We’ll return to our regularly-scheduled content next week, but here, I wanted to share some (mostly) positive reviews I’ve received for my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity. Proceeds from the book will benefit asylum-related charities, and you can purchase copies here. Without further ado–
Jason Dzubow is a leader in the new due process army and part of the “gold standard” for practicing asylum aficionados. For over ten years, his blog “The Asylumist” has been providing “practice tips” and sage advice for asylum seekers, attorneys, and even Immigration Judges. Now, in his new book, Jason collects “The Asylumist’s Greatest Hits”—his best and most useful blog posts—and updates them to reflect the current state (or dystopia) of the law. Understanding the process is essential for protecting your rights! The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity provides clear, accessible, practical, useful guidance, with a touch of humor, to help you navigate the asylum system. It’s an essential “problem-solving tool” for asylum applicants, attorneys, policy makers, and anyone interested in ensuring that asylum seekers obtain the protection that they need and deserve and in restoring due process and best practices to our now sadly and badly broken, dysfunctional, and intentionally unfair asylum system. Due Process Forever! — Paul Wickham Schmidt, Former Chair, Board of Immigration Appeals, and blogger at ImmigrationCourtside.com
Jason Dzubow is a thoughtful and balanced voice in the often highly charged world of immigration. He cares deeply about the law and the people it impacts, from those seeking refuge to those tasked with administering the processes for delivering both relief and justice. In his new book, The Asylumist: How to Seek Asylum and Keep Your Sanity, he offers pragmatic advice and valuable insights on asylum and many other issues in the immigration arena. — MaryBeth Keller, Former Chief Immigration Judge of the United States
When I started The Asylumist over 11 years ago, I hoped to create a forum for discussing the U.S. asylum system. I didn’t know whether anyone would actually read the blog or whether I had the time and energy to maintain it (and truth be told, when I started, I really wasn’t even sure what a blog was). But here we are more than a decade later, still going.
During those years, much has changed with the asylum system: The Immigration Court backlog has increased from 243,000 to over 1.3 million; the Asylum Office backlog has grown from less than 32,000 to more than 386,000; we’ve seen the border “surge” (a couple times). the hostility of the Trump Administration, and the pandemic. The population of asylum seekers has changed as well. The Syrian civil war, the Arab Spring, increased instability in Venezuela, and a further breakdown of law and order in Central America all contributed to new waves of applicants seeking protection in the United States.
As I was observing and writing about asylum during these turbulent years, I was also thinking about turning some of my blog posts into a book. And for maybe the last two years, I’ve been actively working to get that done. Given my other obligations–family, job, blogging–I was not sure I would ever complete the work. But somehow, with the help and support of many people, the book is now done and available for sale. You can check it out here: The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity.
There are different types of benefits available to people seeking asylum and people who have been granted asylum. Here we will discuss certain “benefits” – such as work permits, travel documents, and Green Cards – available to asylum seekers and asylees, and how these benefits can be improved.(more…)
Here’s a point that should be self-evidence, but isn’t: Bureaucracy exists to facilitate the implementation of the law. Congress passes a law, and then government agencies create a system of policies and procedures to put that law into effect. In principle, this system should be easy to use and efficient, and should allow people to obtain the benefits to which they are entitled. In other words, it should be the exact opposite of what we have with the USCIS.
There are many problems with the agency that adjudicates immigration benefits (including asylum), but here, I want to focus on one particular area of concern: USCIS forms. USCIS forms are poorly designed, confusing, inconsistent, culturally insensitive, and inefficient. Here, we’ll discuss these problems in a bit more detail, and I will make some suggestions for improvement.
Let’s start with the most basic question on every USCIS form–the applicant’s name. Almost every form has boxes for an applicant’s first, middle, and last name. The problem is that naming convention vary widely, depending on where you are from. Many cultures do not have a first-middle-last name format, and so the USCIS question does not make much sense. One solution might be to ask the question in a more specific way: “Write your name as it appears on your passport.” Of course, not everyone has a passport, so maybe a second question can ask: “Write your name as it appears on your birth certificate or other government-issued identity document.” In addition to these iterations, the name question would also need to ask about “all other names used” (as many USCIS forms currently do). The confusion surrounding this very basic question–What is your name?–illustrates the difficultly of creating one-size-fits-all forms.
Form a forum for reforming forms.
Another problem arises with regard to addresses and places of employment. One issue here is that address formats vary widely by country, and the forms generally only allow for addresses in the format that we use in the United States. Another issue is that different forms request address and employment histories in different ways. So for example, the I-589 form (application for asylum) allows you to list one address or one job per line, so that your address and job histories fit onto one page (with room to spare). The I-485 (application for permanent residency), by contrast, requires this information in a different format, so that less information takes up much more space. The N-400 (application for citizenship) requests the same information in a third format. Maybe this is a minor quibble, but the inconsistencies between the various forms is confusing, and it is not confined only to the applicant’s address and work histories.
One area where inter-form differences sometimes create problems is the issue of arrest history. Different forms ask about this in different ways. Sometimes, USCIS wants information about all arrests. Other times, they want only information about criminal arrests or convictions. In some questions, USCIS wants to know about arrests anywhere in the world; other times, they want only arrests that occurred in the United States. Indeed, if you look at the main forms a successful asylum applicant will complete over the course of their time with USCIS, there are probably dozens of questions about criminal activity, and those questions are inconsistent between forms, and–in many cases–confusing, even for someone trained in the law.
