It’s Getting Harder to Win Asylum in Court, at Least for Some Applicants

by Jason Dzubow

The indefatigable folks at TRAC Immigration have issued a new report about our nation’s Immigration Courts, and the news is not encouraging: Overall asylum denial rates are the highest we’ve seen in almost two decades. As always with asylum numbers, things are not quite so simple, so let’s take a look at what’s going on.

Fiscal Year 2018 (which ended on September 30, 2018) was noteworthy for several reasons. First, the asylum denial rate reached 65%. This caps a six year trend of increasing denial rates and represents the highest rate of denial in 20 years (between 1986 and 1999, denial rates ranged from 68% to 89%). In some ways, the news from FY2018 is worse than the average denial rate indicates. If you look at TRAC’s month-to-month chart, you can see that denial rates spiked between June 2018 and the end of the fiscal year. Thus, in the last few months of the fiscal year, denial rates were pushing 70%.

Rejection rates also went up after each Immigration Judge received a fancy new “Denied” stamp.

A second way that FY2018 stands out is that Immigration Courts adjudicated more asylum cases than any prior year: 42,224. This figure represents significantly more decisions than FY2017 (30,253) or FY2016 (22,318). Indeed, this is the most asylum cases decided in any one year since at least 1986 (I could not find data older than that).

Despite the higher denial rates, there is a silver lining to the news from FY2018: In absolute terms, more asylum cases were granted in that year (14,200) than in any previous year (in FY2017, courts granted 11,591 cases, and in FY2016, they granted 9,714 cases). Of course, the only reason so many cases were granted is because courts are adjudicating record numbers of cases overall. But these days, we takes our good news where we gets it.

These figures raise an obvious question: Why are denial rates so high?

One factor that is (probably) not to blame is the availability of help from lawyers. For the first time since FY2013, representation rates are going up. When people are represented, they are statistically more likely to win their cases. For example, in FY2016, asylum seekers without lawyers were denied 90% of the time; those with lawyers were denied only 48% of the time. While I think this disparity exaggerates the benefit of lawyers (because people with weak cases are often less likely to have representation), it is still pretty clear that having an attorney increases the likelihood of a successful outcome. Given that more people are represented these days, the increased asylum denial rate is likely not caused by an absence of legal council.

A second reason that I suspect is not to blame are the new Immigration Judges hired since the Trump Administration came into office. Since January 2017, the Executive Office for Immigration Review has significantly expanded the number of IJs nationwide. Most likely, this accounts for the increased number of decisions, but we don’t yet have data on the “Trump” judges’ denial rates. My guess is that the statistics for these new IJs will not differ very much from their more senior colleagues. I could be wrong here, but at least in my experience, the new judges do not seem any tougher than the judges that we have been dealing with for years. Perhaps as they gather more data, TRAC will issue a report about this (and maybe I will be proved wrong – I will be curious to know the answer).

One likely candidate for the increased denial rate is the case Matter of A-B-, 27 I&N Dec. 316 (AG 2018), which was issued by then-Attorney General Jeff Sessions this past June. The decision made asylum more difficult for people fearing harm from non-state actors, in general, and for victims of domestic violence, in particular. After Matter of A-B- was issued, there was a corresponding uptick in asylum denial rates. Even before Matter of A-B-, however, asylum denial rates had increased since the end of the Obama Administration (and indeed, they have been increasing since 2012). This increase might reflect less significant developments in immigration case law, as well as the cultural shift that I imagine accompanies any new Administration (and especially an Administration so openly hostile to non-Americans).

When considering asylum denial rates, one important point about A-B- is that the case is limited in scope. Certain aliens–especially people fleeing domestic and gang violence in Central America and Mexico–will be disproportionately affected, but others will not be affected. Given that a large percentage of asylum cases involve Central Americans and Mexicans, a case like A-B- has a visible impact on overall denial rates, even though the impact of the decision is limited to certain types of cases. This means that while changes in the law have affected the denial rate, that effect is an “average,” and how a particular case is impacted depends on the facts of that case.

Another contributing factor to the higher denial rate may be that more long-term residents are coming into Immigration Court. This happens because the government is aggressively pursuing aliens without lawful status. It also happens because the Asylum Offices are identifying people who have been in the U.S. for more than 10 years, and trying to refer them to court.

