accepting such applications.

You can imagine how these denials would affect sick people (many of whom are children) who suddenly learn that they have to leave the U.S. and quite possibly lose their medical treatment. Here is a statement from Jonathan Sanchez, who has cystic fibrosis and whose sister earlier died from the same disease:

“If they deny the program, then I need to go back to my country [Honduras], and I’ll probably die because in my country, there’s no treatment for CF [cystic fibrosis],” Sanchez said, crying and trying to catch his breath. “Doctors don’t even know what’s the disease. The only ones who can help me are here in the United States.”

Even if he is ultimately allowed to remain here for treatment, the idea that this boy has been threatened with deportation at a time when he is fighting for his life is a true horror. From my point of view, the fact that we are even having this conversation is extraordinarily repulsive. That our country would mistreat people–especially children–in this manner is a black stain on our nation (one of many, unfortunately). All that said, the question I want to address here is, Can these medical patients (and their family members/caregivers) make a viable claim for asylum, so that they can try to remain in the country?

First, to receive asylum, you need to demonstrate that you filed for asylum within one year of arriving in the United States. There are exceptions to this rule, and if you have (or had) deferred action, you may meet such an exception (the “extraordinary circumstances” exception). However, once deferred action ends, you must file within a “reasonable” period of time; otherwise the asylum application will be considered untimely filed, and it will be denied. What is a reasonable period of time? There is no set definition, and I have seen cases indicating that two or three months is reasonable, but six months is not reasonable. So the bottom line is, if your deferred action ends and you want to request asylum, you should file your application as soon as possible.

Second, in some deferred action cases, more than one family member is in the United States (for example, a sick child and a caregiver parent). Certain family members can file for asylum together, and so it is worth considering which family member, if any, has a viable asylum case. An adult asylum applicant can include a spouse and any minor, unmarried children in her asylum case. A child who is over 21, or who is married, cannot be included in a parent’s asylum application. An unmarried couple would each have to file their own application for asylum. A child with his own asylum case cannot include a parent in that case (though sometimes when a child faces persecution, the parent can articulate her own, independent claim – an example might be where the child faces FGM or female genital mutilation, and the parent faces harm for trying to protect the child). So you have to think about who in the family might have a claim for asylum, and whether all family members could be included in that application.

Third, if a person was persecuted in the past–even the distant past–based on race, religion, nationality, political opinion or particular social group, he may be eligible for “humanitarian” asylum or “other serious harm” asylum. Humanitarian asylum is available to people who have faced severe persecution in the past. Even if the country is now safe, we allow the person to remain in the United States rather than force him to go back to a place where he faced terrible harm. I once did such a case for a Rwandan woman whose family was massacred during the genocide, when she was only 11 years old. The Immigration Judge found that the harm she suffered qualified her for humanitarian asylum, even if it would be safe for her in Rwanda today. Other serious harm asylum is for people who suffered persecution in the past based on their race, religion, nationality, political opinion or particular social group. If such a person would face any other serious harm today, even if that harm is not on account of a protected ground, she can qualify for asylum. So for example, if a woman was subject to FGM as a child (FGM is persecution on account of a particular social group) and today, she faces harm due to a lack of medical treatment for cancer, she might qualify for “other serious harm” asylum.

Finally, what if there is no basis for asylum other than the medical condition itself? Such cases are often difficult, since there needs to be a “persecutor” – someone who wants to harm the asylum applicant. Poor hospital conditions or lack of medical care–without more–would not normally qualify for asylum protection. But sometimes, people with medical conditions face discrimination that rises to the level of persecution. For instance, we once obtained protection for a Mexican man who was HIV positive. We argued that discrimination in Mexico was so severe that his life would be at risk there. For people from countries where law and order has broken down, one argument might be that people with medical conditions will be targeted by criminals or member of society due to their particular vulnerabilities. Central American countries with rampant gang issues may be places where vulnerable people are specifically targeted by gang members, and maybe that could form the basis for an asylum claim. Other medical conditions, such as albinism, are so stigmatized in certain societies that people with those conditions face harm or death. The key to cases like these often involves obtaining country condition information that demonstrates the danger faced by people with medical conditions. Specific examples of people who were harmed can also help. For example, we did a case where a Turkish man faced imprisonment for political reasons. The man had leukemia, and so we argued that even a short imprisonment would be life threatening. We supported our claim with newspaper articles about people who died in prison due to health problems. These articles demonstrated that the harm faced, at least for this specific person, was severe enough to qualify him for asylum.