Speaking of confusing questions, if you look at the lists of questions on the I-485 and the N-400, you will see scores of yes/no questions about all sorts of activities. Some of these questions are not amenable to a yes-or-no answer. Others (many others) are poorly written and difficult to understand. In many cases, the two forms ask similar questions using different language. All this can easily trip up an applicant and can lead to unintentional inconsistencies where there really are none.
Another problem is the large number of yes-or-no questions on many forms (the I-485, for example, has over 100 yes/no questions). These questions relate to everything from criminal and immigration violations, to national security, to persecution of others, to membership in totalitarian political parties, to prostitution and illegal gambling. Most people check almost all the boxes “no,” but periodically, they may need to check “yes.” Given the vast number of questions, the fact that almost all are “no,” and the fact that many of the questions are confusing, it is easy to slip up and miss a “yes” answer. This can lead to big trouble, including having your application denied.
These examples represent just a few of the problems with USCIS forms, and every immigration lawyer can cite many more. The short answer is that all USCIS forms need a major overhaul. This should be done with an eye towards making the forms shorter (the I-485 and the N-400 are each 20 pages long). The forms should be made consistent with each other in terms of format and the substance of questions asked. They should accommodate different naming and address conventions.
Also, USCIS needs to do something about the overwhelming number of yes/no questions. There are too many questions, many are difficult to understand or redundant (or both), and many are irrelevant (do we really need three questions about Nazi activity between 1933 and 1945?). The number of questions should be reduced and the questions themselves should be simplified so that you don’t need a law degree to understand what the heck USCIS is asking about.
One final point on forms: Why are we still printing forms and mailing paper copies to the agency (to a plethora of different mailing addresses)? A limited number of forms can be filed online, and USCIS should expand e-filing, so that all forms and evidence can be filed online. E-filing would also solve the problem of USCIS rejecting forms for simple mistakes or for not writing “N/A” in every empty box.
To reform its forms, USCIS needs help. It needs to hear from immigration advocates, immigrants, and other stakeholders. Forms should be more understandable and more able to accommodate cultural differences. Questions should be standardized across different forms, and the format of the forms should be made more consistent. All forms should be available for online filing.
Improving USCIS forms is long overdue. Fixing the forms will make USCIS more efficient, and will ultimately save everyone time, trouble, and money. The purpose of USCIS forms is to facilitate the application process and to help USCIS determine who is–and is not–eligible for an immigration benefit. More efficient forms will help move USCIS towards these goals.
Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the general public and immigrant advocates submitted close to 90,000 public comments. After receiving the comments, the government changed some of the proposed rules (slightly), but the new rules are set to go into effect on January 11, 2021.
There will likely be legal challenges (lawsuits) to try to stop these regulations from going into effect. But, it’s always hard to tell what will happen. For that reason, if you plan to file for asylum, it is best to do so before January 11, when the new rules go into effect.
President Trump’s parting gift to the asylum system.
One of the changes made between July 15, 2020 (the proposed rule) and December 2020 (the final rule) is that the new rules will not be retroactive. This means that they will not apply to anyone who has filed their I-589 application for asylum before January 11, 2021. The government has stated that the new rules will apply now, despite any legal challenges to any sections that the government views as simply codifying existing case law–
Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases, independent of the prospective application of the rule. Accordingly, the statutory authority and case law incorporated into the rule, as reflected in both the [notice of proposed rulemaking] and the final rule, would continue to apply if the rule itself does not go into effect as scheduled.
Regardless of retroactivity issues, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially true for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the United States.
If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out, and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021.
The President and his allies are doing everything in their power to subvert the result of last month’s election. So far, their efforts have not changed the outcome, but we are still in a very dangerous place. Hopefully, the system and our country will withstand this unprecedented assault on democracy and the rule of law. If so, and if Joe Biden assumes office in January, he will face a number of daunting challenges: The pandemic and healthcare, the economy, climate change, divisiveness and decaying faith in democracy, racial justice, and immigration reform, to name the most obvious. How much attention immigration–and specifically asylum–will receive in this mix remains to be seen.
Prior to the election, the Democratic Party and the Biden campaign set forth their proposals for immigration reform, which are quite sweeping. Many of Mr. Biden’s ideas can only be enacted with the cooperation of Congress. Others could be put into effect without Congressional action, just as President Trump implemented his immigration agenda through agency rulemaking and executive orders.
A minority of the immigration policy changes proposed by Mr. Biden relate specifically to asylum, and most of these concern asylum seekers at the Southern border. This is not surprising, as the border is a disaster, but my concern is that applicants at the Asylum Office and in Immigration Court–which together represent close to two million people–will be overlooked.
Kudos for Biden; Coup Don’ts for Trump.
In this series of posts, I hope to set forth my ideas for reforming and improving our nation’s asylum system.
Before we discuss substance, however, I want to talk politics, since any reform will take place in the context of the current political crisis where, even in the best case, millions of Americans will view Mr. Biden’s Administration as illegitimate and where many Republican leaders will be vying to outdo each other in obstructing the new President’s agenda. The divisive political climate will potentially limit Mr. Biden’s ability to make changes, and in turn, any changes he manages to implement could lead to further division. This begs the question: Should the new Administration follow the Trump game plan, and do all within its power to achieve its goals? Or is it better to focus on areas of bipartisan agreement (if any can be found)?
I’m of two minds about this dilemma. On the one hand, non-citizens in our country have been treated unfairly and cruelly. They have been lied about (and to), terrorized, exploited, and in many cases, forced to wait for years for status to which they are legally entitled. Also, when President Obama tried to take a middle road on immigration (remember when he was referred to as the “Deporter-in-Chief”?), it did nothing to move the other side towards compromise. Perhaps that’s because there is a stark partisan divide over illegal immigration: Only 23% of Democrats view it as a “big problem,” while 67% of Republicans see it that way. So if compromise is impossible, maybe the Biden Administration’s better approach is to implement whatever reforms it can manage regardless of the political consequences.