Aliens who have been present in the United States for more than one year are often ineligible for asylum due to the one-year filing bar. There are exceptions to this rule, but it is generally more difficult for such people to win their asylum cases. Many people in this position file asylum as a last-ditch effort to remain in the United States. My guess is that as these long-term residents start to receive decisions, many will be denied, and this will contribute to the overall increased denial rate.

We’ll have to see whether the current trend continues. These days, government officials are looking for ways to make asylum more difficult, but they are limited by the law, and so it’s not clear how much higher the denial rate can go. When thinking about denial rates, it is important to remember that certain cases–Matter of A-B- cases, one-year bar cases–are probably driving the increase in denial rates. Other cases are less affected. Either way, the environment these days is not easy for any asylum seeker, and so it is more important than ever to gather evidence and present the strongest case possible.

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Deportation Can Mean Death, Even When the Judge Gets It Right

by Jason Dzubow

A recent article in the Washington Post discusses the case of Santos Chirino, a Honduran man who sought asylum in the United States after gang members threatened him for testifying against one of their own. Immigration Judge Thomas Snow found that Mr. Chirino did not qualify for asylum or other relief, and ordered him deported. Eight months after he returned home, Mr. Chirino was shot dead at a soccer match.

Mr. Chirino’s is a sad and sympathetic case. But the fact is, his story tells us nothing about whether Judge Snow made the wrong decision. In fact, our asylum system is designed so that a certain percentage of those properly ordered deported will be harmed or killed in their home countries. Let me explain.

To win asylum, an applicant must demonstrate that he faces at least a 10% chance of “persecution” (serious harm or death) in the home country (this statement is a simplification, but for our purposes, it works just fine). Mathematically speaking, applicants who demonstrate a 9% chance of harm should be deported. If 100 such individuals are deported, we would expect nine of them to be persecuted upon their return.

Predicting is difficult; especially when it’s about the future.

As a conservative and cautious person, I do not like these odds. If you tell me that my airplane has a 9% of crashing, there’s no way in hell I’m getting on board. I’ll take the bus, thank you very much.

The situation is even more grim for people–such as Mr. Chirino–who do not qualify for asylum, but who still fear harm. Some people are ineligible for asylum because they committed crimes; others, like Mr. Chirino, are barred because they failed to file within one year of arriving in the U.S. and failed to meet an exception to that rule; still others are blocked because the harm they face is not “on account of” a protected ground (race, religion, nationality, particular social group or political opinion). Such people can apply for other, lesser, forms of relief: Withholding of Removal and relief under the United Nations Convention Against Torture (“CAT”). But to qualify for protection under these laws, an applicant must demonstrate that she will “more likely than not” suffer persecution or torture in the home country. In other words, that the likelihood of harm is greater than 50%.

This means that under our system, applicants for Withholding or CAT who demonstrate a 49% chance of being persecuted or tortured should properly be deported. Again, if 100 such people are deported, we can expect 49 of them to be harmed. This is not very comforting for asylum applicants or their families, or for people like Judge Snow who work in the system and are tasked with enforcing the law.

There’s another side to this coin, however. That’s the case where the adjudicator grants relief, and then the person commits a bad act inside the United States. Fortunately, such cases are rare, and it has been pretty-well demonstrated that immigration to the United States has a neutral or positive effect on crime rates (this makes sense given the strict vetting process for immigrants). But there are glaring exceptions, and these tend to get significant attention. One recent case involved a Salvadoran teen accused by DHS of membership in MS-13. Last summer, an Immigration Judge found the evidence against him insufficient and ordered him released from custody. A month later, he helped commit a brutal murder. Once again, the Immigration Judge may have made the “right” decision, but the end result was tragic.

So in a sense, Immigration Judges are caught between the Charybdis of granting relief and the Scylla of denying. But to me, that is not really their problem. We live in an imperfect world, and we have an imperfect asylum system. Judges operate within that system and hopefully follow the law to the best of their ability. If a particular asylum seeker has demonstrated a 9% chance of harm, the judge should deport that person. That is the law, and if we don’t like the law, we should try to change it.

In Mr. Chirino’s case, the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case would have been evaluated under an easier standard, and he might have been granted relief. Again, this is a problem with the law, not the judge, and it is up to us to change laws that we do not like.

Several years ago, I was speaking with Judge Snow, who I consider one of the best and most thoughtful judges I know. I was thinking about applying to be an Immigration Judge, and I asked him how he handles hard cases, those where his sympathies lie with the applicant, but where relief was legally unavailable. He told me that in such cases, he does his best to follow the law, even when it is difficult. That is a judge’s duty, and I have little doubt that that is what Judge Snow did in the case of Santos Chirino.

