The Asylum Backlog, Revisited (Ugh)

by Jason Dzubow

I haven’t written about the asylum backlog in awhile. Mostly, that’s because the subject is too depressing. Cases are taking years. Many of my clients are separated from their spouses and children. A number of my clients have given up, and left the U.S. for Canada or parts unknown. The backlog has also made the job of being an asylum attorney more difficult and less rewarding–both financially and emotionally. That said, I suppose an update on the backlog is overdue. But I warn you, the news is not good.

“Let’s talk about the asylum backlog… again.”
“Let’s talk about the asylum backlog… again.”

The most recent report from the USCIS Ombudsman—which I have been trying not to look at since it came out in June—indicates that the affirmative asylum backlog (the backlog with the Asylum Offices, as opposed to the Immigration Court backlog) has increased from 9,274 cases on September 30, 2011 to 128,303 cases as of December 31, 2015. This, despite significant efforts by the Asylum Division, and the U.S. government, to address the issue.

The Ombudsman’s report lists five main reasons for the dramatic increase in backlogged cases: (1) high volume of credible and reasonable fear interviews; (2) a rise in affirmative asylum filings; (3) increased numbers of filings with USCIS by unaccompanied minors in removal proceedings; (4) the diversion of Asylum Office resources to the Refugee Affairs Division; and (5) high turnover among asylum officers. Let’s take a closer look at what’s going on.

First, the number of credible and reasonable fear interviews at the border have increased significantly over the last several years (when an asylum seeker arrives at the border, she is subject to a credible or reasonable fear interview, which is an initial evaluation of asylum eligibility). The numbers for FY 2015 were slightly down from a high of about 50,000 interviews in FY 2014, but FY 2016 looks to be the busiest year yet in terms of credible and reasonable fear interviews. The reasons that people have been coming here in increased numbers has been much discussed (including by me), and I won’t re-hash that here. I do suspect that the upcoming election—and talk of building a wall—is causing more people to come here before the door closes. Maybe after the election, regardless of who wins, the situation will calm down a bit.

Second, the number of affirmative asylum applications has also increased. There were 83,197 applications in FY 2015—up 130% from FY 2011. There are probably many reasons for the increase, but I imagine the chaotic situation in the Middle East, violence in Central America and Mexico, and political persecution in China are important “push factors.” The relatively strong U.S. economy and the presence of ethnic communities already in the United States are a few factors “pulling” migrants to our country.

Third, an increased number of minors in removal proceedings have been filing their cases with the Asylum Division. Unaccompanied minors who have a case in Immigration Court are entitled to a non-confrontational asylum interview at the Asylum Office. The number of these children requesting an interview has increased from 718 in FY 2013 to 14,218 cases in FY 2015, and these cases have added to the Asylum Division’s case load.

Fourth, President Obama has increased the “refugee ceiling” from 70,000 to 85,000. In order to process these cases and bring the refugees from overseas, the Refugee Affairs Division has been borrowing asylum officers—about 200 such officers will be sent to the RAD for two months stints. And of course, if they are working on refugee cases, they cannot be working on asylum cases.

Finally, the Asylum Division’s efforts to reduce the backlog have been hampered by a high turnover rate among Asylum Officers. According to the Ombudsman’s report, the attrition rate for Asylum Officers was 43% (!) in FY 2015. Some of the “attrition” was actually the result of officers being promoted internally, but 43% seems shockingly high.

As a result of these factors, wait times have continued to grow in most offices. The slowest office remains Los Angeles, where the average wait time for an interview is 53 months. The long delays in LA are largely because that office has a high proportion of credible and reasonable fear interviews (“CFIs” and “RFIs”). New York, which is the only office where wait times have decreased, has an average wait time of just 19 months. The NY office does not have a detention facility within its jurisdiction, and so there are fewer CFIs and RFIs. As a result, the NY office is better able to focus on “regular” asylum cases and can move those cases along more quickly.

The Ombudsman report also discusses post-interview wait times, which stem from “pending security checks, Asylum division Headquarters review, or other circumstances.” The wait time between a recommended approval and a final approval has increased from 83 days in FY 2014 to 105 days for FY 2016. Also, the delay caused by Headquarters review has increased to 239 days in FY 2016 (I wrote about some reasons why a case might be subject to headquarters review here). In my office, we have been seeing delays much longer than these, primarily for our clients from Muslim countries.

The report discusses delays related to Employment Authorization Documents (“EADs”). Regulations provide for a 30-day processing time for EADs, but USCIS “regularly fails to meet” that deadline. Indeed, the processing time for EADs at the Vermont Service Center is “at least 110 days,” which—based on my calculations—is somewhat longer than the 30-day goal. One improvement in this realm is that EADs for asylum applicants will now be valid for two years instead of one (this change went into effect earlier this month). If EADs are valid for a longer time period, USCIS will have fewer EADs to renew, and hopefully this will improve the overall processing time.

The Asylum Division has responded to this mess by (1) hiring new officers; (2) establishing new sub-offices; (3) publishing the Affirmative Asylum Scheduling Bulletin (I discuss why the Bulletin is not a good predictor of wait times here); and (4) developing new EAD procedures.

The number of new Asylum Officers has increased from 203 in 2013 to over 400, as of February 2016, and USCIS was authorized to employ a total of 533 officers in FY 2016. USCIS has also been trying to mitigate the high level of turnover. They created the “Senior Asylum Officer” position, which, aside from offering a fancy title, may allow for a higher salary, and they have scaled up their training programs in order to get more officers “on line.”