On the other hand, what is most needed now is to try to heal the divisions in our nation. Pushing through partisan immigration reforms (legislatively or administratively) will likely exacerbate the divide. Further, if President Biden overplays his hand on immigration, it could result in a backlash that advantages Republicans and other immigration restrictionists. Of course, the same predicament exists for other issues–like climate change–and the idea of waiting for a broader consensus when action is needed imminently makes little sense. Immigrants and asylum seekers urgently need relief and protection. So while ideally I believe it would be best to reach out to moderate Republicans and to continue working to educate the public about immigration, I also believe that we need to start enacting changes immediately.
That said, I think the Biden Administration needs to move with caution. Some immigration issues–such as DACA and (surprisingly) refugee resettlement–have broader bipartisan support than others, such as border security and deporting people who are here illegally. Certainly, the new Administration can focus on areas where it will encounter less resistance and face fewer negative repercussions.
The proposals I will make in this series fall, I think, on the more bipartisan side of the spectrum. I plan to discuss ideas for improving efficiency and fairness at the Asylum Office, the Immigration Court, and at USCIS.
In contrast to Mr. Biden’s pre-election policy agenda, my focus in this series will not be the Southern border. Protecting asylum seekers at the border is a more divisive issue than most other areas of immigration law, and I believe that advocates and policy-makers need to lay a political foundation before enacting successful change there. I’ve written about this in more detail before, but unless we build a more bipartisan consensus about who is eligible for asylum, we risk a severe backlash by easing restrictions at the Southern border. Indeed, one could argue that President Trump was elected largely as a reaction against perceived porous borders.
While the politics of border reform is a crucial concern, the situation along the U.S.-Mexico border is clearly untenable–people are dying and something needs to be done. How the Biden Administration will navigate that political minefield, I do not know, but I worry that the political capital required for improving conditions at the border will make it more difficult to enact needed changes in other, less politically-charged regions of the immigration system, such as USCIS, the Asylum Office, and the Immigration Court. In any event, those three areas will be the subject of the next several posts on this blog.
President Trump’s (hoped for) departure will open up some space to improve the situation for non-citizens: By reversing many of his Administration’s damaging immigration policies, but also–hopefully–by bringing long-needed improvements to the immigration system. The trick will be to balance that change with the current political realities, to minimize the inevitable counter-reaction, and to avoid doing further damage to the cohesion of our nation.
In the ongoing saga of the Trump Administration’s efforts to dismantle our humanitarian immigration law, the Departments of Justice and Homeland Security published a new rule imposing mandatory bars that prevent “convicted felons, drunk drivers, gang members, and other criminal aliens from receiving asylum.” The Trump Administration has not changed the law related to asylum–that would take an act of Congress signed by the President–and even when they controlled the Senate and the House in 2017 and 2018, Republicans did not attempt to modify the law. Instead, the Administration has been attacking asylum through regulatory and bureaucratic changes, many of which have been challenged in court.
This latest change is designed to block certain convicted and suspected criminals from receiving asylum. What’s wrong with that? Why should we grant refuge to criminals? I must admit that in the abstract, I don’t have a great deal of sympathy for asylum seekers with criminal records. They are asking for an immigration benefit after having violated our country’s law. However, when you actually meet non-citizens with criminal records and understand their circumstances, it is often more difficult to hold this view. Nevertheless, I suppose this new rule will be less controversial than others implemented by the Trump Administration, since it targets (supposed) criminals.
Before President Trump saved us, we were being overrun by criminals.
That said, there are a number of reasons why this new rule is bad. First, the Immigration and Nationality Act already bars asylum for many people with criminal convictions (and some who have been accused but not convicted). Those who are not barred under the old rules can still be denied asylum as a matter of discretion on a case-by-case basis, and few people with anything resembling a serious criminal conviction get asylum. So as usual with the Trump Administration’s rule making, this new regulation is a solution in search of a problem.
Second, some asylum seekers will be barred for committing a domestic violence offense even without a conviction. For cases in family court, it is sometimes necessary to admit guilt and enter a rehabilitation program in order to (for example) regain custody of your children. I worked on such cases early in my career, and I observed that people who adamantly claimed innocence would be forced to admit guilt if they wanted to reunite with their family. This is of particular concern for low income individuals, who are more likely to face government intervention in their lives. And so relaxing the rules about convictions will probably result in innocent people being barred from asylum.
Third, and on a related note, this new rule will have unintended “up stream” consequences for non-citizens in criminal or domestic court. They will now have a stronger incentive to fight their case and try to avoid any adjudication of guilt. This could result in people with minor issues (such as a second DUI or a minor domestic violence incident) failing to get the help they need, since obtaining assistance requires an admission of culpability. Thus, it will be more difficult to reach a good outcome in cases that would normally be amenable to positive government intervention.
Fourth, some of the criminal conduct targeted by the new rule is very minor–for example, the misdemeanor use of a false ID. Some asylum seekers use fake documents to flee persecution and enter the U.S. Others use fake IDs to work (and eat). Blocking such people from asylum is an unfairly harsh consequence for a relatively small infraction.
Finally, the new rule bars certain people from asylum if they are convicted of illegally re-entering the U.S. or for alien smuggling (and alien smuggling can be interpreted very broadly–for example, a person who enters the U.S. illegally and who helps a non-relative enter at the same time could be convicted of alien smuggling). Thus, the rule potentially prevents people from seeking asylum for fleeing persecution and coming to the United States.