I suppose all this goes to show that what works for “the system” does not necessarily work for the individual. One could argue that Mr. Chirino was an innocent martyr of our asylum system. He and many others have died or been persecuted so that our humanitarian immigration system might exist. It is important for all of us to be aware of these sacrifices, and to work towards a more perfect and just system.

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A Beautiful Application Is a Successful Application

by Jason Dzubow

A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”

What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.

How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?

Yours truly, several years before being voted “Best Looking Asylum Lawyer in Washington, DC.”

The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.

First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.

Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.

On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index

The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to be translated with a certificate of translation. Of course, the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.

Also, it is a good idea to submit the exhibits on time. These days, under LIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.

If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in the Immigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able to find one for free).

One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.

Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!

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When the Counter-Terrorism Unit Comes Calling

by Jason Dzubow

My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.

Ruth Dickey, immigration attorney extraordinaire.

What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:

  • That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
  • That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
  • That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
  • Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
  • That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).

Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

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Immigration Judges and Asylum Officers Protect Us All

by Jason Dzubow

I’ve never been a big fan of the Martin Niemöller poem about the Nazi era, “First they came…” You know the one:

First they came for the Socialists, and I did not speak out – Because I was not a Socialist,
Then they came for the Jews, and I did not speak out – Because I was not a Jew,
…yadda, yadda, yadda…
Then they came for me – And there was no one left to speak for me.

I have two complaints about this poem. First, it implies that the main reason to “speak out” on behalf of others is self-interest: If I don’t help others, no one will help me. That seems a weak foundation for a system of moral behavior. Second, I don’t think Pastor Niemöller’s basic point—that eventually a malicious government will come for everyone—is convincing to the people who need convincing. Nazi supporters certainly did not think that their government would turn against them. And the fact is, Hitler did not persecute most of the people who stood by his side (he caused them great misery, but that is another story).

Due Process of Law…

Fast forward to our own time, and President Trump’s attacks on non-citizens. Last month, the President announced his opposition to due process of law for asylum seekers: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote on Twitter. And a series of new legal, policy, and personnel changes represent clear moves in the direction of weakening due process protections for non-citizens, and making it easier to deny cases—including asylum cases—without a full review of the applicant’s claim.

Why should we be so concerned about due process, you ask? For one thing, due process is a foundational principle of our democracy (and its origins go all the way back to the Magna Charta). The Founding Fathers were rightly concerned about the exercise of government power against individuals. Due process provides a procedural check on that power—the government’s authority cannot be unleashed in a criminal, civil or immigration case without first ensuring that the use of that power is lawful. In the case of non-citizens, the Immigration and Nationality Act (“INA”) provides certain legal rights to non-citizens, including the right to apply for asylum. The Supreme Court has recognized—repeatedly—that aliens are entitled to due process of law before they can be deported.

What does due process look like in the immigration context? The protections afforded to non-citizens vary, depending on many factors, including the type of case, the relief sought, and whether the alien is inside the U.S. or seeking admission at the border. In the asylum context, an alien who is physically present in the United States or at a border has the right to seek asylum. That is the law (specifically INA §208). In most cases, asylum seekers are entitled to a full hearing to evaluate their claims. However, the Trump Administration has been working hard to eliminate due process protections, and reduce the system’s safeguards (for a sobering analysis of the Trump Administration’s degradation of due process for non-citizens, check out this article by the brilliant Jeffrey S. Chase). But thus far, the Trump Administration has not changed the immigration law—that requires an act of Congress.

Assuming that Congress does not act (usually a safe assumption), some measure of due process will remain for all asylum seekers—even those at the border. But of course, reducing due process means increasing the likelihood that legitimate claims will be denied, and that some aliens will be returned to face harm.

Dupe Process of Law.

All this brings us back to Pastor Neimöller. I have little hope that President Trump’s supporters or Republicans in Congress will have a sudden change of heart, or recognize that when due process protections are reduced for some, those protections are reduced for us all. They seem to believe that while the government might come for non-citizens, it will not come for them. Or in the case of our elected officials, they may know better, but are cowed by the President’s Twitter account. Either way, we can’t expect much help here.

So where does that leave us? Who will speak out?