The status of deferred action cases is still unclear. Will ICE announce a procedure for people with serious medical conditions to apply for deferred removal? Will USCIS respond to the backlash and re-institute the program? It now appears that cases filed before August 7, 2019, which were denied, are now being reopened, but the fate of the program going forward seems uncertain (at best). For those affected, it is important to start thinking about alternatives. One such option may be asylum; other options may exist as well, depending on the case. Talk to a lawyer, and if you cannot afford a lawyer, remember that free or low-cost help is available. Unfortunately, this new change affects the most vulnerable, and it is easy to lose hope. But there are many people who want to help, and the sooner you take action, the more likely you are to find an alternative way to remain in the United States.

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The Art of Migration (and a Bit of Housekeeping)

by Jason Dzubow

An ambitious multi-media exhibit at the Phillip’s Collection in Washington, DC explores the “experiences and perceptions of migration and the current global refugee crisis.” The exhibition, called The Warmth of Other Suns: Stories of Global Displacement, presents the work of 75 historical and contemporary artists “from the United States as well as Algeria, Bangladesh, Belgium, Brazil, Egypt, Ghana, Iraq, Lebanon, Mexico, Morocco, Syria, Turkey, UK, Vietnam, and more.” Many of the artists are themselves refugees, and this lends power and authenticity to the show.

My office mates and I took a field trip to the Phillip’s to check out the exhibit, which consists of “installations, videos, paintings, and documentary images.” There’s a lot to see, and a lot to read–each artist has a story, and for me at least, learning about that story helped me understand what I was looking at. Most of the art is individually interesting and it would be easy to linger with each piece, but in this case, the sum of the show exceeds its parts. Indeed, the great strength of this exhibit comes from its diversity–diversity in experience, place, and time.

A photo from the exhibit, showing migrants waiting for a plane that never arrives (either that, or it’s a bunch of people boarding Wonder Woman’s jet).

The curators have anchored the show with a display of Jacob Lawrence’s Migration Series: 60 or so paintings depicting the Great Migration of African Americans from the American South to the North. Between about 1920 and 1970, more than six million people moved North to escape poverty and racism (or, more accurately, they moved to escape from severe poverty and racism in the South to somewhat less severe poverty and racism in the North). The Migration Series is a part of the museum’s regular collection, but placing it in the wider context of The Warmth of Other Suns adds to its emotional impact and gives it a sense of universality that is less obvious when it is viewed individually.

Other powerful exhibits include a video installation showing a conversation with elderly Central American parents whose son left for the United States. We hear their perspective of the son’s journey–phone calls from different stops along the road, and then finally nothing. The parents learn later that their son has died on the journey. The devastation of their loss is haunting. The mother can’t even speak about it. She talks about the weather and the coffee harvest instead, and somehow, this is harder to watch than a direct accounting of her son’s demise.

Another room has a floor covered in clothing. On the wall is a large photo of a rough ocean. The clothes are blue, indicative of the sea, and they represent the unnamed and unseen migrants who were lost while crossing the Mediterranean (thousands of migrants die each year on their journeys, many in the Mediterranean Sea). On the wall of this room are three world maps, but by a different artist. This artist commissioned Afghan seamstresses to sew the maps. Each country is represented by its colors or part of its national flag. The maps–with their distinct borders between countries–contrasts with the scattered clothing, lost in the liminal space between nations.

Another exhibit is a video of a young boy from Syria. He is deaf and mute, and he looks to be about 12 or 13 years old. He fled Syria after the Islamic State attacked his home town. Unable to speak, the boy describes the attack with gestures and facial expressions. The artist writes, “The power of his body language [has] made any other language form insufficient and insignificant.” I am not sure about that, but his non-verbal description certainly renders any other language form redundant, as it is all too clear that this boy has witnessed and suffered a trauma that no child (and no adult) should ever have to experience.