Let’s turn to the new rule itself. One important point is that this rule is not retroactive. Meaning that if you have an old conviction, it does not bar you from asylum. However, if you are convicted after the rule goes into effect–November 20, 2020, unless blocked by a court–then you would be barred. So if you are arrested for a crime prior to November 20, 2020, but convicted on or after that date, you are barred from asylum. The new bars apply to aliens who are convicted of–
(1) A felony under federal or state law;
(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);
(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);
(4) A federal, state, tribal, or local crime involving criminal street gang activity;
(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant if the impaired driving caused serious injury or death, or if the offense was a second or subsequent DUI offense;
(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and
(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.
The new rule also makes it more difficult to modify or overturn a prior conviction in order to mitigate the immigration consequences of a crime. The rule specifically indicates that convictions altered for immigration purposes do not allow the applicant to avoid any bars to asylum. It has never been easy to reopen a criminal case and change a conviction, but some non-citizens have successfully used that approach to avoid the immigration consequences of their crimes. Under the new rule, that practice–already quite limited–will become nearly impossible.
The point to take from all this is pretty simple: If you are an asylum seeker, do not commit any crimes. The repercussions for even a small infraction can be severe. If you are arrested and charged with a crime (no matter how minor), or if you have a case in domestic or family court, you need to speak with a lawyer who is familiar with the immigration consequences of the charges against you.
To me, this new rule is redundant and unnecessary. Asylum seekers are often people who have had traumatic experiences, and sometimes those experience manifest in conduct that gets them into trouble. The old rule–which blocked most criminals but allowed for case-by-case adjudication in certain instances–was more fair, and enabled the fact-finder to consider all the relevant circumstances in an asylum applicant’s case. But when it comes to asylum seekers, the Trump Administration is not interested in fairness. Perhaps the courts will see fit to block this new rule, but to me, that seems doubtful. The vast majority of asylum seekers do not commit crimes, and under this new rule, it is imperative for anyone who needs asylum to keep it that way.
A whistleblower named Brian Murphy recently got attention for his claim that DHS officials ordered him to stop investigating Russian interference in the 2020 election. Until he was demoted a few months ago, Mr. Murphy ran the DHS Office of Intelligence and Analysis (“DHS I&A”).
In the same complaint, Mr. Murphy also alleges that Acting USCIS Director Ken Cuccinelli ordered him to alter intelligence reports to downplay violence and corruption in Central America. These reports are used to evaluate asylum claims and by downplaying the violence, it would be more difficult for asylum seekers to win their cases. From page 9 of the complaint–
In December 2019, Mr. Murphy attended a meeting with Messrs. Cuccinelli and Glawe to discuss intelligence reports regarding conditions in Guatemala, Honduras, and El Salvador. The intelligence reports were designed to help asylum officers render better determinations regarding their legal standards. Mr. Murphy’s team at DHS I&A completed the intelligence reports and he presented them to Mr. Cuccinelli in the meeting. Mr. Murphy defended the work in the reports, but Mr. Cuccinelli stated he wanted changes to the information outlining high levels of corruption, violence, and poor economic conditions in the three respective countries. Mr. Cuccinelli expressed frustration with the intelligence reports, and he accused unknown “deep state intelligence analysts” of compiling the intelligence information to undermine President Donald J. Trump’s (“President Trump”) policy objectives with respect to asylum. Notwithstanding Mr. Murphy’s response that the intelligence reports’ assessments were consistent with past assessments made for several years, Mr. Cuccinelli ordered Messrs. Murphy and Glawe to identify the names of the “deep state” individuals who compiled the intelligence reports and to either fire or reassign them immediately.
Mr. Murphy refused to comply with this order, which he deemed illegal. What to make of this?
Looked at this way, the Trump Administration’s policies make a lot more sense.
The first question is whether Mr. Murphy’s claims can be trusted. Here, there may be some reasons for doubt: Mr. Murphy has himself been accused of altering intelligence reports to better align with the Administration’s agenda, and he has also been accused of compiling intelligence reports on journalists at the Portland, Oregon protests (allegations he denies). After this information became public, Mr. Murphy was demoted, and so there is some speculation that perhaps his whistleblower complaint was made in retaliation for the demotion. On the other hand, Mr. Murphy apparently raised many of the issues listed in the complaint well before his demotion. Also, given that the allegations raised in the complaint are largely knowable (since others beside Mr. Murphy witnessed the events in the complaint and can confirm or deny their veracity), it seems unlikely that Mr. Murphy would simply make this stuff up. But of course, I do not know for sure.
Mr. Murphy’s credibility aside, this would not be the first instance of the Trump Administration altering country condition reports to better serve its agenda. In 2018, the State Department issued reports for El Salvador, Guatemala, and Honduras that left out significant derogatory information about those countries. The bowdlerization of those reports was no secret–all you have to do is compare the previous year’s reports to the newer reports to see what has been removed. And so there is clear precedent for what Mr. Murphy is alleging.
All things considered, my sense is that Mr. Murphy’s allegations are probably accurate. If so, what then do we make of Mr. Cuccinelli, the Acting Director of USCIS?
Here, there are two points I want to discuss. First is Mr. Cuccinelli’s desire to alter the reports in order to downplay the “corruption, violence, and poor economic conditions” in the three countries. Since asylum adjudicators rely on these reports to reach their decisions, making the countries seem less bad will potentially make it harder to win asylum. I say “potentially” because there are plenty of other sources of information that give an accurate picture of country conditions in the Northern Triangle. And so if the asylum applicant submits evidence about country conditions or if the adjudicator has such evidence, white-washing the DHS reports may not make much difference in the decision.