In addition, USCIS has opened new sub-offices, including one in Crystal City, Virginia, which will (hopefully) employ 60 officers to conduct exclusively CFIs and RFIs by phone or video link. Supposedly, the Crystal City office will assist Los Angeles with its CFIs and RFIs in an effort to reduce the close-to-eternal backlog in that office.

Finally, USCIS is trying to improve the EAD process. One change is that applicants who move their case from one Asylum Office to another will no longer be penalized for causing delay. Previously, if an applicant caused delay, her Asylum Clock would be stopped and she could not get her EAD. USCIS has also proposed a rule change so that an applicant’s EAD will automatically be extended when she files for a new card. I wrote about this proposed (and much-needed) change almost one year ago, and it has yet to be implemented. Lastly, as mentioned, EADs are now valid for two years instead of one.

So there you have it. There is no doubt that USCIS and the Asylum Division are making efforts to improve the situation. But unless and until the crisis at the border subsides, it seems unlikely that we will see any major improvements in the way cases are progressing through the system. So for now, we will wait, and hope.

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How to Find a Free Asylum Attorney

by Jason Dzubow

If you want to hire a lawyer to help you with your asylum case, you’ll find that attorney fees are all over the map. Some lawyers charge tens of thousands of dollars for a case. The larger immigration firms typically charge in the five to ten thousand dollar range. “Low bono” lawyers–and I include myself in this group–charge a few thousand dollars for an asylum case.

Remember, when you use a pro bono attorney instead of hiring me, you are taking food from the mouths of my children.
Remember, when you use a pro bono attorney instead of hiring me, you are taking food from the mouths of my children.

But what if you do not have any money for a lawyer, and even a “low bono” fee is too much? The options then are to do the case yourself (usually not a great idea) or to find a pro bono attorney.

Pro bono (short for “pro bono publico”) is a Latin phrase meaning “for the public good.” In the legal context, it basically means that the lawyer does the work without charging the client any money.

There are different types of pro bono attorneys. The major categories are lawyers who work for charities, attorneys who work for law school clinics, and private attorneys who volunteer their time. There are advantages and disadvantages to each type of pro bono attorney, and strategies for finding an attorney in each category are a bit different.

I suspect that most asylum seekers who find a pro bono attorney do so through a charitable organization. You can find a fairly comprehensive list of such organizations on the Executive Office for Immigration Review website (EOIR is the government agency that administers the nation’s Immigration Courts). The list is organized by state, which is helpful. If you do not see your location, click on a nearby state and you should find charities that serve your area. The American Immigration Lawyer’s Association (an association of private and non-profit attorneys) maintains a similar, and probably more comprehensive, list. Many of the organizations on these lists are free. Some charge a nominal fee (though in certain instances, I have heard about “nominal fees” ranging into the thousands of dollars, but this is the exception, not the norm). Also, most such organizations will not take a case where they believe the asylum seeker has the ability to pay for a lawyer.

The main disadvantage of using a charitable organization is that they are very busy, and they may not have the capacity to take your case. Also, if you need your case done in a hurry, they may not be able to accommodate you. Indeed, the reason lawyers like me exist is because the charitable organizations do not have the resources to help everyone. If you are able to obtain representation from a charity, they will either do the case in-house, or they will find you a volunteer attorney who will work under their supervision. Many of these volunteer attorneys do not specialize in asylum. However, the non-profits are adept at training and supervising their volunteer lawyers, and in most cases, you will get excellent representation.

So how do you get one of these charities to take your case? It often is not easy, and you may need to call/email/visit a number of organizations before you find one that can help you. But if you are persistent, you may be able to obtain representation. If one organization cannot help you, ask whether they can recommend another to try. It can feel like a full-time job to find a pro bono lawyer, but those applicants who make the effort are often able to obtain representation.

Another type of pro bono representation is the legal clinic. Many law schools have clinical programs where a law professor supervises law students in real-life cases. The students do the actual work on the case. I do not know of a comprehensive, updated list of law school immigration clinics, but this list (in Excel) from the Law Professors Blog Network should get you started. Also, you might try Googling “Law School Immigration Clinic” + the name of your city. Again, these clinics receive many requests for assistance and they have limited capacity, so it is often difficult to get one to represent you.

If you are represented by a law school clinic, you will work mostly with the students–after all, the primary purpose of the clinic is to provide a learning experience for the students. The obvious question is whether law students have the ability to adequately represent asylum applicants in court or in the asylum office. My observation is that, what the students lack in experience, they make up for in enthusiasm and energy. Also, the supervision at clinics (at least the ones I have seen) tends to be excellent. I do not know of any studies on this, but I expect that the success rate of clinical students is comparable to the success rate of practicing attorneys. One issue for clinics is that their cases must be scheduled according to the academic calendar, which can sometimes cause additional delays (though sometimes, it can make things faster instead).

Finally, many law firms have pro bono programs where the firm will represent individuals free of charge. Most firms get their pro bono clients from charitable organizations, but they can take on individual cases directly. If you know someone at a law firm (or if you know someone who knows someone), you might want to ask about this. If the attorney is not familiar with asylum law, she can likely partner with a non-profit organization, which will supervise her (the non-profits usually love to get new volunteer attorneys and are happy to help).

In truth, it is often difficult to find pro bono representation. Resources are stretched thin. But if you persevere, it is possible to find a free attorney. And having an attorney can make a big difference in the outcome of your case.