The primary decision-makers in asylum cases—the people on the front line—are Immigration Judges and Asylum Officers. There are other players, of course: The federal courts, the Board of Immigration Appeals, and USCIS Officers, but in most cases, it will be the IJs and Asylum Officers who determine the applicant’s fate. Here, I do have hope. Despite seeming efforts (probably illegal) by the Justice Department to exclude politically undesirable candidates, most IJs and Asylum Officers are serious people who recognize their duty to the rule of law. They were not hired to rubber stamp the President’s agenda, and most will not do so.

And while I can’t say I am a fan of Pastor Neimöller’s famous quote, I do think he is correct in this sense: When we weaken the legal mechanisms and institutions that protect us from excessive government power, we all become more vulnerable. Perhaps non-citizens are the canaries in the coal mine. As the government seeks to reduce due process protections for them, we should all be concerned. Immigration Judges and Asylum Officers stand on the front line of this fight, and when they do their duty, they protect us all.

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The Prevalence of Evidence

by Jason Dzubow

If the asylum seeker’s affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application’s success. But what is evidence? And what happens if you can’t get it?

An asylum attorney prepares to file evidence in his case.

Let’s start with a bit about the law. The REAL ID Act of 2005 provides–

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

See INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don’t issue receipts for illegally arresting people).

What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you’ve been doing with your life.

Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.

For people claiming asylum based on membership in a particular social group (“PSG”), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships–birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.

If there are newspaper or magazine articles, country reports or human rights reports–or even blog posts or Facebook posts–that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.

You should also get letters from family members, friends, and colleagues who can attest to your problems (I’ve posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.

Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person’s face (so we know the scar is on that particular person’s body).

We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.

If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client’s close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.

You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.

Of course, any documents not in English need to be properly translated.

Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.

The evidence for each applicant is case specific. If you have an attorney, one of the attorney’s jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.

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The Chimera of Immigration Court Quotas

by Jason Dzubow

Let’s say it’s your goal to deport as many people as you can get your hands on. You believe that most asylum seekers are fraudsters and you hope to make America great again by cutting programs like TPS and DACA in order to remove as many foreigners as possible. In other words, let’s say you are a member of the Trump Administration. In that case, will case completion quotas in Immigration Court help you achieve your goal?

Maybe if IJs were less lazy, they would complete more cases.

Superficially, it seems that they might. If Immigration Judges (“IJs”) are required to complete more cases, it makes sense that more people will be deported. Presumably with that goal in mind, the Executive Office for Immigration Review (“EOIR”)–the office that oversees the nation’s Immigration Courts–has recently created performance metrics to evaluate IJs based, in part, on the number of cases completed.

In order to achieve a “satisfactory” level of performance, IJs must now complete at least 700 cases per year, with less than a 15% remand rate (the “remand rate” is the percentage of decisions overturned by a higher court). IJs who complete between 560 and 700 cases “need improvement,” and IJs who complete less than 560 cases per year are deemed “unsatisfactory.”

For what it’s worth (a lot, in my opinion), the National Association of Immigration Judges (the IJs’ union) opposes the new plan because they fear quotas will infringe on the IJs’ independence. For its part, EOIR contends that using metrics to evaluate performance is “neither novel nor unique” and that it will “encourage efficient and effective case management while preserving immigration judge discretion and due process.”

I recently had the opportunity to speak to an IJ and a few court personnel about the new quotas, and they seemed nonplussed. In Baltimore, for example, I’m told that IJs with “regular” (as opposed to juvenile) dockets already complete well over 700 cases per year. The one IJ I spoke to said he completed 1,100 cases last year. Those number are well above average, according to the statistics I could find.

Five months into FY 2018, the nation’s IJs completed a total of 83,643 cases. Divide that by 330 judges, and you get an average completion rate for the U.S. of about 51 cases per month, or about 608 cases per year. Based on the statistics for Baltimore and my calculations (which are always suspect), the average IJ in that court will complete 855 cases this year. So why are Baltimore IJs so much more efficient than the national average?

As usual, I do not know. But looking at the case completion rates for other courts perhaps gives us a clue. In Miami-Krome, a detention center, the completion rate is about 739 cases per year per IJ. I would have expected a higher completion rate in a detention facility, as detained cases tend to move faster than non-detained (indeed, if you see a detained case file at EOIR, it will be labeled with a bold sign indicating “Rush–Detained at Government Expense”). Other detention facilities have even lower case completion rates: Eloy, AZ completes 658 cases per IJ per year, Harlingen, TX completes 516, and Elizabeth, NJ completes 457.