But there is a more concerning element to Mr. Cuccinelli’s request vis-a-vis these countries: Either he really believes that the DHS intelligence analysts are lying, or he (Mr. Cuccinelli) wants the U.S. government to lie in order to better achieve the Administration’s goal of denying more asylum cases. Neither possibility is comforting.
If we rely on Mr. Murphy’s account, it seems that Mr. Cuccinelli actually thinks that “deep state intelligence analysts” are somehow undermining Mr. Trump’s asylum agenda. Given that there are many sources for information about the Northern Triangle, including newspapers, human rights reports, and previous years’ intelligence assessments, and all seem to confirm the dire situation in Central America, it is hard to believe that a rational person would find anything nefarious about the picture painted by the DHS I&A reports. Does Mr. Cuccinelli believe that all the various sources are part of the “deep state”? It’s strange, since Mr. Cuccinelli is a lawyer and should know how to evaluate evidence. If Mr. Cuccinelli really believes that a group of deep state agents is sabotaging the country reports, it seems to me that he is living in an alternate reality, and that his confirmation bias is so overpowering that he can’t accept the real world for what it is. I suppose this is a possibility, as he also denies the existence of man-made climate change, which requires a certain level of detachment from reality.
The other possible explanation is that Mr. Cuccinelli knows that the situation in the Northern Triangle is bad, but that he is simply lying in order to make it more difficult for applicants from those countries to obtain asylum. In other words, that the “means” of lying and returning migrants to face persecution is justified by the “ends” of keeping asylum seekers out of our country.
Unfortunately, the situation described in Mr. Murphy’s whistleblower complaint is emblematic of the Trump Administration, which has repeatedly used falsehoods to justify its policies. Whether it engages in those falsehoods knowing them to be false, or believing them to be true, probably doesn’t much matter. Either way, they are doing great harm to our democracy and to many of our nation’s most vulnerable people.
Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.
Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture.
Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”
Gesundheit! That’s German for “Asylum Denied.”
Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal).
Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.
While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected.
Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.
One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–
If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.
In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.
The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.
As you probably know, the Trump Administration recently proposed regulations to make it much more difficult to obtain asylum in the United States. That’s the bad news. The good news is that there is something you can do to try to reduce the damage: Submit a comment opposing the regulation. Submitting a comment is easy, free, and safe, even for people with no lawful status in the U.S. You can do it from the comfort of your own home. Right now. And best of all, it really can help. Here, we’ll talk about how to submit an effective comment.
Before we get to that, let’s talk a bit about the proposed regulation, which you can see here. The purpose of this regulation (and every regulation) is to interpret the law, as created by Congress. Regulations are created by government agencies (in our case, by the Department of Justice, Executive Office for Immigration Review) because agencies have specialized knowledge about how to implement (or in our case, subvert) the law. The regulations cannot violate the law or they will be invalidated by courts. Also, regulations cannot be “arbitrary and capricious,” meaning the agency must provide a rational reason for the regulation. While there is a lot of bad stuff in the proposed regulation, I wanted to focus here on the points that people might be most interested to comment about–
The definition of “particular social group” is narrowed, so that it is more difficult to get asylum if you fear harm from gang members or criminals, or based on domestic violence or an interpersonal dispute
The definition of “political opinion” is narrowed to exclude people who have a generalized opposition to criminals or terrorists
The level of harm required to demonstrate “persecution” is increased, and so asylum applicants will need to show a “severe level of harm”
The categories of people eligible for asylum are reduced, and people who fear persecution on account of “gender” are excluded from asylum
The new rule encourages decision-makers to deny otherwise-eligible applicants based on “discretion” and lists several “significant adverse discretionary factors,” including–
unlawful entry into the U.S. or use of fraudulent documents
the failure to seek protection in any third country the alien “transited” through, unless that country denied protection to the alien, the alien was a victim of human trafficking or the country was not a party to the Refugee Convention of 1951, the Protocol of 1967 or the United Nations Convention Against Torture
remained unlawfully in the U.S. for more than one year before seeking asylum
failed to file or pay taxes, if required
failed to report income to the IRS (i.e., worked without authorization and did not pay tax – this one will be a particular problem if the plan to delay and deny work permits for asylum seekers goes into effect)
Otherwise-eligible applicants will be denied asylum as a matter of discretion where they spent more than 14 days in a third country before coming to the U.S. or where they transited through more than one third country before coming to the U.S. (there are some exceptions to this rule, similar to those listed for the prior bullet point about “transit” through a third country)
Applicants will be denied asylum where they “either resided or could have resided in any permanent legal immigration status or any non-permanent, potentially indefinitely renewable legal immigration status… in a country through which the alien transited prior to arriving in or entering the United States, regardless of whether the alien applied for or was offered such status”
Torture Convention relief is not available where the torturer is a “rogue” official
Finally, it is not clear, but as the regulations are written, they could be applied to people who already have asylum cases pending. Obviously, this would be unfair, as it would punish applicants for choices they made years ago (if the rules are applied retroactively, they might very well be blocked by a legal challenge)
Other significant adverse discretionary factors include filing for asylum, fearing persecution, and not being an American citizen.
If there are things here you don’t like, you can comment about them. How to do that?
First, go to this web page, where the proposed regulations are posted. If you look in the upper right part of the page, you will see a dark blue box that says “Comment Now!” Click on that, and you will be taken to a page where you can type your comment. If you want to be fancy, you can even attach files to your comment. You also have to type a name. You can type your own name, but you can also write “anonymous.” The name you type will be included when the comment is posted publicly. There is an option to include your contact information, but this information will not be displayed publicly. Once you are done, check the box indicating that you “read and understand” your statement and hit “Submit Comment.” That’s it. Easy peasy.