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The Asylum Interview

by Jason Dzubow

After you file affirmatively for asylum, you will wait for months or years, and then finally, you will have an interview. What happens at this interview? And how do you prepare for it?

The interview is a (supposedly) non-confrontational conversation between the asylum applicant and an Asylum Officer. It takes place in an office; not a courtroom. You can bring an attorney and/or an interpreter with you to the interview. And sometimes, an Asylum Office supervisor or trainee is also present.

A typical Asylum Office interrogation chamber... er, interview room.
A typical Asylum Office interrogation chamber… er, interview room.

Before the interview, when you arrives at the Asylum Office, you need to check in. This consists of giving the interview notice to a receptionist, who will take your photo and fingerprints, and give you a paper to read. The paper reminds you of your obligation to tell the truth and lets you know that you can bring an interpreter with you to the interview. Do not sign the paper—you will sign it once you are with the Asylum Officer in the interview room.

The interview itself is divided into a few parts.

First, the Asylum Officer will explain and administer the oath, during which you will promise to tell the truth. If you have an interpreter, the Asylum Officer will also make her take an oath. For people using an interpreter, the Asylum Officer will call another interpreter on the phone, and this person will monitor the accuracy of the interpretation. If the interpreter you bring makes a mistake, the telephone interpreter will correct it (remember to speak loudly and clearly, so the person on the phone can hear you).

After the oath, the Officer will review your form I-589 and give you an opportunity to make any corrections or updates. It is important to review the form yourself before you go to the interview, so you are ready to make corrections and updates when the time comes.

Once the form is corrected, you will reach the heart of the interview, where the Officer will ask about why you need asylum in the United States. A few points to keep in mind here: First, if the Officer asks you a question that you do not understand, do not answer the question. Instead, ask for clarification. The Officer is typing what you say, thinking about his next question, and reading your file, all at the same time, so he may well ask you a poorly-worded question. It is not a problem—and indeed, it is common—for an applicant to ask the Officer to clarify a question. Do not be afraid to do that. Second, if you do not know the answer to a question, or do not remember the answer, do not guess. Just say, “I don’t know” or “I don’t remember.” If you guess, and your answer is different from your documents (or different from other information that the Asylum Officer has), it may cause the Asylum Officer to believe you are not telling the truth, which could result in your case being denied. Obviously, it is better if you know and remember the facts of your case, so make sure to review your statement before the interview.

There are certain questions that the Officers usually ask, and you should be prepared for them: Why do you fear returning to your country? If you or a family member have been harmed in the past, describe what happened. If you face harm from a terrorist group or other non-governmental actor, can your home government protect you? Is there somewhere in your country where you can live safely? If you are a member of a political party, the Officer might test your knowledge of the party by asking about its leaders or history. If you are seeking asylum based on religious persecution, the Officer might ask you about the tenets of your religion. For people who served in the military or police, the Officer might ask about the nature of your service, and whether you might have engaged in persecution of others. If you ever had any interactions with a terrorist or insurgent group, the Officer will ask about that. The Officer will also want to know about other countries you have lived in, or traveled through. If you left your country and then returned, the Officer may want to know why you returned home then, but do not want to go back now. Also, the Officer will have a copy of any prior visa applications (possibly including applications made to other countries or the United Nations) or any other documentation you submitted in an immigration matter, so you should be prepared for questions about prior applications. Of course, depending on your case, the questions will vary, and that is why it is so important to review your case before the interview and think about the types of issues that might come up (and if you have a lawyer, she should think about and work through these issues with you).

Usually near the end of the interview, the Officer will ask you the “bar questions,” which everyone must answer: Have you committed a crime or been arrested? Are you a terrorist? Did you ever have military training? etc.

Sometimes at the end of the interview, the Officer will ask whether you have anything else to add. If the Officer covered all the major issues, I recommend to my clients that they simply thank the officer and end the interview. Some people want to give a long statement about their desperate situation or their family members’ problems. In my opinion, such statements are not helpful, and could end up causing more problems than they solve.

Finally, the Officer will instruct you about the next steps–the Officer will not give you a decision on the day of the interview. Either you will be required to return to the Asylum Office to pick up your decision (usually in two weeks), or they will send the decision by mail (which could take days, months or years). I always caution my clients, even if the Officer tells you to return in two weeks, it is very common for pick-up decisions to be canceled and turned into mail-out decisions. In other words, until you have the decision in your hand, you have to remain patient, and you cannot make any plans.

The whole interview process can take an hour, but more often, it takes a few hours. On occasion, it takes many hours, and sometimes the Officer will ask you to return another day for more questions.

So what do you do to prepare for the interview? First, make sure you have submitted all your documents and evidence in advance, according to the rules of your local Asylum Office (in my local office—Virginia—for example, we are required to submit all documents at least one week in advance, but local rules may vary). Second, review your statement and evidence prior to the interview. Think about what issues may come up, and how you want to respond to those issues. Bring with you to the interview your passport(s) and any original documents you have. If you have dependent family members as part of your application, they need to attend the interview too (though usually they will not be asked many questions by the Officer). Dress in a respectful manner. Be on time or early.

The interview is a key part of your asylum case. If you know what to expect and are prepared to address the issues–especially any difficult issues–you will greatly improve your chances for a successful outcome.

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The Most Important Question on the I-589 Asylum Form

by Jason Dzubow

If you’re reading this blog, you’re probably already familiar with the form I-589, Application for Asylum and Withholding of Removal. Whether your case is in Immigration Court or the Asylum Office, this is the form that you use to apply for asylum, withholding of removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.