I suspect what’s going on with these variable rates has more to do with cases being venued to other courts than with IJ efficiency. In other words, many aliens in detention facilities are there because they were detained while trying to enter the U.S. Some percentage of these people are released, and then move to another part of the United States, where they pursue their cases. Thus, IJs near the border and at certain detention facilities (near airports or the border) tend to complete fewer cases because their cases are transferred to other courts. In my Baltimore example, there is no major detention facility nearby, and most people do not transfer their cases elsewhere. Hence, IJs in Baltimore tend to complete the cases that come before them.

The completion rate at other courts is more of a mystery. New York completes 540 cases per IJ per year, for example. LA completes only 477 cases per year (LA is near the border, so maybe some aliens are moving their cases to other jurisdictions).

In short, without better data, it is difficult to know what is going on. One thing does seem clear though: Grant rates vary significantly by court. Thus, for some IJs, the new quotas will be a non-issue. They already complete more than enough cases to earn the distinguished title of “satisfactory.” For other IJs, completing 700 cases, or even 560 cases, might be impossible. If so, the new quotas may force those judges to circumvent due process in order to fulfill EOIR’s mandate.

The new quotas raises other questions as well. The biggest one for me involves the anticipated influx of TPS and DACA recipients whose status has been terminated. It’s widely believed (including by yours truly) that many of these people will file for asylum rather than depart the United States. In an effort (probably futile) to dissuade such people from seeking asylum, USCIS has already re-ordered how cases will be processed, so that newly-filed cases will be interviewed first. If those cases are denied, they will be sent to court, where–according to one official I spoke to–they are supposed to be heard on an expedited basis. But how can that happen unless the court dockets are re-ordered? This “aimless docket reshuffling” (a termed coined by the inimitable Judge Schmidt) will pretty clearly interfere with the IJs’ ability to meet EOIR’s quotas.

So in the end, it seems that the new quotas will have no affect on some IJs, and dramatic affects on others. Whether overall completion rates will be improved, I have my doubts, especially if dockets are reshuffled to accommodate an influx of TPS and DACA recipients. I also have doubts about whether IJs who are forced to drastically increase their completion rates will be able to continue making decisions in accordance with due process of law. Sadly, the Trump Administration seems far more concerned about quantity than quality, and I fear that asylum applicants, immigrants, and our nation’s IJs will all suffer because of it.

 

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Your Affirmative Asylum Case Was Denied. Now What? (Part 2: Immigration Court and Beyond)

by Jason Dzubow

This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.

The view from the Judge’s seat in Immigration Court.

If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).

The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.

The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.

Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).

Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).

The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).

Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).

The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).

If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.

For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.

Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.

If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.

The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.

The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.

If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.

An appeal with the BIA typically takes about six months or a year, but it depends on the case.

If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.

In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.

So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.

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Your Affirmative Asylum Case Was Denied. Now What? (Part 1)

by Jason Dzubow

It’s getting more and more difficult to win an asylum case at the Asylum Office. So if your case is not approved, what happens?

For asylum seekers and pizza lovers, this guy is bad news.

For affirmative asylum cases, there are two possible negative outcomes at the Asylum Office level: Denial and Referral.

Denials occur only if you are “in status,” meaning you have some other type of non-immigrant status aside from the pending asylum case. Under the old system (that existed from December 2014 to January 2018), where cases were interviewed in the order received, very few applicants were “in status” by the time of their asylum decision. This is because the cases took years, and very few non-immigrant visas allow an alien to remain lawfully in the U.S. for that long (some exceptions might be the F, J, and H1b visas).

Now, under the new system of last-in, first-out (which is pretty much the same as the pre-December 2014 system), we can expect many newly-filed cases to receive decisions much more quickly, so more applicants will be “in status” when they receive a decision.

If the decision is “yes,” then you receive asylum with all the accompanying benefits. But if the decision is “no” and you are still “in status,” the Asylum Office will give you a letter, called a Notice of Intent to Deny or NOID. The NOID provides a fairly detailed explanation of why your case is being denied, and it gives you 16 days to file a response. In the response, you can include new evidence and explain why the Asylum Office should grant your case.

In the last few years, we have rarely seen NOIDs. However, before December 2014, we would see them now and again. Most often, we saw them when a new client came into the office seeking help with a response. The problem for a busy attorney is that the NOIDs give so little time to respond (16 days) and usually a few days had already passed before the person came for help.