While you are on the regulation web page, you can look to see what other people wrote (on the right side of the page). When I last checked, there were more than 1,300 comments.
What should you say?
It is best to write an individualized statement, rather than use a pre-made template. If you are an asylum applicant, maybe think about any parts of the new regulation that might harm you and explain how you will be harmed. You might also write about why you chose to seek asylum in the U.S. (if, indeed, you had a choice) and what is your impression of the U.S. asylum system. Remember, as an asylum applicant, you have something important to say and your voice should be part of this conversation. One important point: All comments must be submitted prior to 11:59 PM Eastern time on July 15, 2020. Also, if you post a comment, and you don’t mind, please copy and paste what you write into the comments section of this blog (below).
If you’d like some additional advice about what to write, check out these postings by Tahirih Justice Center and the American Immigration Lawyers Association (AILA), or just read the comments already posted on the regulation. The federal government also provides general, but helpful, advice about writing a comment.
Finally, you might ask, Does posting a comment matter?
Apparently, it does. According to AILA, “The administration will review and address those comments before the rule becomes finalized, so it is critical for us to submit as many unique comments as possible.” More comments = a longer review process. This will buy more time before these draconian new rules are implemented. Also, the “government gives more weight to each comment if it is unique from others,” and so it is important to personalize your submission.
Since its inception, the Trump Administration has been waging war against the rule of law in our country. Immigrants and asylum seekers have always been the first target in this war, but they are far from the only target. In this particular battle, asylum seekers have a crucial role to play, and so I hope you will consider making a comment in opposition to the proposed regulations. Together, we can protect our asylum system and our country.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
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.
With the escalating tension between the U.S. and Iran, DHS has been detaining Iranian Americans and Iranian nationals at the border and questioning them about their ties to Iran, their background, their family members, and their opinion about the Iranian government.
On the one hand, it’s perfectly reasonable to question people entering our country, particularly during wartime (and when was the last time we were not at war?). It’s also reasonable to apply additional scrutiny to people from “enemy nations.” And so, on one level, it makes sense to look more closely at Iranian Americans and Iranian nationals who are seeking entry into the United States.
On the other hand, it’s difficult to accept anything the Trump Administration does without feeling that there is an ulterior motive. At this point, we have been subject to so many lies, in the service of such bad policies, that nothing the Administration does can be viewed at face value. Is there any intelligence that indicates Iran is planning to retaliate by sending agents to our country? Is there any reason to suspect the particular people stopped and questioned at the border? Or does the Administration just want to scare us, in order to further justify its xenophobic policies? Or maybe to distract from the impeachment? There is no way to know, and when you can’t trust what your own government tells you, it is impossible to evaluate whether its actions are warranted.
Enrico Fermi (left) also invented the Photo Bomb.
In any event, here I want to talk about asylum during wartime. I suppose one response to war would be to shut down the border completely, block all nationals from the enemy country from coming to the U.S., and take measures against any of those nationals (or their decedents) living in the United States. We did the latter during the Second World War, when we detained Americans of Japanese decent. Notably, we did not detain Germans or Italians, even though we were also at war with those countries. But what about granting asylum to “enemy aliens” during wartime? Welcoming them to our country, even though we are at war with their homeland?
There certainly is precedent for giving refuge to “enemy aliens.” Probably the most famous examples are the scientists who fled fascism and anti-Semitism during the Second World War. People like Albert Einstein and Enrico Fermi found refuge in the United States and made important contributions to our efforts during the War (I’m not a fan of the Bomb, but I’m glad we got it before the Nazis). Another well-known example is the Cubans who fled Communism after Fidel Castro took power on their native island. For the past six decades, those same Cubans have been fierce opponents of the Castro regime. A third example is the Iranians who came to the United States after the 1979 revolution. While they generally oppose military intervention against their homeland, most Iranian Americans support democracy and human rights in Iran.
I encountered a less well-known example when I lived in Philadelphia in the mid-1990’s. I met an old man at my synagogue who had been a refugee during WWII. He was Jewish, born in Germany. During the 1930’s, he fled to Britain as a refugee. When the War started, he was detained as an enemy alien and shipped (by boat) to Australia. He was stuck down under for a while, until the Brits realized that he spoke German, and so they shipped him all the way back to England to serve in an intelligence unit. He assisted the Allies during the War, and then later immigrated to the United States.
Also, in my job, I meet people every day who are working to bring democracy and human rights to their countries of origin. Once they get their bearings in the U.S., many of my clients work directly or indirectly to assist the United States with diplomacy and national security. My client from Iran, for instance, is a computer expert who works to overcome censorship in his home country (and in other authoritarian countries), so people can access websites blocked by the government. Another client, from Afghanistan, organizes conferences, bringing high-level American and foreign experts together to discuss national security challenges. A third client advocates for democracy in Cambodia, and is regularly in contact with important U.S. government officials. And a number of my clients work for Voice of American (on and off the air), bringing news and promoting American values in their home countries. You get the point: Foreign nationals who have obtained refuge in the United States, often from hostile regimes, are working to advance U.S. interests and to educate U.S. decision-makers and the public, so we can better respond to national security challenges.
And herein lies the rub: How do we obtain the benefits of this expertise while minimizing the risk to our security? The answer, I think, is asylum. Remember, we do not offer asylum to just anyone who fears harm. Asylum is for people who face persecution on account of their race, religion, nationality, political opinion or particular social group. These “protected grounds” reflect our national values, and thus, asylum is basically set up to benefit people who will benefit us. Asylum seekers are also subject to rigorous security background checks. And so if the system is working properly, we will receive refugees from hostile regimes who will be well-vetted and will present minimal risk to our national security, and who are well-positioned to assist our country vis-a-vis their homelands.