A more lighthearted exhibit called Centro de Permanenza Temporanea or Center for Temporary Permanence (pictured above) shows a group of migrants climbing an airport boarding ladder for a plane that never arrives. This exhibit symbolizes the inability of Western countries (here, Italy) to return their “unwanted” migrants, who are left to wait and wait.

For me as an attorney who represents asylum seekers, this exhibit was challenging. Our cases are serious and the stakes are high (indeed, just this week, I heard about a colleague’s client who was murdered after having been deported by an Immigration Judge). To do these cases effectively, we need a certain level of detachment (to preserve our sanity) and objectivity (to properly evaluate and prepare our clients’ cases). These qualities serve us well in the practice of asylum law, but they are the opposite of what is needed to appreciate an art exhibit about migration. But by lowering my defenses and engaging with this art, I find that it provides inspiration and serves as a reminder of why we do what we do.

For those who are not immersed in the world of migration, I think the great power of this art is that it gives voice to people who are frequently voiceless, and humanity to people who are too often used as political pawns (“invaders!” “rapists!”). The Warmth of Other Suns is a thoughtful and sobering testament to those who have journeyed–willingly and unwillingly–in search of a better life.

The exhibition runs through September 22, 2019. For more information, and to see some of the art, click here.

PS: The title of this blog post was shamelessly stolen from my friend Sheryl Winarick, who drove across Eurasia to document various communities and their experiences with migration. Learn more about her journey here.

PPS: I almost forgot the housekeeping. I will be off-line from about August 16 to 25, 2019. So if you post questions or comments, I will try to answer them after that time.

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Immigrants and Truth Are Both Casualties of the Recent ICE Raids

by Jason Dzubow

By now, you’ve probably heard about the massive, coordinated ICE raids in Mississippi. About 680 people were arrested at seven agricultural processing plants. According to ICE’s acting director, Matthew Albence, some of those arrested will be prosecuted for crimes, others will be swiftly deported, and some will be released pending immigration court hearings. Mr. Albence states, “The arrests today were the result of a year-long criminal investigation, and the arrests and warrants executed today were just another step in that investigation.” How many of those arrested were actually criminals, and how many were “collaterals” (people who were not targets of the raids, but were encountered and arrested due to their unlawful immigration status), we do not know.

The raids are supposedly also targeting the companies that hired these “illegals.” The U.S. attorney for the Southern District of Mississippi, who was involved in the ICE operation, warned: “To those who use illegal aliens for a competitive advantage or to make a quick buck, we have something to say to you: If we find you have violated federal criminal law, we are coming for you.”

On the plus side, now is a great time to apply for a job in the poultry processing business.

As we know from prior large-scale raids, the implications of arresting so many people are deep and long-lasting. Probably the most famous example is the 2008 raid at a Kosher food processing plant in Postville, Iowa. Almost 400 people–mostly indigenous Mayans from Guatemala–were detained. Many were charged with crimes such as using a false Social Security card. They were given a choice: Plead guilty and accept deportation, or go to trial. Going to trial was risky, and would result in many months of detention, even for those who were ultimately acquitted (since unlawful immigrants can be held in detention pending a criminal case). The result: Most people chose to plead guilty and accept deportation. A number of people in management were also charged with crimes. Only one–the owner of the plant Sholom Rubashkin–served any significant jail time, and that was for financial fraud (he had also faced charges for immigration-related crimes, but those were dropped). After eight years in jail, Mr. Rubashkin’s sentence was commuted by President Trump, purportedly after the intervention of Trump sycophant Alan Dershowitz.

The effect of the raid on the town of Postville and the wider community was profound: Children stopped going to school, families were separated, several hundred people were tried, convicted, and deported with little due process of law, the food processing plant–the town’s largest employer–closed for weeks and eventually declared bankruptcy, and a study of the long-term health effects of the raid showed that “Babies born to Latina mothers after the raid were 24 percent more likely to be underweight than infants born the year before,” presumably due to the stress and fear the raid engendered. Ten years later, the town had mostly rebounded, but memories of the raid–and the trauma–live on.