"You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?"
“You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?”

At the beginning of the asylum interview or the court case, the applicant has an opportunity to make corrections to the I-589. It’s not a problem to make corrections, and generally, correcting errors on the original form does not reduce the likelihood that the application will be granted. In the worst case, the applicant will need to explain the mistake(s), but even this is fairly rare.

You might think that the most important questions on the I-589 are the ones on page 5 related to why you need asylum. It makes sense, since that is the whole point of the form. But, au contraire, in asylum world, things that make sense are rarely the correct answer. The questions about asylum are generally easy to answer on the form, and you have ample opportunity to elaborate on your answer in an affidavit or at the interview.

So what is the most important question on the form? It’s the question that appears on page 1, near the very beginning of the form, in Part A.I., question 6: “What other names have you used (include maiden name and aliases)?” What’s so important about this question, you ask. I will endeavor to explain. But first, a bit of background.

Every asylum applicant must undergo a background check. The check is a bit of a mystery, but it involves a biometrics check and a name check. The background check also involves multiple data bases, and it can be quite time consuming–some people wait years for the completion of their checks. Theoretically–and hopefully–the background check will be completed before the interview or the court case. That way, the applicant can receive a decision shortly after being interviewed. If the check is not complete, or if new information arises at the interview and the check must be augmented, the case will be delayed–possibly for a very long time.

In my office, for example, we have dozens of clients who have been interviewed, but are still waiting for decisions in their cases. Some have been waiting for weeks or months; the longest delayed applicants have been waiting over two years! Most of these delays seem to be because the security background checks are not complete. For people who are single, or whose spouse and children are with them in the United States, the wait may be tolerable (stressful and unpleasant, but tolerable). For people who are separated from their spouse and children, the wait is horrific. How can a mother or father be apart from small children for months or years? Yet this is what many applicants are enduring today.

Which brings us back to the question about “other names used.” If you fail to include every name you have used in your life, the Asylum Office may have to start the security background check all over again for any names that you add to the form during your asylum interview or your court case. So while it is not a problem to correct this question, adding a new name to the form could cause months (or more) of delay. For this reason, it is important to include any and all names you have used when you first submit the form.

Your name on the I-589 (Part A.I., questions 3, 4, and 5) is generally your name as it appears on your passport. So what “other names” should be listed on the form? You should include the name on your U.S. visa, including the notorious “FNU” or “first name unknown,” which often appears on US visas for people who have only one name. If you have a maiden name, include that. Also, list any different spellings of your name that you (or others) have used. If you have nicknames, pseudonyms or aliases, list those too. Of course, if you have ever changed your name, list all previous names you have used. If you ever list your name as “son of” or “daughter of,” include that. Finally, different countries and cultures have different naming conventions. Sometimes, a person’s name is the given name, followed by the father and grandfather’s name, or a tribal name. You should list all iterations of your name.

It is important to answer all questions on the I-589 form as completely and as accurately as possible. But the question about “other names used” is particularly important. If you forget to include all the names you have used, it could cause additional long delays in your case. To paraphrase the immortal Dr. Seuss, “Be your name Buxbaum or Bixby or Bray, or Mordecai Ali Van Allen O’Shea, make sure to include all your names on the I-589 form. Then you’ll be off to great places. So, get on your way!”

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Asylum for Fethullah Gulen Movement Supporters?

by Jason Dzubow

This post is by my esteemed law partner Todd Pilcher. Todd’s practice focuses on asylum and family-based immigration. Over the course of his career, Todd has represented hundreds of immigrants and asylum seekers from all over the world, with a particular focus on asylum seekers from Central Asia and Latin America. He is also an adjunct professor of asylum and refugee law at the George Washington University Law School. Prior to joining Dzubow & Pilcher, Todd worked for many years as a senior managing attorney at Whitman-Walker Health Legal Services in Washington, DC.

Todd Pilcher is waiting for a coup attempt at Dzubow & Pilcher, so he has an excuse to clean house.
Todd Pilcher is waiting for a coup attempt at Dzubow & Pilcher, so he has an excuse to clean house.

Until the recent coup d’état attempt in Turkey on July 15, 2016, most people in the United States–including journalists and human rights advocates–had never heard about the Gulen Movement or its founder Fethullah Gulen. That all changed after the Turkish government blamed the coup effort on Mr. Gulen and his followers and demanded his extradition from the U.S., where he has lived in exile since 1999. Since then, American and international press agencies have published numerous articles about this man and his movement.

While people in the West may be surprised that they only recently learned about “one of the world’s most important Muslim figures” and his movement promoting secular government, democracy, and religious tolerance, they should not be surprised that some governments in Central Asia and Eastern Europe have persecuted Mr. Gulen’s followers for many years.

I am an attorney specializing in political asylum. In my practice, I have worked with several Gulen movement followers who have fled horrific government abuse in their home countries and applied for asylum in the United States. In the wake of the failed coup and the vicious crackdown against followers in Turkey and throughout Central Asia, I expect to assist more such asylum seekers in the coming months.

Gulen movement supporters who have been persecuted or who fear persecution in their home country due to an association with the movement should qualify for a grant of asylum in the U.S. on the basis of both religion and political opinion. Even those who are not closely associated with the movement, but who fear persecution because the government falsely accuses them of involvement, should have strong cases for asylum.