Of course, when a conflict exists between our nation and another nation, we must exercise caution in dealing with citizens of the hostile power. We should use all the tools at our disposal to advance our interests and to keep ourselves safe. Asylum is one of those tools. Rather than discard the asylum system during wartime, we should use it as it was intended–to benefit those who support our values, and to benefit ourselves.
Acting USCIS Director Ken Cuccinelli is encouraging Asylum Officers to deny asylum applications and credible fear interviews by any means necessary. He is particularly concerned about our Southern border, where “an unprecedented number of aliens [are] overwhelming our asylum system.” According to Mr. Cuccinelli, many of these aliens are “ineligible for asylum and are attempting to enter and remain in the country in violation of our laws.” His latest strategy for rejecting asylum applicants involves a regulatory bar to asylum called “internal relocation.”
Under existing rules, where an applicant fears harm from non-state actors, Asylum Officers and Immigration Judges should determine whether the applicant can live safely anywhere in the home country–in other words, whether the applicant can internally relocate. If the applicant can live safely within her home country, she is probably ineligible for asylum. The burden of proof in “internal relocation” cases varies, depending on whether the government is the persecutor, and whether the applicant has suffered past persecution: According to the regulations—
In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored.
In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.
Ken Cuccinelli: “Erupting volcanoes contain areas that are generally very safe. Look, here’s one!”
This means that where the government is not the persecutor, and the applicant has not suffered past persecution, the applicant must demonstrate that there is no place in his country where he can live safely. How do you show this? First, according to the Board of Immigration Appeals, internal relocation must be “reasonable under all the circumstances.” According to the relevant regulations, “adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” An example from my practice would be a single woman from Afghanistan who fears persecution from the Taliban because of her political activities. Given the restrictive culture in Afghanistan and the generally high level of violence throughout the country, especially against women, it would not be reasonable to expect her to pick up and move to a new city.
Where the persecutor is the government, or where the applicant has demonstrated past persecution, the applicant enjoys a presumption that internal relocation is impossible. Under these circumstances, the U.S. government has the burden to show by a preponderance of the evidence that safe internal relocation is possible. An example of government persecution and internal relocation might be an Evangelical Christian from Eritrea. The government there persecutes people from “banned” religions, including Evangelicals. Since the Eritrean government controls the entire country, internal relocation is not possible. The situation might be different in a country where the government does not control all its territory. For example, an applicant who fears persecution from the Iraqi government might be questioned about whether she could “internally relocate” to Kurdistan, since that area has some autonomy from the central government of Iraq. In this example, there are restrictions on a non-Kurd’s ability to live in the Kurdish region, and so I doubt that the U.S. government could demonstrate that internal relocation is possible, but they might make that argument.
A more unclear situation exists where the asylum applicant suffered past persecution from a non-state actor. Here, there exists a presumption that internal relocation is not possible. However, given the Acting USCIS Director’s admonition, I imagine that Asylum Officers will be encouraged to look more closely at whether such applicants can live safely within their countries.
If you are concerned about internal relocation, what can you do? Whether the burden is on you or on the government, it is a good idea to submit evidence that internal relocation is impossible. This is relatively easy where the government is the persecutor and controls the entirety of the nation’s territory. In other cases, where the persecutor is a non-state actor, things become more complicated.
The “internal relocation” analysis is really a two-step process: First, is it possible to relocate within the country and avoid persecution? And second, is internal relocation reasonable under all the circumstances? Based on this framework, the first thing to do is to submit evidence that the persecutor can reach you anywhere in the country. Typically, that would be country reports or news articles showing that, for example, gang members or terrorists are ubiquitous throughout the country. The State Department puts out a crime and safety report, which is often helpful, especially given that the Trump Administration has white-washed country conditions in many of its human rights reports. Other helpful sources include UNHCR RefWorld, Human Rights Watch, and Amnesty International, to name a few. Of course, if you tried to relocate and the persecutor found you, that would also be important evidence.
If there are places inside your country where the persecutor cannot reach you, you can still avoid an asylum denial by showing that internal relocation is not reasonable. Such a determination is very country specific, but perhaps there is generalized violence that makes it unsafe to relocate, or maybe there are no jobs, or maybe there are cultural issues (like the single woman in Afghanistan). Some countries have laws that prevent people from relocating internally (like the rules in Kurdistan or the propiska in Russia). In other cases, a person’s age or health might make relocation impossible. Whatever the reason, try to obtain evidence in support of your claim.
All this brings us back to Mr. Cuccinelli’s latest pronouncement and his effort to block asylum seekers. He states that asylum would not be necessary for many individuals coming here “if they sought refuge within their home country, particularly given the fact that there are areas that are generally very safe within each of the countries that currently make up the bulk of our credible fear cases.” There is no factual basis for this claim, and in fact, it flies in the face of available country-condition evidence. It is also an insult to the intelligence and independence of the Asylum Officers tasked with implementing our nation’s asylum laws.
In this light, Mr. Cuccinelli’s closing words sound ominous: “The Asylum Division work is very important, and your dedication to the mission has not gone unnoticed.” Is this simply a tepid expression of Mr. Cuccinelli’s appreciation for the Asylum Officers working under him? Or–coming from one who seems determined to undercut the mission of the Asylum Division–is it a warning to those who have the temerity to do their jobs according to the law? At one time, I would have considered this a ridiculous question. These days, I am not so sure.