I imagine that noncitizens in Mississippi and across the nation will experience similar impacts as a result of the recent ICE raids. The psychological harm is compounded by the Trump Administration’s vicious anti-immigrant rhetoric, as well as the mass shootings in Pittsburgh and El Paso, which were seemingly perpetrated by men opposed to the foreign “invasion” of our country.

What will happen to the men, women, and children affected by the recent raids is still not known. Some of those detained likely have defenses to deportation, such as asylum or Cancellation of Removal (assuming their due process rights are not violated and they have an opportunity to present their defenses). Several of the people arrested during the Postville raid cooperated with the authorities in the criminal investigation and obtained U visas. Perhaps some of those affected by the raids in Mississippi will be eligible for such visas as well. 

Family members of those detained–especially children–will also face severe challenges. After the Iowa raid, many children went into hiding or were traumatized by the sudden absence of their parents and the fear of their own pending arrest. Churches and non-profits stepped up in Iowa, and I imagine we will see similar efforts here. Whether ICE has made arrangements for detainees’ children, and whether they will release non-criminal parents in their custody, is still unclear (ICE has indicated that such people would be released after an initial screening).

Part of the problem in this regard is trust. It is impossible to trust what ICE says. For example, one of the detainees in the recent raids has a 12-year-old daughter named Angie. The child was brought to the scene by a family friend in order to say goodbye to her mother. The following exchange with an ICE agent ensued–

“Here’s the deal, all right,” an agent says to an English-speaking woman accompanying Angie. “She [Angie’s mother] just went. Her mom got on the bus. We took her mom’s documents, all right. She’s going to be processed, because she doesn’t have papers to be here legally.”

But “because she’s the only caretaker of the child,” the agent continues, “she’ll be released this afternoon. So with [Angie] being a U.S. citizen and being 12 years old … she’s going to be issued a notice to appear, she’ll have to see an immigration judge, she’ll be released this afternoon.”

“Today?” a woman asks.

“Yes, yes,” the officer responds. “But I’m going to tell you something, she’s not going to be deported because she has a United States citizen child.”

As of Wednesday night, the mother had not been released. 

This is the type of behavior we see all the time from ICE agents. They give assurances to defuse the situation or end a conversation, but those assurances are false. They also pass the buck–in this case, it is not the ICE agent’s problem, the mother will have to see an Immigration Judge. I get it–law enforcement officers want to de-escalate tense encounters. But the frequent lying makes it impossible to trust anything that ICE agents may say. 

Finally, I do understand that ICE agents have a job to do, and that people who are here unlawfully can be deported. That is the law. But this raid–with its helicopters and military-style trappings–seems designed for propaganda purposes. In the context of the times, I fear that the effect on our country’s noncitizen and minority community members will be traumatizing and frightening. I also can’t help but feel that that is exactly what ICE wants. 

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Should I Be Worried About ICE Raids?

by Jason Dzubow

For weeks, the Trump Administration has been threatening to deport “millions” of illegal immigrants. The on-again, off-again plan seems to be on again (sort of), and so let’s discuss who might be targeted, and what to do if ICE comes calling.

Before we get to that, I think it is important to understand something about the rhetoric of President Trump and his aids: Through their words and their actions, they are trying to terrorize non-citizens. Unfortunately, they are largely succeeding, and many people throughout the U.S. are living in a state of dread. Perhaps the President and his supporters can argue that this is about enforcing the law, and about deterring foreigners from coming here. But it seems to me that the law can be enforced without the cruel words and rhetorical games, such as Mr. Trump’s gleeful tweet that unless Congress can work out a solution to the “Asylum and Loophole problems at the Southern Border… Deportations start!” From where I sit, this is pure cruelty, and the harm to regular people–non-citizens and their citizen family members–and to our nation is very real.

Remember when Conservatives used to oppose raids against children?

In a case of giving advice that I would have a hard time accepting myself, I think it is important to ignore the Administration’s words as much as possible. By this, I don’t mean that non-citizens should tune out, since it is important to know what’s happening in order to protect yourself. But dwelling on the Administration’s threats and bluster is mentally exhausting, and it serves no purpose (other than perhaps to further the President’s goal of terrorizing you). Despite it all, so far, Mr. Trump’s bark has proved far worse than his bite (in terms of deportations, the opposite might be said of President Obama).