Any religious movement, such as the Gulen movement, that promotes the ideals of secular governance, nonviolence, religious and cultural pluralism, and respect for science alongside its spiritual teachings should be a welcome element in Central Asia and Russia. Unfortunately, many governments see the Gulen movement as a mortal threat to their dominance. In Turkey, Russia, Uzbekistan, and Tajikistan, Gulenist schools have been shut down. In many instances, followers have been subjected to harassment, detention, and torture. We have learned from clients and press reports that in Russia, government security agents have routinely raided Gulen movement meetings in private residences, confiscated reading materials, and arrested the participants. Once in detention, the Gulen movement followers undergo interrogations and severe beatings. The women are frequently raped and movement leaders are sentenced to long prison terms or killed outright. The treatment of Gulen movement followers in Uzbekistan is at least as horrific due to the country’s chronic conflict with Turkey and the consistently unhinged behavior of the country’s dictator, Islam Karimov, and his henchmen.

For the present, international focus on the crackdown against Gulen movement followers remains on Turkey. But the mistreatment of Gulen followers will also likely rise dramatically throughout the region and beyond as dictatorial governments seek to confirm their paranoid suspicions and keep their prisons filled with perceived opponents. The U.S. and other countries that respect their moral and international legal obligations to protect refugees will continue to face the dilemma of speaking out forcefully against the mistreatment of Gulen movement followers while also trying to maintain important strategic relationships with the countries that have ramped up their persecution.

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African-American’s Guide to Seeking Asylum Abroad

by Jason Dzubow

The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I’ve received inquiries from several such people. They want to know whether they are eligible for asylum under international law.

Who knew that the road to safety would be this long?
Who knew that the road to safety would be this long?

To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.

Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”

If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.

For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group–for example, Tutsis in the 1994 Rwanda genocide–faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a “now we see the violence inherent in the system” sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove “pattern and practice,” but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered “pervasive,” for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered “past persecution,” and this made his case more difficult).

In the absence of a “pattern and practice,” an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it’s about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.

Although the average African American would probably not meet the standard for asylum, some African Americans–those who have received specific threats and, of course, those who were previously persecuted–might be able to prove that they face a likelihood of harm and thus meet the definition of “refugee.”

Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.

In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.

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The Philosophy Behind the Asylum Affidavit

by Jason Dzubow

If you ask three lawyers how to write an asylum affidavit, you’re likely to get three (or more) opinions.

An applicant’s affidavit is the heart of her asylum case. It explains who she is, what happened to her, and why she needs protection. It’s also an opportunity to address weak points in the case and to mitigate inconsistencies that may have come up in prior encounters with U.S. government officials.

The debate about whether bigger is better goes all the way back to Affidavit and Goliath.
The debate about whether bigger is better goes all the way back to Affidavit and Goliath.

Given how important it is, it’s not surprising that different lawyers have different ideas about how to write a good affidavit. Some lawyers write long, very detailed affidavits. Others write short, perfunctory affidavits or do not write affidavits at all. Most of us–including me–fall somewhere in the middle.

There’s probably no “right” answer here, but for me, at least, the arguments for a detailed–but not too detailed–affidavit are the most convincing.

One problem with providing a lot of detail in an affidavit is that it creates more opportunities for inconsistencies: If there are more facts in the affidavit, the applicant has more to remember. For example, if the written statement indicates that the applicant ate peppered tuna with Nicoise salad before he was arrested, he better say that he ate peppered tuna with Nicoise salad when he testifies. Otherwise, the adjudicator might take the inconsistency as a lie, which could cause the applicant to lose his case.

Taken to an extreme, the concern about consistency between the written and oral testimony might suggest that the best approach is a less-detailed affidavit, or even that no affidavit is needed at all. From the attorney’s point of view, this would be nice, since the affidavit represents a large portion of the work we do. And it’s always convenient when the best interest of the client (avoiding inconsistencies) and the best interest of the lawyer (laziness) are aligned.

However, I think there is a major risk involved with using a minimal (or non-existent) affidavit. First, under the REAL ID Act, an applicant is required to submit evidence when it is available. Typically, this consists of letters attesting to the persecution or other aspects of the case, medical reports, police records, and country condition information. Many of these documents will include dates (for example, a letter might indicate that the applicant was arrested on May 15, 2010) or other details. It is important that the applicant herself is aware of all these dates and details, and that her testimony is consist with them. Writing an affidavit, and having the applicant read it, is one way to help ensure consistency between the applicant’s testimony and her supporting evidence.

Also, the affidavit is useful for ensuring consistency between all the different pieces of evidence. Instead of comparing each letter to every other letter, you need only compare each letter to the affidavit. As long as every document is consistent with the affidavit, every document should be consistent with every other document. And if everything is consistent, it bolsters the applicant’s credibility.

I suppose you could write out the affidavit to help the applicant with his story and to help ensure consistency, but then not give the affidavit to the Asylum Officer or Immigration Judge. In this way, you would gain the benefits of having an affidavit while avoiding the risk of inconsistencies created by submitting the affidavit. But I’m not a fan of this approach, as I think the affidavit benefits the decision-maker in several ways. For one thing, it gives the decision-maker a detailed understanding of the case, which, if presented correctly, should go a long way towards producing a successful outcome.

Second, it allows the applicant to point out and mitigate weak points in his case. Most Asylum Officers and Immigration Judges are pretty smart, and they’re experienced enough to hone in on problems in a case. If the problems can be overcome and explained in the affidavit, it will help satisfy the decision-maker before she even meets the applicant. This will allow the decision-maker to focus on the portions of the case that you want to emphasize.