My experience with NOIDs is that the Asylum Office pays attention to the responses. I’d guess that we were successful in getting asylum for about 50% of the people who came to us with such letters. The lesson here is that if you get a NOID, you should do your best to respond. In some cases, it may be impossible to get the Asylum Office to reverse its decision. But as they say, you’ve got to play to win, so if you get a NOID, make sure to respond–you may turn an “intent to deny” into a grant.

If you respond to the NOID and the Asylum Office still decides to deny your application (and assuming your status did not expire in the interim), you will receive a final denial. This means that your case is now over, and you can remain in the United States until your period of lawful stay ends. At that point, you are supposed to leave or seek some other status.

The problem for many asylum seekers, however, is that they do not want to return home (they are asylum seekers, after all). Even though the Asylum Office has denied their case, they want an opportunity to present the case to an Immigration Judge. This makes sense, as many cases denied at the Asylum Office are granted in court. As I’ll discuss in Part 2 (spoiler alert!), asylum cases denied by the Asylum Office are referred to Immigration Court if the applicant is out of status. But if you are denied and you are “in status,” what can you do?

If you received a final denial in your asylum case and you want to go to court, you have to re-apply for asylum at the Asylum Office. The procedure for a second application is different than for a first (check the I-589 instructions). Essentially, you submit a new application directly to the local asylum office, rather than file with a USCIS Service Center (initial asylum applications are sent to the Service Centers).

In theory, for a second application, the Asylum Office will only consider events that occurred after the first application. In other words, they typically will not revisit the first asylum application. Instead, you need to present something new if you want them to grant your case. It’s pretty rare that some new evidence arises between a first and second asylum application, and so the second application is likely to be denied. If the second application is denied, and you are now out of status, your case will be referred to an Immigration Judge, who will look at both your asylum cases.

Given this cumbersome system of having to file a second case, some applicants prefer to file for asylum when their status is expired or close to expiring (but keep in mind the one-year filing deadline). These applicants do not want to leave the U.S., and they prefer to go directly to court if their case is denied. This is certainly a reasonable plan. However, I do think it is important to consider the pros and cons of this approach.

On the plus side, if your denial arrives after your status has expired, you will go from the Asylum Office directly to court, so your case may move a bit faster. Also, of course, you get the chance to present your claim to an Immigration Judge. On the negative side, in order to make this happen, you have to wait until your status has expired (or is close to expiring) before you file your case. Some people may not like this delay. Also, you will not receive a NOID, and so you will only have a vague idea about the reason for the denial (when a case is referred to court, the Asylum Office does not give a detailed explanation of the reasons). Finally, you will not have an opportunity to rebut the Asylum Office’s reasons for denying your case, which means you lose an opportunity to win the case after the NOID is issued. For me, there is no correct answer here. The time frame of when you choose to apply depends on which path you prefer.

Of course, if you are out of status and receive a denial from the Asylum Office, your case will go to an Immigration Judge. But that is a topic for another day. Stay tuned….

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Immigration Judges Revolt Against Trump Administration

by Jason Dzubow

In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.

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The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

by Jason Dzubow

In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.

Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.

Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”

Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”

First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.

Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.

And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.

The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.

I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.

 

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Translating Documents for Your Asylum Case

by Jason Dzubow

The word “translation” is derived from “trans,” meaning “across” two languages, and “elation,” meaning “to make your lawyer happy.” Or something like that. The point is, if your translations are correct, you are more likely to win your case and so you–and your lawyer–will be happy.

If you think accurate translations are not important, please stay away from my garden.

But many asylum seekers are unable (or unwilling) to pay for professional translations, which can be quite costly. Instead, they do the translations themselves, or they use a friend who speaks “good English” (technically, anyone who claims to speak “good English” does not speak English very well). The problem faced by these non-professionals is that translating documents is not as easy as it looks.

I ran into this problem recently, when a keen-eyed DHS attorney discovered that my client’s translations were incorrect. The client had submitted several translated documents when he applied for asylum at the Asylum Office (using a different lawyer). These documents included a newspaper article, a police report, and several witness letters. The quality of the translations was poor, and so we asked the client to obtain better translations. Unfortunately, the new translator embellished some of the translations. Instead of translating the documents literally, he tried to include what the writer meant (or what the translator believed the writer meant). This problem is all too common. Sometimes, I catch it, and other times, I don’t. In this particular case, the DHS attorney caught the inconsistency, which–to state the obvious–is not great for our case.