One of the most disheartening phrases to hear at an asylum interview is when the Officer says, “Government records indicate that…” This usually means the government has information contradicting the applicant’s testimony. Here are a few examples from a couple recent interviews I attended:
Government records indicate that you applied for a visa from a third country. Can you explain why you said you never applied for any other visas?
Government records indicate that you traveled outside the United States since your first arrival here. Can you explain why you said you had not left the U.S. since that time?
Government records indicate that your neighborhood in Syria was controlled by rebel forces at that time. Can you explain why you said the neighborhood was under government control?
The first two questions were for a Pakistani client. The third question was for an Iraqi. Both applicants were denied and referred to Immigration Court.
If your nickname is “Incredible,” it does not bode well for your asylum case.
As I see it, there are a number of problems with these “gotcha!”-type questions. For one, they are vague, in that the Asylum Officer does not state exactly what information the government has, and it is difficult to adequately respond to a question that you really don’t understand. For another, some of these questions rely on information that is easy for the applicant to forget or overlook. Finally, the “gotcha!” information possessed by the government is not always accurate.
In the first example above, it seems unfair to impugn an applicant’s credibility based on his failure to remember applying for a visa years after the fact. It’s not really a major life event, and if the person did not actually get the visa and visit the country, it’s easy to see how he might forget about filing a visa application (especially since some applications are done online and the person may never even have visited the country’s embassy).
In the other examples above, the government’s information seems to be inaccurate. My Pakistani client swears he never left the U.S. since he first arrived here, and I believe him–he has no reason to lie and his I-94 record, available at the CBP website, does not indicate that he re-entered the country after his initial arrival. In the case of my Iraqi client, she was simply baffled to hear that her neighborhood was controlled by non-government forces. She says she lived in that neighborhood the entire time, and I trust her on-the-ground experience over the government’s “information.” Of course, it is possible that my clients are incorrect, or that–for some indiscernible reason–they are lying, but in these example, I have more confidence in them than I do in the government.
What’s important to understand here is that the United Sates government wants to test an asylum applicant’s credibility, but it has limited means to do so. Asylum Officers can question applicants extensively to try to ferret out lies, but a more effective approach is when the Officer can compare an applicant’s testimony with information the government knows to be true. And the government knows a lot. It knows about every U.S. visa you have ever applied for–and what you told the embassy during the visa application process. It knows about visa applications to other countries (which countries share such information with the U.S., I am not sure, but it is safest to assume that the government knows about any visa application to any country). It knows about applications made to the United Nations. It knows a lot about a person’s travel history. It also knows about your relatives’ travel and visa histories (including ex-spouses). The government knows about any arrests or contacts with U.S. (and perhaps some foreign) law enforcement. Of course, it knows about any other U.S. immigration application made by you or your family members, and it probably has copies of all such applications. The government may know about your employment and education histories, and whether you have used any other names. The government also knows about conditions in your home country, including information about political parties, rebel groups, and terrorist organizations.
In short, Asylum Officers can–and do–gather significant independent evidence about a person’s case. Even where this evidence does not bear a direct relationship to the asylum claim, they can compare that evidence to your testimony and use that to determine whether you are credible (and remember, for the Asylum Office, inconsistent = incredible). If the Asylum Officer determines that your testimony is incredible because, for example, you lied about how you obtained your visa, she could conclude that you are lying about other, more significant, aspects of your case. If that happens, your application for asylum is likely to be denied.
So what do you do? First, don’t lie. Even about small things that you think are insignificant. The Asylum Officer may ask you questions about aspects of your life that seem irrelevant or embarrassing. If that happens, think about why they might be questioning you on that topic. What might they know? Do your best to answer honestly. Don’t guess! If you guess wrong, the Asylum Officer might assume you are lying. If you don’t remember or do not know, tell the officer that you don’t remember or you don’t know.
Also, prior to the interview (ideally, when you prepare the affidavit), think about the times when you (or your family members) had contact with the U.S. government, the UN, or other foreign governments. What did you say on your applications and in your interviews? Did you lie? If so, the time to admit that is in your asylum affidavit and at the asylum interview. You are much better off affirmatively coming clean and explaining any old lies than hoping that the Asylum Officer won’t know about them. Correcting the record in this way does not guarantee that the old lie won’t be used against you, but in most cases, adjudicators appreciate the honesty and they are more likely to forgive a misrepresentation that you bring to their attention than one that they bring up in a “gotcha!” question. In addition, in many cases, the law forgives an asylum applicant for lying, if that lie was necessary for the person to get a visa and escape from her home country. Affirmatively coming clean is usually the safest approach for people who have something negative in their history.
Turning back to the above examples, maybe the best response to the first question would have been for the applicant to think about why the officer was asking him about other visa applications. If he was not sure about his answer, he might have replied, “I don’t remember applying for a visa to a third country, and so I am not sure whether I did or not.” This type of equivocal answer would at least have made it more difficult for the Asylum Officer to impugn the applicant’s credibility.
What about the second two examples, where the government’s information seems to be wrong? Here, I don’t know what the applicants could have done, other than to state that the Asylum Officer’s information is not correct. That is what my clients did, but obviously, it was not enough. The hope now is that, with the cases referred to court, the DHS attorney (the prosecutor) cannot rely on vague accusations–they will have to provide specific evidence of their claims (that client A traveled outside the U.S. or that client B’s neighborhood was controlled by a rebel group). If we are allowed to see the government’s evidence, we can (hopefully) refute it.
In an asylum interview, honest is the best policy. And if you don’t remember or don’t know, it is best to say that. Finally, if there are “issues” in your past, it is best to bring those up affirmatively and explain them in your asylum application. In these ways, you can improve your credibility and increase the likelihood of a favorable outcome in your case.