In addition, in court, an applicant’s oral testimony is often incomplete. Court testimony is commonly truncated to save time (especially where the Immigration Judge and DHS attorney are already familiar with the story from the affidavit and thus do not need to hear the applicant repeat his entire tale). Should the application for asylum be denied, the affidavit is useful on appeal, and many lawyers–including yours truly–have used affidavit testimony to help win an appeal with the Board of Immigration Appeals or the federal circuit court.

So for all these reasons, I think a comprehensive affidavit is beneficial to the case. But of course, it is possible to include too much detail, which can trip up an applicant. The trick is to find the balance between providing the necessary information to convince the decision-maker and to humanize the client, but not so much information that the client can’t keep track of it all and the legally-relevant facts become obscured by irrelevant detail. Enough, but not too much. It’s an art, not a science, and with experience, each lawyer develops a style that works for his clients and hopefully helps achieve the clients’ goals.

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Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

by Jason Dzubow

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

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Asylum in Canada Is Not for Everyone (Sorry Aboot That)

by Jason Dzubow

This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.
Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.

The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.

The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.

In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.

Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.

There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.

Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.

Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.

There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

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You Can Go Home Again (Sort of): Visiting Your Home Country After a Grant of Asylum

by Jason Dzubow

“If I am granted asylum, can I return to my home country?” I hear this question a lot.

The skeptic would argue that no legitimate asylum seeker should ever return home. Indeed, they might argue, asylum is reserved for people who cannot return due to the danger of persecution, and anyone willing to go back did not need asylum in the first place. I think this is wrong.

Your mother's bunt cake is probably not a compelling reason to return home (tempting though it may be).
Your mother’s bunt cake is probably not a compelling reason to return home (tempting though it may be).

Many of my clients face long-term threats in their countries. For instance, I have clients from Afghanistan who have been threatened by the Taliban. These clients could return briefly to Afghanistan and remain relatively safe. However, to live there for any length of time would be extremely dangerous. Even where the threat comes from the government itself, clients can sometimes safely visit home for short periods of time. I’ve had Ethiopian clients who were wanted by their government, but who were able to return for a few weeks before the government realized that they were in the country. Ethiopia—like many developing countries—is not as adept at tracking people as the United States, and so it is possible to keep a low profile and avoid trouble, at least for a time.

And of course, there are valid reasons to return home. Most of my clients have left family members behind. Others have businesses or properties. Still others are political activists who wish to return home to promote democracy and human rights. There are all sorts of reasons people want to go to their home countries—when balanced against the danger, some reasons are better than others (and some people are more willing than others to take risks).

But what are the legal implications of a return trip for people with asylum? And does the calculus change if the person has a green card or is a U.S. citizen?

For an asylee (a person granted asylum), the U.S. government can terminate asylum status if it determines that the person has “voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country.” This means that asylum can be terminated if the person placed herself under the protection of her home government by returning to her country (or even by using the passport from her home country to travel to a third country). USCIS can also terminate asylum status if it determines that the person is no longer a refugee (for example, if country conditions have changed and it is now safe to return home) or if it determines that asylum was obtained fraudulently (there are other reasons for terminating asylum, as well). A return trip to the home country could trigger one (or more) of these bases for termination.

Even with a green card, USCIS can terminate asylum for the reasons listed above.

If you don’t run into trouble when you return to the U.S. from your trip, you could have problems at the time you file for your citizenship. When you complete the naturalization form (the N-400), you need to list all the countries you visited, and so the government will know whether you went home (and if you omit your travels from the form, you run the risk that the government will know about them from its own sources).

For U.S. citizens who originally obtained their status based on asylum, the risk of a return trip is much less—but it is not zero. If the return trip causes the U.S. government to believe that asylum was obtained fraudulently, it could institute de-naturalization proceedings. I have heard of the U.S. government de-naturalizing citizens based on fraud, so it can happen, but all the case I know about involved aggravating factors, like criminal convictions or human rights abuses. Nevertheless, if USCIS knows about a fraud, it certainly could take action.

So how do you protect yourself if you have to travel back to your home country?

First, it is worthwhile to consult an attorney before you go. Don’t go unless there is a very important reason for the trip. Also, keep the trip as short as possible. The less time you are in your country, the better. In addition, you should collect and save evidence about the return trip. If you went to visit a sick relative, get a letter from the doctor. If you returned home for only a short time, keep evidence about the length of your trip—passport stamps and plane tickets, for example. If you hid in your house and never went out, get some letters from family members who can attest to this. In other words, try to obtain evidence that you did not re-avail yourself of the protection of your home government and that you had a compelling reason to return home. That way, if USCIS ever asks for such evidence, you will be ready.

The safest course of action is to never return home after a grant of asylum. However, in life, this is not always possible. If you do have to go back, you should consult a lawyer and take steps to minimize the likelihood that your trip will impact your immigration status in the U.S.

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More Syrian Refugees = More Asylum Seeker Delays?

by Jason Dzubow

The U.S. government recently announced that we will be raising the refugee cap and accepting thousands of additional refugees from Syria. We’re hearing the usual angry voices decrying the “invaders” and the “jihadists,” but that is not what I want to discuss today (I’ve already written about Muslim refugees here). Instead, I want to cover two topics: First, I want to discuss the process of how refugees get selected and screened to come to the U.S., and second, I want to discuss whether the additional resources necessary to process these new refugee cases will impact people seeking asylum in the United States.

For refugees, waiting is a way of life.
For refugees, waiting is a way of life.