And so while the rhetoric is bad, and bad things are happening, they are not happening on the scale that the President likes to claim. The “millions” of deportations is now down to two thousand, and even that may be difficult to accomplish given the government’s limited resources and the advance notice provided by the Commander-in-Chief. In short, the situation is not as bad as it may appear, and it is important to not let the stress and fear become overwhelming.

Turning to the raids themselves, who is a target? We don’t precisely know, since ICE keeps its cards close to the vest, but the New York Times reports that ICE will target individuals and families with final orders of deportation, particularly those who entered the country recently. Also, according to RAICES, an immigration non-profit, raids will occur in 10 different cities.

If you have legal status in the United States, or if you have a pending application in Immigration Court or at the Asylum Office, the raids should not directly affect you. Indeed, from what we know so far, unless you actually have been ordered deported by an Immigration Judge and that order is final (meaning, you did not appeal or your appeal was denied), you are not a target of the raids.

On the other hand, if you do have a final order of removal, you could be a target. It likely does not matter how long you have been in the U.S., whether you have family here, or whether you are otherwise law-abiding. If you live in one of the targeted cities, the risk is probably greater than if you live elsewhere, but we cannot be sure about that–raids could occur anywhere.

Also, ICE officers are perfectly happy to arrest any “illegal” who they encounter, even if that person is not the target of a raid. So if you live with a person who is a target, or you spend time with such a person, or if you just happen to be in the wrong place at the wrong time, you could find yourself affected by a raid. For this reason, it is good for all non-citizens to be prepared.

So how do you prepare? The ACLU has a helpful webpage in many different languages. Also, the National Immigration Law Center recommends the following for people without status (I have slightly edited this list):

  • If you encounter ICE agents, remain silent, or tell the ICE agent that you want to remain silent.
  • Ask to speak with a lawyer.
  • Do not carry false documents.
  • Carry a “know your rights” card (PDF)
  • Find out the name and phone number of a reliable immigration attorney and keep this information with you at all times.
  • Know your “alien registration number” (“A” number) if you have one, and write it down someplace at home where your family members can find it.
  • Prepare a form or document that authorizes another adult to care for any minor children.
  • Advise family members who do not want to be questioned by ICE to stay away from any place where a raid occurred or where a detained person is being held.
  • Do not sign any U.S. government documents without first speaking with a lawyer.

More generally, have a plan. Make sure a trusted family member or friend has access to your immigration information and documents. Maybe scan or photograph your documents and save them online. Make a plan with your immediate family about what to do in the event of a raid – who to call, where to go.

If you have a deportation order, realize that you are a target for ICE. If ICE or any part of the U.S. government has your home, work or school address, they could come there to arrest you. If you are in an area where raids are likely to occur, you also face risk, as ICE can detain anyone without status, even if that person was not the specific target of the raid. One thing you can do affirmatively is to talk to a lawyer–if there is a basis to re-open your case, you are probably better off getting started now rather than waiting until you are detained.

Non-citizens who are in-status also need to be careful and should be aware of their rights. Carry your Green Card, EAD or other documents with you (in some cases a non-citizen is required to carry such documents), or at least carry a copy of them. And keep a copy at your house, online, or with a trusted friend, in case you lose the original.

If you do not have status but have a pending case, carry copies of your receipts or Immigration Court scheduling order, and–if you have it–a photo ID. Such documents should provide protection against arrest.

If you are arrested, there are actions that you (or more likely, your lawyer) can take: File a motion to reopen a closed case, request a stay of removal, file a motion for bond. So even an arrest may not be the end of the story, if you are prepared to take action.

Finally, try to keep things in perspective. In 2016, there were over 950,000 people in the U.S. with removal orders. This is the most recent data I could find, and I suspect that the numbers are even higher today. If ICE hopes to arrest 2,000 people in these raids, that accounts for only about 1 person in 500 of those in the U.S. with a deportation order. And even if they arrest more than that, the likelihood of any one individual being targeted is quite low. These raids are more about frightening people than about effective immigration enforcement. Keep that in mind and make sure you are prepared. These are the best ways to get through this difficult time.

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