Poor translations can cause real problems for asylum cases. I have at least one case where an inaccurate translation resulted in the case being denied by the Asylum Office and referred to Immigration Court (where it remains pending 3+ years later–ugh).

So how do you ensure that your translations are correct? And what happens if you can’t afford a professional translator?

First, any document that is not in English must be translated into English. For each such document, you must submit a copy of the original document (in the foreign language), an English translation, and a certificate of translation (for an example certificate of translation, see the Immigration Court Practice Manual, Appendix H).

Second, the translation should be accurate. This seems like a no-brainer, but in my experience, it is not. Here, “accurate” means that the translator should–as much as possible–literally change each and every word of the original document into the equivalent English word. Some words are not easy to translate from one language to the next. Other words have symbolic, cultural or idiomatic meanings that may differ from their literal meaning (the word “jihad” is a good example). In that case, translate the word literally, and maybe include a footnote indicating the meaning or cultural significance of the word. The footnote should clearly indicate that it is not part of the translation (for example, it could say, “Translator’s note:” and then include the explanation). Other times, the original document is vague or unclear. In that case, the translator should again literally translate the words, but can include an explanatory note. Sometimes, documents contain illegible words. For them, the translator can include a bracketed statement indicating that the text is [illegible].

Third, while I think it is not required, I strongly prefer that the translated text look similar to the original (or sometime like a mirror image of the original, if it is a right-to-left language like Arabic). So bold or underlined words in the original should be bold or underlined in English. If the original text has different paragraphs, the English should follow a similar format. If some words in the original are centered, or shifted to one side or to a corner of the page, the translation should do the same.

Fourth, every word of the document should be translated. For documents where that is not possible (like a newspaper where you are only interested in using one article on the page), the translator should clearly indicate what portions of the document are being translated. In this case, I prefer to highlight the original document to make clear which parts are being translated. Also, for news articles, it is important to include (in the original language and in English), the name of the newspaper, the date, the title of the article, and the author, if any. Certain documents contain a lot of unnecessary boilerplate verbiage (I’m thinking of you, Salvadoran birth certificates), and so a summary translation might be more appropriate. If you use a summary translation, you need to clearly indicate that it is a summary, not a literal translation. Whether all Judges and Asylum Officers will accept summary translations, I do not know, but we use them now and again, and we have not had any problems.

Finally, countries sometimes use different calendars and even different clocks. In this situation, I think the best practice is to translate the date or time literally, and then include an explanatory note (for example, in the Jewish calendar, today is the second day of the month of Elul in the year 5777, and so if a Hebrew document contained that date, the English translation would look like this: “2 Elul 5777 [August 24, 2017]”). Some translators include only the date in our system (and not “2 Elul 5777”), and I have never had a Judge or Asylum Officer reject that, but I still think the better practice is the literal translation + explanatory note.

A related issue is letters from people who do not speak English, including the asylum applicants themselves. If a person does not speak English, but submits an English letter or affidavit, there must be a “certificate of interpretation stating that the affidavit or declaration has been read to the person in a language that the person understands and that he or she understood it before signing.” See Immigration Court Practice Manual, p. 48. “The certificate must also state that the interpreter is competent to translate the language of the document, and that the interpretation was true and accurate to the best of the interpreter’s abilities.” Id.

Lastly, many asylum seekers speak English and can translate documents themselves. This is fine. However, a person should not sign a certificate of translation for her own case. So if you translate your own documents, find a friend who speaks both languages to review the documents and sign the certificate of translation.

Accurate translations can enhance credibility and help you win your case. So either find (and pay) a competent translator or – if you do it yourself or use a friend – take the time to ensure that the translations are accurate and complete. Otherwise, documents that might help your case could end up doing more harm than good.

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President Trump’s 101-Year Deportation Plan

by Jason Dzubow

Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.

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We’re All in Atlanta Now

by Jason Dzubow

Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

If you’re feeling down about Georgia exports, here’s something to love.

Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator  Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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“Us Versus Them” in Immigration Court

by Jason Dzubow

There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn’t better friends with my opposing counsel at the end of the case than at the beginning.”

Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.

His philosophy may be Old School and–in these days, where being nice to someone you disagree with has become all too rare–almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.

The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.

Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.

Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair–to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).

Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.

Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.

All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.

With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.

While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers–the immigration bar and DHS–should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country’s leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.

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