So how does the U.S. government decide who gets resettled in our country? What is done to prevent terrorists and criminals (not to mention phony refugees who are simply economic migrants) from taking advantage of our generosity?

First, the U.S. Refugee Admissions Program (“USRAP”) is an interagency effort led by three government agencies: the U.S. State Department, the Department of Homeland Security, and the Department of Health and Human Services, Office of Refugee Resettlement. The process also involves the United Nations High Commissioner for Refugees (“UNHCR”), the International Organization for Migration, and a number of nongovernmental organizations that assist during various stages of the process.

A refugee case begins either through a referral or a direct application. Most cases (about 75%) are referred by UNHCR. Another 25% of cases come through direct applications under various programs. For example, there are programs for U.S.-affiliated Iraqis and for religious minorities from Iran and the former Soviet Union. There is also a program for certain Cubans. The newest program is for Central American minors who have a lawfully-present parent in the United States. In addition, a few cases are referred to the program by U.S. embassies and certain NGOs.

Each applicant must complete a series of mandatory steps before she can be resettled in the U.S. These include an in-person DHS interview, a security background check, and a medical exam. The process is labor-intensive and generally takes 18 to 24 months from referral to arrival in the United States. It’s not cheap either. Last year, the USRAP cost the U.S. government over $1.1 billion.

After the refugee is selected, she must be interviewed. The interviews are conducted by DHS officers, and take place at more than 70 locations worldwide. Before the interviews, the applicants are assisted by different NGOs, such as the International Rescue Committee and the International Organization for Migration, which collect biographic and other information that is forwarded to DHS for adjudication.

Next, all refugees undergo multiple security checks before they can be approved for resettlement in the United States. Refugees are subject to the highest level of security checks of any category of traveler to the U.S. The screenings are conducted by several agencies, including the National Counterterrorism Center, the FBI’s Terrorist Screening Center, DHS, and the Department of Defense. Details of the security checks are classified, and so we do not know a whole lot about the process.

Finally, refugees undergo a health screening, TB testing, and three days of cultural orientation (where, presumably, they learn about McDonald’s, Taylor Swift, and hot pockets).

Travel to the U.S. is arranged by the International Organization for Migration. The U.S. government pays IOM for the cost of air travel, but before departing for the United States, refugees sign a promissory note agreeing to repay the cost of their travel (whether they actually repay the loan, I have no idea).

Nine domestic agencies in about 180 communities throughout the United States work to resettle the refugees. Every week, representatives from the agencies review biographic and other information to determine where to resettle each refugee. The agencies welcome refugees at the airport and begin the process of helping them settle into their new communities. The agencies also provide reception and placement services in the first 30 to 90 days after arrival. This includes finding safe and affordable housing and providing services to promote self-sufficiency and cultural adjustment. The Office of Refugee Resettlement continues to offer support to the refugees for up to five years after arrival.

So that’s the basic process that each refugee—including the additional Syrian refugees—will go through to get to the United States. It is not a fast process because of the vetting, but it is designed to minimize the risk of terrorists and criminals infiltrating the resettlement system.

One concern for asylum seekers is whether increasing the number of people admitted under the refugee program will impact the asylum system.

The asylum office is funded by USCIS customer fees. If you have ever applied for an immigration benefit, you know that filing fees can be expensive. A small portion of the fee covers the cost of operating our asylum system. So if resources are shifted around to resettle additional refugees, the asylum offices should not be affected. They have a different, independent source of funding. That’s the good news.

The possible bad news is this: All the new refugees must undergo security background checks. This process is quite opaque, and therefore we know little about it. Whether the resources used for refugee background checks will impact the background checks for asylum seekers, we don’t know. It seems that refugees and asylum seekers are subject to many of the same security checks. If so, additional background checks for refugees might further slow the background check process for asylum seekers.

Thus, while the additional refugees probably will not slow down the asylum interview schedule, they might cause more delay for asylum seekers’ background checks. Whether and how much of an impact there might be, we will know soon enough.

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The BIA’s Tepid Response to Asylum Fraud

by Jason Dzubow

A recent Board of Immigration Appeals (“BIA”) decision upheld an Immigration Judge’s adverse credibility finding where the respondent’s affidavit was “substantially similar, and in some regards identical, to an asylum application previously filed by respondent’s brother in a different proceeding.” Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).

The BIA should think of more creative ways to prevent cheating.
The BIA should think of more creative ways to prevent cheating.

In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times–in 2004 and 2006–and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times–in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother’s case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.

After informing R-K-K- of the problem, the Immigration Judge (“IJ”) gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers’ “common backgrounds and experience,” and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.

The IJ did not accept R-K-K-‘s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.

The BIA affirmed the IJ’s decision and issued a published decision in order to set forth a “procedural framework under which an Immigration Judge should address… inter-proceeding similarities.” The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent’s credibility based on the totality of the circumstances. The shorter answer is, Who cares?

I do not know how often “inter-proceeding similarities” are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person’s case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.

But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it’s nice to have a framework to assess credibility when this issue comes up. But what about the missing “transcriber”? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.

Frankly, the BIA’s decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.

Some–perhaps most–of the fraudsters’ clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these “clients” are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand “the system,” and who have no support network in the United States.

So is R-K-K- a victim or a villain? We don’t know, and given the BIA’s “framework” for analyzing similar cases, I guess we never will.

How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.

There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don’t like it, but I’ll file a complaint when it’s justified. And–so the reasoning goes–if the offending attorney is barred from practice, his future clients/victims will be protected.

The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel–this ranges from a benign screw-up (which can–and does–happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else’s case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.

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Magna Carta and the Rights of Refugees

by Jason Dzubow

June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John’s request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system). 

The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.
The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.

What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states—

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In other words, the sovereign will not act against the subject without due process of law.

While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us. 

Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.

But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don’t want to admit people from China into our country, we don’t have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.

There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.

But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and–if that procedure is violated–they can petition the federal courts for redress. As the Supreme Court has held:

[T]he Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.

In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where–in the United States–the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can’t help but think that that would be a good thing.

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Asylum for the Jews of France?

by Jason Dzubow

Over the past few years, there have been a number of deadly and horrific attacks against Jewish people in Europe. Targeted by radical Muslims, Jews have been murdered in a Kosher market, outside a synagogue, and at a Jewish daycare facility. They have been targeted for attack at a Jewish Community Center, and there have been hundreds of lesser (but still frightening) instances of anti-Semitism.

The Jews of France are not alone. But is that enough?
The Jews of France are not alone. But is that enough?

In response, some (non-French) Jews have suggested that there is no future for Jews in Europe and that they should leave. On one level, this suggestion is based on genuine concern. But on another level, it is quite insulting. It’s as if an African leader came to the U.S. and told American blacks that—in light of Ferguson, Treyvon Martin, and Eric Garner—they should abandon their homeland. My feeling is that a French Jew, an African American, or any other put-upon individual should have the right to make his own decision about whether to leave his country. Unless and until he decides to go, we should do everything possible to help him stay.

Here, however, I am concerned not with the existential issue of European Jewry. Rather, I want to discuss a more narrow question: Whether a French Jew–and I am choosing France because that country has seen the most instances of anti-Semitism–could qualify for asylum under U.S. immigration law.

Asylum decisions are highly dependent on the specific facts of each case; so it is difficult to answer this question in the abstract. However, we can look at general country conditions to get an idea for whether an individual might qualify. Also, where there is a “pattern and practice” of persecution against a specific group, and the asylum applicant demonstrates that she is a member of that group, she can receive asylum (for example, during the 1994 genocide in Rwanda, if an asylum applicant demonstrated that she was Tutsi, she could receive asylum).

To demonstrate a “pattern and practice,” the applicant would have to show that the persecution is systemic, pervasive or organized. Although radical Muslims have attacked Jews in France on several occasions, and the unpredictable nature of the attacks makes everyone feel vulnerable, I think the problem is not systematic, pervasive or organized enough to qualify as a “pattern and practice” of persecution under U.S. asylum law. The recent attacks have been by individuals or small groups; not (as far as we know) the systematic work of an organization. There is a much more widespread problem with harassment, threats, and vandalism. These problems–while frightening–probably would not constitute “persecution” as that term is generally understood. For all these reasons, I believe that a French-Jewish asylum seeker would have a hard time proving that Jews in France suffer from a pattern and practice of persecution.    

In the absence of such a pattern and practice, our theoretical French Jew would need to show that he faces a reasonable fear of persecution based on his religion (or other protected ground). If the persecutor is not the government—and here, it is not—he also must demonstrate that the government is unable or unwilling to protect him.

First, it seems clear that the Jews who have been targeted were targeted because they were Jews. Persecution on account of religion is a basis for asylum. So the real question is whether there is a reasonable likelihood of persecution.

Courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average French Jew would be able to show that he faces a 10% chance of persecution. There are nearly half-a-million Jews in France, and only a small number have been harmed. And even in countries with much higher instances of violence–Iraq and Syria, for example–a person can generally not qualify for asylum without an individualized threat. Although the average French Jew would probably not meet this standard, some Jews–those who have received specific threats or who hold high-profile positions, for example–might be able to prove that they face a likelihood of harm.

If our theoretical French Jew demonstrates a likelihood of harm, the next question is whether the government of France is able and willing to protect him. While there are surely people within the French government who do not like Jews, the French government as a whole clearly wants to protect Jewish people. After the Kosher supermarket and Charlie Hebdo attacks, the government deployed thousands of troops to protect Jewish sites. But given the nature of the attacks (random and against soft targets), there is a good argument that the government of France is unable to stop the terrorists.

In the end, it seems that most French (or European) Jews would not qualify for asylum, but some might: Those who have received threats or who are high profile, and who their governments–unfortunately–cannot protect. 

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Lessons Learned from Cases Lost

by Jason Dzubow

They say that those who do not learn from history are doomed to repeat it. In that spirit, I’d like to discuss some asylum cases that I’ve lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.

Remember: You can't spell "client" without "lie."
Remember: You can’t spell “client” without “lie.”

I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately–and despite us directly asking him about his travels–the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, “Service records indicate that you applied for refugee status in Jordan in 2011” (whenever an Asylum Officer begins a sentence with “Service records indicate…”, you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where–if I continue as the attorney–we will have a mess on our hands. So what are the lessons?

First, and most obvious: Don’t lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn’t and so we couldn’t. Unfortunately, many immigrants take the advice of their “community” over that of their lawyer. Asylum seekers need to understand the role of the attorney–it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don’t tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.

Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it’s likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you’d be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.

A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn’t think the client is trying to hide something, she should be fine, but again, if the client doesn’t tell the lawyer, the lawyer cannot properly prepare the case.

Speaking of family cases and cases where the government knows more than you’d think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married–she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved–her brother’s case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know. 

The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don’t know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.

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